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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
x THE SECURITIES EXCHANGE ACT OF 1934
----
For The Quarter Ended June 30, 2002
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
----
Commission File No. 0-16741
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)
5300 Town and Country Blvd., Suite 500, Frisco, Texas 75034
(Address of principal executive offices)
Telephone No.: (972) 668-8800
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
filing requirements for the past 90 days. Yes x No
---
The number of shares outstanding of the registrant's common stock, par
value $.50, as of August 12, 2002 was 28,833,561.
COMSTOCK RESOURCES, INC.
QUARTERLY REPORT
For The Quarter Ended June 30, 2002
INDEX
PART I. Financial Information Page
Item 1. Financial Statements:
Consolidated Balance Sheets -
June 30, 2002 and December 31, 2001...........................4
Consolidated Statements of Operations -
Three Months and Six Months ended June 30, 2002 and 2001......5
Consolidated Statement of Stockholders' Equity -
Six Months ended June 30, 2002................................6
Consolidated Statements of Cash Flows -
Six Months ended June 30, 2002 and 2001.......................7
Notes to Consolidated Financial Statements............................8
Report of Independent Public Accountants.............................14
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations.......................................15
Item 3. Quantitative and Qualitative Disclosure About Market Risks........19
PART II. Other Information
Item 6. Exhibits and Reports on Form 8-K..................................21
2
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
3
COMSTOCK RESOURCES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
ASSETS
June 30, December 31,
2002 2001
--------- ---------
(Unaudited)
(In thousands)
Cash and Cash Equivalents ....................................... $ 1,267 $ 6,122
Accounts Receivable:
Oil and gas sales ....................................... 25,528 20,015
Joint interest operations ............................... 1,635 4,717
Derivatives ..................................................... 1,338 1,342
Other Current Assets ............................................ 10,109 7,418
Total current assets ..................... 39,877 39,614
Property and Equipment:
Unevaluated oil and gas properties ...................... 17,896 13,416
Oil and gas properties, successful efforts method ....... 908,301 901,206
Other ................................................... 2,565 2,633
Accumulated depreciation, depletion and amortization .... (288,677) (278,679)
--------- ---------
Net property and equipment ............... 640,085 638,576
Derivatives ..................................................... 25 254
Other Assets .................................................... 6,318 4,627
--------- ---------
$ 686,305 $ 683,071
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Portion of Long-Term Debt ............................... $ 674 $ 229
Accounts Payable and Accrued Expenses ........................... 28,990 37,389
Derivatives ..................................................... 2,973 798
--------- ---------
Total current liabilities ............... 32,637 38,416
Long-Term Debt, less current portion ............................ 384,002 372,235
Deferred Taxes Payable .......................................... 47,352 47,911
Derivatives ..................................................... -- 1,053
Reserve for Future Abandonment Costs ............................ 7,169 7,794
Stockholders' Equity:
Preferred stock--$10.00 par, 5,000,000 shares authorized,
1,757,310 shares outstanding .......................... 17,573 17,573
Common stock--$0.50 par, 50,000,000 shares authorized,
28,833,561 and 28,552,553 shares outstanding at
June 30, 2002 and December 31, 2001, respectively ..... 14,417 14,276
Additional paid-in capital .............................. 132,009 130,956
Retained earnings ....................................... 51,562 54,183
Deferred compensation-restricted stock grants ........... (1,069) (1,187)
Accumulated other comprehensive income (loss) ........... 653 (139)
--------- ---------
Total stockholders' equity .............. 215,145 215,662
--------- ---------
$ 686,305 $ 683,071
========= =========
The accompanying notes are an integral part of these statements.
4
COMSTOCK RESOURCES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
Three Months Six Months
Ended June 30, Ended June 30,
2002 2001 2002 2001
--------- --------- --------- ---------
(In thousands, except per share amounts)
Revenues:
Oil and gas sales ........................ $ 38,004 $ 45,997 $ 64,494 $ 112,932
Other income ............................. 79 121 199 268
--------- --------- --------- ---------
Total revenues ......... 38,083 46,118 64,693 113,200
--------- --------- --------- ---------
Expenses:
Oil and gas operating .................... 8,467 8,173 16,582 17,559
Exploration .............................. 1,028 477 2,981 3,308
Depreciation, depletion and amortization . 14,057 11,997 27,515 23,931
General and administrative, net .......... 1,077 998 2,007 1,827
Interest ................................. 7,702 4,956 14,512 10,461
Loss from derivatives .................... 204 -- 2,168 --
--------- --------- --------- ---------
Total expenses ......... 32,535 26,601 65,765 57,086
--------- --------- --------- ---------
Income (loss) from continuing operations
before income taxes ............................ 5,548 19,517 (1,072) 56,114
Income tax benefit (expense) ...................... (1,942) (6,831) 375 (19,640)
--------- --------- --------- ---------
Net income (loss) from continuing operations ...... 3,606 12,686 (697) 36,474
Preferred stock dividends ......................... (400) (400) (795) (795)
--------- --------- --------- ---------
Net income (loss) from continuing operations
attributable to common stock .................. 3,206 12,286 (1,492) 35,679
Income (loss) from discontinued operations,
including loss on disposal, net of income taxes (403) 152 (1,129) 338
--------- --------- --------- ---------
Net income (loss) attributable to common stock .... $ 2,803 $ 12,438 $ (2,621) $ 36,017
========= ========= ========= =========
Net income (loss) per share:
Basic -
Net income (loss) from
continuing operations per share............. $ 0.11 $ 0.42 $ (0.05) $ 1.22
========= ========= ========= =========
Net income (loss) per share.................. $ 0.10 $ 0.43 $ (0.09) $ 1.24
========= ========= ========= =========
Diluted -
Net income (loss) from
continuing operations per share............. $ 0.11 $ 0.36 $ 1.04
========= ========= =========
Net income (loss) per share.................. $ 0.09 $ 0.37 $ 1.05
========= ========= =========
Weighted average shares outstanding:
Basic........................................ 28,776 29,252 28,678 29,127
========= ========= ========= =========
Diluted...................................... 34,042 34,902 34,967
========= ========= =========
The accompanying notes are an integral part of these statements.
5
COMSTOCK RESOURCES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
For the Six Months Ended June 30, 2002
(Unaudited)
Deferred Accumulated
Additional Compensation- Other
Preferred Common Paid-In Retained Restricted Comprehensive
Stock Stock Capital Earnings Stock Grants Income (Loss) Total
---------- ---------- ---------- ---------- ---------- ----------- ----------
(In thousands)
Balance at December 31, 2001... $ 17,573 $ 14,276 $ 130,956 $ 54,183 $ (1,187) $ (139) $ 215,662
Restricted stock grants....... -- -- -- -- 118 -- 118
Value of warrants issued
for exploration prospects.... -- -- 213 -- -- -- 213
Exercise of stock options..... -- 141 840 -- -- -- 981
Net loss attributable to
common stock................ -- -- -- (2,621) -- -- (2,621)
Unrealized hedge gains........ -- -- -- -- -- 792 792
---------- ---------- ---------- ---------- ---------- ---------- ----------
Balance at June 30, 2002....... $ 17,573 $ 14,417 $ 132,009 $ 51,562 $ (1,069) $ 653 $ 215,145
========== ========== ========== ========== ========== ========== ==========
The accompanying notes are an integral part of these statements.
6
COMSTOCK RESOURCES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Six Months
Ended June 30,
2002 2001
-------- --------
(In thousands)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) ............................................... $ (1,826) $ 36,812
Adjustments to reconcile net income (loss) to net
cash provided by operating activities:
Compensation paid in common stock ............................ 118 112
Exploration .................................................. 2,981 3,308
Depreciation, depletion and amortization ..................... 27,515 23,931
Deferred income taxes ........................................ (375) 16,040
Unrealized losses from derivatives ........................... 2,499 --
Non-cash effect of discontinued operations, net .............. 1,467 (36)
Gain on sale of properties ................................... -- (12)
-------- --------
Working capital provided by operations ..................... 32,379 80,155
Decrease in accounts receivable ................................. 747 8,128
Increase in other current assets ................................ (2,691) (29)
Increase (decrease) in accounts payable and
accrued expenses .............................................. (8,203) 420
-------- --------
Net cash provided by operating activities .................. 22,232 88,674
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sales of properties ............................... 300 46
Capital expenditures and acquisitions ........................... (37,568) (59,092)
-------- --------
Net cash used for operating activities ..................... (37,268) (59,046)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings ...................................................... 20,736 8,730
Proceeds from issuance of senior notes .......................... 75,000 --
Debt issuance costs ............................................. (2,217) --
Proceeds from common stock issuance ............................. 981 2,010
Principal payments on debt ...................................... (83,524) (46,226)
Preferred stock dividends paid .................................. (795) (795)
-------- --------
Net cash provided by (used for) financing activities............. 10,181 (36,281)
-------- --------
Net decrease in cash and cash equivalents .................. (4,855) (6,653)
Cash and cash equivalents, beginning of period ............. 6,122 7,105
-------- --------
Cash and cash equivalents, end of period ................... $ 1,267 $ 452
======== ========
The accompanying notes are an integral part of these statements.
7
COMSTOCK RESOURCES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2002
(Unaudited)
(1) SIGNIFICANT ACCOUNTING POLICIES -
Basis of Presentation -
In management's opinion, the accompanying consolidated financial statements
contain all adjustments (consisting solely of normal recurring adjustments)
necessary to present fairly the financial position of Comstock Resources, Inc.
and subsidiaries ("Comstock") as of June 30, 2002 and the related results of
operations for the three months and six months ended June 30, 2002 and 2001 and
cash flows for the six months ended June 30, 2002 and 2001.
The accompanying unaudited consolidated financial statements have been
prepared pursuant to the rules and regulations of the Securities and Exchange
Commission. Certain information and disclosures normally included in annual
financial statements prepared in accordance with generally accepted accounting
principles have been omitted pursuant to those rules and regulations, although
Comstock believes that the disclosures made are adequate to make the information
presented not misleading. These consolidated financial statements should be read
in conjunction with the financial statements and notes thereto included in
Comstock's Annual Report on Form 10-K for the year ended December 31, 2001.
The results of operations for the three months and six months ended June
30, 2002 are not necessarily an indication of the results expected for the full
year.
