-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ONF/8xwNK2Dw03PK9MB2d/Toa1GZXvpp8otWCc79R8IiPogZtiMWdrd4B+hRruCf ZY923gmUJDTMnyZ26eYPqw== 0000899078-03-000687.txt : 20031229 0000899078-03-000687.hdr.sgml : 20031225 20031229170207 ACCESSION NUMBER: 0000899078-03-000687 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20031229 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20031229 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DENBURY RESOURCES INC CENTRAL INDEX KEY: 0000945764 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 752815171 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-12935 FILM NUMBER: 031076009 BUSINESS ADDRESS: STREET 1: 5100 TENNYSON PARKWAY STREET 2: SUITE 3000 CITY: PLANO STATE: TX ZIP: 75024 BUSINESS PHONE: 9726732000 MAIL ADDRESS: STREET 1: 5100 TENNYSON PARKWAY STREET 2: SUITE 3000 CITY: PLANO STATE: TX ZIP: 75024 FORMER COMPANY: FORMER CONFORMED NAME: NEWSCOPE RESOURCES LTD DATE OF NAME CHANGE: 19950627 8-K 1 denbury8k12292003.txt FORM 8-K - DECEMBER 29, 2003 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K Current Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): December 29, 2003 DENBURY RESOURCES INC. (Exact name of Registrant as specified in its charter) Delaware (State or other jurisdiction of incorporation or organization) 1-12935 20-0467835 (Commission File Number) (I.R.S. Employer Identification No.) 5100 Tennyson Parkway Suite 3000 Plano, Texas 75024 (Address of principal executive offices) (Zip code) Registrant's telephone number, including area code: (972) 673-2000 N/A (Former name or former address, if changed since last report) INFORMATION TO BE INCLUDED IN THE REPORT Item 5. Other Events. Denbury Resources Inc., a Delaware corporation, formerly Denbury Holdings, Inc. (the "Registrant"), was organized to enable its predecessor, formerly Denbury Resources Inc., a Delaware corporation ("Predecessor"), to adopt a holding company organizational structure in accordance with Section 251(g) of the Delaware General Corporation Law (the "DGCL"). The purposes of creating the holding company structure are to better reflect the operating practices and methods of Denbury, to improve its economics, and to provide greater administrative and operational flexibility. The holding company organizational structure was effected pursuant to an Agreement and Plan of Merger to Form Holding Company (the "Merger Agreement") among the Predecessor, the Registrant, and Denbury Onshore, LLC, a Delaware limited liability company and a wholly-owned subsidiary of the Registrant ("Onshore"). The Merger Agreement provided for the merger of the Predecessor into Onshore, with Onshore continuing as the surviving entity and a wholly-owned subsidiary of the Registrant (the "Merger"). The Merger became effective at 9:00 a.m. EST on December 29, 2003. Prior to the Merger, the Registrant was a direct, wholly-owned subsidiary of the Predecessor organized for the purpose of implementing the holding company organizational structure. Pursuant to Section 251(g) of the DGCL, stockholder approval of the Merger was not required. The reorganization was structured so that it is tax-free to Denbury stockholders. By virtue of the Merger, all of the Predecessor's outstanding common stock was converted, on a share for share basis, into common stock of the Registrant. As a result, each stockholder of the Predecessor became the owner of an identical number of shares of common stock of the Registrant. Additionally, each treasury share of the Predecessor was automatically converted into a treasury share of the Registrant. Also, each outstanding option to purchase shares of the Predecessor's common stock was automatically converted into an option to purchase, upon the same terms and conditions, an identical number of shares of the Registrant's common stock. The conversion of shares of stock in the Merger occurred without an exchange of certificates. Accordingly, certificates formerly representing shares of outstanding stock of the Predecessor are deemed to represent the same number of shares of stock of the Registrant. The Registrant's common stock will continue to be listed on the New York Stock Exchange under the symbol "DNR" without interruption and the Registrant will use the same name as the Predecessor, "Denbury Resources Inc." In the Merger, each stockholder received securities of the same class, evidencing the same proportional interests in the Registrant and having the same designations, rights, powers and preferences, and qualifications, limitations and restrictions, as those that the stockholder held in the Predecessor. Pursuant to Section 251(g) of the DGCL, the certificate of incorporation and bylaws of the Registrant contain provisions substantially identical to those of the Predecessor prior to the Merger. Also pursuant to Section 251(g) of the DGCL, the limited liability company agreement of Onshore contains a provision that any act or transaction by or involving Onshore, the entity that survived the merger between it and the Predecessor (other than the election or removal of managers of Onshore) (1) that requires for its adoption under Onshore's limited liability company agreement the approval of its sole member, a new subsidiary of the Registrant, Denbury Operating Company ("OPCO"), or (2) that would require the approval of the stockholders of Onshore if Onshore were a corporation subject to the DGCL (other than the election or removal of directors) shall also require the approval of the stockholders of the Registrant by the same vote that is required by the DGCL and/or Onshore's limited liability company agreement. The authorized capital stock of the Registrant, the designations, rights, powers and preferences of such capital stock and the qualifications, limitations and restrictions thereof are also substantially identical to those of the Predecessor's capital stock immediately prior to the Merger. The directors and executive officers of the Registrant are the same individuals who were directors and executive officers, respectively, of the Predecessor immediately prior to the Merger. Following and in connection with the Merger, Denbury is restructuring its downstream subsidiaries through which operations will be conducted. In connection with the Merger, the Registrant, the Predecessor, Onshore and the trustee under the Indenture dated as of March 25, 2003, among the Predecessor, certain of its subsidiaries and the trustee thereunder entered into a First Supplemental Indenture dated December 29, 2003, which did not require the consent of the holders of the Predecessor's 7 1/2% Senior Subordinated Notes Due 2013 issued pursuant to the Indenture. The supplemental indenture provides for the assumption and assignment of the rights and obligations of the Predecessor under the Indenture by the Registrant and Onshore and the guarantee of the obligations of the Registrant under the Indenture by OPCO. Upon consummation of the Merger, the Registrant's common stock was deemed to be registered under Section 12(b) of the Securities Exchange Act of 1934, as amended, pursuant to Rule 12g-3(a) promulgated thereunder. For purposes of Rule 12g-3(a), the Registrant is the successor issuer to the Predecessor. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits. (a) None. (b) None. (c) Exhibits: The following exhibits are filed with this report on Form 8-K:
Exhibit Description - ------- ----------- 2.1 Agreement and Plan of Merger to Form Holding Company, dated as of December 22, 2003, but effective December 29, 2003 at 9:00 a.m.EST, by and among the Registrant, the Predecessor and Onshore. 3.1 Restated Certificate of Incorporation of the Registrant. 3.2 Bylaws of the Registrant. 4.1 First Supplemental Indenture dated as of December 29, 2003, among the Registrant, the Predecessor, Onshore, Denbury Operating Company and JPMorgan Chase Bank, as trustee. 99.1 Press Release dated December 22, 2003.
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. DENBURY RESOURCES INC. /s/ Phil Rykhoek Date: December 29, 2003 ----------------------------------------------- Phil Rykhoek, Senior Vice President & Chief Financial Officer EX-2 3 denbury8k12292003ex2.txt EXHIBIT 2.1 Exhibit 2.1 AGREEMENT AND PLAN OF MERGER TO FORM HOLDING COMPANY among DENBURY RESOURCES INC. DENBURY HOLDINGS, INC. and DENBURY ONSHORE, LLC ------------------------------- Pursuant to Section 18-209 of the Limited Liability Company Act of the State of Delaware and Section 251(g) of the General Corporation Law of the State of Delaware THIS AGREEMENT AND PLAN OF MERGER TO FORM HOLDING COMPANY (this "Agreement"), dated as of December 22, 2003, by and among Denbury Resources Inc., a Delaware corporation ("Old Denbury"), Denbury Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Old Denbury ("New Denbury"), and Denbury Onshore, LLC, a Delaware limited liability company and a wholly-owned subsidiary of New Denbury ("Merger Sub"). WHEREAS, Old Denbury has an authorized capitalization consisting of: (i) 100,000,000 shares of common stock, par value $.001 per share ("Old Denbury Common Stock"), of which on December 19, 2003, as of close of business 54,131,915 shares were issued and outstanding and 51,987 shares were issued but held in treasury; and (ii) 25,000,000 shares of preferred stock, par value $.001 per share ("Old Denbury Preferred Stock"), none of which is issued and outstanding; and WHEREAS, New Denbury has an authorized capitalization consisting of: (i) 100,000,000 shares of common stock, par value $.001 per share ("New Denbury Common Stock"), of which 1,000 shares are issued and outstanding and are owned by Old Denbury and no shares are held in treasury; and (ii) 25,000,000 shares of preferred stock, par value $.001 per share ("New Denbury Preferred Stock"), none of which is issued and outstanding; and WHEREAS, the designations, rights, powers and preferences, and the qualifications, limitations and restrictions thereof, of respectively the New Denbury Common Stock and the New Denbury Preferred Stock are the same as those of respectively the Old Denbury Common Stock and the Old Denbury Preferred Stock; and WHEREAS, Merger Sub has an authorized capitalization consisting of (i) 100,000,000 units of common limited liability company interests, having a capital amount of $.001 per unit (the "Merger Sub Common Units"), of which 1,000 Merger Sub Common Units are issued and outstanding and are owned by New Denbury, and (ii) 25,000,000 units of preferred limited liability company interests, having a capital amount of $.001 per unit (the "Merger Sub Preferred Units"); and WHEREAS, the Board of Directors of Old Denbury has determined it to be in the best interests of Old Denbury to effect the formation of a holding company structure whereby Merger Sub, as the survivor of a merger between Old Denbury and Merger Sub will, immediately after the merger, be the wholly-owned subsidiary of New Denbury and the stockholders of Old Denbury will become the stockholders of New Denbury; and WHEREAS, it is intended that the holding company structure be effected without a vote of Old Denbury's stockholders pursuant to and in accordance with Subsection 251(g) of the Delaware General Corporation Law (the "DGCL") through a merger of Old Denbury into Merger Sub pursuant to Section 18-209 of the Delaware Limited Liability Company Act (the "DLLCA") and Subsection 251(g) of the DGCL; and WHEREAS, the respective Boards of Directors of Old Denbury and New Denbury, the Board of Managers of Merger Sub, Old Denbury acting as the sole stockholder of New Denbury, and New Denbury acting as the sole member of Merger Sub, have approved the merger of Old Denbury into Merger Sub (the "Merger"), the conversion of shares of Old Denbury Common Stock into shares of New Denbury Common Stock provided for in this Agreement, the other terms of this Agreement, and the execution of this Agreement by each such entity; and WHEREAS, New Denbury and Merger Sub have been recently formed solely for purposes of effecting the formation of a holding company structure through the Merger; and WHEREAS, for Federal income tax purposes, it is intended that the Merger shall qualify as a tax-free reorganization under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and the rules and regulations promulgated thereunder; and WHEREAS, the purpose of creating the holding company structure is to better reflect the operating practices and methods of Old Denbury, to yield economics in operations, to provide greater administrative and operational flexibility, and otherwise. