SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
DevX Energy, Inc.
(Name of Subject Company)
Comstock Acquisition Inc.
Comstock Holdings, Inc.
Comstock Resources, Inc.
(Names of Filing Persons (Offeror))
Common Stock, par value $0.234 per share
(Title of Class of Securities)
25189P203
(CUSIP Number of Class of Securities)
M. Jay Allison
Comstock Resources, Inc.
5300 Town and Country Blvd., Suite 500
Frisco, Texas 75034
(972) 668-8800
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Jack E. Jacobsen
Locke Liddell & Sapp LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
(214) 740-8000
CALCULATION OF FILING FEE
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Transaction Value * Amount of Filing Fee**
------------------------------------------------------------ ---------------------------------------------------------
$92,903,976 $18,581
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* Estimated for purposes of calculating the amount of the filing fee
only. Calculated by adding (i) 12,649,522, the number of shares of
common stock outstanding as of November 12, 2001, multiplied by the
$7.32 per share tender offer price, (ii) an estimated 522,500 shares of
common stock subject to options with an exercise price of less than
$7.32 per share, multiplied by $7.32 less $6.89, the average exercise
price of such options, and (iii) 265,000 shares of common stock subject
to warrants multiplied by $7.32 less $7.00, the exercise price of such
warrants.
** Calculated as 1/50 of 1% of the transaction value.
[X] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $18,581 Filing Party: Comstock Resources, Inc.
Form or Registration No.: Schedule TO Date Filed: November 15, 2001
[ ] Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
Check the appropriate boxes to designate any transactions to which the statement
relates:
[X] third-party tender offer subject to Rule 14d-1.
[ ] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: [ ]
This Amendment No. 1 amends and supplements the Tender Offer Statement
on Schedule TO filed on November 15, 2001 (the "Schedule TO") by Comstock
Acquisition Inc., a Delaware corporation ("Purchaser") and a wholly owned
subsidiary of Comstock Holdings, Inc., a Delaware corporation ("Holdings"),
which, in turn, is a wholly owned subsidiary of Comstock Resources, Inc., a
Nevada corporation ("Comstock"). The Schedule TO relates to the offer by
Purchaser to purchase all outstanding shares of common stock, par value $0.234
per share (the "Shares"), of DevX Energy, Inc., a Delaware corporation ("DevX"),
at a purchase price of $7.32 per Share, net to the seller in cash, upon the
terms and subject to the conditions set forth in the Offer to Purchase dated
November 15, 2001 (the "Offer to Purchase") and in the related Letter of
Transmittal, copies of which were filed as Exhibits (a)(1) and (a)(2) to the
Schedule TO (which, together with any amendments or supplements thereto,
collectively constitute the "Offer"). Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in the Offer to Purchase
or the Schedule TO.
ITEM 4. TERMS OF THE TRANSACTION.
Item 4 of the Schedule TO is hereby amended and supplemented to include
the following information:
Section 14. Certain Conditions of the Offer.
The last paragraph of Section 14 of the Offer to Purchase on page 29 is
amended to add the following sentence at the end of such paragraph:
"All conditions to the Offer, other than the condition involving
receipt of necessary governmental approvals, must be satisfied or
waived on or prior to the Expiration Date."
ITEM 11. ADDITIONAL INFORMATION.
Item 11 of the Schedule TO is hereby amended and supplemented to
include the following information:
Section 17. Miscellaneous.
Section 17 of the Offer to Purchase on page 31 is amended to add to
following paragraph as the last paragraph of such section:
"The Private Securities Litigation Reform Act of 1995, by its
terms, does not apply to tender offers. Forward-looking statements made
in connection with the Offer have, therefore, not been protected by
such Act's safe harbor provisions."
ITEM 12. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Offer to Purchase dated November 15, 2001.*
(a)(2) Form of Letter of Transmittal.*
(a)(3) Form of Notice of Guaranteed Delivery.*
(a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.*
(a)(5) Form of Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.*
(a)(6) Form of Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.*
(a)(7) Summary Advertisement as published in The Wall Street Journal on
November 15, 2001.*
(a)(8) Press Release issued by Comstock on November 13, 2001.*
(a)(9) Press Release issued by Comstock on October 22, 2001.**
(b)(1) Commitment Letter dated November 14, 2001 between Holdings and
Friedman, Billings, Ramsey & Co., Inc., as an Arranger and Bookrunner.*
(b)(2) Commitment Letter dated November 14, 2001 between Comstock and TD
Securities (USA), Inc.*
(d)(1) Agreement and Plan of Merger dated as of November 12, 2001 among
Comstock, Holdings, Purchaser and DevX.*
(d)(2) Confidentiality Agreement dated January 16, 2001 between Comstock and
DevX.*
(g) None.
(h) None.
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* Incorporated by reference to the Schedule TO filed by Comstock,
Holdings and Purchaser on November 15, 2001.
** Incorporated herein by reference to the Schedule TO-C filed by Comstock
on October 22, 2001.
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3.
Not applicable.
2
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: November 28, 2001 COMSTOCK ACQUISITION INC.
By: /s/ M. Jay Allison
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M. Jay Allison
President
COMSTOCK HOLDINGS, INC.
By: /s/ M. Jay Allison
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M. Jay Allison
President
COMSTOCK RESOURCES, INC.
By: /s/ M. Jay Allison
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M. Jay Allison
Chairman, President and Chief
Executive Officer
3
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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(a)(1) Offer to Purchase dated November 15, 2001.*
(a)(2) Form of Letter of Transmittal.*
(a)(3) Form of Notice of Guaranteed Delivery.*
(a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.*
(a)(5) Form of Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.*
(a)(6) Form of Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.*
(a)(7) Summary Advertisement as published in The Wall Street Journal on
November 15, 2001.*
(a)(8) Press Release issued by Comstock on November 13, 2001.*
(a)(9) Press Release issued by Comstock on October 22, 2001.**
(b)(1) Commitment Letter dated November 14, 2001 between Holdings and
Friedman, Billings, Ramsey & Co., Inc., as an Arranger and Bookrunner.*
(b)(2) Commitment Letter dated November 14, 2001 between Comstock and TD
Securities (USA), Inc.*
(d)(1) Agreement and Plan of Merger dated as of November 12, 2001 among
Comstock, Holdings, Purchaser and DevX.*
(d)(2) Confidentiality Agreement dated January 16, 2001 between Comstock and
DevX.*
(g) None.
(h) None.
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* Incorporated by reference to the Schedule TO filed by Comstock,
Holdings and Purchaser on November 15, 2001.
** Incorporated herein by reference to the Schedule TO-C filed by Comstock
on October 22, 2001.