Supplementary Information With Respect to the Consolidated Statements of
Cash Flows -
For the Six Months
Ended June 30,
2002 2001
------- -------
(In thousands)
Cash Payments -
Interest payments................. $13,436 $10,680
Income tax payments............... -- 243
Noncash Investing and Financing Activities -
Value of warrants issued
under exploration agreement..... $ 327 $ 997
Income Taxes -
Deferred income taxes are provided to reflect the future tax consequences
of differences between the tax basis of assets and liabilities and their
reported amounts in the financial statements using enacted tax rates.
8
COMSTOCK RESOURCES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(continued)
Earnings Per Share -
Basic earnings per share is determined without the effect of any
outstanding potentially dilutive stock options or other convertible securities
and diluted earnings per share is determined with the effect of outstanding
stock options and other convertible securities that are potentially dilutive.
Due to the net loss for the six months ended June 30, 2002, common stock
equivalents and convertible securities are anti- dilutive. Therefore basic and
diluted loss per share for the six months ended June 30, 2002 are the same.
Basic and diluted earnings per share for the three months and six months ended
June 30, 2002 and 2001 were determined as follows:
For the Three Months Ended June 30,
----------------------------------------------------------------
2002 2001
------------------------------- -----------------------------
Per Per
Income Shares Share Income Shares Share
-------- -------- --------- -------- ------- -------
(Amounts in thousands except per share data)
Basic Earnings Per Share:
Income from Continuing Operations..... $ 3,606 28,776 $ 12,686 29,252
Less Preferred Stock Dividends....... (400) -- (400) --
-------- -------- -------- -------
Net Income from Continuing Operations
Available to Common Stockholders.. 3,206 28,776 $ 0.11 12,286 29,252 $ 0.42
======== =======
Income from Discontinued Operations.. (403) 28,776 (0.01) 152 29,252 0.01
-------- ======== --------- -------- ======= -------
Net Income Available to Common
Stockholders...................... $ 2,803 28,776 $ 0.10 $ 12,438 29,252 $ 0.43
======== ======== ========= ======== ======= =======
Diluted Earnings Per Share:
Income from Continuing Operations..... $ 3,606 28,776 $ 12,686 29,252
Effect of Dilutive Securities:
Stock Options....................... -- 873 -- 1,257
Convertible Preferred Stock......... -- 4,393 -- 4,393
-------- -------- --------- -------- -------
Net Income from Continuing Operations
Available to Common Stockholders
With Assumed Conversions........ 3,606 34,042 $ 0.11 12,686 34,902 $ 0.36
======== ========
Income from Discontinued Operations.. (403) 34,042 (0.02) 152 34,902 0.01
-------- ======== --------- -------- ======== -------
Net Income Available to Common
Stockholders...................... $ 3,203 34,042 $ 0.09 $ 12,838 34,902 $ 0.37
======== ======== ========= ======== ======= =======
9
COMSTOCK RESOURCES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(continued)
For the Six Months Ended June 30,
----------------------------------------------------------------
2002 2001
------------------------------- -----------------------------
Per Per
Income Shares Share Income Shares Share
-------- -------- --------- -------- ------- -------
(Amounts in thousands except per share data)
Basic Earnings Per Share:
Income (Loss)from
Continuing Operations......... $ (697) 28,678 $ 36,474 29,127
Less Preferred Stock Dividends...... (795) -- (795) --
-------- -------- -------- -------
Net Income (Loss) from
Continuing Operations Available
to Common Stockholders.......... (1,492) 28,678 $ (0.05) 35,679 29,127 $ 1.22
======== =======
Income (Loss)from
Discontinued Operations........ (1,129) 28,678 (0.04) 338 29,127 0.02
-------- ======== --------- -------- ======= -------
Net Income (loss) Available to
Common Stockholders............ $ (2,621) 28,678 $ (0.09) $ 36,017 29,127 $ 1.24
======== ======== ========= ======== ======= =======
Diluted Earnings Per Share:
Income (loss) from Continuing Operations $ 36,474 29,127
Effect of Dilutive Securities:
Stock Options.................. -- 1,447
Convertible Preferred Stock.... -- 4,393
-------- -------
Net Income (Loss) from Continuing Operations
Available to Common Stockholders
With Assumed Conversions.. 36,474 34,967 $ 1.04
=======
Income (Loss) from Discontinued Operations... 338 34,967 0.01
-------- ======= -------
Net Income (loss) Available to Common
Stockholders........................ $ 36,812 34,967 $ 1.05
======== ======== =======
Derivative Instruments and Hedging Activities
Comstock uses swaps, floors and collars to hedge oil and natural gas
prices. Swaps are settled monthly based on differences between the prices
specified in the instruments and the settlement prices of futures contracts
quoted on the New York Mercantile Exchange. Generally, when the applicable
settlement price is less than the price specified in the contract, Comstock
receives a settlement from the counterparty based on the difference multiplied
by the volume hedged. Similarly, when the applicable settlement price exceeds
the price specified in the contract, Comstock pays the counterparty based on the
difference. Comstock generally receives a settlement from the counterparty for
floors when the applicable settlement price is less than the price specified in
the contract, which is based on the difference multiplied by the volumes hedged.
For collars, Comstock generally receives a settlement from the counterparty when
the settlement price is below the floor and pays a settlement to the
counterparty when the settlement price exceeds the cap. No settlement occurs
when the settlement price falls between the floor and cap.
10
COMSTOCK RESOURCES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(continued)
On July 9, 2002, Comstock entered into an agreement with a subsidiary of
Enron Corporation ("Enron") to settle all outstanding derivative financial
instruments between Comstock and Enron effective as of April 23, 2002. Comstock
agreed to pay $3.0 million to Enron to cancel a natural gas price swap agreement
covering 2,466,668 MMBtus at a fixed price of $2.40 and a natural gas price
floor position covering 986,668 MMBtus at $1.90. Accordingly, these positions
have been valued at the settlement price as of June 30, 2002.
The following table sets out the derivative financial instruments,
excluding the Enron positions, outstanding at June 30, 2002, which are held for
natural gas price risk management:
Volume Type Swap Floor Ceiling
Period Beginning Period Ending (MMBtu) of Instrument Price Price Price
---------------- ----------------- ----------- ------------- ---------- ---------- ----------
July 1, 2002 October 31, 2002 3,040,000 Swap $3.44 -- --
July 1, 2002 October 31, 2002 1,600,000 Swap $3.50 -- --
July 1, 2002 October 31, 2002 1,440,000 Swap $3.48 -- --
July 1, 2002 December 31, 2002 1,275,000 Floor -- $2.00 --
July 1, 2002 December 31, 2002 450,000 Collar -- $4.00 $6.75
----------
7,805,000
----------
January 1, 2003 December 31, 2003 2,250,000 Floor -- $2.00 --
----------
10,055,000
==========
Comstock has designated the swap positions which were entered into in March
2002 as cash flow hedges. The floor and collar positions acquired in the
acquisition of DevX Energy, Inc. in December 2001 have not been designated as
hedges. Comstock realized gains of $363,000 in the first six months of 2002 on
the positions designated as hedges. These gains were included in oil and gas
sales. For the three months and six months ended June 30, 2002, Comstock
realized gains of $12,000 and $403,000, respectively, on the positions not
designated as hedges.
Comstock periodically enters into interest rate swap agreements to hedge
the impact of interest rate changes on its floating rate long-term debt.
Comstock had an interest rate swap agreement covering $25.0 million of its
floating rate debt, which fixed the LIBOR rate at 4.5% for one year through
April 2002. Comstock has designated this position as a hedge. As a result of
this interest rate hedge, Comstock realized losses of $218,000 for the six
months ended June 30, 2002 which were included in interest expense. As of June
30, 2002, Comstock had no open interest rate derivative financial instruments
outstanding.
The fair value of all derivative financial instruments is included on the
consolidated balance sheet at the fair value. Comstock estimates fair value
based on quotes obtained from the counterparties to the derivative contract. The
fair value of derivative contracts that expire in less than one year are
recognized as current assets or liabilities. Those that expire in more than one
year are recognized as long-term assets or liabilities. Derivative financial
instruments that are not accounted for as hedges are adjusted to fair value
through income. If the derivative is designated as a cash flow hedge, changes in
fair value are recognized in other comprehensive income until the hedged item is
recognized in earnings.
11
COMSTOCK RESOURCES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(continued)
Comstock had a loss of $204,000 and $2.2 million for the three months and
six months ended June 30, 2002, respectively related to the derivative contracts
not accounted for hedges. The loss on derivatives for the six months ended June
30, 2002 was comprised of a $2.6 million unrealized loss and a $403,000 realized
gain. For the derivative contracts designated as cash flow hedges, the change in
fair value of these instruments resulted in an unrealized after tax gain of
$792,000 which was recognized in other comprehensive income.
New Accounting Standard
In June 2002, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards 146, "Accounting for Costs Associated with Exit
or Disposal Activities". The Statement establishes accounting and reporting
standards that are effective for exit or disposal activities beginning after
December 31, 2002 which require that a liability be recognized for an exit or
disposal activity when that liability is incurred.
(2) LONG-TERM DEBT -
As of June 30, 2002, Comstock's long-term debt was comprised of the
following:
(In thousands)
Revolving Bank Credit Facility.... $ 164,000
11 1/4% Senior Notes due 2007..... 220,000
Other ............................ 676
---------
384,676
Less current portion............. (674)
---------
$ 384,002
=========
Comstock's bank credit facility consists of a $350.0 million three-year
revolving credit commitment provided by a syndicate of banks for which Toronto
Dominion (Texas), Inc. serves as administrative agent. The credit facility is
subject to borrowing base availability, which is redetermined semiannually based
on the banks' estimates of the future net cash flows of Comstock's oil and
natural gas properties. The borrowing base at June 30, 2002 was $250.0 million.
The revolving credit line bears interest, based on the utilization of the
borrowing base, at the option of Comstock at either (i) LIBOR plus 1.5% to
2.375% or (ii) the base rate plus 0.5% to 1.375%. The facility matures on
January 2, 2005. Indebtedness under the bank credit facility is secured by
substantially all of Comstock's assets. The bank credit facility contains
covenants that, among other things, restrict the payment of cash dividends,
limit the amount of consolidated debt and limit Comstock's ability to make
certain loans and investments. Financial covenants include the maintenance of a
current ratio, maintenance of tangible net worth and maintenance of an interest
coverage ratio. Comstock was in compliance with all the covenants during the
three months and six months ended June 30, 2002.
Comstock issued $150.0 million in aggregate principal amount of 11 1/4%
Senior Notes due in 2007 (the "Notes") on April 29, 1999. Interest on the Notes
is payable semiannually on May 1 and November 1, commencing on November 1, 1999.