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, the parties hereto agree as follows: ARTICLE I The Merger Section 1.1 The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with Subsection 251(g) and other applicable provisions of the DGCL, and Section 18-209 and other applicable provisions of the DLLCA, Old Denbury shall be merged into 2 Merger Sub at the Effective Time (as defined in Section 1.2 of this Agreement). At the Effective Time, the separate corporate existence of Old Denbury shall cease and Merger Sub shall continue as the surviving entity (the "Surviving Entity") as a wholly-owned subsidiary of New Denbury. Except as otherwise provided in this Agreement, the Surviving Entity shall succeed to and assume all the rights and obligations of Old Denbury in accordance with the DGCL and the DLLCA. (b) At the Effective Time, by virtue of the Merger and without any action on the part of Old Denbury, New Denbury, Merger Sub or the holders of any securities of Old Denbury, New Denbury or Merger Sub: (1) each issued and outstanding share of Old Denbury Common Stock shall be converted into one issued and outstanding share of New Denbury Common Stock, having the same designations, rights, powers and preferences, and the qualifications, limitations and restrictions thereof, as the converted share of Old Denbury Common Stock; and (2) each issued but not outstanding share of Old Denbury Common Stock held in treasury by Old Denbury shall be converted into one issued but not outstanding share of New Denbury Common Stock held in treasury by New Denbury and having the same designations, rights, powers and preferences, and the qualifications, limitations and restrictions thereof, as the converted share of Old Denbury Common Stock held in treasury. (c) Each share of New Denbury Common Stock outstanding immediately prior to the Effective Time shall, by virtue of the Merger, and without any action on the part of Old Denbury, New Denbury, Merger Sub or the holders of any securities of Old Denbury, New Denbury or Merger Sub, be cancelled and retired without any consideration therefor. (d) Each Merger Sub Common Unit outstanding immediately prior to the Effective Time shall remain issued and outstanding and remain held by New Denbury so that following the Merger New Denbury continues as the sole member of Merger Sub. (e) From and after the Effective Time, holders of certificates formerly evidencing Old Denbury Common Stock shall cease to have any rights as stockholders of Old Denbury, except as provided by law. Section 1.2 Effective Time. The parties shall file this Agreement, executed and certified in accordance with the relevant provisions of the DGCL and the DLLCA, with the Secretary of State of the State of Delaware, and shall make all other filings or recordings required under the DGCL or the DLLCA to effectuate fully the Merger. The Merger shall become effective at nine o'clock a.m., local time in the State of Delaware, on December 29, 2003 (the time the Merger becomes effective being here referred to as the "Effective Time"). Section 1.3 Effects of the Merger. The Merger shall have the effects set forth in Section 259 of the DGCL and Subsection 18-209(g) of the DLLCA. It is the intent of the parties that New Denbury, as of the Effective Time, be deemed a "successor issuer" for all purposes under the 3 Securities Act of 1933, as amended (the "Securities Act"), and for all purposes under the Securities Exchange Act of 1934, as amended. For Federal income tax purposes, it is intended that the Merger shall qualify as a tax-free reorganization under the provisions of Section 368(a) of the Code. Section 1.4 Certificate of Incorporation, Bylaws and Limited Liability Company Agreement. (a) Prior to the Effective Time, New Denbury will cause to be adopted by the appropriate corporate action, and filed with the Secretary of State of the State of Delaware, the Restated Certificate of Incorporation of New Denbury in the form attached hereto as Exhibit A.1 which, at the Effective Time (i) will amend New Denbury's Certificate of Incorporation by changing New Denbury's name to "Denbury Resources Inc.", and by deleting Article XIII which names and gives the mailing address of New Denbury's incorporator, (ii) will restate New Denbury's Certificate of Incorporation as so amended, and (iii) otherwise will make no change to New Denbury's Certificate of Incorporation. From and after the Effective Time such Amended and Restated Certificate of Incorporation will be the Certificate of Incorporation of New Denbury until thereafter changed or amended as provided therein or under applicable law. (b) New Denbury's Board of Directors will take such action as may be necessary to amend the Bylaws of New Denbury as of the Effective Time so that from and after the Effective Time the Amended Bylaws of New Denbury in the form attached hereto as Exhibit B.1, which amend New Denbury's Bylaws to reflect that its name has been changed to Denbury Resources Inc., and otherwise make no change in New Denbury's Bylaws, will be the Bylaws of New Denbury until thereafter changed or amended as provided therein or under applicable law. (c) New Denbury acting as Merger Sub's sole member, and Merger Sub's Board of Managers, will take such action as may be necessary to amend the Limited Liability Company Agreement of Merger Sub as of the Effective Time so that from and after the Effective Time the Limited Liability Company Agreement of Merger Sub, in the form attached hereto as Exhibit C.1, as amended by the First Amendment to Limited Liability Agreement of Merger Sub, in the form attached hereto as Exhibit C.2, which amends Merger Sub's Limited Liability Company Agreement to contain the provisions required or permitted by Subsection 251(g) of the DGCL, amends Merger Sub's capital structure, deletes a provision setting the initial number of managers, and otherwise makes no change in Merger Sub's Limited Liability Company Agreement, will be the Limited Liability Company Agreement of the Surviving Entity. Section 1.5 Directors. The directors of Old Denbury immediately prior to the Effective Time will be and remain the directors of New Denbury until the earlier of their resignation or removal or until their respective successors are qualified and either duly appointed or elected in accordance with the Certificate of Incorporation and Bylaws of New Denbury and applicable law. Section 1.6 Officers. The officers of Old Denbury immediately prior to the Effective Time will be and remain the officers of New Denbury, in the equivalent positions to those held in Old Denbury, until the earlier of their resignation or removal or until their respective successors are appointed in accordance with the Bylaws of New Denbury. 4 Section 1.7 Stock Transfers. From and after the Effective Time, there shall be no further registration of transfers of shares of Old Denbury Common Stock thereafter on the records of Old Denbury. Section 1.8 No Surrender of Certificates. (a) As a result of the provisions of Section 1.4(a) of this Agreement, the name of New Denbury immediately following the Effective Time will be "Denbury Resources Inc.", which is the same name as the corporate name of Old Denbury immediately prior to the Effective Time. In accordance with Subsection 251(g) of the DGCL, until thereafter surrendered for transfer or exchange in the ordinary course, each outstanding certificate that, immediately prior to the Effective Time, evidenced shares of issued Old Denbury Common Stock shall be deemed and treated for all corporate purposes to evidence the ownership of the number of shares of issued New Denbury Common Stock into which such shares of Old Denbury Common Stock are converted pursuant to the provisions of Section 1.1(b) of this Agreement, and the New Denbury Common Stock into which the Old Denbury Common Stock is converted in the Merger shall be represented by the same stock certificates that previously represented such Old Denbury Common Stock. Accordingly, there will be no requirement as a result of the Merger for surrender and exchange of the stock certificates that previously represented shares of Old Denbury Common Stock. (b) Old Denbury was first incorporated in the Province of Manitoba (Canada) as a specially limited company on March 7, 1951. On February 16, 1968, by supplementary letters patent, Old Denbury was converted to a limited company. On September 13, 1984, Old Denbury was continued under the Canada Business Corporations Act. Simultaneously with the filing of its Certificate of Incorporation with the Secretary of State of the State of Delaware on April 20, 1999, Old Denbury filed its Certificate of Domestication with the Secretary of State of the State of Delaware in order to domesticate itself in the State of Delaware. Old Denbury's Certificate of Incorporation amended and superseded in all respects its previously adopted Articles of Continuance, as amended. Old Denbury's Certificate of Incorporation also provided that each common share of Old Denbury outstanding on the effective date of Old Denbury's Certificate of Incorporation was thereby converted into one share of Old Denbury Common Stock without any further action by Old Denbury or any of its stockholders, and that the then outstanding share certificates ("Pre-Domestication Certificates") representing such common shares outstanding on the effective date of Old Denbury's Certificate of Incorporation represented Old Denbury Common Stock. Therefore, in accordance with Subsection 251(g) of the DGCL, until thereafter surrendered for transfer or exchange in the ordinary course, each outstanding Pre-Domestication Certificate, if any, representing common shares outstanding on the effective date of Old Denbury's Certificate of Incorporation shall be deemed and treated for all purposes to evidence the ownership of the number of shares of New Denbury Common Stock into which the shares of Old Denbury Common Stock represented by such Pre-Domestication Certificate are converted pursuant to the provisions of Section 1.1(b) herein, and the New Denbury Common Stock into which such Old Denbury Common Stock is converted in the Merger shall be represented by the Pre-Domestication Certificate that prior to the Effective Time represented such Old Denbury Common Stock. 