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As filed with the Securities and Exchange Commission on January 22, 2004
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
COMSTOCK RESOURCES, INC.
(Exact name of registrant as specified in its charter)
NEVADA 1311 94-1667468
(State or other jurisdiction of (Primary Standard Industries (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
5300 Town and Country Blvd., Suite 500 M. Jay Allison
Frisco, Texas 75034 President and Chief Executive Officer
(972) 668-8800 5300 Town and Country Blvd., Suite 500
Frisco, Texas 75034
(Address, including zip code, and (972) 668-8800
telephone number, including area code, (Name, Address, including zip
of Registrant's principal executive offices) code, and telephone number, including area
code, of agent for service)
Copies to:
Jack E. Jacobsen
Locke Liddell & Sapp LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
(214) 740-8000
Approximate date of commencement of proposed sale to the public: From time to
time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment, plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
=================================================================================================
Proposed
Title of Each Class Amount Proposed Maximum Maximum
of Securities to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share(2) Offering Price Registration Fee
Common Stock, $.50 par value..... 2,220,000 $18.76 $41,647,200 $3,369
Preferred Stock Purchase Rights.. (3) (3) (3) (3)
=================================================================================================
(1) Represents the number of shares to be issued or issuable upon exercise of
certain common stock purchase warrants.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to rule 457(c) based upon the average of the high and low price of
a share of common stock on January 16, 2004 as quoted on the New York Stock
Exchange.
(3) There are hereby registered Preferred Stock Purchase Rights ("Rights"),
which Rights (i) are related to shares of common stock in the ratio of one
Right to one share, (ii) are not evidenced by separate certificates and
(iii) may not be transferred except upon transfer of the related shares of
common stock. The value attributable to the Rights is reflected in the
market value of the related shares of common stock and therefore, the
inclusion of the Rights does not increase the proposed maximum offering
price under this Registration Statement. Consequently, no additional
registration fee is payable for the registration of the Rights.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement we have filed with
the Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion, Dated ___________, 2004
PROSPECTUS
COMSTOCK RESOURCES, INC.
2,220,000 Shares of Common Stock
We are registering for resale a total of 2,220,000 shares of our common
stock, par value of $.50 per share, for sale by the selling security holders
identified in this prospectus. Please see the section in this prospectus
entitled "Selling Security Holders."
The selling security holders will be issued shares of our common stock upon
exercise of warrants to purchase our common stock that have been issued to them
in connection with an exploration venture.
We will not receive any of the proceeds from the sale of the common stock
by the selling security holders. We have agreed to pay the expenses of the
selling security holders in connection with the registration of these shares of
our common stock. We estimate those expenses to be $16,000.
The common stock offered by this prospectus shall be adjusted to cover any
additional securities as may become issuable to prevent dilution resulting from
stock splits, stock dividends or similar transactions.
The selling security holders may offer the shares from time to time through
public or private transactions on or off the New York Stock Exchange at
prevailing market prices, at prices related to such prevailing market prices or
at privately negotiated prices. Our common stock is listed on the New York Stock
Exchange under the symbol "CRK." On January 21, 2004, the last reported sale
price for our common stock was $19.31 per share. The complete mailing address
and telephone number of our principal executive office is 5300 Town and Country
Blvd., Suite 500, Frisco, Texas 75034; (972) 668- 8800.
__________
This investment involves a high degree of risk. Please see the section in
this prospectus entitled "Risk Factors" beginning on page 9.
__________
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
__________
The date of this prospectus is ____________, 2004
TABLE OF CONTENTS
PAGE
About this Prospectus........................................................3
Cautionary Statement Regarding
Forward-Looking Statements...............................................4
Comstock Resources, Inc......................................................5
Risk Factors.................................................................8
Use of Proceeds.............................................................13
Selling Security Holders....................................................14
Plan of Distribution........................................................14
SEC Position on Indemnification.............................................15
Legal Matters...............................................................15
Experts.....................................................................16
Where You Can Find More Information.........................................17
Information Incorporated by Reference.......................................17
2
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC. This prospectus only provides you with a general description of the
securities being offered by the selling security holders. You should read this
prospectus together with the additional information described under the heading
"WHERE YOU CAN FIND MORE INFORMATION."
You should rely only on the information contained or incorporated by
reference in this prospectus and in any accompanying prospectus supplement. We
have not authorized any other person to provide you with different information.
If anyone provides you with different or inconsistent information, you should
not rely on it. We are not making an offer of the securities covered by this
prospectus in any state where the offer is not permitted. You should assume that
the information appearing in this prospectus, any prospectus supplement and any
other document incorporated by reference is accurate only as of the date on the
front cover of those documents. Our business, financial condition, results of
operations and prospects may have changed since those dates.
Under no circumstances should the delivery to you of this prospectus create
any implication that the information contained in this prospectus is correct as
of any time after the date of this prospectus.
Unless otherwise indicated or unless the context otherwise requires, all
references in this prospectus to "Comstock," "we," "us," and "our" mean Comstock
Resources, Inc. and its consolidated subsidiaries. In this prospectus, we
sometimes refer to the debt securities, common stock, preferred stock, warrants
and units collectively as the "securities."
3
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS
The information contained in this prospectus, including the documents
incorporated by reference herein and our public releases include
"forward-looking statements" within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These
forward- looking statements are identified by their use of terms such as
"expect," "estimate," "anticipate," "project," "plan," "intend," "believe" and
similar terms. All statements, other than statements of historical facts,
included in or incorporated by reference to this prospectus, are forward-looking
statements, including statements under the caption "Risk Factors," regarding:
o budgeted capital expenditures;
o increases in oil and natural gas production;
o the number of anticipated wells to be drilled after the date hereof;
o our financial position;
o oil and natural gas reserve estimates;
o business strategy; and
o other plans and objectives for future operations.