The Notes are unsecured obligations of Comstock. The Notes can be redeemed
beginning on May 1, 2004. Comstock repurchased $5.0 million of the Notes in July
2001.
12
COMSTOCK RESOURCES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(continued)
On March 7, 2002, Comstock closed on a private placement of $75.0 million
of the Notes at a net price of 97.25% after placements agents' discount. As a
result of this transaction, $220.0 million of the aggregate principal amount of
the Notes are outstanding. The net proceeds from the offering were used to
reduce amounts outstanding under the bank credit facility.
(3) DISCONTINUED OPERATIONS -
In April 2002, Comstock sold certain marginal oil and gas properties for
cash proceeds of $300,000 plus forgiveness of certain accounts payable related
to the properties. The properties sold include various interests in nonoperated
properties in Nueces, Hardeman and Montague counties in Texas. The properties
sold were written down to the net realizable value in March 2002 resulting in a
loss of $769,000, net of income taxes. In July 2002, Comstock sold certain oil
and gas properties in Wharton County, Texas for cash proceeds of $3.2 million.
These properties were written down to their net realizable value as of June 30,
2002 resulting in an after tax loss of $387,000. The sold properties, including
the losses on disposal, have been presented as discontinued operations in the
accompanying consolidated statements of operations.
13
INDEPENDENT ACCOUNTANTS' REVIEW REPORT
The Board of Directors and Shareholders of
Comstock Resources, Inc.:
We have reviewed the accompanying consolidated balance sheet of Comstock
Resources, Inc. and subsidiaries (a Nevada corporation) as of June 30, 2002, and
the related consolidated statements of operations for the three and six month
periods ended June 30, 2002, and the consolidated statement of cash flows for
the six month period ending June 30, 2002. These consolidated financial
statements are the responsibility of the Company's management.
We conducted our review in accordance with standards established by the American
Institute of Certified Public Accountants. A review of interim financial
information consists principally of applying analytical procedures to financial
data and making inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit conducted in accordance
with generally accepted auditing standards, the objective of which is the
expression of an opinion regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to the consolidated financial statements referred to above for them to
be in conformity with accounting principles generally accepted in the United
States of America.
(signed) KPMG LLP
Dallas, Texas
August 6, 2002
14
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Results of Operations
The following table reflects certain summary operating data for the periods
presented:
Three Months Ended Six Months Ended
June 30, June 30,
2002 2001 2002 2001
------- ------- ------- -------
Net Production Data:
Oil (Mbbls)................................. 335 392 676 804
Natural gas (Mmcf).......................... 8,534 7,037 16,756 14,440
Natural gas equivalent (Mmcfe).............. 10,543 9,392 20,812 19,265
Average Sales Price:
Oil (per Bbl)............................... $ 24.95 $ 26.97 $ 22.79 $ 27.60
Natural gas (per Mcf)....................... 3.47 5.03 2.93 6.28
Average equivalent price (per Mcfe)......... 3.60 4.90 3.10 5.86
Expenses ($ per Mcfe):
Oil and gas operating(1).................... $ 0.80 $ 0.87 $ 0.80 $ 0.91
General and administrative.................. 0.10 0.11 0.10 0.09
Depreciation, depletion and amortization(2). 1.30 1.24 1.29 1.20
Cash Margin ($ per Mcfe)(3)................... $ 2.70 $ 3.92 $ 2.21 $ 4.86
- ---------
(1) Includes lease operating costs and production and ad valorem taxes.
(2) Represents depreciation, depletion and amortization of oil and gas
properties only.
(3) Represents average equivalent price per Mcfe less oil and gas operating
expenses per Mcfe and general and administrative expenses per Mcfe.
Revenues -
Our sales of oil and natural gas decreased $8.0 million (17%) in the second
quarter of 2002 to $38.0 million, from $46.0 million in 2001's second quarter
due to a significant drop in our realized crude oil and natural gas prices. Our
average natural gas price decreased by 31% and our average crude oil price fell
by 7% in the second quarter of 2002 as compared to 2001. Production in the
second quarter of 2002 increased 12% over production in the second quarter of
2001. For the first half of 2002, our oil and gas sales decreased $48.4 million
(43%) to $64.5 million from $112.9 million for the six months ended June 30,
2001. The decrease is primarily attributable to 53% lower realized natural gas
prices and the 17% lower realized crude oil prices in 2002 as compared to 2001.
In the first six months of 2002, production on an equivalent basis, increased by
8%. The increases in production relate to the acquisition of DevX Energy, Inc.
("DevX") which was completed in December 2001.
Other income decreased to $79,000 in the second quarter of 2002 from
$121,000 from the second quarter of 2001. Other income for the six months ended
June 30, 2002 decreased to $199,000 in 2002 from $268,000 in 2001. The decreases
relate to a decrease in interest earned on our cash deposits resulting from the
decline in interest rates.
Costs and Expenses -
Our oil and gas operating expenses, including production taxes, increased
$0.3 million (4%) to $8.5 million in the second quarter of 2002 from $8.2
million in the second quarter of 2001. Oil and gas operating expenses per
15
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
(continued)
equivalent Mcf produced decreased $0.07 to $0.80 in the second quarter of 2002
from $0.87 in the second quarter of 2001. The increase in operating expenses is
related to the lifting costs of properties acquired in the acquisition of DevX,
which was partially offset by lower production taxes resulting from the lower
oil and gas prices. Oil and gas operating costs for the six months ended June
30, 2002 decreased $1.0 million (6%) to $16.6 million from $17.6 million for the
six months ended June 30, 2001. Oil and gas operating expenses per equivalent
Mcf produced decreased $0.11 to $0.80 for six months ended June 30, 2002 from
$0.91 for the same period in 2001. The decrease is primarily due to lower
production taxes as a result of the significantly lower oil and gas prices which
is partially offset by the additional operating costs related to the DevX
properties.
In the second quarter of 2002, we had a $1.0 million provision for
exploration expense as compared to a $0.5 million in 2001's second quarter. The
provision in the second quarter of 2002 primarily relates to an exploratory dry
hole drilled at South Pelto Block 1. For the six months ended June 30, 2002 we
had a provision for exploration expenses totaling $3.0 million as compared to
$3.3 million in the same period in 2001. The 2002 provision primarily related to
two offshore exploratory dry holes drilled in 2002.
Depreciation, depletion and amortization ("DD&A") increased $2.0 million
(17%) to $14.1 million in the second quarter of 2002 from $12.0 million in the
second quarter of 2001 due to a 12% increase in our production and a 5% increase
in average amortization rate. DD&A per equivalent Mcf produced increased by
$0.06 to $1.30 for the three months ended June 30, 2002 from $1.24 for the
quarter ended June 30, 2001. For the six months ended June 30, 2002, DD&A
increased $3.6 million (15%) to $27.5 million from $23.9 million for the six
months ended June 30, 2001. The increase is also due to the 8% increase in
production and a higher average amortization rate. DD&A per equivalent Mcf
increased by $0.09 to $1.29 for the six months ended June 30, 2002 from $1.20
for the six months ended June 30, 2001.
General and administrative expenses, which are reported net of overhead
reimbursements, of $1.1 million for the second quarter of 2002 were 8% higher
than general and administrative expenses of $1.0 million for the second quarter
of 2001. For the first six months of 2002, general and administrative expenses
increased to $2.0 million from $1.8 million for the six months ended June 30,
2001. The increases are due primarily to an increase in our personnel costs in
2002.
Interest expense increased $2.7 million (55%) to $7.7 million for the
second quarter of 2002 from $5.0 million in the second quarter of 2001. Interest
expense for the six months ended June 30, 2002 increased $4.0 million (39%) to
$14.5 million from $10.5 million for the six months ended June 30, 2001. The
increases are attributable to higher borrowings outstanding under our bank
credit facility and the issuance of an additional $75.0 million of our 11 1/4%
Senior Notes on March 7, 2002. The increase in debt is attributable to
borrowings made to finance the DevX acquisition. The average outstanding balance
under our bank credit facility increased to $165.9 million and $182.9 million in
the second quarter of 2002 and the six months ended June 30, 2002, respectively,
as compared to $52.4 million and $61.4 million in the second quarter of 2001 and
six months ended June 30, 2001, respectively. The higher debt was offset
partially by a lower interest rate on our bank credit facility. The weighted
average annual interest rate for borrowings under our bank credit facility
decreased to 3.6% for the second quarter of 2002 as compared to 5.8% for the
second quarter of 2001. The weighted average annual rate for the first half of
2002 was 3.9% as compared to 6.6% for the first half of 2001.
16
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
(continued)
Comstock reported net income from continuing operations of $3.2 million for
the three months ended June 30, 2002, as compared to net income from continuing
operations of $12.3 million for the three months ended June 30, 2001. Net income
per share from continuing operations for the second quarter was $0.11 on
weighted average diluted shares outstanding of 34.0 million as compared to $0.36
for the second quarter of 2001 on weighted average diluted shares outstanding of
34.9 million. The net loss from continuing operations for the six months ended
June 30, 2002 was $1.5 million, as compared to net income of $35.7 million for
the six months ended June 30, 2001. The net loss from continuing operations per
common share for the six months ended June 30, 2002 was $0.05 as compared to
$1.22 ($1.04 per diluted common share) for the six months ended June 30, 2001.
In April 2002 and July 2002, we sold certain oil and gas properties, which
resulted in a loss of $1.8 million. The operating results of these properties
have been reflected as discontinued operations in the consolidated financial
statements including the losses on disposal.
Liquidity and Capital Resources
Funding for our activities has historically been provided by our operating
cash flow, debt or equity financings or asset dispositions. For the six months
ended June 30, 2002, our net cash flow provided by operating activities before
changes to other working capital accounts totaled $32.4 million. Our other
primary funding sources in the first six months of 2002 were borrowings of $20.0
million under our bank credit facility and proceeds of $75.0 million received
from the issuance of our 11 1/4% Senior Notes.
Our primary needs for capital, in addition to funding our ongoing
operations, relate to the acquisition, development and exploration of our oil
and gas properties and the repayment of our debt. For the six months ended June
30, 2002, we incurred capital expenditures of $37.6 million for development and
exploration activities. We also repaid $83.0 million of borrowings under our
bank credit facility.