5 ARTICLE II Certain Covenants and Agreements Section 2.1 Assumed Plans. (a) At the Effective Time, New Denbury shall adopt and assume all of the rights and obligations of Old Denbury under all of the employee benefit plans of Old Denbury, including, but not limited to, the following: the Denbury Resources Inc. Stock Option Plan, the Denbury Resources Inc. Employee Stock Purchase Plan, the Denbury Resources Inc. Director Compensation Plan, the Denbury Resources Inc. Severance Protection Plan, and the Denbury Resources Inc. 401(k) Plan, as all of the same have been amended and are in effect as of the Effective Time (the "Assumed Plans"). New Denbury shall adopt the Assumed Plans as its own, and shall continue such plans in accordance with their terms. New Denbury shall permit other employers related to New Denbury to participate in the Assumed Plans in the same manner as such employers participated as of or before the Effective Time in such Assumed Plans. (b) At the Effective Time, the number of authorized but unissued shares of New Denbury Common Stock reserved for future grants or stock issuances under any of the Assumed Plans shall equal the number of authorized but unissued shares of Old Denbury Common Stock formerly reserved for issuance for such purposes by Old Denbury immediately prior to the Effective Time. Prior to the Effective Time, New Denbury will confirm such reserves of shares of New Denbury Common Stock under the Assumed Plans. (c) At the Effective Time, each issued and outstanding option to purchase shares of Old Denbury Common Stock (each an "Old Denbury Stock Option") shall be converted into an option to purchase the same number of shares of New Denbury Common Stock on the same terms and conditions as the converted Old Denbury Stock Option. Section 2.2 Indenture. At the Effective Time, Old Denbury, New Denbury and the trustee (the "Trustee") under the Indenture dated as of March 25, 2003, among Old Denbury, certain of its subsidiary guarantors signatory thereto and the Trustee (the "Indenture"), shall execute and deliver a Supplemental Indenture pursuant to Section 5.01 of the Indenture, without the consent of the holders of the 7 1/2% Senior Subordinated Notes Due 2013 issued pursuant to the Indenture (the "Notes"), providing for the assumption of, and agreement to become obligated on, the Indenture and the Notes by New Denbury, and the agreement of Merger Sub to assume and become obligated on the Indenture and the Notes. Section 2.3 Additional Actions. Subject to the terms of this Agreement, and in addition to the actions described in Section 2.2 above and the circumstances resulting from the effects set forth in Section 259 of the DGCL and Subsection 18-209(g) of the DLLCA, the parties hereto shall take all such reasonable and lawful action as may be necessary or appropriate in order to effectuate the Merger, carry out the intents and purposes of this Agreement, and evidence the assignments to and assumptions by New Denbury or the Merger Sub of such rights, interests, obligations and liabilities of Old Denbury as Old Denbury, New Denbury and/or the Merger Sub determine to be necessary or appropriate. If, at any time after the Effective Time, Merger Sub shall consider or be advised that any deeds, bills of sale, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm, of record or otherwise, 6 in Merger Sub its right, title or interest in, to or under any of the rights, properties or assets of either of Merger Sub or Old Denbury acquired or to be acquired by Merger Sub as a result of, or in connection with, the Merger or otherwise to carry out the intents and purposes of this Agreement, the officers and managers of Merger Sub shall be authorized to execute and deliver, in the name and on behalf of each of Merger Sub and Old Denbury, all such agreements, deeds, bills of sale, assignments and assurances and to take and do, in the name and on behalf of each of Merger Sub and Old Denbury or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties or assets in Merger Sub or otherwise to carry out this Agreement. Section 2.4 Compliance with Subsection 251(g) of the DGCL. Prior to the Effective Time, the parties will take all steps necessary to comply with Subsection 251(g) of the DGCL, including without limitation, the following: (a) to assure that immediately following the Effective Time, the Restated Certificate of Incorporation of New Denbury and the Amended Bylaws of New Denbury shall, except for variations permitted by Subsection 251(g) of the DGCL, contain provisions identical to the provisions of the Certificate of Incorporation and Bylaws of Old Denbury as in effect immediately prior to the Effective Time, with only non-material additions or deletions necessitated by the circumstances; (b) to assure that immediately following the Effective Time, the directors of Old Denbury immediately prior to the Effective Time shall be the directors of New Denbury, until the earlier of their resignation or removal or until their respective successors are duly qualified and either appointed or elected in accordance with the Restated Certificate of Incorporation and Amended Bylaws of New Denbury and applicable law; and (c) to assure that immediately following the Effective Time, the Limited Liability Company Agreement of Merger Sub, as amended, shall, except for variations permitted or required by Subsection 251(g) of the DGCL, contain provisions identical to the provisions of the Certificate of Incorporation of Old Denbury as in effect immediately prior to the Effective Time, with only non-material additions or deletions necessitated by the circumstances. Section 2.5 Reservation of Shares. At or prior to the Effective Time, New Denbury will reserve sufficient authorized but unissued shares of New Denbury Common Stock to provide for the issuance of New Denbury Common Stock upon the exercise of all stock options (including but not limited to those converted under Section 2.1(c) above), or in satisfaction of other benefits payable or outstanding under the Assumed Plans, including those enumerated in Section 2.1 above. Section 2.6 Further Assurances. From time to time, as and when requested by another party hereto, a party hereto shall execute and deliver, or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken, all such further actions as such other party may reasonably deem necessary or desirable to consummate the transactions contemplated by this Agreement. 7 Section 2.7 Consummation of the Merger. Subject to the terms and conditions of this Agreement, each party shall use its commercially reasonable efforts to cause the Merger to occur upon the terms hereof. ARTICLE III Conditions Section 3.1 Conditions. The respective obligation of each party hereto to effect the transactions contemplated hereby is subject to the satisfaction or waiver of each of the following conditions: (a) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order shall have been enacted, entered, promulgated, enforced or issued by any governmental entity, and no other legal restraint or prohibition shall be in effect, that prevents the Merger or any of the other transactions contemplated by this Agreement, and no action, claim, proceeding or investigation shall be pending or threatened by any governmental entity that, if successful, would result in any of the foregoing effects; (b) Old Denbury, New Denbury and Merger Sub shall have caused this Agreement to be certified by Old Denbury's Secretary as required by Subsection 251(g) of the DGCL; (c) The amendment and restatement of the Certificate of Incorporation of New Denbury, the amendment of the Bylaws of New Denbury, and the amendment of the Limited Liability Company Agreement of Merger Sub, contemplated by this Agreement shall have been approved by all necessary action and fully executed, subject only to the occurrence of the Effective Time; and (d) The Board of Directors of Old Denbury shall have received an opinion of counsel that the holders of Old Denbury Common Stock will not recognize gain or loss for United States federal income tax purposes as a result of the Merger; and (e) Prior to the Effective Time, the New York Stock Exchange shall have authorized, upon official notice of issuance, the listing of the New Denbury Common Stock that will be issued pursuant to the Merger, including New Denbury Common Stock that will be held in treasury, and the shares of New Denbury Common Stock reserved for issuance upon the exercise of options or in satisfaction of other benefits payable or outstanding under the Assumed Plans. ARTICLE IV General Provisions Section 4.1 Interpretation. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. The Exhibits attached hereto are hereby incorporated herein and made a part hereof for all purposes, as if fully set forth herein. 8 Section 4.2 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. Section 4.3 No Third-Party Beneficiaries. This Agreement (including the documents and instruments referred to herein) is not intended to confer upon any person other than the parties hereto any rights or remedies except as expressly provided herein. Section 4.4 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the applicable principles of conflicts of laws of such State. Section 4.5 Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable. Section 4.6 Entire Agreement. This Agreement (including the Exhibits hereto), together with the Supplemental Indenture, contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior oral and written, and all contemporaneous oral, agreements and understandings relating to such subject matter. The parties hereto shall not be liable or bound to any other party in any manner by any representations, warranties or covenants relating to such subject matter except as specifically set forth herein or in the Supplemental Indenture. Section 4.7 Assignment. This Agreement and the rights and obligations hereunder shall not be assignable or transferable by any of Old Denbury, New Denbury or Merger Sub. Any attempted assignment in violation of this Section 4.7 shall be void ab initio and of no further force and effect. Section 4.8 Amendment. At any time prior to the Effective Time, the parties hereto may, to the extent permitted by the DGCL and the DLLCA, by written agreement amend, modify or supplement any provision of this Agreement. Section 4.9 Termination. This Agreement may be terminated and the Merger abandoned by the respective Board of Directors or Board of Managers, or the duly authorized committee thereof, of any party at any time prior to the filing of this Agreement with the Secretary of State of the State of Delaware, if such Board of Directors, Board of Managers or committee determines that for any reason the completion of the Merger would be inadvisable or not in the best interest of its respective entity or its stockholders or members. In the event of termination of this Agreement, this Agreement shall become void and none of Old Denbury, New Denbury or Merger Sub, nor their respective stockholders, members, directors, managers or officers shall have any liability with respect to such termination. 