Although we believe that the expectations reflected in these
forward-looking statements are reasonable, we can give no assurance that these
expectations will prove to be correct. Our actual results could differ
materially from those anticipated in these forward-looking statements as a
result of certain factors, including, among others:
o the risks described in the sections captioned "Risk Factors" in this
prospectus;
o the timing and success of our drilling activities;
o the volatility of prices and supply of, and demand for, oil and
natural gas;
o the numerous uncertainties inherent in estimating quantities of oil
and natural gas reserves and actual future production rates and
associated costs;
o our ability to successfully identify, execute or effectively integrate
future acquisitions;
o the usual hazards associated with the oil and gas industry, including
fires, well blowouts, pipe failure, spills, explosions and other
unforeseen hazards;
o our ability to effectively market our oil and natural gas;
o the availability of rigs, equipment, supplies and personnel;
o our ability to acquire or discover additional reserves;
o our ability to satisfy future capital requirements;
o changes in regulatory requirements;
o general economic and competitive conditions;
o our ability to retain key members of our senior management and key
employees; and
o continued hostilities in the Middle East and other sustained military
campaigns and acts of terrorism or sabotage.
4
There are numerous uncertainties inherent in estimating quantities of
proved oil and natural gas reserves and in projecting future rates of production
and timing of development expenditures, including many factors beyond our
control. Reserve engineering is a subjective process of estimating underground
accumulations of oil and natural gas that cannot be precisely measured.
Furthermore, the accuracy of any reserve estimate is a function of the quality
of available data and of engineering and geological interpretation and judgment.
As a result, estimates made by different engineers often vary from one to
another. In addition, results of drilling, testing and production subsequent to
the date of an estimate may justify revisions of the estimate and the revisions,
if significant, would change the schedule of any further production and
development drilling. Accordingly, reserve estimates are generally different
from the quantities of oil and natural gas that are ultimately recovered.
Additional important factors that could cause actual results to differ
materially from our expectations are discussed in "Risk Factors" and elsewhere
in this prospectus. Should one or more of these risks or uncertainties occur, or
should underlying assumptions prove incorrect, our actual results and plans for
2003 and beyond could differ materially from those expressed in the
forward-looking statements. All subsequent written and oral forward-looking
statements attributable to us or persons acting on our behalf are expressly
qualified in their entirety by such factors.
COMSTOCK RESOURCES, INC.
We are an independent energy company engaged in the acquisition,
development, production and exploration of oil and natural gas properties. Our
oil and natural gas operations are concentrated in the Gulf of Mexico, East
Texas / North Louisiana, Southeast Texas and South Texas regions. In addition,
we have properties in the Illinois Basin region in Kentucky and in the
Mid-Continent regions located in the Texas panhandle, Oklahoma and Kansas. Our
oil and natural gas properties are estimated to have proved reserves of 613.9
Bcfe as of December 31, 2002. Our proved oil and natural gas reserve base is 80%
natural gas and 66% proved developed on a Bcfe basis as of December 31, 2002.
Our proved reserves at December 31, 2002 and our 2002 average daily
production are summarized below:
Proved Reserves at December 31, 2002 2002 Daily Production
--------------------------------------- ---------------------------------------
% of % of
Oil Gas Total Total Oil Gas Total Total
------ ------- ------- ------- ------- ------- ------- -------
(MMBbls) (Bcf) (Bcfe) (MBbls/d) (MMcf/d) (MMcfe/d)
Gulf of Mexico ............... 15.6 96.1 189.7 30.9 2.2 20.7 33.6 29.8
East Texas / North Louisiana.. 1.1 182.0 188.5 30.7 0.3 32.4 34.2 30.4
Southeast Texas .............. 3.1 107.1 125.5 20.4 0.9 24.3 29.5 26.2
South Texas .................. 0.7 47.0 51.3 8.4 0.1 6.5 7.0 6.2
Other Regions ................ 0.3 56.6 58.9 9.6 0.1 7.2 8.3 7.4
------ ------- ------- ------- ----- ------ ------- -------
Total .................... 20.8 488.8 613.9 100.0% 3.6 91.1 112.6 100.0%
====== ====== ======= ======= ===== ====== ======= =======
Strengths
Quality Properties. Our operations are focused in four geographically
concentrated areas: the Gulf of Mexico, East Texas / North Louisiana, Southeast
Texas and South Texas regions, which account for approximately 31%, 31%, 20% and
8% of our proved reserves, respectively. We have high price realizations
relative to benchmark prices for natural gas and crude oil production. We also
have favorable operating costs which result in us having high cash margins.
Finally, our properties have an average reserve life of approximately 15.0 years
and have extensive development and exploration potential.
5
Successful Exploration and Development Program. In 2002, we spent $35.3
million on the exploitation and development of our oil and natural gas
properties for development drilling, recompletions, workovers and production
facilities. Overall, we drilled 27 development wells, 11.7 net to us, with a 96%
success rate. We also had a successful exploratory drilling program in 2002,
spending a total of $31.1 million to drill 20 wells, 7.6 net to us, with a 75%
success rate. We spent an additional $4.3 million in acquiring new acreage in
2002 to support our exploration program.
Successful Acquisitions. We have had significant growth over the years as a
result of acquisitions. Since 1991, we have added 711.7 Bcfe of proved oil and
natural gas reserves from 29 acquisitions at an average cost of $0.84 per Mcfe.
Our application of strict economic and reserve risk criteria have enabled us to
successfully evaluate and integrate our previous acquisitions.
Efficient Operator. We operate 60% of our proved oil and natural gas
reserve base as of December 31, 2002. This allows us to control operating costs,
the timing and plans for future development, the level of drilling and lifting
costs and the marketing of production. As an operator, we receive reimbursements
for overhead from other working interest owners, which reduces our general and
administrative expenses.
High Price Realizations. The majority of our wells are located in areas
which can access attractive natural gas and crude oil markets. In addition, our
natural gas production has a relatively high Btu content of approximately 1,079
Btu. Our crude oil production has a favorable API gravity of approximately 40
degrees. Due to these factors, we have relatively high price realizations
compared to benchmark prices. In 2002 our average natural gas price, before
gains from hedging activities, was $3.26 per Mcf, which represented a $0.04
premium to the 2002 NYMEX average monthly settlement price. Also in 2002, our
average crude oil price was $24.95 per barrel, which represented a $2.04 barrel
premium to the average monthly West Texas Intermediate crude oil price for 2002
posted by Koch Industries, Inc.