The following table summarizes our capital expenditure activity for the six
months ended June 30, 2002 and 2001:
Six Months Ended
June 30,
2002 2001
------- -------
(In thousands)
-----------------
Acquisitions ................. $ -- $ 250
Leasehold costs .............. 5,391 6,804
Development drilling ......... 11,504 25,178
Exploratory drilling ......... 15,510 23,539
Offshore production facilities 2,323 306
Workovers and recompletions .. 2,745 2,933
Other ........................ 95 82
------- -------
$37,568 $59,092
======= =======
17
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
(continued)
The timing of most of our capital expenditures is discretionary because we
have no material long-term capital expenditure commitments. Consequently, we
have a significant degree of flexibility to adjust the level of our capital
expenditures as circumstances warrant. We spent $37.5 million and $58.8 million
on development and exploration activities in the six months ended June 30, 2002
and 2001, respectively. We have budgeted approximately $75.0 million for
development and exploration projects in 2002. We expect to use internally
generated cash flow to fund development and exploration activity.
We do not have a specific acquisition budget for 2002 since the timing and
size of acquisitions are not predictable. We intend to use borrowings under our
bank credit facility, or other debt or equity financings to the extent
available, to finance significant acquisitions. The availability and
attractiveness of these sources of financing will depend upon a number of
factors, some of which will relate to our financial condition and performance
and some of which will be beyond our control, such as prevailing interest rates,
oil and natural gas prices and other market conditions.
On December 17, 2001, we entered into a new three year $350.0 million
revolving credit facility with Toronto Dominion (Texas), Inc. as administrative
agent. Indebtedness under the new bank credit facility is secured by
substantially all of our assets. The revolving credit line is subject to
borrowing base availability, which will be redetermined semiannually based on
the banks' estimates of the future net cash flows of our oil and gas properties.
The current borrowing base is $250.0 million. The borrowing base may be affected
by the performance of our properties and changes in oil and gas prices. The
determination of the borrowing base is at the sole discretion of the
administrative agent and the bank group. The revolving credit line bears
interest, based on the utilization of the borrowing base, at our option at
either (i) LIBOR plus 1.5% to 2.375% or (ii) the base rate plus 0.5% to 1.375%.
The bank credit facility matures on January 2, 2005 and contains covenants that,
among other things, restrict our ability to pay cash dividends, limit the amount
of our consolidated debt and limit our ability to make certain loans and
investments. Financial covenants include the maintenance of a current ratio,
maintenance of tangible net worth and maintenance of an interest coverage ratio.
On March 7, 2002, we closed the sale in a private placement of $75.0
million of our 11 1/4% Senior Notes due 2007 (the "Notes") at a net price of
97.25% after the placements agents' discount. As a result of this transaction,
$220.0 million of aggregate principal amount of the Notes were outstanding. The
net proceeds were used to reduce amounts outstanding under our bank credit
facility.
We believe that our cash flow from operations and our available borrowings
under the new bank credit facility will be sufficient to fund our operations and
future growth as contemplated under our current business plan. However, if our
plans or assumptions change or if our assumptions prove to be inaccurate, we may
be required to seek additional capital. We cannot provide any assurance that we
will be able to obtain such capital, or if such capital is available, that we
will be able to obtain it on acceptable terms.
On September 11, 2001, the United States was the target of terrorist
attacks of unprecedented scope. These attacks caused major instability in the
U.S. and other financial markets. Leaders of the U.S. government have announced
their intention to actively pursue those behind the attacks and to possibly
initiate broader action against global terrorism. The attacks and any response
may lead to armed hostilities or further acts of terrorism in the United States
or elsewhere, and such developments, coupled with the recent turmoil created by
18
various high-profile accounting scandals, would likely cause further instability
in financial markets. The prices for oil and natural gas are volatile, and the
recent terrorist attacks and future developments may increase the volatility of
such prices. These developments may subject our operations to increased risks
and, depending on their magnitude, could have a material adverse effect on our
financial condition and results of operations, which, in all likelihood, would
impair our ability to pay interest and repay the principal on our outstanding
debt. Our business success also depends somewhat on factors beyond our control,
including changes in national and local economic conditions, interest rates and
federal, state and local laws. Any substantial deterioration in any of the
foregoing conditions could have a material adverse effect on our financial
condition and results of operations, which, in all likelihood, would impair our
ability to pay interest and repay the principal on our outstanding debt.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISKS
Oil and Natural Gas Prices
Our financial condition, results of operations and capital resources are
highly dependent upon the prevailing market prices of oil and natural gas. These
commodity prices are subject to wide fluctuations and market uncertainties due
to a variety of factors that are beyond our control. Factors influencing oil and
natural gas prices include the level of global demand for crude oil, the foreign
supply of oil and natural gas, the establishment of and compliance with
production quotas by oil exporting countries, weather conditions that determine
the demand for natural gas, the price and availability of alternative fuels and
overall economic conditions. It is impossible to predict future oil and natural
gas prices with any degree of certainty. Sustained weakness in oil and natural
gas prices may adversely affect our financial condition and results of
operations, and may also reduce the amount of oil and natural gas reserves that
we can produce economically. Any reduction in our oil and natural gas reserves,
including reductions due to price fluctuations, can have an adverse effect on
our ability to obtain capital for our exploration and development activities.
Similarly, any improvements in oil and natural gas prices can have a favorable
impact on our financial condition, results of operations and capital resources.
Based on our oil and natural gas production in the six months ended June 30,
2002, a $1.00 change in the price per barrel of oil would have resulted in a
change in our cash flow for such period by approximately $16.1 million and a
$1.00 change in the price per Mcf of natural gas would have changed our cash
flow by approximately $0.7 million.
We periodically use hedging transactions with respect to a portion of our
oil and natural gas production to mitigate our exposure to price changes. While
the use of these hedging arrangements limits the downside risk of price
declines, such use may also limit any benefits that may be derived from price
increases. We use swaps, floors and collars to hedge oil and natural gas prices.
Swaps are settled monthly based on differences between the prices specified in
the instruments and the settlement prices of futures contracts quoted on the New
York Mercantile Exchange. Generally, when the applicable settlement price is
less than the price specified in the contract, we receive a settlement from the
counterparty based on the difference multiplied by the volume hedge. Similarly,
when the applicable settlement price exceeds the price specified in the
contract, we pay the counterparty based on the difference. We generally receive
a settlement from the counterparty for floors when the applicable settlement
price is less than the price specified in the contract, which is based on the
difference multiplied by the volumes hedged. For collars, we generally receive a
settlement from the counterparty when the settlement price is below the floor
and pay a settlement to the counterparty when the settlement price exceeds the
cap. No settlement occurs when the settlement price falls between the floor and
cap.
In March 2002, we hedged a portion of our natural gas production for the
period April 2002 through October 2002 in order to increase the predictability
of our cash flow from operations in order to support our planned 2002 drilling
program. The hedges cover approximately 45% to 50% of our expected 2002 natural
19
gas production from April 2002 to October 2002. We entered into price swaps
covering 50 MMBtus per day of our natural gas production at an average price of
$3.46. The price swaps are settled using the closing index price for natural gas
delivered to the Houston Ship Channel for 38.2 MMBtus per day and the closing
contract price for natural gas delivered to the Henry Hub on the New York
Mercantile Exchange for 11.8 MMBtus per day. For the first six months of 2002 we
realized gains of $363,000 on these hedge positions.
On July 9, 2002, Comstock entered into an agreement with a subsidiary of
Enron Corporation ("Enron") to settle all outstanding derivative financial
instruments between Comstock and Enron effective as of April 23, 2002. Comstock
agreed to pay $3.0 million to Enron to cancel a natural gas price swap agreement
covering 2,466,668 MMBtus at a fixed price of $2.40 and a natural gas price
floor position covering 986,668 MMBtus at $1.90.
The following table sets out the derivative financial instruments
outstanding at June 30, 2002, excluding the Enron positions, which are held for
natural gas price risk management:
Volume Type Swap Floor Ceiling
Period Beginning Period Ending (MMBtu) of Instrument Price Price Price
---------------- ----------------- ----------- ------------- ---------- ---------- ----------
July 1, 2002 October 31, 2002 3,040,000 Swap $3.44 -- --
July 1, 2002 October 31, 2002 1,600,000 Swap $3.50 -- --
July 1, 2002 October 31, 2002 1,440,000 Swap $3.48 -- --
July 1, 2002 December 31, 2002 1,275,000 Floor -- $2.00 --
July 1, 2002 December 31, 2002 450,000 Collar -- $4.00 $6.75
----------
7,805,000
----------
January 1, 2003 December 31, 2003 2,250,000 Floor -- $2.00 --
----------
10,055,000
==========
The fair value of the commodity price derivative financial instruments at
June 30, 2002 was a net liability of $1.6 million. Certain of the positions have
not been designated as cash flow hedges. Changes in fair value of the derivative
financial instruments not designated as cash flow hedges are recorded in
earnings.
Interest Rates
At June 30, 2002, we had long-term debt of $384.0 million. Of this amount,
$220.0 million bears interest at a fixed rate of 11 1/4%. We had $164.0 million
outstanding under our revolving bank credit facility, which is subject to
floating market rates of interest. Borrowings under the bank credit facility
bear interest at a fluctuating rate that is linked to LIBOR or the corporate
base rate, at our option. Any increases in these interest rates can have an
adverse impact on our results of operations and cash flow. In March 2001, we
entered into an interest rate swap agreement to hedge the impact of interest
rate changes on $25.0 million of our floating rate debt beginning on April 30,
2001 and expiring on April 30, 2002. As a result of this interest rate swap, we
realized a loss of $218,000 in the first six months of 2002. As of June 30,
2002, Comstock had no open interest rate derivative financial instruments
outstanding.
20
PART II - OTHER INFORMATION
ITEM 6: EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits
--------
10.1*# Employment Agreement dated June 1, 2002, by and between Comstock
and M. Jay Allison.
10.2*# Employment Agreement dated June 1, 2002, by and between Comstock
and Roland O. Burns.
15.1* Awareness Letter of KPMG LLP.
99.1* Certification for the Chief Executive Officer as required by
Section 906 of the Sarbanes-Oxley Act of 2002.
99.2* Certification for the Chief Financial Officer as required by
Section 906 of the Sarbanes-Oxley Act of 2002.
- -------------
*Filed herewith.
# Management contract or compensatory plan document.
b. Reports on Form 8-K
------------------
Form 8-K Reports filed subsequent to March 31, 2002 are as follows:
Date Item Description
- ---------------- ------- ---------------------------------------------
April 26, 2002 4 Changes in registrant's certifying accountant
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
COMSTOCK RESOURCES, INC.
