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
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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.
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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