High Cash Margins. As a result of our quality properties, higher price
realizations and efficient operations, we believe we have higher cash margins
than most of our competitors. Consequently, our oil and natural gas reserves
have a higher value per Mcfe than reserves that generate lower cash margins.
Business Strategy
Exploit Existing Reserves. We seek to maximize the value of our oil and
natural gas properties by increasing production and recoverable reserves through
active workover, recompletion and exploitation activities. We utilize advanced
industry technology, including 3-D seismic data, improved logging tools, and
formation stimulation techniques. During 2002, we spent approximately $22.9
million to drill 27 development wells, 11.7 net to us, of which 26 wells, 10.7
net to us, were successful, representing a success rate of 96%. In addition, we
spent approximately $12.4 million for new production facilities, leasehold costs
and for recompletion and workover activities. For 2003, we have budgeted $49.0
million for development drilling and for workover and recompletion activity.
Pursue Exploration Opportunities. We conduct exploration activities to grow
our reserve base and to replace our production each year. In 2002 we replaced
131% of our 2002 production from new discoveries. In 2002, we spent
approximately $31.1 million to drill 20 exploratory wells, 7.6 net to us, of
which 15 wells, 5.3 net to us, were successful, representing a success rate of
75%. We also spent $4.3 million in acquiring new acreage in 2002 to support our
exploration program. We have budgeted $51.0 million in 2003 for exploration
activities which will be focused primarily in the Gulf of Mexico, Southeast
Texas and South Texas regions.
6
Maintain Low Cost Structure. We seek to increase cash flow by carefully
controlling operating costs and general and administrative expenses. Our average
oil and gas operating costs per Mcfe were $0.82 in 2002 and our general and
administrative expenses per Mcfe averaged only $0.12 in 2002.
Acquire High Quality Properties at Attractive Costs. We have a successful
track record of increasing our oil and natural gas reserves through
opportunistic acquisitions. Since 1991, we have added 711.7 Bcfe of proved oil
and natural gas reserves from 29 acquisitions at a total cost of $598.3 million,
or $0.84 per Mcfe. The acquisitions were acquired at an average of 63% of their
present value of proved reserves in the year the acquisitions were completed. We
apply strict economic and reserve risk criteria in evaluating acquisitions. We
target properties in our core operating areas with established production and
low operating costs that also have potential opportunities to increase
production and reserves through exploration and exploitation activities.
Maintain Flexible Capital Expenditure Budget. The timing of most of our
capital expenditures is discretionary because we have not made any significant
long-term capital expenditure commitments. Consequently, we have a significant
degree of flexibility to adjust the level of such expenditures according to
market conditions. We anticipate spending approximately $125.0 million on
development and exploration projects in 2004. We intend to primarily use
operating cash flow to fund our drilling expenditures in 2004. We may also make
additional property acquisitions in 2004 that would require additional sources
of funding. Such sources may include borrowings under our bank credit facility
or sales of our equity or debt securities.
7
RISK FACTORS
The securities to be offered by this prospectus may involve a high degree
of risk. When considering an investment in any of the securities, you should
consider carefully all of the risk factors described below and any similar
information contained in any Annual Report on Form 10-K or other document filed
by us with the SEC after the date of this prospectus. If applicable, we will
include in any prospectus supplement a description of those significant factors
that could make the offering described in the prospectus supplement speculative
or risky.
Our revenues, profitability and cash flow is dependent upon the prices for
oil and natural gas and these prices are volatile.
Our business is dependent upon the prices of, and demand for, oil and
natural gas. Historically, the prices for oil and natural gas have been volatile
and are likely to remain volatile in the future. The prices we receive for our
oil and natural gas production and the level of such production are subject to
wide fluctuations and depend on numerous factors beyond our control, including,
without limitation:
o seasonality;
o imports of crude oil and natural gas;
o political conditions in other oil-producing and natural gas-producing
countries;
o the actions of the Organization of Petroleum Exporting Countries;
o domestic government regulation, legislation and policies;
o price and availability of alternative fuels; and
o overall economic conditions.
Any continued and extended decline in the price of crude oil or natural gas
will adversely affect our:
o revenues, profitability and cash flow from operations;
o value of our proved oil and natural gas reserves;
o the economic viability of certain of our drilling prospects;
o borrowing capacity; and
o ability to obtain additional capital.
In order to reduce our exposure to price risks, we may enter into oil and
natural gas price swap arrangements to hedge a portion of our anticipated sales.
Such arrangements may limit our ability to benefit from increases in oil and
natural gas prices. Although we are not currently experiencing any significant
involuntary curtailment of our natural gas production, market, economic and
regulatory factors may in the future materially affect our ability to sell our
natural gas production.
We plan to pursue acquisitions as part of our growth strategy and there are
risks in connection with acquisitions.
Our growth in recent years is attributable in part to acquisitions of
producing properties and companies. We expect to continue to evaluate and, where
appropriate, pursue acquisition opportunities on terms we consider favorable.
However, we cannot assure you that suitable acquisition candidates will be
8
identified in the future, or that we will be able to finance such acquisitions
on favorable terms. In addition, we compete against other companies for
acquisitions, and we cannot assure you that we will successfully acquire any
material property interests. Further, we cannot assure you that future
acquisitions by us will be integrated successfully into our operations or will
increase our profits.
The successful acquisition of producing properties requires an assessment
of numerous factors beyond our control, including, without limitation:
o recoverable reserves;
o exploration potential;
o future oil and natural gas prices;
o operating costs; and
o potential environmental and other liabilities.
In connection with such an assessment, we perform a review of the subject
properties that we believe to be generally consistent with industry practices.
The resulting assessments are inexact and their accuracy uncertain, and such a
review may not reveal all existing or potential problems, nor will it
necessarily permit us to become sufficiently familiar with the properties to
fully assess their merits and deficiencies. Inspections may not always be
performed on every well, and structural and environmental problems are not
necessarily observable even when an inspection is made.