/s/M. JAY ALLISON
-----------------
Date August 12, 2002 M. Jay Allison, Chairman, President and Chief
--------------- Executive Officer (Principal Executive Officer)
/s/ROLAND O. BURNS
------------------
Date August 12, 2002 Roland O. Burns, Senior Vice President,
--------------- Chief Financial Officer, Secretary, and Treasurer
(Principal Financial and Accounting Officer)
21
Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") executed by and between COMSTOCK
RESOURCES, INC., a Nevada corporation (the "Company") with principal offices in
Frisco, Texas, and M. JAY ALLISON ("Employee").
1. Employment. The Company hereby agrees to employ Employee, and Employee
hereby agrees to render his exclusive service to the Company, in his current
capacity of President and Chief Executive Officer of the Company, with such
duties as may be assigned to him from time to time by the Board of Directors.
2. Term of Agreement. This Agreement shall be effective commencing on June
1, 2002 (the effective date of this Agreement). This Agreement shall, as of its
first anniversary, and on each annual anniversary thereof, be extended
automatically, without further action by the Employee or the Company, for an
additional one (1) year, so that there shall, as of June 1 of each year, be
three (3) years remaining in the term of this Agreement (the "Employment
Period"), subject to earlier termination as hereinafter provided.
3. Place of Employment. Unless otherwise agreed by the Company and
Employee, throughout the term of this Agreement, Employee's business office
shall be located in Frisco, Texas.
4. Base Compensation. Employee shall be compensated by the Company at a
minimum base rate of $27,000.00 per month, payable semimonthly on the fifteenth
and final days of each month during the period of Employee's employment under
this Agreement, subject to such increases and additional payments as may be
determined from time to time by the Board of Directors of the Company in its
sole discretion. Employee shall also be entitled to participate in any Company
discretionary bonus plan. Such compensation shall be in addition to any group
insurance, pension, profit sharing, and other employee benefits, which are
extended from time to time to Employee in the discretion of the Board of
Directors of the Company and for which Employee is eligible. Subject to such
rules and procedures as are from time to time specified by the Company, the
Company shall also reimburse Employee for all reasonable expenses incurred by
him on behalf of the Company.
5. Performance of Services. Employee shall devote his full working time to
the business of the Company; provided, however, Employee shall be excused from
performing any services for the Company hereunder during periods of temporary
incapacity and during vacations conforming to the Company's standard vacation
policy, without thereby in any way affecting the compensation to which he is
entitled hereunder.
6. Continuing Obligations. In order to induce the Company to enter into
this Agreement, the Employee hereby agrees that all documents, records,
techniques, business secrets and other information which have come into his
possession from time to time during his employment by the Company or which may
1
come into his possession during his employment hereunder, shall be deemed to be
confidential and proprietary to the Company and the Employee further agrees to
retain in confidence any confidential information known to him concerning the
Company and it's subsidiaries and their respective businesses so long as such
information is not publicly disclosed. In the event of a breach or threatened
breach by the Employee of the provisions of this Paragraph 6, the Company shall,
in addition to any other available remedies, be entitled to an injunction
restraining Employee from disclosing, in whole or in part, any such information
or from rendering any services to any person, firm or corporation to whom any of
such information may have been disclosed or is threatened to be disclosed.
7. Property of Company. All data, drawings, and other records and written
material prepared or compiled by Employee or furnished to Employee while in the
employ of the Company shall be the sole and exclusive property of the Company,
and none of such data, drawings or other records, or copies thereof, shall be
retained by Employee upon termination of his employment. Notwithstanding the
foregoing, Employee shall be under no obligation to return public information.
8. Surviving Provisions. The provisions of Paragraphs 6 and 7 of this
Agreement shall continue to be binding upon Employee in accordance with their
terms, notwithstanding termination of Employee's employment hereunder for any
reason.
9. Death or Disability. The Employee's employment shall terminate
automatically upon the Employee's death during the Employment Period. If the
Company determines in good faith that the Disability of the Employee has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Employee written notice of its intention to
terminate the Employee's employment. In such event, the Employee's employment
with the Company shall terminate effective on the 30th day after receipt of such
notice by the Employee (the "Disability Effective Date"), provided that, within
the 30 days after such receipt, the Employee shall not have returned to
full-time performance of the Employee's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Employee from the Employee's duties
with the Company on a full-time basis for 150 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Employee or the Employee's legal representative.
10. Termination for Good Reason. The Employee's employment may be
terminated by the Employee for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean:
(a) the assignment to the Employee of any duties inconsistent in any
respect with the Employee's position (including status, offices,
titles and reporting requirements), authority, duties or
responsibilities as contemplated by paragraph 1. of this
Agreement;
(b) any purported termination by the Company of the Employee's
employment otherwise than as expressly permitted by this
Agreement;
(c) any failure by the Company to comply with and satisfy paragraph
18(a) of this Agreement,
2
(d) the Company's requiring the Employee to reside in or be based at
any office or location other than as provided in Paragraph 3 of
this Agreement, or
(e) following a Change in Control, the Company's requiring the
Employee to travel on Company business to a substantially greater
extent than during any period prior to the Change in Control.
Any good faith determination of "Good Reason" made by the Employee shall be
conclusive.
11. Termination for Cause. It is agreed and understood that the Company
cannot terminate the employment of the Employee under this Agreement except for
Cause, which shall mean:
(a) Should Employee for reasons other than illness or injury absent
himself from his duties without the consent of the Company (which
consent shall not be unreasonably withheld) for more than twenty
(20) consecutive days;
(b) Should Employee be convicted of a felony involving moral
turpitude;
(c) Should Employee during the period of his employment by the
Company engage in any activity that would in the opinion of the
Board of Directors of the Company constitute a material conflict
of interest with the Company; provided that termination for Cause
based on this subparagraph (c) shall not be effective unless the
Employee shall have received written notice from the Board of
Directors of the Company of such activity (which notice shall
also include a demand for the Employee to cease the activity
giving rise to the conflict of interest) fifteen (15) days prior
to his termination and the Employee has failed after receipt of
such notice to cease all activities creating the conflict of
interest; or
(d) Should Employee be grossly negligent in the performance of his
duties hereunder, or materially in breach of his duties and
obligations under this Agreement; provided that termination for
Cause based on this subparagraph (d) shall not be effective
unless the Employee shall have received written notice from the
Board of Directors of the Company (which notice shall include a
description of the reasons and circumstances giving rise to such
notice) fifteen (15) days prior to his termination and the
Employee has failed after receipt of such notice to
satisfactorily discharge the performance of his duties hereunder
or to comply with the terms of this Agreement, as the case may
be.
The Company may terminate Employee's employment for Cause under this Agreement
without advance notice, except as otherwise specifically provided for in
subparagraphs (c) and (d) above. Termination shall not affect any of the
Company's other rights and remedies.
3
12. Obligations of the Company upon Termination.
(a) Good Reason or Involuntary Termination Other Than for Cause. If,
during the Employment Period, the Company shall terminate the
Employee's employment other than for Cause or the Employee shall
terminate employment for Good Reason, the Company shall pay to
the Employee in a lump sum in cash within 30 days after the date
of termination the aggregate of the following amounts:
(1) the sum of (A) the Employee's annual base salary through the
date of termination to the extent not theretofore paid, (B)
the product of the annual bonus paid or payable, including
any bonus or portion thereof which has been earned but
deferred (and annualized for any fiscal year consisting of
less than twelve full months or during which the Employee
was employed for less than twelve full months), for the most
recently completed fiscal year during the Employment Period
(the "Fiscal Year Bonus"), if any, and a fraction, the
numerator of which is the number of days in the current
fiscal year through the date of termination, and the
denominator of which is 365, and (C) any compensation
previously deferred by the Employee (together with any
accrued interest or earnings thereon) and any accrued
vacation pay, in each case to the extent not theretofore
paid (the sum of the amounts described in clauses (A), (B)
and (C) shall be hereinafter referred to as the "Accrued
Obligations"); and
(2) an amount equal to 1.5 times the sum of the Employee's
annual base salary and the Fiscal Year Bonus; and for
eighteen (18) months after the Employee's date of
termination, the Company shall continue group medical
benefits to the Employee and/or the Employee's family at
least equal to those which would have been provided to them
in accordance with the plans if the Employee's employment
had not been terminated; provided, however, that if the
Employee becomes re-employed with another employer and is
eligible to receive group medical benefits under another
employer-provided plan, the medical benefits described
herein shall be secondary to those provided under such other
plan during such applicable period of eligibility.
In addition, the Company shall, at its sole expense as incurred, provide the
Employee with outplacement services, the scope and provider of which shall be
selected by the Employee in his sole discretion, and the Company shall assign to
the Employee ownership of any life insurance policies owned by the Company
insuring the Employee's life.
(b) Death. If the Employee's employment is terminated by reason of
the Employee's death during the Employment Period, the Company
shall pay to the Employee's legal representatives the sum of (1)
the Accrued Obligations, and (2) an amount equal to six months'
4
annualized total compensation. Such amounts shall be paid in a
lump sum in cash within 30 days of the date of termination.
(c) Disability. If the Employee's employment is terminated by reason
of the Employee's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the
Employee, other than for payment of Accrued Obligations. Accrued
Obligations shall be paid to the Employee in a lump sum in cash
within 30 days of the date of termination. In addition, the
Company shall assign to the Employee ownership of any life
insurance policies owned by the Company insuring the Employee's
life.
(d) Cause or Voluntary Termination Other than for Good Reason. If the
Employee's employment shall be terminated for Cause during the
Employment Period, or if the Employee voluntarily terminates his
employment other than for Good Reason, this Agreement shall
terminate without further obligations to the Employee other than
the obligation to pay to the Employee his annual base salary
through the date of termination and the amount of any
compensation previously deferred by the Employee. Such amounts
shall be paid to the Employee in a lump sum in cash within 30
days of the date of termination.
13. Change in Control. For the purposes of this Agreement, a "Change in
Control" shall mean:
(a) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors
of Employer cease for any reason to constitute a majority thereof
(unless the election, or nomination for election by Employer's
stockholders, of such director was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of such period or whose election
or nomination for election was previously so approved);
(b) a third person, including a "group" as defined in Paragraph
15(d)(3) of the Securities Exchange Act of 1934, becomes the
beneficial owner of shares of any class of the Company's stock
having 20% or more of the total number of votes that may be cast
for the election of directors of the Company; or (c) consummation
of a merger or other business combination of the Company with or
into another corporation pursuant to which the Company does not
survive or survives only as a subsidiary of another corporation,
the sale or other disposition of all or substantially all of the
assets of the Company, or any combination of the foregoing.
For purposes hereof, a person will be deemed to be the beneficial owner of any
voting securities of the Company which it would be considered to beneficially
own under Securities and Exchange Commission Rule 13d-3 (or any similar or
superseding statute or rule from time to time in effect).