9 Section 4.10 Copy of Agreement on File. A copy of this Agreement is on file at the place of business of Merger Sub, the Surviving Entity of the Merger, at the following address: Denbury Onshore, LLC 5100 Tennyson Parkway Suite 3000 Plano, Texas 75024 Section 4.11 Copy of Agreement to be Furnished. A copy of this Agreement will be furnished by Merger Sub, on request and without costs, to any member of Merger Sub or any person holding an interest in Old Denbury or New Denbury. Section 4.12 Certificate of Merger. This Agreement constitutes a Certificate of Merger for purposes of Section 18-209 of the DLLCA, and, by execution hereof, the President of Merger Sub, being duly authorized, hereby certifies to the contents hereof. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 10 IN WITNESS WHEREOF, Old Denbury, New Denbury and Merger Sub have caused this Agreement to be executed by their respective officers, thereunto duly authorized, all as of the date first written above. DENBURY RESOURCES INC. By: /s/ Phil Rykhoek ---------------------------------------- Name: Phil Rykhoek ---------------------------------------- Title: Senior Vice President, Chief Financial Officer and Secretary ---------------------------------------- DENBURY HOLDINGS, INC. By: /s/ Phil Rykhoek ---------------------------------------- Name: Phil Rykhoek ---------------------------------------- Title: Senior Vice President, Chief Financial Officer and Secretary ---------------------------------------- DENBURY ONSHORE, LLC By: /s/ Phil Rykhoek ---------------------------------------- Name: Phil Rykhoek ---------------------------------------- Title: Senior Vice President, Chief Financial Officer and Secretary ---------------------------------------- 11 SECRETARY'S CERTIFICATE The undersigned, Phil Rykhoek, the duly elected and acting Secretary of Denbury Resources Inc., a Delaware corporation and a constituent entity referred to in the foregoing Agreement and Plan of Merger to Form Holding Company, hereby certifies on behalf of Denbury Resources Inc. that (i) the foregoing Agreement and Plan of Merger to Form Holding Company has been adopted by Denbury Resources Inc. on December 22, 2003, pursuant to Subsection 251(g) of the DGCL, and (ii) the conditions specified in the first sentence of Subsection 251(g) of the DGCL have been satisfied in connection with the Merger. IN WITNESS WHEREOF, the undersigned hereby certifies to the foregoing. /s/ Phil Rykhoek --------------------------------------------- Name: Phil Rykhoek Senior Vice President, Chief Financial Officer and Secretary of Denbury Resources Inc. 12 EX-3 4 denbury8k12292003ex3.txt EXHIBIT 3.1 Exhibit 3.1 RESTATED CERTIFICATE OF INCORPORATION OF DENBURY HOLDINGS, INC. Denbury Holdings, Inc., a corporation organized and existing under the laws of the State of Delaware (the "Corporation"), hereby certifies as follows: 1. The name of the corporation is Denbury Holdings, Inc. The date of filing of its original certificate of incorporation with the Secretary of State of the State of Delaware was December 19, 2003. This Restated Certificate of Incorporation shall become effective at nine o'clock a.m., local time in the State of Delaware on December 29, 2003. 2. The provisions of the certificate of incorporation of the Corporation, as herein amended, are hereby restated and integrated into the single instrument which is hereinafter set forth. 3. This Restated Certificate of Incorporation has been duly adopted by written consent of the Corporation's sole stockholder, Denbury Resources Inc., in accordance within the provisions of Section 228 of the General Corporation Law of the State of Delaware (the "DGCL") and in accordance with Sections 242 and 245 of the DGCL. 4. The certificate of incorporation of the Corporation is amended hereby by amending Article I to change the name of the Corporation to Denbury Resources Inc., and by deleting Article XIII, "Incorporator," in its entirety. The certificate of incorporation of the Corporation, as amended and restated hereby, shall read as follows: ARTICLE I NAME The name of the corporation is Denbury Resources Inc. (the "Corporation"). ARTICLE II REGISTERED OFFICE AND AGENT The address of its registered office in the State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company. ARTICLE III PURPOSES AND STOCKHOLDER LIABILITY (a) Purposes. The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful business, act or activity for which corporations may be organized under the DGCL. (b) Stockholder Liability. The private property of the stockholders shall not be subject to the payment of corporate debts to any extent whatsoever. ARTICLE IV AUTHORIZED CAPITAL STOCK The aggregate number of shares of all classes of stock which the Corporation shall have authority to issue is 125,000,000 shares, consisting of: (i) 100,000,000 shares of common stock, par value $.001 per share (the "Common Stock"), and (ii) 25,000,000 shares of preferred stock, par value $.001 per share (the "Preferred Stock"). Shares of any class of capital stock of the Corporation may be issued for such consideration and for such corporate purposes as the Board of Directors of the Corporation (the "Board of Directors") may from time to time determine. Each share of Common Stock shall be entitled to one vote. A. Preferred Stock. The Preferred Stock may be divided into and issued from time to time in one or more series as may be fixed and determined by the Board of Directors. The relative rights and preferences of the Preferred Stock of each series shall be such as shall be stated in any resolution or resolutions adopted by the Board of Directors setting forth the designation of the series and fixing and determining the relative rights and preferences thereof (a "Directors' Resolution"). The Board of Directors is hereby authorized to fix and determine the powers, designations, preferences and relative, participating, optional or other rights, including, without limitation, voting powers, full or limited, preferential rights to receive dividends or assets upon liquidation, rights of conversion or exchange into Common Stock, Preferred Stock of any series or other securities, any right of the Corporation to exchange or convert shares into Common Stock, Preferred Stock of any series or other securities, or redemption provision or sinking fund provisions, as between series and as between the Preferred Stock or any series thereof and the Common Stock, and the qualifications, limitations or restrictions thereof, if any, all as shall be stated in a Directors' Resolution, and the shares of Preferred Stock or any series thereof may have full or limited voting powers, or be without voting powers, all as shall be stated in the Directors' Resolution. Except where otherwise set forth in the Directors' Resolution providing for the issuance of any series of Preferred Stock, the number of shares comprising such series may be increased or decreased (but not below the number of shares then outstanding) from time to time by like action of the Board of Directors. The shares of Preferred Stock of any one series shall be identical with the other shares in the same series in all respects except as to the dates from and after which dividends thereon shall cumulate, if cumulative. 2 B. Reacquired Shares of Preferred Stock. Shares of any series of any Preferred Stock that have been redeemed (whether through the operation of a sinking fund or otherwise), purchased by the Corporation, or which, if convertible or exchangeable, have been converted into, or exchanged for, shares of stock of any other class or classes or any evidences of indebtedness shall have the status of authorized and unissued shares of Preferred Stock and may be reissued as a part of the series of which they were originally a part or may be reclassified and reissued as part of a new series of Preferred Stock or as part of any other series of Preferred Stock, all subject to the conditions or restrictions on issuance set forth in the Directors' Resolution providing for the issuance of any series of Preferred Stock and to any filing required by law. C. Increase in Authorized Preferred Stock. The number of authorized shares of Preferred Stock may be increased or decreased by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote without the separate vote of holders of Preferred Stock as a class. ARTICLE V EXISTENCE The existence of the Corporation is to be perpetual. ARTICLE VI NO PREEMPTIVE RIGHTS No stockholder shall be entitled, as a matter of right, to subscribe for or acquire additional, unissued or treasury shares of any class of capital stock of the Corporation whether now or hereafter authorized, or any bonds, debentures or other securities convertible into, or carrying a right to subscribe to or acquire such shares, but any shares or other securities convertible into, or carrying a right to subscribe to or acquire such shares may be issued or disposed of by the Board of Directors to such persons and on such terms as in its discretion it shall deem advisable. 3 ARTICLE VII NO CUMULATIVE VOTING At each election of directors, every stockholder entitled to vote at such election shall have the right to vote in person or by proxy the number of shares owned by him for as many persons as there are directors to be elected and for whose election he has a right to vote. No stockholder shall have the right to cumulate his votes in any election of directors. ARTICLE VIII BOARD OF DIRECTORS A. Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the authority and powers conferred upon the Board of Directors by the DGCL or by the other provisions of this Certificate of Incorporation (this "Certificate of Incorporation"), the Board of Directors is hereby authorized and empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the provisions of the DGCL, this Certificate of Incorporation and the Bylaws of the Corporation (the "Bylaws"); provided, however, that no Bylaws hereafter adopted by the stockholders of the Corporation, or any amendments thereto, shall invalidate any prior act of the Board of Directors that would have been valid if such Bylaws or amendment had not been adopted. B. Number, Election and Terms. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by the members of the Board of Directors then in office subject to Section D(2) of this Article VIII. Each director shall hold office until the next annual meeting of stockholders and shall serve until his successor shall have been duly elected and qualified or until his earlier death, resignation or removal. Election of directors need not be by written ballot. C. Bylaws. Subject to Section D(3) of this Article VIII, the Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws, or adopt new Bylaws, without any action on the part of the stockholders, except as may be otherwise provided by applicable law or the Bylaws. D. Special Voting Requirements. The following matters shall be decided by a majority of not less than 2/3 of the members of the Board of Directors of the Corporation voting in favor of a resolution in respect of any of the following matters: (1) an acquisition having a purchase price in excess of 20% of the Assets (as herein defined) of the Corporation or a disposition having a sale price in excess of 20% of the Assets of the Corporation; 4 (2) any increase or decrease in the total number of members of the Board of Directors of the Corporation; (3) any amendment to the Certificate of Incorporation or Bylaws of the Corporation; (4) any issuance of equity securities or securities convertible into equity securities of the Corporation (other than pursuant to any rights, options, warrants or convertible or exchangeable securities outstanding prior to the date of this Certificate of Incorporation is made effective, and other than pursuant to any stock option plan or employee benefit plans of the Corporation existing from time to time); (5) the creation of any series of Preferred Stock and the powers, designations, preferences and relative, participating, optional or other rights, and qualifications, limitations or restrictions thereof attached thereto; any change in the powers, designations, preferences and relative, participating, optional or other rights, and qualifications, limitations or restrictions thereof attached to unissued shares of any series; or (6) the issuance of any debt securities in excess of 10% of the Assets of the Corporation and (i) any borrowings by the Corporation, other than advances against existing credit lines and (ii) any increase in the existing credit lines of the Corporation, in each case, in excess of 10% of the Assets of the Corporation in respect of which the Corporation is required to grant security for the debt obligations or any borrowed money. For the purposes of subsections (1) and (6) above, "Assets" shall mean the total assets of the Corporation as reported on the consolidated balance sheet at the end of the last fiscal quarter of the Corporation, prepared in accordance with generally accepted accounting principles. ARTICLE IX INDEMNIFICATION A. Mandatory Indemnification. Each person who at any time is or was a director or officer of the Corporation, and is threatened to be or is made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (a "Proceeding"), by reason of the fact that such person is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, venturer, proprietor, member, employee, trustee, agent or similar functionary of another domestic or foreign corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other for-profit or non-profit enterprise, whether the basis of a Proceeding is an alleged action in such person's official capacity or in another capacity while 5 holding such office, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, or any other applicable law as may from time to time be in effect (but, in the case of any amendment to such law or enactment of new law, only to the extent that such amendment or enactment permits the Corporation to provide broader indemnification rights than such law prior to such amendment or enactment permitted the Corporation to provide), against all expense, liability and loss (including, without limitation, court costs and attorneys' fees, judgments, fines, excise taxes or penalties, and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by such person in connection with a Proceeding, and such indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation or a director, officer, partner, venturer, proprietor, member, employee, trustee, agent or similar functionary of another domestic or foreign corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other for-profit or non-profit enterprise, and shall inure to the benefit of such person's heirs, executors and administrators. The Corporation's obligations under this Section A include, but are not limited to, the convening of any meeting, and the consideration of any matter thereby, required by statute in order to determine the eligibility of any person for indemnification. B. Advancement of Expenses. Expenses incurred by a director or officer of the Corporation in defending a Proceeding shall be paid by the Corporation in advance of the final disposition of such Proceeding to the fullest extent permitted by, and only in compliance with, the DGCL or any other applicable laws as may from time to time be in effect, including, without limitation, any provision of the DGCL which requires, as a condition precedent to such expense advancement, the delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under Section A of this Article IX or otherwise. Repayments of all amounts so advanced shall be upon such terms and conditions, if any, as the Corporation's Board of Directors deems appropriate. C. Vesting. The Corporation's obligation to indemnify and to prepay expenses under Sections A and B of this Article IX shall arise, and all rights granted to the Corporation's directors and officers hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed. Notwithstanding any other provision of this Certificate of Incorporation or the Bylaws, no action taken by the Corporation, either by amendment of this Certificate of Incorporation or the Bylaws or otherwise, shall diminish or adversely affect any rights to indemnification or prepayment of expenses granted under Sections A and B of this Article IX which shall have become vested as aforesaid prior to the date that such amendment or other corporate action is effective or taken, whichever is later. D. Enforcement. If a claim under Section A or Section B or both Sections A and B of this Article IX is not paid in full by the Corporation within thirty (30) days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit 6 in a court of competent jurisdiction against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall also be entitled to be paid the expense of prosecuting such claim, including attorneys' fees. It shall be a defense to any such suit (other than a suit brought to enforce a claim for expenses incurred in defending any Proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the DGCL or other applicable law to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. The failure of the Corporation (including its Board of Directors, independent legal counsel, or stockholders) to have made a determination prior to the commencement of such suit as to whether indemnification is proper in the circumstances based upon the applicable standard of conduct set forth in the DGCL or other applicable law shall neither be a defense to the action nor create a presumption that the claimant has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal Proceeding, had reasonable cause to believe that his conduct was unlawful. E. Nonexclusive. The indemnification provided by this Article IX shall not be deemed exclusive of any other rights to which a person seeking indemnification may be entitled under any statute, bylaw, other provisions of this Certificate of Incorporation, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office. F. Permissive Indemnification. The rights to indemnification and prepayment of expenses which are conferred to the Corporation's directors and officers by Sections A and B of this Article IX may be conferred upon any employee or agent of the Corporation if, and to the extent, authorized by the Board of Directors. G. Insurance. The Corporation shall have power to purchase and maintain insurance, at its expense, on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, venturer, proprietor, member, employee, trustee, agent or similar functionary of another domestic or foreign corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other for-profit or non-profit enterprise against any expense, liability or loss asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the provisions of this Article IX, the Corporation's Bylaws, the DGCL or other applicable law. H. Implementing Arrangements. Without limiting the power of the Corporation to procure or maintain insurance or other arrangement on behalf of any of the persons as described in Section G of this Article IX, the Corporation may, for the benefit of persons eligible for 7 indemnification by the Corporation, (i) create a trust fund, (ii) establish any form of self-insurance, (iii) secure its indemnity obligation by grant of a security interest or other lien on the assets of the Corporation, or (iv) establish a letter of credit, guaranty or surety arrangement. ARTICLE X LIMITED DIRECTOR LIABILITY No director of the Corporation shall be personally liable to the Corporation or to its stockholders for monetary damages for breach of fiduciary duty as a director, provided that this Article X shall not eliminate or limit the liability of a director: (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, as it may hereafter be amended from time to time, or (iv) for any transaction from which the director derived an improper personal benefit. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. No amendment to or repeal of this Article X will apply to, or have any effect on, the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of the director occurring prior to such amendment or repeal. 8 ARTICLE XI BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS The Corporation shall not be governed by Section 203 of the DGCL. ARTICLE XII INSPECTION RIGHTS OF BONDHOLDERS The holders of any bonds, debentures or other obligations issued or to be issued by the Corporation shall have the same right of inspection of the Corporation's books, accounts and other records which the stockholders of Corporation have. ARTICLE XIII BOARD OF DIRECTORS The directors constituting the initial Board of Directors of the Corporation and the name and address of the persons who are to serve as directors until the first annual meeting of the stockholders or until their successors are elected and qualified are:
Ronald G. Greene 5100 Tennyson Parkway, Suite 3000 Plano, Texas 75024 Gareth Roberts 5100 Tennyson Parkway, Suite 3000 Plano, Texas 75024 David I. Heather 5100 Tennyson Parkway, Suite 3000 Plano, Texas 75024 David B. Miller 5100 Tennyson Parkway, Suite 3000 Plano, Texas 75024 William S. Price 5100 Tennyson Parkway, Suite 3000 Plano, Texas 75024 Jeffrey Smith 5100 Tennyson Parkway, Suite 3000 Plano, Texas 75024 Wieland F. Wettstein 5100 Tennyson Parkway, Suite 3000 Plano, Texas 75024 Carrie Wheeler 5100 Tennyson Parkway, Suite 3000 Plano, Texas 75024