Additionally, significant acquisitions can change the nature of our
operations and business depending upon the character of the acquired properties,
which may be substantially different in operating and geologic characteristics
or geographic location than our existing properties. While our current
operations are focused in the Gulf of Mexico, East Texas/North Louisiana,
Southeast Texas, South Texas, the Illinois Basin and the Mid-Continent regions,
we may pursue acquisitions or properties located in other geographic areas.
We have substantial debt and debt service requirements which could adversely
affect our operations and limit our growth.
Large Amount of Debt
We have substantial debt and debt service requirements. As of September 30,
2003, our ratio of total debt to total capitalization was approximately 53%.
Consequences of Debt
Our substantial debt will have important consequences, including, without
limitation:
o a substantial portion of our cash flow from operations will be
required to make debt service payments;
o our ability to borrow additional amounts for working capital, capital
expenditures (including acquisitions) or other purposes will be
limited; and
o our debt could limit our ability to capitalize on significant business
opportunities, our flexibility in planning for or reacting to changes
in market conditions and our ability to withstand competitive
pressures and economic downturns.
9
In addition, future acquisition or development activities may require us to
alter our capitalization significantly. These changes in capitalization may
significantly increase our debt. Moreover, our ability to meet our debt service
obligations and to reduce our total debt will be dependent upon our future
performance, which will be subject to general economic conditions and financial,
business and other factors affecting our operations, many of which are beyond
our control. If we are unable to generate sufficient cash flow from operations
in the future to service our indebtedness and to meet other commitments, we will
be required to adopt one or more alternatives, such as refinancing or
restructuring our indebtedness, selling material assets or seeking to raise
additional debt or equity capital. We cannot assure you that any of these
actions could be effected on a timely basis or on satisfactory terms or that
these actions would enable us to continue to satisfy our capital requirements.
Restrictive Debt Covenants
Our bank credit facility contains a number of significant covenants. These
covenants will limit our ability to, among other things:
o borrow additional money;
o merge, consolidate or dispose of assets;
o make certain types of investments;
o enter into transactions with our affiliates; and
o pay dividends.
Our failure to comply with any of these covenants would cause a default
under our bank credit facility and the indenture governing the notes. A default,
if not waived, could result in acceleration of our indebtedness, in which case
the debt would become immediately due and payable. If this occurs, we may not be
able to repay our debt or borrow sufficient funds to refinance it. Even if new
financing is available, it may not be on terms that are acceptable to us.
Complying with these covenants may cause us to take actions that we otherwise
would not take or not take actions that we otherwise would take.
We may not have sufficient funds to meet our substantial capital requirements.
We make, and will continue to make, substantial capital expenditures for
the acquisition, development and exploration of oil and natural gas reserves.
Historically, we have financed these expenditures primarily with cash generated
by operations, bank borrowings and the sale of equity securities and non-
strategic assets. We believe that we will have sufficient cash provided by
operating activities to fund anticipated capital expenditures other than
significant acquisitions. We intend to borrow under our bank credit facility or
to obtain other debt or equity financing as needed to finance future
acquisitions. If revenues or our borrowing base decrease as a result of lower
oil and natural gas prices, operating difficulties or declines in reserves, our
ability to obtain the capital necessary to undertake or complete future
development programs and to pursue acquisition opportunities may be limited. We
cannot assure you that additional debt or equity financing or cash generated
from operations will be available to meet these requirements. If we need
additional funds, our inability to raise such funds may adversely affect our
operations.
Our future production and revenues depend on our ability to replace our
reserves.
Our future production and revenues depend upon our ability to find, develop
or acquire additional oil and natural gas reserves that are economically
recoverable. Our proved reserves will generally decline as reserves are
10
depleted, except to the extent that we conduct successful exploration or
development activities or acquire properties containing proved reserves, or
both. To increase reserves and production, we must continue our acquisition and
drilling activities. We cannot assure you, however, that our acquisition and
drilling activities will result in significant additional reserves or that we
will have continuing success drilling productive wells at low finding and
development costs. Furthermore, while our revenues may increase if prevailing
oil and natural gas prices increase significantly, our finding costs for
additional reserves could also increase.
Our drilling activities are subject to many risks.
Our drilling activities are subject to many risks, including the risk that
no commercially productive reservoirs will be encountered. We cannot assure you
that new wells we drill will be productive or that we will recover all or any
portion of our investment. Drilling for oil and natural gas may involve
unprofitable efforts, not only from dry wells, but from wells that are
productive but do not produce sufficient net revenues to return a profit after
drilling, operating and other costs. The cost of drilling, completing and
operating wells is often uncertain. Our drilling operations may be curtailed,
delayed or canceled as a result of numerous factors, many of which are beyond
our control, including, without limitation:
o title problems;
o adverse weather conditions;
o compliance with governmental requirements; and
o shortages or delays in the delivery of equipment and services.
Our operations are subject to operating hazards and uninsured risks.
Our operations are subject to all of the risks normally associated with the
exploration for and the production of oil and natural gas, including, without
limitation, blowouts, cratering, oil spills and fires, each of which could
result in damage to or destruction of oil and natural gas wells, production
facilities or other property, or injury to persons. In addition, we may from
time to time conduct relatively deep drilling which will involve increased
drilling risks of high pressures and mechanical difficulties, including stuck
pipe, collapsed casing and separated cable. We cannot assure you that our
insurance will adequately cover any losses or liabilities. Furthermore, we
cannot predict the continued availability of insurance, or availability at
commercially acceptable prices.
We operate in a highly competitive industry, and our failure to remain
competitive with our competitors, many of which have greater resources than us,
could adversely affect our results of operations.
The oil and natural gas industry is highly competitive in the search for
and development and acquisition of reserves. Our competitors for the
acquisition, development and exploration of oil and natural gas properties and
capital to finance such activities, include companies that have greater
financial and personnel resources than we do. These resources could allow those
competitors to price their products and services more aggressively than we can,
which could hurt our profitability. Moreover, our ability to acquire additional
properties and to discover reserves in the future will be dependent upon our
ability to evaluate and select suitable properties and to close transactions in
a highly competitive environment.
11
There are many uncertainties in estimating reserves and future net cash flows.