5
14. Termination of Employment Following a Change of Control. Following a
Change of Control, if the Employee's employment is terminated for any reason
other than Cause, death or Disability, or if the Employee voluntarily terminates
his employment (a) within a period of six (6) months following the Change of
Control, or (b) for Good Reason, then the Company shall pay to the Employee the
Accrued Obligations and an amount equal to 2.99 times the sum of the Employee's
annual base salary and the highest annual bonus paid to the Employee during the
Employee's tenure with the Company; and for eighteen (18) months after the
Employee's date of termination, the Company shall continue group medical
benefits to the Employee and/or the Employee's family at least equal to those
which would have been provided to them in accordance with the plans if the
Employee's employment had not been terminated; provided, however, that if the
Employee becomes re-employed with another employer and is eligible to receive
group medical benefits under another employer provided plan, the medical
benefits described herein shall be secondary to those provided under such other
plan during such applicable period of eligibility. In addition, the Company
shall, at its sole expense as incurred, provide the Employee with outplacement
services, the scope and provider of which shall be selected by the Employee in
his sole discretion, and the Company shall assign to the Employee ownership of
any life insurance policies owned by the Company insuring the Employee's life.
15. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined
that any payment or distribution by the Company to or for the
benefit of the Employee (whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional
payments required under this paragraph 15) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code or
any interest or penalties are incurred by the Employee with
respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Employee shall be
entitled to receive an additional payment (a "Gross-Up Payment")
in an amount such that after payment by the Employee of all taxes
(including any interest or penalties imposed with respect to such
taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, the Employee retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed
upon the Payments.
(b) Subject to the provisions of paragraph 15(c), all determinations
required to be made under this paragraph 15, including whether
and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving
at such determination, shall be made by KPMG Peat Marwick LLP or
such other certified public accounting firm as may be designated
by the Employee (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and the
Employee within 15 business days of the receipt of notice from
the Employee that there has been a Payment, or such earlier time
as is requested by the Company. In the event that the Accounting
Firm is serving as accountant or auditor for the individual,
entity or group effecting the Change in Control, the Employee
shall appoint another nationally recognized accounting firm to
make the determinations required hereunder (which accounting firm
shall then be referred to as the Accounting Firm hereunder). All
6
fees and expenses of the Accounting Firm shall be borne solely by
the Company. Any Gross-Up Payment, as determined pursuant to this
paragraph 15 shall be paid by the Company to the Employee within
five days of the receipt of the Accounting Firm's determination.
Any determination by the Accounting Firm shall be binding upon
the Company and the Employee. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by
the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to paragraph
15(c) and the Employee thereafter is required to make a payment
of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment
shall be promptly paid by the Company to or for the benefit of
the Employee.
(c) The Employee shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require
the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later
than ten business days after the Employee is informed in writing
of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid.
The Employee shall not pay such claim prior to the expiration of
the 30-day period following the date on which it gives such
notice to the Company (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due). If
the Company notifies the Employee in writing prior to the
expiration of such period that it desires to contest such claim,
the Employee shall:
(1) give the Company any information reasonably requested by the
Company relating to such claim,
(2) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Company,
(3) cooperate with the Company in good faith in order
effectively to contest such claim, and
(4) permit the Company to participate in any proceedings
relating to such claim;
7
provided, however, that the Company shall bear and pay directly
all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall
indemnify and hold the Employee harmless, on an after-tax basis,
for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without
limitation of the foregoing provisions of this paragraph 15(c),
the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forego
any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim
and may, at its sole option, either direct the Employee to pay
the tax claimed and sue for a refund or contest the claim in any
permissible manner, and the Employee agrees to prosecute such
contest to a determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that
if the Company directs the Employee to pay such claim and sue for
a refund, the Company shall advance the amount of such payment to
the Employee, on an interest-free basis and shall indemnify and
hold the Employee harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with
respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and
further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Employee
with respect to which such contested amount is claimed to be due
is limited solely to such contested amount. Furthermore, the
Company's control of the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder
and the Employee shall be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(d) If, after the receipt by the Employee of an amount advanced
by the Company pursuant to Paragraph 15(c), the Employee
becomes entitled to receive any refund with respect to such
claim, the Employee shall (subject to the Company's
complying with the requirements of Paragraph 15(c)) promptly
pay to the Company the amount of such refund (together with
any interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by the Employee of an amount
advanced by the Company pursuant to Paragraph 15(c), a
determination is made that the Employee shall not be
entitled to any refund with respect to such claim and the
Company does not notify the Employee in writing of its
intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such
advance shall be forgiven and shall not be required to be
repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to
be paid.
8
16. Payment of Certain Costs of Employee. If a dispute arises regarding the
interpretation or enforcement of this Agreement, all legal fees and expenses
incurred by the Employee in seeking to obtain or enforce any right or benefit
provided for in this Agreement or in otherwise pursuing his claim will be paid
by the Company, to the extent permitted by law. The Company further agrees to
pay prejudgment interest on any money judgment obtained by the Employee
calculated at the First National Bank of Chicago N.A. prime interest rate in
effect from time to time from the date that payment(s) to him should have been
made under this Agreement.
17. Indemnification; Directors and Officers Insurance. The Company shall
(a) during the Employment Period and thereafter without limitation of time,
indemnify and advance expenses to the Employee to the fullest extent permitted
by the laws of the State of Nevada from time to time in effect and (b) during
the Employment Period, acquire and maintain directors and offices liability
insurance covering the Employee (and to the extent the Company desires, other
directors and officers of the Company and its affiliated companies) to the
extent it is available at commercially reasonable rates as determined by the
Board; provided, however, that in no event shall the Employee be entitled to
indemnification or advancement of expenses under this Paragraph 17 with respect
to any proceeding, or matter therein, brought or made by the Employee against
the Company other than one initiated by the Employee to enforce the Employee's
advancement of expenses as provided in this Paragraph 17 shall not be deemed
exclusive of any other rights to which the Employee may at any time be entitled
under applicable law, the certificate of incorporation or bylaws of the Company,
any agreement, a vote of stockholders, a resolution of the Board, or otherwise.
The provisions of this Paragraph 17 shall continue in effect notwithstanding
termination of the Employee's employment hereunder for any reason, including,
without limitation, Employee's voluntary termination. In furtherance thereof,
and not by way of limitation, the Company shall reimburse Employee for all
reasonable legal fees and expenses incurred by Employee in connection with
Employee's obtaining and enforcing any right or benefit provided by this
Agreement. The reimbursement of such legal fees and expenses shall be made
within 30 days after Employee's request for payment accompanied by evidence of
the fees and expenses incurred. For a period of ten (10) years after the
termination, for any reason, of Employee's employment with the Company, the
Company shall indemnify, hold harmless and defend Employee, to the fullest
extent permitted by applicable law, from and against any loss, cost or expense
related to or arising out of any action or claim with respect to (i) the Company
or its affiliated companies or (11) any action taken or omitted by the Employee
(INCLUDING, BUT NOT LIMITED TO, MATTERS THAT CONSTITUTE NEGLIGENCE OF THE
EMPLOYEE) for or on behalf of the Company or its affiliated companies, whether,
in either case, such action or claim, or the facts and circumstances giving rise
thereto, occurred or accrued before or after such termination of employment.
18. Mitigation. The Employee is not required to mitigate the amount of any
payments to be made by the Company pursuant to this Agreement by seeking other
employment or otherwise.
19. Successors.
(a) Except as may otherwise be provided under any other written
agreement between the Company and the Employee with respect to
the terms of Employee's employment in the event of a Change of
9
Control of the Company, the Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/or
assets of the Company, by agreement in form and substance
satisfactory to the Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined, any
successor to its business and/or assets as aforesaid which
executes and delivers the agreement provided for in this
Paragraph 19 or which otherwise becomes bound by all the terms
and provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be enforceable
by the Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees.
20. No Inconsistent Obligations. Employee represents and warrants that he
has not previously assumed any obligations inconsistent with those of this
Agreement.
21. Modification. This Agreement shall be in addition to all previous
agreements, written or oral, relating to Employee's employment by the Company,
and shall not be changed orally, but only by a written instrument to which the
Company and the Employee are both parties.
22. Binding Effect. This Agreement and the rights and obligations hereunder
shall be binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, and shall also bind and inure to the benefit
of any successor of the Company by merger or consolidation or any assignee of
all or substantially all of its properties.
23. Bankruptcy. Notwithstanding anything in this Agreement to the contrary,
the insolvency or adjudication of bankruptcy of the Company, whether voluntary
or involuntary, shall terminate this Agreement and the rights and obligations of
Company and Employee hereunder shall be of no further force or effect.
24. Law Governing. This Agreement made, accepted and delivered in Collin
County, Texas, is performable in Collin County, Texas, and it shall be construed
and enforced according to the laws of the State of Texas. Venue shall lie in
Collin County, Texas for the purpose of resolving and enforcing any dispute
which may arise under this Agreement and the parties agree that they will submit
themselves to the jurisdiction of the competent State or Federal Court situated
in Collin County, Texas.
25. Invalid Provision. In case any one or more of the provisions contained
in this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be impaired thereby.
10
26. Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
IF TO THE EMPLOYEE:
Mr. M. Jay Allison
#3 Post-N-Paddock
Frisco, TX 75035
IF TO THE COMPANY:
COMSTOCK RESOURCES, INC.
5300 Town and Country Blvd., Suite 500
Frisco, Texas 75034
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
EXECUTED and effective as to this 1st day of June, 2002.
COMSTOCK RESOURCES, INC.
By:/s/ROLAND O. BURNS
-----------------------
Name: Roland O. Burns
Title:Senior Vice President and
Chief Financial Officer
EMPLOYEE:
By:/s/M. JAY ALLISON
------------------
Name: M. Jay Allison
Exhibit 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") executed by and between COMSTOCK
RESOURCES, INC., a Nevada corporation (the "Company") with principal offices in
Frisco, Texas, and ROLAND O BURNS ("Employee").
1. Employment. The Company hereby agrees to employ Employee, and Employee
hereby agrees to render his exclusive service to the Company, in his current
capacity of Senior Vice President and Chief Financial Officer of the Company,
with such duties as may be assigned to him from time to time by the Board of
Directors.