9 I, the undersigned, for the purpose of amending and restating the Certificate of Incorporation of the Corporation, do make this Restated Certificate of Incorporation, hereby declaring under the penalties of perjury that this is my act and deed and that the facts stated herein are true, and accordingly have executed this Restated Certificate of Incorporation effective as of nine o'clock a.m., local time in the State of Delaware on December 29, 2003. /s/ Phil Rykhoek ------------------------------------- Phil Rykhoek, Secretary 10 EX-3 5 denbury8k12292003ex32.txt EXHIBIT 3.2 Exhibit 3.2 DENBURY RESOURCES INC. BYLAWS ARTICLE I OFFICES Section 1.1. Registered Office. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 1.2. Other Offices. The corporation may also have offices at such other places, either within or without the State of Delaware, as the board of directors may from time to time to determine or as the business of the corporation may require. ARTICLE 2 MEETINGS OF STOCKHOLDERS Section 2.l. Place of Meetings. All meetings of the stockholders shall be held at the office of the corporation or at such other places as may be fixed from time to time by the board of directors, either within or without the State of Delaware, and stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2.2. Annual Meetings. Annual meetings of stockholders, commencing with the year 2004, shall be held at the time and place to be selected by the board of directors. At the meeting, the stockholders shall elect a board of directors and transact such other business as may properly be brought before the meeting. The board of directors acting by resolution may postpone and reschedule any previously scheduled annual meeting of stockholders. Nominations of persons for election to the board of directors of the corporation and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders (a) pursuant to the notice of meeting, (b) by or at the direction of the board of directors, or (c) by any stockholder of the corporation who was a stockholder of record at the record date for the meeting, who is entitled to vote at the meeting. Section 2.3. Notice of Annual Meeting. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 2.4. Voting List. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 2.5 Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, shall be called by the board of directors or by holders of capital stock representing at least twenty-five percent (25%) of the aggregate voting power of the issued and outstanding capital stock of the corporation. The board of directors acting by resolution may postpone and reschedule any previously scheduled special meeting of stockholders called by the board of directors, but shall have such right with respect to any special meeting called by stockholders of the corporation only with the consent of such shareholders calling the meeting. Section 2.6. Notice of Special Meetings. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting, to each stockholder entitled to vote at such meeting. Business transacted at any special meeting of the stockholders shall be limited to the purposes stated in the notice. Section 2.7. Quorum. The holders of one-third (1/3) of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 2.8. Order of Business. At each meeting of the stockholders, one of the following persons, in the order in which they are listed (and in the absence of the first, the next, and so on), shall serve as chairman of the meeting: chairman of the board, president, vice presidents (in the order of their seniority if more than one) and secretary. The order of business at each such meeting shall be as determined by the chairman of the meeting. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the 2 meeting, including, without limitation, the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. Section 2.9. Majority Vote. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which, by express provision of the statutes or of the certificate of incorporation, a different vote is required, in which case such express provision shall govern and control the decision of such question. Section 2.10. Method of Voting. Unless otherwise provided in the certificate of incorporation, each stockholder shall at every meeting of the stockholders be entitled to one (1) vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three (3) years from its date, unless the proxy provides for a longer period. Section 2.11. Action Without Meeting. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. The writing or writings shall be delivered to the corporation by delivery to its registered office in Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. ARTICLE 3 DIRECTORS Section 3.1. General Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by law or by the certificate of incorporation of the corporation or by these bylaws directed or required to be exercised or done by the stockholders. Section 3.2. Number of Directors. Except as otherwise fixed by the certificate of incorporation of the corporation, the board of directors shall have not less than three (3) nor more than fifteen (15) directors. The number of directors constituting the board shall be such number as from time to time shall be specified by resolution of the board of directors; provided, however, no director's term shall be shortened by reason of a resolution reducing the number of directors. 3 Section 3.3. Election Qualification and Term of Office of Directors. Directors shall be elected at each annual meeting of stockholders to hold office until the next annual meeting. Directors need not be stockholders unless so required by the certificate of incorporation or these bylaws, wherein other qualifications for directors may be prescribed. Each director, including a director elected to fill a vacancy, shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Elections of directors need not be by written ballot. Section 3.4. Regular Meetings. Written notice of the regular meetings of the board of directors stating the place, date and hour of any of the regular meetings shall be given to each director not less than two (2) days before the date of any such meeting. Section 3.5. Special Meetings. Special meetings of the board may be called by the chairman of the board or the president, and shall be called by the president or secretary on the written request of two (2) directors unless the board consists of only a sole director, in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 3.6. Quorum, Majority Vote. At all meetings of the board, a majority of the entire board of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 3.7. Action Without Meeting. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of the board or committee. Section 3.8. Telephone and Similar Meetings. Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. Section 3.9. Notice of Meetings. Notice of each meeting of the board shall be given to each director by telegraph, facsimile, electronic mail, overnight delivery or be given personally or by telephone, at least two (2) days before the meeting is to be held. Notice need not be given to any director who shall, either before or after the meeting, submit a signed waiver of such notice or who shall attend such meeting without protesting, prior to or at its commencement, 4 the lack of notice to such director. Every such notice shall state the time and place but need not state the purpose of the meeting. Section 3.10. Rules and Regulations. The board of directors may adopt such rules and regulations not inconsistent with the provisions of law, the certificate of incorporation of the corporation or these bylaws for the conduct of its meetings and management of the affairs of the corporation as the board may deem proper. Section 3.11. Resignations . Any director of the corporation may at any time resign by giving written notice to the board of directors, the chairman of the board, the president or the secretary of the corporation. Such resignation shall take effect at the time specified therein or, if the time be not specified, upon receipt thereof; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.12. Removal of Directors. Unless otherwise restricted by statute or by the certificate of incorporation, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Section 3.13. Vacancies. Subject to the rights of the holders of any class or series of stock having a preference over the common stock of the corporation as to dividends or upon liquidation, any vacancies on the board of directors resulting from death, resignation, removal or other cause, shall only be filled by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the board of directors, or by a sole remaining director, and newly created directorships resulting from any increase in the number of directors shall be filled by the board of directors, or if not so filled, by the stockholders at the next annual meeting thereof or at a special meeting called for that purpose in accordance with Section 2.5 of these bylaws. Any director elected in accordance with the preceding sentence of this Section 3.13 shall hold office for the remainder of the full term of any class of directors in which the new directorship was created or the vacancy occurred and until such successor shall have been elected and qualified. Section 3.14. Compensation of Directors. Unless otherwise restricted by the certificate of incorporation or these bylaws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. 5 ARTICLE 4 EXECUTIVE AND OTHER COMMITTEES Section 4.1. Executive Committee. The board of directors may designate annually one (1) or more of its members to constitute members or alternate members of an executive committee, which committee shall have and may exercise, between meetings of the board, all the powers and authority of the board in the management of the business and affairs of the corporation, including, if such committee is so empowered and authorized by resolution adopted by a majority of the entire board, the power and authority to declare a dividend and to authorize the issuance of stock, and may authorize the seal of the corporation to be affixed to all papers which may require it, except that the executive committee shall not have such power or authority with reference to: (a) amending the certificate of incorporation of the corporation; (b) adopting an agreement of merger or consolidation involving the corporation; (c) recommending to the stockholders the sale, lease or exchange of all or substantially all of the property and assets of the corporation; (d) recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution; (e) adopting, amending or repealing any Bylaw; (f) filling vacancies on the board or on any committee of the board, including the executive committee; (g) fixing the compensation of directors for serving on the board or on any committee of the board, including the executive committee; or (h) amending or repealing any resolution of the board which by its terms may be amended or repealed only by the board. Section 4.2. Other Committees. The board of directors may designate from among its members one or more other committees, each of which shall, except as otherwise prescribed by law, have such authority of the board as may be specified in the resolution of the board designating such committee. A majority of all the members of such committee may determine its action and fix the time and place of its meetings, unless the board shall otherwise provide. The board shall have the power at any time to change the membership of, to increase or decrease the membership of, to fill all vacancies in and to discharge any such committee, or any member thereof, either with or without cause. Section 4.3. Procedure; Meetings; Quorum. Regular meetings of the executive committee or any other committee of the board of directors may be held at such times and places