There are many uncertainties in estimating quantities and values of proved
reserves, projecting future rates of production and timing of development
expenditures, including many factors beyond our control. Reserve engineering is
a subjective process of estimating the recovery from underground accumulations
of oil and natural gas that cannot be precisely measured. The accuracy of any
reserve estimate depends on the quality of available data, production history
and engineering and geological interpretation and judgment. Because all reserve
estimates are to some degree speculative, the quantities of oil and natural gas
that are ultimately recovered, production and operating costs, the amount and
timing of future development expenditures and future oil and natural gas prices
may all differ materially from those assumed in these estimates. In addition,
different reserve engineers may make different estimates of reserve quantities
and cash flows based upon the same available data. The present value of the
future net cash flows attributable to our proved oil and natural gas reserves
set forth in this prospectus and in documents incorporated into this prospectus
are estimates only and should not be construed as the current market value of
the estimated oil and natural gas reserves attributable to our properties. Thus,
the information set forth in this prospectus includes revisions of certain
reserve estimates attributable to proved properties included in the preceding
year's estimates. Such revisions reflect additional information from subsequent
activities, production history of the properties involved and any adjustments in
the projected economic life of such properties resulting from changes in product
prices. Any future downward revisions could adversely affect our financial
condition, borrowing base under our bank credit facility, future prospects and
the market value of our securities.
If we are unsuccessful at marketing our oil and gas at commercially acceptable
prices, our profitability will decline.
Our ability to market oil and gas at commercially acceptable prices depends
on, among other factors, the following:
o the availability and capacity of gathering systems and pipelines;
o federal and state regulation of production and transportation;
o changes in supply and demand; and
o general economic conditions.
Our inability to respond appropriately to changes in these factors could
negatively effect our profitability.
We are subject to extensive governmental regulation, including environmental
regulations, that may adversely affect our costs.
Our business is affected by certain federal, state and local laws and
regulations relating to the development, production, marketing, pricing,
transportation and storage of oil and natural gas. Our business is also subject
to extensive and changing environmental and safety laws and regulations
governing plugging and abandonment of wells, the discharge of materials into the
environment or otherwise relating to environmental protection. Sanctions for
noncompliance with these laws and regulations may include administrative, civil
and criminal penalties, revocation of permits and corrective action orders.
These laws sometimes apply retroactively. In addition, a party can be liable for
environmental damage without regard to that party's negligence or fault.
Therefore, we could have liability for the conduct of others, or for acts that
were in compliance with all applicable laws at the time we performed them.
Environmental laws have become more stringent over the years. In addition, the
12
modification or interpretation of existing laws or regulations or the adoption
of new laws or regulations curtailing exploratory or development drilling for
oil and gas could limit well servicing opportunities. We cannot assure you that
present or future regulation will not adversely affect our operations.
We depend on our key personnel and the loss of any of these individuals could
have a material adverse effect on our operations.
We believe that the success of our business strategy and our ability to
operate profitably depend on the continued employment of M. Jay Allison,
President and Chief Executive Officer, and a limited number of other senior
management personnel. Loss of the services of Mr. Allison or any of those other
individuals could have a material adverse effect on our operations.
Shortage of rigs, equipment, supplies or qualified personnel may restrict our
operations.
Our industry is cyclical and, from time to time, there is a shortage of
drilling rigs, equipment, supplies or qualified personnel. During these periods,
the costs and delivery times of rigs, equipment and supplies are substantially
greater. In addition, demand for, and wage rates of, qualified drilling rig
crews rise with increases in the number of active rigs in service. Shortages of
drilling rigs, equipment or supplies could delay or restrict our exploration and
development operations, which in turn could adversely affect our financial
condition and results of operations.
Terrorist attacks and continued hostilities in the Middle East or other
sustained military campaigns may adversely impact our business.
The terrorist attacks that took place in the United States on September 11,
2001 were unprecedented events that have created many economic and political
uncertainties, some of which may materially adversely impact our business. The
long-term impact that terrorist attacks and the threat of terrorist attacks may
have on our business is not known at this time. Uncertainties surrounding
continued hostilities in the Middle East or other sustained military campaigns
may adversely impact our business in unpredictable ways.
USE OF PROCEEDS
The selling security holders will receive all of the proceeds from the sale of
the shares of our common stock and we will not receive any proceeds from the
sale of those shares.
13
SELLING SECURITY HOLDERS
The following table sets forth information as of January 22, 2004 regarding
the selling security holders and the shares of common stock owned by them and
the shares that they (and their pledges, donees and transferees) may offer and
sell from time to time under this prospectus.
Name and Number of
Address of Shares Number of Before Offering After Offering
Selling Security Beneficially Shares Percentage of Percentage of
Holder Owned(1)(2) Offered(1)(2) Common Stock Common Stock
- ------------------------ ------------ ------------ ------------ ------------
Gary W. Blackie 955,000 655,000 2.7% 0.9%
600 Travis St.
Suite 6275
Houston Texas 77002
Sally L. Blackie 451,225 445,000 1.3% --
5900 Highway 290 East
Brenham, Texas 77833
Wayne L. Laufer 1,338,300 1,100,000 3.8% 0.7%
20021 120th Ave. N.E.
Suite 202
Bothell, Washington 98021
Gregory T. Marin 20,200 20,000 0.1% --
600 Travis St.
Suite 6275
Houston, Texas 77002
----------- ------------
2,764,725 2,220,000 7.6% 1.5%
=========== ============
(1) Includes shares issuable upon exercise of common stock purchase
warrants at exercise prices ranging from $6.48 to $18.70 per share.
(2) Includes 120,000 warrants which have not vested pursuant to the terms
of the Exploration Agreements.
PLAN OF DISTRIBUTION
We are registering the shares on behalf of the selling security holders.
The shares may be sold by the selling security holders or by pledges, donees,
transferees or other successors in interest. We are paying all costs, expenses
and fees in connection with the registration of the shares offered hereby.
Brokerage commissions, if any, attributable to the sale of shares will be borne
by the selling security holders (or their pledges, donees, transferees or other
successors in interest).