2. Term of Agreement. This Agreement shall be effective commencing on June
1, 2002 (the effective date of this Agreement). This Agreement shall, as of its
first anniversary, and on each annual anniversary thereof, be extended
automatically, without further action by the Employee or the Company, for an
additional one (1) year, so that there shall, as of June 1 of each year, be
three (3) years remaining in the term of this Agreement (the "Employment
Period"), subject to earlier termination as hereinafter provided.
3. Place of Employment. Unless otherwise agreed by the Company and
Employee, throughout the term of this Agreement, Employee's business office
shall be located in Frisco, Texas.
4. Base Compensation. Employee shall be compensated by the Company at a
minimum base rate of $15,833.33 per month, payable semimonthly on the fifteenth
and final days of each month during the period of Employee's employment under
this Agreement, subject to such increases and additional payments as may be
determined from time to time by the Board of Directors of the Company in its
sole discretion. Employee shall also be entitled to participate in any Company
discretionary bonus plan. Such compensation shall be in addition to any group
insurance, pension, profit sharing, and other employee benefits, which are
extended from time to time to Employee in the discretion of the Board of
Directors of the Company and for which Employee is eligible. Subject to such
rules and procedures as are from time to time specified by the Company, the
Company shall also reimburse Employee for all reasonable expenses incurred by
him on behalf of the Company.
5. Performance of Services. Employee shall devote his full working time to
the business of the Company; provided, however, Employee shall be excused from
performing any services for the Company hereunder during periods of temporary
incapacity and during vacations conforming to the Company's standard vacation
policy, without thereby in any way affecting the compensation to which he is
entitled hereunder.
6. Continuing Obligations. In order to induce the Company to enter into
this Agreement, the Employee hereby agrees that all documents, records,
techniques, business secrets and other information which have come into his
possession from time to time during his employment by the Company or which may
come into his possession during his employment hereunder, shall be deemed to be
1
confidential and proprietary to the Company and the Employee further agrees to
retain in confidence any confidential information known to him concerning the
Company and it's subsidiaries and their respective businesses so long as such
information is not publicly disclosed. In the event of a breach or threatened
breach by the Employee of the provisions of this Paragraph 6, the Company shall,
in addition to any other available remedies, be entitled to an injunction
restraining Employee from disclosing, in whole or in part, any such information
or from rendering any services to any person, firm or corporation to whom any of
such information may have been disclosed or is threatened to be disclosed.
7. Property of Company. All data, drawings, and other records and written
material prepared or compiled by Employee or furnished to Employee while in the
employ of the Company shall be the sole and exclusive property of the Company,
and none of such data, drawings or other records, or copies thereof, shall be
retained by Employee upon termination of his employment. Notwithstanding the
foregoing, Employee shall be under no obligation to return public information.
8. Surviving Provisions. The provisions of Paragraphs 6 and 7 of this
Agreement shall continue to be binding upon Employee in accordance with their
terms, notwithstanding termination of Employee's employment hereunder for any
reason.
9. Death or Disability. The Employee's employment shall terminate
automatically upon the Employee's death during the Employment Period. If the
Company determines in good faith that the Disability of the Employee has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Employee written notice of its intention to
terminate the Employee's employment. In such event, the Employee's employment
with the Company shall terminate effective on the 30th day after receipt of such
notice by the Employee (the "Disability Effective Date"), provided that, within
the 30 days after such receipt, the Employee shall not have returned to
full-time performance of the Employee's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Employee from the Employee's duties
with the Company on a full-time basis for 150 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Employee or the Employee's legal representative.
10. Termination for Good Reason. The Employee's employment may be
terminated by the Employee for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean:
(a) the assignment to the Employee of any duties inconsistent in any
respect with the Employee's position (including status, offices,
titles and reporting requirements), authority, duties or
responsibilities as contemplated by paragraph 1. of this Agreement;
(b) any purported termination by the Company of the Employee's employment
otherwise than as expressly permitted by this Agreement;
(c) any failure by the Company to comply with and satisfy paragraph 18(a)
of this Agreement,
2
(d) the Company's requiring the Employee to reside in or be based at any
office or location other than as provided in Paragraph 3 of this
Agreement, or
(e) following a Change in Control, the Company's requiring the Employee to
travel on Company business to a substantially greater extent than
during any period prior to the Change in Control.
Any good faith determination of "Good Reason" made by the Employee shall be
conclusive.
11. Termination for Cause. It is agreed and understood that the Company
cannot terminate the employment of the Employee under this Agreement except for
Cause, which shall mean:
(a) Should Employee for reasons other than illness or injury absent
himself from his duties without the consent of the Company (which
consent shall not be unreasonably withheld) for more than twenty (20)
consecutive days;
(b) Should Employee be convicted of a felony involving moral turpitude;
(c) Should Employee during the period of his employment by the Company
engage in any activity that would in the opinion of the Board of
Directors of the Company constitute a material conflict of interest
with the Company; provided that termination for Cause based on this
subparagraph (c) shall not be effective unless the Employee shall have
received written notice from the Board of Directors of the Company of
such activity (which notice shall also include a demand for the
Employee to cease the activity giving rise to the conflict of
interest) fifteen (15) days prior to his termination and the Employee
has failed after receipt of such notice to cease all activities
creating the conflict of interest; or
(d) Should Employee be grossly negligent in the performance of his duties
hereunder, or materially in breach of his duties and obligations under
this Agreement; provided that termination for Cause based on this
subparagraph (d) shall not be effective unless the Employee shall have
received written notice from the Board of Directors of the Company
(which notice shall include a description of the reasons and
circumstances giving rise to such notice) fifteen (15) days prior to
his termination and the Employee has failed after receipt of such
notice to satisfactorily discharge the performance of his duties
hereunder or to comply with the terms of this Agreement, as the case
may be.
The Company may terminate Employee's employment for Cause under this Agreement
without advance notice, except as otherwise specifically provided for in
subparagraphs (c) and (d) above. Termination shall not affect any of the
Company's other rights and remedies.
3
12. Obligations of the Company upon Termination.
(a) Good Reason or Involuntary Termination Other Than for Cause. If,
during the Employment Period, the Company shall terminate the
Employee's employment other than for Cause or the Employee shall
terminate employment for Good Reason, the Company shall pay to the
Employee in a lump sum in cash within 30 days after the date of
termination the aggregate of the following amounts:
(1) the sum of (A) the Employee's annual base salary through the date
of termination to the extent not theretofore paid, (B) the
product of the annual bonus paid or payable, including any bonus
or portion thereof which has been earned but deferred (and
annualized for any fiscal year consisting of less than twelve
full months or during which the Employee was employed for less
than twelve full months), for the most recently completed fiscal
year during the Employment Period (the "Fiscal Year Bonus"), if
any, and a fraction, the numerator of which is the number of days
in the current fiscal year through the date of termination, and
the denominator of which is 365, and (C) any compensation
previously deferred by the Employee (together with any accrued
interest or earnings thereon) and any accrued vacation pay, in
each case to the extent not theretofore paid (the sum of the
amounts described in clauses (A), (B) and (C) shall be
hereinafter referred to as the "Accrued Obligations"); and
(2) an amount equal to 1.5 times the sum of the Employee's annual
base salary and the Fiscal Year Bonus; and for eighteen (18)
months after the Employee's date of termination, the Company
shall continue group medical benefits to the Employee and/or the
Employee's family at least equal to those which would have been
provided to them in accordance with the plans if the Employee's
employment had not been terminated; provided, however, that if
the Employee becomes re-employed with another employer and is
eligible to receive group medical benefits under another
employer-provided plan, the medical benefits described herein
shall be secondary to those provided under such other plan during
such applicable period of eligibility.
In addition, the Company shall, at its sole expense as incurred, provide
the Employee with outplacement services, the scope and provider of which
shall be selected by the Employee in his sole discretion, and the Company
shall assign to the Employee ownership of any life insurance policies owned
by the Company insuring the Employee's life.
(b) Death. If the Employee's employment is terminated by reason of
the Employee's death during the Employment Period, the Company
shall pay to the Employee's legal representatives the sum of (1)
the Accrued Obligations, and (2) an amount equal to six months'
4
annualized total compensation. Such amounts shall be paid in a
lump sum in cash within 30 days of the date of termination.
(c) Disability. If the Employee's employment is terminated by reason
of the Employee's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the
Employee, other than for payment of Accrued Obligations. Accrued
Obligations shall be paid to the Employee in a lump sum in cash
within 30 days of the date of termination. In addition, the
Company shall assign to the Employee ownership of any life
insurance policies owned by the Company insuring the Employee's
life.
(d) Cause or Voluntary Termination Other than for Good Reason. If the
Employee's employment shall be terminated for Cause during the
Employment Period, or if the Employee voluntarily terminates his
employment other than for Good Reason, this Agreement shall
terminate without further obligations to the Employee other than
the obligation to pay to the Employee his annual base salary
through the date of termination and the amount of any
compensation previously deferred by the Employee. Such amounts
shall be paid to the Employee in a lump sum in cash within 30
days of the date of termination.
13. Change in Control. For the purposes of this Agreement, a "Change in
Control" shall mean:
(a) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors
of Employer cease for any reason to constitute a majority thereof
(unless the election, or nomination for election by Employer's
stockholders, of such director was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of such period or whose election
or nomination for election was previously so approved);
(b) a third person, including a "group" as defined in Paragraph
15(d)(3) of the Securities Exchange Act of 1934, becomes the
beneficial owner of shares of any class of the Company's stock
having 20% or more of the total number of votes that may be cast
for the election of directors of the Company; or
(c) consummation of a merger or other business combination of the
Company with or into another corporation pursuant to which the
Company does not survive or survives only as a subsidiary of
another corporation, the sale or other disposition of all or
substantially all of the assets of the Company, or any
combination of the foregoing.
For purposes hereof, a person will be deemed to be the beneficial owner of any
voting securities of the Company which it would be considered to beneficially
own under Securities and Exchange Commission Rule 13d-3 (or any similar or
superseding statute or rule from time to time in effect).
5
14. Termination of Employment Following a Change of Control. Following a
Change of Control, if the Employee's employment is terminated for any reason
other than Cause, death or Disability, or if the Employee voluntarily terminates
his employment (a) within a period of six (6) months following the Change of
Control, or (b) for Good Reason, then the Company shall pay to the Employee the
Accrued Obligations and an amount equal to 2.99 times the sum of the Employee's
annual base salary and the highest annual bonus paid to the Employee during the
Employee's tenure with the Company; and for eighteen (18) months after the
Employee's date of termination, the Company shall continue group medical
benefits to the Employee and/or the Employee's family at least equal to those
which would have been provided to them in accordance with the plans if the
Employee's employment had not been terminated; provided, however, that if the
Employee becomes re-employed with another employer and is eligible to receive
group medical benefits under another employer provided plan, the medical
benefits described herein shall be secondary to those provided under such other
plan during such applicable period of eligibility. In addition, the Company
shall, at its sole expense as incurred, provide the Employee with outplacement
services, the scope and provider of which shall be selected by the Employee in
his sole discretion, and the Company shall assign to the Employee ownership of
any life insurance policies owned by the Company insuring the Employee's life.
15. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined
that any payment or distribution by the Company to or for the
benefit of the Employee (whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional
payments required under this paragraph 15) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code or
any interest or penalties are incurred by the Employee with
respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Employee shall be
entitled to receive an additional payment (a "Gross-Up Payment")
in an amount such that after payment by the Employee of all taxes
(including any interest or penalties imposed with respect to such
taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, the Employee retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed
upon the Payments.
(b) Subject to the provisions of paragraph 15(c), all determinations
required to be made under this paragraph 15, including whether
and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving
at such determination, shall be made by KPMG Peat Marwick LLP or
such other certified public accounting firm as may be designated
by the Employee (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and the
Employee within 15 business days of the receipt of notice from
the Employee that there has been a Payment, or such earlier time
as is requested by the Company. In the event that the Accounting
6
Firm is serving as accountant or auditor for the individual,
entity or group effecting the Change in Control, the Employee
shall appoint another nationally recognized accounting firm to
make the determinations required hereunder (which accounting firm
shall then be referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne solely by
the Company. Any Gross-Up Payment, as determined pursuant to this
paragraph 15 shall be paid by the Company to the Employee within
five days of the receipt of the Accounting Firm's determination.
Any determination by the Accounting Firm shall be binding upon
the Company and the Employee. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by
the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to paragraph
15(c) and the Employee thereafter is required to make a payment
of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment
shall be promptly paid by the Company to or for the benefit of
the Employee.
(c) The Employee shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require
the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later
than ten business days after the Employee is informed in writing
of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid.
The Employee shall not pay such claim prior to the expiration of
the 30-day period following the date on which it gives such
notice to the Company (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due). If
the Company notifies the Employee in writing prior to the
expiration of such period that it desires to contest such claim,
the Employee shall:
(1) give the Company any information reasonably requested by the
Company relating to such claim,
(2) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Company,
(3) cooperate with the Company in good faith in order
effectively to contest such claim, and
(4) permit the Company to participate in any proceedings
relating to such claim;
7
provided, however, that the Company shall bear and pay directly
all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall
indemnify and hold the Employee harmless, on an after-tax basis,
for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without
limitation of the foregoing provisions of this paragraph 15(c),
the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forego
any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim
and may, at its sole option, either direct the Employee to pay
the tax claimed and sue for a refund or contest the claim in any
permissible manner, and the Employee agrees to prosecute such
contest to a determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that
if the Company directs the Employee to pay such claim and sue for
a refund, the Company shall advance the amount of such payment to
the Employee, on an interest-free basis and shall indemnify and
hold the Employee harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with
respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and
further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Employee
with respect to which such contested amount is claimed to be due
is limited solely to such contested amount. Furthermore, the
Company's control of the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder
and the Employee shall be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(d) If, after the receipt by the Employee of an amount advanced by
the Company pursuant to Paragraph 15(c), the Employee becomes
entitled to receive any refund with respect to such claim, the
Employee shall (subject to the Company's complying with the
requirements of Paragraph 15(c)) promptly pay to the Company the
amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the
receipt by the Employee of an amount advanced by the Company
pursuant to Paragraph 15(c), a determination is made that the
Employee shall not be entitled to any refund with respect to such
claim and the Company does not notify the Employee in writing of
its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance
shall be forgiven and shall not be required to be repaid and the
amount of such advance shall offset, to the extent thereof, the
amount of Gross-Up Payment required to be paid.
8
16. Payment of Certain Costs of Employee. If a dispute arises regarding the
interpretation or enforcement of this Agreement, all legal fees and expenses
incurred by the Employee in seeking to obtain or enforce any right or benefit
provided for in this Agreement or in otherwise pursuing his claim will be paid
by the Company, to the extent permitted by law. The Company further agrees to
pay prejudgment interest on any money judgment obtained by the Employee
calculated at the First National Bank of Chicago N.A. prime interest rate in
effect from time to time from the date that payment(s) to him should have been
made under this Agreement.
17. Indemnification; Directors and Officers Insurance. The Company shall
(a) during the Employment Period and thereafter without limitation of time,
indemnify and advance expenses to the Employee to the fullest extent permitted
by the laws of the State of Nevada from time to time in effect and (b) during
the Employment Period, acquire and maintain directors and offices liability
insurance covering the Employee (and to the extent the Company desires, other
directors and officers of the Company and its affiliated companies) to the
extent it is available at commercially reasonable rates as determined by the
Board; provided, however, that in no event shall the Employee be entitled to
indemnification or advancement of expenses under this Paragraph 17 with respect
to any proceeding, or matter therein, brought or made by the Employee against
the Company other than one initiated by the Employee to enforce the Employee's
advancement of expenses as provided in this Paragraph 17 shall not be deemed
exclusive of any other rights to which the Employee may at any time be entitled
under applicable law, the certificate of incorporation or bylaws of the Company,
any agreement, a vote of stockholders, a resolution of the Board, or otherwise.
The provisions of this Paragraph 17 shall continue in effect notwithstanding
termination of the Employee's employment hereunder for any reason, including,
without limitation, Employee's voluntary termination. In furtherance thereof,
and not by way of limitation, the Company shall reimburse Employee for all
reasonable legal fees and expenses incurred by Employee in connection with
Employee's obtaining and enforcing any right or benefit provided by this
Agreement. The reimbursement of such legal fees and expenses shall be made
within 30 days after Employee's request for payment accompanied by evidence of
the fees and expenses incurred. For a period of ten (10) years after the
termination, for any reason, of Employee's employment with the Company, the
Company shall indemnify, hold harmless and defend Employee, to the fullest
extent permitted by applicable law, from and against any loss, cost or expense
related to or arising out of any action or claim with respect to (i) the Company
or its affiliated companies or (11) any action taken or omitted by the Employee
(INCLUDING, BUT NOT LIMITED TO, MATTERS THAT CONSTITUTE NEGLIGENCE OF THE
EMPLOYEE) for or on behalf of the Company or its affiliated companies, whether,
in either case, such action or claim, or the facts and circumstances giving rise
thereto, occurred or accrued before or after such termination of employment.
18. Mitigation. The Employee is not required to mitigate the amount of any
payments to be made by the Company pursuant to this Agreement by seeking other
employment or otherwise.
19. Successors.
(a) Except as may otherwise be provided under any other written
agreement between the Company and the Employee with respect to
the terms of Employee's employment in the event of a Change of
Control of the Company, the Company will require any successor
9
(whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/or
assets of the Company, by agreement in form and substance
satisfactory to the Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined, any
successor to its business and/or assets as aforesaid which
executes and delivers the agreement provided for in this
Paragraph 19 or which otherwise becomes bound by all the terms
and provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be enforceable
by the Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees.
20. No Inconsistent Obligations. Employee represents and warrants that he
has not previously assumed any obligations inconsistent with those of this
Agreement.
21. Modification. This Agreement shall be in addition to all previous
agreements, written or oral, relating to Employee's employment by the Company,
and shall not be changed orally, but only by a written instrument to which the
Company and the Employee are both parties.
22. Binding Effect. This Agreement and the rights and obligations hereunder
shall be binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, and shall also bind and inure to the benefit
of any successor of the Company by merger or consolidation or any assignee of
all or substantially all of its properties.
23. Bankruptcy. Notwithstanding anything in this Agreement to the contrary,
the insolvency or adjudication of bankruptcy of the Company, whether voluntary
or involuntary, shall terminate this Agreement and the rights and obligations of
Company and Employee hereunder shall be of no further force or effect.
24. Law Governing. This Agreement made, accepted and delivered in Collin
County, Texas, is performable in Collin County, Texas, and it shall be construed
and enforced according to the laws of the State of Texas. Venue shall lie in
Collin County, Texas for the purpose of resolving and enforcing any dispute
which may arise under this Agreement and the parties agree that they will submit
themselves to the jurisdiction of the competent State or Federal Court situated
in Collin County, Texas.
25. Invalid Provision. In case any one or more of the provisions contained
in this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be impaired thereby.
10
26. Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Employee:
Mr. Roland O. Burns
8430 Edgewood Cove
Frisco, TX 75035
If to the Company:
Comstock Resources, Inc.
5300 Town and Country Blvd., Suite 500
Frisco, Texas 75034
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
EXECUTED and effective as to this 1st day of June, 2002.
COMSTOCK RESOURCES, INC.
By: /s/M. JAY ALLISON
---------------------------
Name: M. Jay Allison
Title: President and Chief
Executive Officer
EMPLOYEE:
By: /s/ROLAND O. BURNS
---------------------------
Name: Roland O. Burns
Awareness Letter of KPMG LLP
August 12, 2002
Comstock Resources, Inc.
5300 Town and Country Boulevard
Suite 500
Frisco, Texas 75034
Re: Registration Statement No. 333-96741
Registration Statement No. 333-45860
Registration Statement No. 333-81483
Registration Statement No. 33-20981
Registration Statement No. 33-88962
With respect to the subject registration statement, we acknowledge our awareness
of the use therein of our report dated August 6, 2002 related to our review of
interim financial information.
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 99.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Comstock Resources, Inc. (the
"Company") on Form 10-Q for the period ending June 30, 2002 as filed with the
Securities and Exchange Commission on the date hereof (the "Report"), I, M. Jay
Allison, Chief Executive Officer of the Company, certify, pursuant to 18
U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of
2002, that:
(1) The Report fully complies with the requirements of section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all
material respects, the financial condition and result of operations of the
Company.
/s/M. Jay Allison
- -----------------------
M. Jay Allison
Chief Executive Officer
August 12, 2002
Exhibit 99.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Comstock Resources, Inc. (the
"Company") on Form 10-Q for the period ending June 30, 2002 as filed with the
Securities and Exchange Commission on the date hereof (the "Report"), I, Roland
O. Burns, Chief Financial Officer of the Company, certify, pursuant to 18
U.S.C.§1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of
2002, that:
(1) The Report fully complies with the requirements of section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all
material respects, the financial condition and result of operations of the
Company.
/s/Roland O. Burns
- ------------------------
Roland O. Burns
Chief Financial Officer
August 12, 2002