as shall be fixed by resolution adopted by a majority of the members thereof. Special meetings of the executive committee or any other committee of the board shall be called at the request of any member thereof. Notice of each meeting of the executive committee or any other committee of the board shall be given to each member of such committee by mailing written notice, addressed to each member's residence, usual place of business or such other place as designated 6 by the member in writing provided to the secretary of the corporation or shall be sent to such member at such place by telegraph, facsimile, electronic mail or overnight delivery or to be given personally or by telephone at least two (2) days before the meeting is to be held. Notice need not be given to any member who shall, either before or after the meeting, submit a signed waiver of such notice or who shall attend such meeting without protesting, prior to or at its commencement, the lack of such notice to such member. Every such notice shall state the time and place but need not state the purpose of the meeting. Any special meeting of the executive committee or any other committee of the board shall be a legal meeting without any notice thereof having been given, if all the members thereof shall be present thereat. Notice of any adjourned meeting of any committee of the board need not be given if scheduled at the original meeting. The executive committee or any other committee of the board may adopt such rules and regulations not inconsistent with the provisions of law, the certificate of incorporation of the corporation or these bylaws for the conduct of its meetings as the executive committee or any other committee of the board may deem proper. A majority of the executive committee or any other committee of the board shall constitute a quorum for the transaction of business at any meeting, and the vote of a majority of the members thereof present at any meeting at which a quorum is present shall be the act of such committee. The executive committee or any other committee of the board of directors shall keep written minutes of its proceedings, a copy of which is to be filed with the secretary of the corporation, and shall report on such proceedings to the board. ARTICLE 5 NOTICES Section 5.l. Method. Except as otherwise specifically provided herein or required by law, all notices required to be given to any director, officer or stockholder shall be given in writing, by hand delivery or mail, addressed to such director, officer or stockholder, at his or her address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be hand delivered or deposited in the United States mail. Except as otherwise required by law, notice to directors shall also be given in accordance with Section 3.9 of these bylaws. Section 5.2. Waiver. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. 7 ARTICLE 6 OFFICERS Section 6.1. Election, Qualification. The officers of the corporation shall be chosen by the board of directors and shall be a president, one or more vice presidents, a secretary and a treasurer. The board of directors may also choose a chairman of the board, one or more assistant secretaries and assistant treasurers and such other officers and agents as it shall deem necessary. Any number of offices may be held by the same person, unless the certificate of incorporation or these bylaws otherwise provide. Section 6.2. Salary. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 6.3. Term, Removal. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. Section 6.4. Resignation. Subject at all times to the right of removal as provided in Section 6.3 of these bylaws, any officer may resign at any time by giving notice to the board of directors, the president or the secretary of the corporation. Any such resignation shall take effect at the date of receipt of such notice or at any later date specified therein; provided that the president or, in the event of the resignation of the president, the board of directors may designate an effective date for such resignation which is earlier than the date specified in such notice but which is not earlier than the date of receipt of such notice; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 6.5. Vacancies. A vacancy in any office because of death, resignation, removal or any other cause may be filled for the unexpired portion of the term in the manner prescribed in these bylaws for election to such office. Section 6.6. Chairman of the Board. The chairman of the board shall, if there be such an officer, preside at meetings of the board of directors and at meetings of the stockholders. The chairman of the board shall counsel with and advise the president and perform such other duties as the president or the board or the executive committee may from time to time determine. Except as otherwise provided by resolution of the board, the chairman of the board shall be ex-officio a member of all committees of the board. The chairman of the board may sign and execute in the name of the corporation deeds, mortgages, bonds, contracts or other instruments authorized by the board or any committee thereof empowered to authorize the same. Section 6.7. President. The president shall be the chief executive officer of the corporation, shall preside, if present, and in the absence of the chairman of the board, at all meetings of the board of directors and at all 8 meetings of the stockholders, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. Section 6.8. Vice Presidents. In the absence of the president and the chairman of the board or, in the event of their inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. Section 6.9. Secretary. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 6.10. Assistant Secretary. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. Section 6.11. Treasurer. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. If required by the board of directors, he shall give the corporation a bond in such sum and with 9 such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 6.12. Assistant Treasurer. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election), shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE 7 INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS Section 7.1. Indemnification. The corporation shall indemnify any person who is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another entity, as provided in the certificate of incorporation. Section 7.2. Definitions of Certain Terms. For purposes of indemnification pursuant to the certificate of incorporation or this Article 7, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article 7 with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article 7, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by such director, officer, employee or agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this Article 7. 10 ARTICLE 8 CERTIFICATES OF STOCK Section 8.1. Certificates. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by, the chairman or vice chairman of the board of directors, or the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. Section 8.2. Facsimile Signatures. Any of or all the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Section 8.3. Lost Certificates. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 8.4. Transfers of Stock. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Section 8.5. Fixing Record Date. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to any corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any changes, conversion or exchange of stock or for any other lawful purpose, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, more than ten days after the date of adoption of the Board resolution for actions by written consent, or more than sixty days prior to any other action. In no event shall the record date precede the date of adoption of the applicable Board resolution. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting, provided, however, that the board of directors may fix a new record date for the adjourned meeting. 11 Section 8.6. Registered Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE 9 AFFILIATED TRANSACTIONS Section 9.1. Validity. Except as otherwise provided for in the certificate of incorporation, if Section 9.2 of these bylaws is satisfied, no contract or transaction between the corporation and any of its directors, officers or security holders, or any corporation, partnership, association or other organization in which any of such directors, officers or security holders are directly or indirectly financially interested, shall be void or voidable solely because of this relationship, or solely because of the presence of the director, officer or security holder at the meeting authorizing the contract or transaction, or solely because of his or their participation in the authorization of such contract or transaction or vote at the meeting therefor, whether or not such participation or vote was necessary for the authorization of such contract or transaction. Section 9.2. Disclosure, Approval; Fairness. Section 9.1 shall apply only if: (a) the material facts as to the relationship or interest and as to the contract or transaction are disclosed or are known: (i) to the board of directors (or committee thereof) and it nevertheless in good faith authorizes or ratifies the contract or transaction by a majority of the directors present, each such interested director to be counted in determining whether a quorum is present but not in calculating the number necessary to carry the vote; or (ii) to the stockholders and they nevertheless authorize or ratify the contract or transaction by a majority of the shares present at a meeting considering such contract or transaction, each such interested person (stockholder) to be counted in determining whether a quorum is present but not in calculating the number necessary to carry the vote; or (b) the contract or transaction is fair to the corporation as of the time it is authorized, approved or ratified by the board of directors (or committee thereof) or the stockholders. 12 Section 9.3. Nonexclusive. This provision shall not be construed to invalidate a contract or transaction which would be valid in the absence of this provision. ARTICLE 10 GENERAL PROVISIONS Section 10.1. Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 10.2. Reserves. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. Section 10.3. Checks. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. Section 10.4. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors. Section 10.5. Seal. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be impressed, affixed, reproduced or otherwise. 