Sales of shares may be effected from time to time in transactions (which
may include block transactions) on the New York Stock Exchange, in negotiated
transactions, or a combination of such methods of sale, at fixed prices which
may be changed, at market prices prevailing at the time of sale, or at privately
negotiated prices. The selling security holders may effect such transactions by
selling common stock directly to purchasers or to or through broker-dealers
which may act as agents or principals. Such broker-dealers may receive
compensation in the form of discounts, concessions or commissions from the
selling security holders and/or the purchasers of common stock for whom such
broker-dealers may act as agents or to whom they sell as principal, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions). To the extent required under the Securities Act of 1933,
the aggregate amount of selling security holders' shares being offered and the
terms of the offering, the names of any such agents, brokers, dealers or
underwriters and any applicable commission with respect to a particular offer
will be set forth in an accompanying prospectus supplement. Sales of selling
security holders' shares may also be made pursuant to Rule 144 under the
Securities Act of 1933, where applicable, and any other legally available means.
14
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The selling security holders and any broker-dealers that act in connection
with the sale of the shares might be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act and any commission received by
them and any profit on the resale of the shares of common stock as principal
might be deemed to be underwriting discounts and commissions under the
Securities Act of 1933. The selling security holders may agree to indemnify any
agent, dealer or broker-dealer that participates in transactions involving sales
of the shares against certain liabilities, including liabilities arising under
the Securities Act of 1933. Liabilities under the federal securities laws cannot
be waived.
Because the selling security holders may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act, the selling security
holders will be subject to prospectus delivery requirements under the Securities
Act. Furthermore, in the event of a "distribution" of the shares, such selling
security holder, any selling broker or dealer and any "affiliated purchasers"
may be subject to Regulation M under the Securities Exchange Act of 1934, which
Regulation would prohibit, with certain exceptions, any such person from bidding
for or purchasing any security which is the subject of such distribution until
his participation in that distribution is completed. In addition, Regulation M
under the Exchange Act prohibits, with certain exceptions, any "stabilizing bid"
or "stabilizing purchase" for the purpose of pegging, fixing or stabilizing the
price of common stock in connection with this offering.
The selling security holders may be entitled under agreements entered into
with us to indemnification against liabilities under the Securities Act of 1933.
SEC POSITION ON INDEMNIFICATION
Under our bylaws, our directors and officers are indemnified against certain
causes of action. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the registrant, the registrant, has been informed that in the
opinion of the SEC, such indemnification is against public policy as expressed
in the Securities Act of 1933 and is therefore unenforceable.
LEGAL MATTERS
Locke Liddell & Sapp LLP, will issue an opinion for us regarding the
legality of the securities offered by this prospectus and applicable prospectus
supplement. If the securities are being distributed in an underwritten offering,
certain legal matters will be passed upon for the underwriters by counsel
identified in the applicable prospectus supplement.
15
EXPERTS
Our consolidated financial statements as of December 31, 2001 and 2002, and
for each of the years in the three-year period ended December 31, 2002, have
been incorporated by reference herein in reliance upon the report of KPMG LLP,
independent accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. The audit report
contains an explanatory note that refers to a restatement of the consolidated
financial statements as of December 31, 2002 and for the two-year period then
ended. The audit report covering the December 31, 2001 consolidated financial
statements also refers to a change in our method for accounting for derivative
financial instruments.
With respect to the unaudited interim financial information for the periods
ended March 31, 2003, incorporated by reference herein, KPMG has reported that
they applied limited procedures in accordance with professional standards for a
review of such information. However, their separate report included in our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2003, and
incorporated by reference herein, stated that they did not audit and they do not
express an opinion on that interim financial information. Accordingly, the
degree of reliance on their report on such information should be restricted in
light of the limited nature of the review procedures applied. The accountants
are not subject to the liability provisions of Section 11 of the Securities Act
of 1933 for their report on the unaudited interim financial information because
that report is not a "report" or a "part" of the registration statement prepared
or certified by the accountants within the meaning of Sections 7 and 11 of the
Securities Act of 1933. The review report covering the March 31, 2003 financial
statements refers to a change in the method of accounting for asset retirements
obligations related to the adoption of Statement of Financial Accounting
Standards No. 143, "Accounting for Asset Retirement Obligations."
On May 16, 2003, we filed a Current Report on Form 8-K announcing that our
audit committee engaged Ernst & Young LLP as our independent public accountants
for fiscal 2003, replacing KPMG LLP. The decision to change independent public
accountants was not the result of any disagreement with KPMG LLP on matters of
accounting principles or practices, financial statement disclosure or auditing
scope and procedure. With respect to the unaudited interim financial information
for the periods ended June 30, 2003 and September 30, 2003, which are included
in our Form 10-Q`s for the periods ended June 30, 2003 and September 30, 2003
and which are incorporated herein by reference, Ernst & Young LLP has applied
limited procedures in accordance with professional standards for a review of
such information. However, as stated in their report included in our Quarterly
Report on Form 10-Q for the quarter ended June 30, 2003 and Form 10-Q for the
quarter ended September 30, 2003 incorporated by reference herein, they did not
audit and they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their report on such information should
be restricted in light of the limited nature of the review procedures applied.
Ernst & Young LLP is not subject to the liability provisions of Section 11 of
the Securities Act of 1933 for their reports on the unaudited interim financial
information because those reports are not "reports" or a "part" of the
registration statement prepared or certified by an accountant within the meaning
of Sections 7 and 11 of the Securities Act of 1933.
Certain estimates of our oil and natural gas reserves and related
information incorporated by reference in this prospectus have been derived from
engineering reports prepared by Lee Keeling & Associates as of December 31,
2000, 2001 and 2002, and all such information has been so included on the
authority of such firm as an expert regarding the matters contained in its
reports.
16
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934, and therefore we file annual, quarterly and current reports, proxy
statements and other documents with the SEC. You may read and copy any of the
reports, proxy statements and any other information that we file at the SEC's
Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may
obtain information on the operation of the Public Reference Room by calling the
SEC at 1-800-SEC- 0330. In addition, the SEC maintains a website at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the SEC.
We also maintain a website at http://www.comstockresources.com; however, the
information contained at this website does not constitute part of this
prospectus. Reports, proxy and information statements and other information
about us may be inspected at the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
We have filed with the SEC a registration statement on Form S-3 under the
Securities Act of 1933, with respect to the securities offered in this
prospectus. This prospectus is part of that registration statement and, as
permitted by the SEC's rules, does not contain all of the information set forth
in the registration statement. For further information about us and the
securities that may be offered, we refer you to the registration statement and
the exhibits that are filed with it. You can review and copy the registration
statement and its exhibits and schedules from the SEC at the address listed
above or from its web site.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" into this prospectus
certain information we file with the SEC in other documents. This means that we
can disclose important information to you by referring you to other documents
that we file with the SEC. The information may include documents filed after the
date of this prospectus which update and supersede the information you read in
this prospectus. We incorporate by reference the documents listed below, except
to the extent information in those documents is different from the information
contained in this prospectus, and all future documents filed by us with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until the offering of the securities described herein is terminated:
o Our Annual Report on Form 10-K for the year ended December 31, 2002;
o Our Quarterly Report on Form 10-Q for the three months ended March 31,
2003;
o Our Quarterly Report on Form 10-Q for the six months ended June 30,
2003;
o Our Quarterly Report on Form 10-Q for the nine months ended September
30, 2003;
o Our Proxy Statement on Schedule 14A filed with the SEC on April 22,
2003 for the 2003 annual meeting of stockholders;
o Our Current Report on Form 8-K dated February 18, 2003;
o Our Current Report on Form 8-K dated March 21, 2003;
o Our Current Report on Form 8-K dated May 7, 2003;
o Our Current Report on Form 8-K dated May 5, 2003;
o Our Current Report on Form 8-K dated May 13, 2003;
17
o Our Current Report on Form 8-K dated May 16, 2003;
o Our Current Report on Form 8-K dated August 7, 2003;
o Our Current Report on Form 8-K dated November 5, 2003;
o Our Current Report on Form 8-K/A dated November 7, 2003; and
o Our Registration Statement on Form 8-A registering our common stock
filed with the SEC on September 6, 1996.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this prospectus shall be deemed modified,
superseded or replaced for purposes of this prospectus to the extent that a
statement contained in this prospectus or in any subsequently filed document
that also is or is deemed to be incorporated by reference in this prospectus
modifies, supersedes or replaces such statement. Any statement so modified,
superseded or replaced shall not be deemed, except as so modified, superseded or
replaced, to constitute a part of this prospectus.
We will provide without charge to each person, including any beneficial
owner, to whom a copy of this prospectus is delivered, upon that person's
written or oral request, a copy of any or all of the information incorporated by
reference in this prospectus (other than exhibits to those documents, unless the
exhibits are specifically incorporated by reference into the information that
this prospectus incorporates). Requests should be directed to:
Comstock Resources, Inc.
Attention: Roland O. Burns, Senior Vice President
5300 Town and County Blvd., Suite 500
Frisco, Texas 75034
Telephone number: (972) 668-8800
18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, other than selling
or underwriting discounts and commissions, to be incurred by us in connection
with the issuance and distribution of the securities being registered hereby.
With the exception of the SEC registration fee, all fees and expenses set forth
below are estimates.
SEC registration fee ........... $ 3,369
Legal fees and expenses ........ 5,000
Accounting fees and expenses ... 7,500
Miscellaneous .................. 131
-------
Total ..................... $16,000
=======
Item 15. Indemnification of Directors and Officers.
Section 78.7502 of the General Corporation Law of Nevada 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 or she 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 or her 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 our 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 of the General Corporation law of Nevada 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.
II-1
Section 78.7502 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 or she must be indemnified by the corporation against
expenses, including attorneys' fees, actually and reasonably incurred in
connection with the defense.
Article VI, "Indemnification of Directors, Officers, Employees and Agents",
of our bylaws provides as follows with respect to indemnification of our
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 stockholders 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.
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.
II-2
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 VI 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 16. Exhibits.
Exhibit No. Description
3.1(a) Restated Articles of Incorporation of Comstock (incorporated
by reference to Exhibit 3.1 to Comstock's Annual Report on
Form 10-K for the year ended December 31, 1995).
3.1(b) Certificate of Amendment to the Restated Articles of
Incorporation of Comstock dated July 1, 1997 (incorporated
herein by reference to Exhibit 3.1 to Comstock's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1997).
3.2 Bylaws of Comstock (incorporated by reference to Exhibit 3.2
to Comstock's Registration Statement on Form S-3, dated
October 25, 1996).
4.1* Specimen Stock Certificate.
4.2 Rights Agreement dated as of December 14, 2000, by and
between Comstock and American Stock Transfer and Trust
Company, as Rights Agent (incorporated herein by reference
to Exhibit 1 to our Registration Statement on Form 8-A dated
January 11, 2001).
4.3 Certificate of Designation, Preferences and Rights of Series
B Junior Participating Preferred Stock (incorporated herein
by reference to Exhibit 2 to our Registration Statement on
Form 8-A dated January 11, 2001).
II-3
10.12 Exploration Agreement dated July 31, 2001 by and between
Comstock and Bois d' Arc Offshore Ltd. (incorporated by
reference to Exhibit 10.2 to our Quarterly Report on Form
10-Q for the quarter ended June 30, 2001).
10.13 Warrant Agreement dated July 31, 2001 by and between
Comstock and Gary W. Blackie and Wayne L. Laufer
(incorporated herein by reference to Exhibit 10.1 to our
Quarterly Report on Form 10-Q for the quarter ended June 30,
2001).
5.1* Opinion of Locke Liddell & Sapp LLP as to the validity of
the common stock being registered hereunder.
15.1* Letter of Ernst & Young LLP as to unaudited interim
financial information.
15.2* Letter of KPMG LLP as to unaudited interim financial
information.
23.1* Consent of Locke Liddell & Sapp LLP (Included in Exhibit
5.1).
23.2* Consent of KPMG LLP.
24.1* Power of Attorney (Included on the Signature Page to the
Registration Statement).