13 ARTICLE 11 AMENDMENTS Section 11.1. Amendments. These bylaws may be altered, amended or repealed or new bylaws may be adopted by a majority of not less than 2/3 of the members of the board of directors voting in favor thereof, at any meeting of the board of directors if notice of such alteration, amendment, repeal or adoption of new bylaws be contained in the notice of such meeting. The stockholders of the corporation shall have the power to adopt, amend or repeal any provisions of the bylaws. December 29, 2003 /s/ Phil Rykhoek 9:00 a.m. --------------------------------------------- Phil Rykhoek, Secretary 14 EX-4 6 denbury8k12292003ex4.txt EXHIBIT 4.1 Exhibit 4.1 FIRST SUPPLEMENTAL INDENTURE This First Supplemental Indenture (this "Supplemental Indenture") dated as of December 29, 2003 is among Denbury Resources Inc., a Delaware corporation (the "Company"), on behalf of itself and the Subsidiary Guarantors (the "Subsidiary Guarantors") under the Indenture as defined below, Denbury Onshore, LLC ("Onshore"), Denbury Holdings, Inc., a Delaware corporation (the "Holding Company"), Denbury Operating Company, a Delaware corporation ("OPCO"), and JPMorgan Chase Bank, as Trustee, and supplements, amends and modifies that certain Indenture dated as of March 25, 2003 among the Company, the Subsidiary Guarantors and the Trustee (the "Indenture"). RECITALS: The Company has heretofore executed and delivered to the Trustee the Indenture providing for the issuance of the Company's 7 1/2% Senior Subordinated Notes Due 2013 (the "Securities"). The Board of Directors of the Company has determined it to be in the best interests of the Company to effect the formation of a holding company structure. Accordingly, the Company, the Holding Company and Onshore have executed and delivered an Agreement and Plan of Merger to Form Holding Company dated as of December 22, 2003 to be effective 9:00 a.m. Delaware time, December 29, 2003 (the "Merger Effective Time") pursuant to which the Company will be merged into Onshore, a Delaware single member limited liability company and an indirect subsidiary of the Company, with Onshore being the survivor of the merger between the Company and Onshore, and whereby the outstanding capital stock of the Company will be converted into capital stock of the Holding Company (the "Merger"). At the Merger Effective Time the corporate name of the Holding Company will be changed to "Denbury Resources Inc." As a result of effectuation of the Merger, the Holding Company will become a holding company and Onshore will become a wholly-owned subsidiary of the Holding Company. The Merger will be effected pursuant to Section 251(g) of the General Corporation Law of the State of Delaware ("DGCL"), which permits effectuation of such a merger without a vote of stockholders of either constituent corporation. On December 29, 2003 at 1:00 p.m. Delaware time (the "Capitalization Effective Time"), the Holding Company will capitalize OPCO as a new subsidiary, at 11:00 a.m. Delaware time Onshore will distribute the stock of one of its subsidiaries that is a Subsidiary Guarantor, Denbury Offshore Inc., to the Holding Company, and the Holding Company will distribute its membership interests in Onshore to OPCO, causing Onshore to become a direct subsidiary of OPCO and an indirect subsidiary of the Holding Company. Denbury Offshore Inc. will remain a Subsidiary Guarantor pursuant to the terms of the Indenture as amended by this Supplemental Indenture. Section 5.01 of the Indenture provides that the Company may not consolidate with or merge with or into any Person unless such Person is organized and existing under the laws of the United States or any state thereof and the successor company by virtue of the Merger, in this case Onshore, expressly assumes, by supplemental indenture executed and delivered to the Trustee, all the obligations of the Company under the Securities and the Indenture. The Holding Company and Onshore intend to assume all of the obligations of the Company under the Securities and the Indenture with respect to the indebtedness previously issued by the Company under the Indenture. In no event as a result of this Supplemental Indenture or the assumption by the Holding Company of the obligations of the Company under the Indenture, will Onshore be released from the obligations under the Securities and the Indenture that it is assuming herein. Pursuant to Sections 9.01(2), (5) and (8) of the Indenture, the Trustee, the Company and the Subsidiary Guarantors are authorized to execute and deliver this Supplemental Indenture without notice to or consent of any Securityholder. AGREEMENT NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto covenant and agree as follows: ARTICLE 1 Section 1.1 Definitions. (a) For all purposes of this Supplemental Indenture, except as otherwise herein expressly provided or unless the context otherwise requires: (i) the terms and expressions used herein shall have the same meanings as corresponding terms and expressions used in the Indenture; and (ii) the words "herein," "hereof" and "hereby" and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof. (b) The term "Subsidiary" in the Indenture shall refer to a direct or indirect subsidiary of either the Holding Company or Onshore. (c) Whenever the phrase "the Company and its Restricted Subsidiaries" is used in the Indenture, it shall mean the Holding Company and all of its Restricted Subsidiaries, including Onshore, on a consolidated basis. (d) Whenever the term "the Company" is used in the Indenture, it shall mean either or both of the Holding Company and Onshore, as appropriate, so as to enable compliance with, and confer the rights under, the covenants, agreements, terms and obligations of the Indenture and the Securities. Section 1.2 Assignment and Assumption. Onshore and the Holding Company hereby assume all of the Company's obligations under the Indenture and the Securities at the Merger Effective Time and as such shall thereafter be obligated to timely pay, perform and discharge, each and every obligation of the Company under and with respect to the Indenture and 2 the Securities. The Company hereby assigns, at the Merger Effective Time, its rights and obligations under the Indenture and the Securities to Onshore and the Holding Company. Section 1.3 Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. Section 1.4 Agreement to Guarantee. Effective at the Capitalization Effective Time, OPCO agrees that it will, jointly and severally with all other Subsidiary Guarantors, guarantee the obligations under the Securities on the terms and subject to the conditions set forth in Article 11 of the Indenture and be bound by all other applicable provisions of the Indenture. ARTICLE 2 Section 2.1 Effectiveness. Although this Supplemental Indenture may be executed and delivered by the parties hereto prior thereto, the provisions hereof shall not become effective unless and until the Merger becomes effective under the DGCL and, under such circumstances, except as to Section 1.4 hereof, shall become effective concurrently with the Merger Effective Time. Section 1.4 hereof shall become effective concurrently with the Capitalization Effective Time. From and after the Merger Effective Time and, as to Section 1.4 hereof, the Capitalization Effective Time, the Indenture, as hereby supplemented, amended and modified, shall remain in full force and effect. Section 2.2 References. Each reference in the Indenture of this Supplemental Indenture to any article, section, term or provision of the Indenture shall mean and be deemed to refer to such article, section, term or provision of the Indenture, as modified by this Supplemental Indenture, except where the context otherwise indicates. Section 2.3 Benefit. All the covenants, provisions, stipulations and agreements contained in this Supplemental Indenture are and shall be for the sole and exclusive benefit of the parties hereto, their successors and assigns, and of the holders and registered owners of the Securities. Section 2.4 Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Section 2.5 Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 3 Section 2.6 Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture. Section 2.7 Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction thereof. [signature page follows] IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written. DENBURY ONSHORE, LLC By: /s/ Phil Rykhoek ----------------------------------------------- Name: Phil Rykhoek Title: Senior Vice President, Chief Financial Officer and Secretary DENBURY RESOURCES, INC., on behalf of itself and on behalf of the Subsidiary Guarantors By: /s/ Gareth Roberts ----------------------------------------------- Name: Gareth Roberts Title: President and Chief Executive Officer DENBURY HOLDINGS, INC. By: /s/ Phil Rykhoek ----------------------------------------------- Name: Phil Rykhoek Title: Senior Vice President, Chief Financial Officer and Secretary DENBURY OPERATING COMPANY, as Subsidiary Guarantor By: /s/ Phil Rykhoek ----------------------------------------------- Name: Phil Rykhoek Title: Senior Vice President, Chief Financial Officer and Secretary JPMORGAN CHASE BANK, as Trustee By: /s/ Rebecca A. Newman ----------------------------------------------- Name: Rebecca A. Newman Title: Vice President EX-99 7 denbury8k12292003ex99.txt EXHIBIT 99.1 Exhibit 99.1 DENBURY RESOURCES INC. P R E S S R E L E A S E Denbury Resources Announces Internal Holding Company Reorganization News Release Released at 7:30 AM CDT DALLAS - December 22, 2003 - Denbury Resources Inc. (NYSE: DNR) ("Denbury" or the "Company") announced today, that effective December 29, 2003, it will complete an internal reorganization to a holding-company-organizational structure. This reorganization will not impact Denbury's public company shareholders; no action is required on their part and their rights, privileges and ownership will not change. Denbury's common stock will continue to be listed on the New York Stock Exchange under the same symbol, "DNR". The purposes of creating the holding company structure are to better reflect the operating practices and methods of Denbury, to improve its economics, and to provide greater administrative and operational flexibility. Denbury and two newly created wholly-owned subsidiaries signed a Plan and Agreement of Merger today that will become effective, along with related intercompany transactions, at 9:00 a.m. EST next Monday, December 29. At the effective time, each share of Denbury common stock will automatically convert into one share of common stock of the new holding company. The reorganization is structured under Delaware law in a manner that does not require action by Denbury stockholders and so that it is a tax-free transaction. Denbury's name, charter, bylaws, officers, board of directors, authorized shares and outstanding common stock will remain the same. Denbury will be making amendments to its bank credit agreement, subordinated debt indenture, and various other plans and documents to accommodate the internal reorganization, but once completed, the restructuring should not impact any of Denbury's customers, suppliers or lenders. Denbury Resources Inc. (www.denbury.com) is a growing independent oil and gas company. The Company is the largest oil and natural gas operator in Mississippi, holds key operating acreage onshore in Louisiana and has a growing presence in the offshore Gulf of Mexico areas. This press release contains forward looking statements that involve risk and uncertainties. For further information contact: Gareth Roberts, President and CEO, 972-673-2000 Phil Rykhoek, Chief Financial Officer, 972-673-2000 www.denbury.com -----END PRIVACY-ENHANCED MESSAGE-----