* Filed herewith.
II-4
Item 17. 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 the 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 Exchange Act 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 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 the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 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 Securities Act of 1933 and will
be governed by the final adjudication of such issue.
II-5
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Frisco, State of Texas, on January 22, 2004.
COMSTOCK RESOURCES, INC.
By: /s/M. JAY ALLISON
------------------
M. Jay Allison
President and Chief Executive Officer
(Principal Executive Officer)
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 any registration statement related to the
offering contemplated by this registration statement that is to be effective
upon filing pursuant to Rule 462(b) under the Securities Act of 1933, 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 22, 2004
- -------------------- Chairman of the Board of Directors,
M. Jay Allison Director (Principal Executive Office)
/s/ROLAND O. BURNS Senior Vice President, Chief Financial January 22, 2004
- -------------------- Officer, Director (Principal Financial
Roland O. Burns and Accounting Officer)
/s/DAVID K. LOCKETT Director January 22, 2004
- --------------------
David K. Lockett
/s/CECIL E. MARTIN, JR. Director January 22, 2004
- --------------------
Cecil E. Martin, Jr.
/s/DAVID W. SLEDGE Director January 22, 2004
- --------------------
David W. Sledge
II-6
SPECIMEN STOCK CERTIFICATE
[FACE]
COMMON STOCK PAR VALUE $.50 PER SHARE
INCORPORATED UNDER THE LAWS OF THE STATE OF NEVADA
NUMBER - DC _____
CUSIP 205768 20 3
SEE REVERSE SIDE FOR CERTAIN DEFINITIONS
THIS CERTIFIES THAT ______________________________________ IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
Comstock Resources, Inc. hereinafter called "Corporation" transferable only on
the books of the Corporation by the holder thereof in person or by duly
authorized attorney, upon the surrender of this certificate properly endorsed.
This Certificate is not valid until countersigned and registered by the Transfer
Agent and Registrar. In Witness Whereof, the Corporation has caused this
certificate to be signed by the facsimile signatures of its duly authorized
officers. Dated:
PRESIDENT
SECRETARY
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
TRANSFER AGENT AND REGISTRAR.
BY
AUTHORIZED SIGNATURE
E-1
[BACK]
COMSTOCK RESOURCES, INC.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS THE DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF OF THE
CORPORATION AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS. SUCH REQUEST MAY BE MADE TO THE CORPORATION AT
ITS PRINCIPAL PLACE OF BUSINESS OR TO THE TRANSFER AGENT.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be constructed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as tenants in common
UNIF GIFT MIN ACT____________ (Cust) Custodian____________ (Minor) under Uniform
Gifts to Minors Act _________ (State)
Additional abbreviations may also be used though not in the above list.
For value received,____________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
Shares represented by the within Certificate, and do hereby irrevocably
constitute and appoint _______________________________________
Attorney to transfer the said shares on the books of the within-named
Corporation with full power of substitution in the premises. Dated,
NOTICE:
THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE WHATEVER.
(SIGNATURE)
(SIGNATURE)
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
SIGNATURE(S) GUARANTEED BY:
E-2
Exhibit 5.1
OPINION OF LOCKE LIDDELL & SAPP LLP
January 22, 2004
Comstock Resources, Inc.
5300 Town & Country Boulevard
Suite 500
Frisco, Texas 75304
Re: Registration Statement on Form S-3
Ladies & 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") of an aggregate of 2,220,000 shares of
the Company's common stock, $.50 par value per share (the "Securities"). We have
examined such documents and questions of law as we have deemed necessary to
render the opinion expressed below.
Based upon the foregoing, we are of the opinion that the Securities, when
issued and sold as described in the above-referenced Registration Statement,
will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm in the prospectus under the caption
"Legal Matters." In giving this consent, we do not thereby admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Securities and Exchange
Commission.
Respectfully submitted,
LOCKE LIDDEL & SAPP LLP
BY /s/JACK E. JACOBSEN
--------------------
Jack E. Jacobsen
Partner
Exhibit 15.1
January 21, 2004
Comstock Resources, Inc.
5300 Town and Country Boulevard Suite 500
Frisco, Texas 75034
Shareholders and Board of Directors
Comstock Resources, Inc.
We are aware of the incorporation by reference in the Registration Statement on
Form S-3 for 2,220,000 shares of Comstock Resources, Inc. Common Stock of our
reports dated November 5, 2003 and August 7, 2003 relating to the unaudited
consolidated interim financial statements of Comstock Resources, Inc. that are
included in its Forms 10-Q for the quarters ended September 30, 2003 and June
30, 2003.
Ernst & Young LLP
Dallas, Texas
Rxhibit 15.2
January 21, 2004
Comstock Resources, Inc.
5300 Town and Country Blvd., Suite 500
Frisco, Texas 75034
Re: Form S-3 (related to registering 2,220,000 shares of common stock)
With respect to the subject registration statement, we acknowledge our awareness
of the use therein of our report dated May 7, 2003, related to our review of
interim financial information for the period ended March 31, 2003.
Pursuant to Rule 436 under the Securities Act of 1933 (the “Act”),
such report is not considered part of a registration statement prepared or
certified by an accountant, or a report prepared or certified by an accountant
within the meaning of Sections 7 and 11 of the Act.
KPMG LLP
Dallas, Texas
Exhibit 23.2
Independent Auditors‘ Consent
The Board of Directors
Comstock Resources, Inc.:
We consent to the use of our report dated March 19, 2003, with respect to the
consolidated balance sheets of Comstock Resources, Inc., as of December 31, 2001
and 2002, and the related consolidated statements of operations,
stockholders‘ equity, cash flows and comprehensive income for each of the
years in the three-year period ended December 31, 2002, incorporated herein by
reference and to the reference to our firm under the heading “Experts”
in the prospectus. Our report dated March 19, 2003 contains an explanatory note
that refers to a restatement of the consolidated financial statements as of
December 31, 2002 and for the two-year period then ended. Our report also refers
‘ to a change in the Companys method of accounting for derivative
instruments.
KPMG LLP
Dallas, Texas
January 21, 2004