As filed with the Securities and Exchange Commission on April 6, 2001
Registration Statement No. 333-57382
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DENBURY RESOURCES INC.
(Exact name of Registrant)
DELAWARE 1311 75-2815171
(State of incorporation) (Primary Standard Industrial (I.R.S. Employer
Classification Code Number) Identification No.)
PHIL RYKHOEK, CHIEF FINANCIAL OFFICER
DENBURY RESOURCES INC.
5100 TENNYSON PKWY., STE. 3000
PLANO, TEXAS 75024
(972) 673-2000
(Name, address and telephone number of Registrant's
executive offices and agent for service)
Copies to:
DONALD W. BRODSKY
DEIDRE L. SHEARER
JENKENS & GILCHRIST,
A PROFESSIONAL CORPORATION
1100 LOUISIANA STREET, SUITE 1800
HOUSTON, TEXAS 77002
(713) 951-3300
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are being offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. X
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by Denbury in
connection with the sale of securities being registered hereby, assuming Denbury
sells $100 million of Debt Securities and $100 million of common stock
hereunder. None of the following expenses will be paid by selling shareholders,
if any. All amounts are estimates, except the registration fee.
SEC Registration Fee................................................... $ 50,000
NYSE Filing Fee........................................................ 50,000
The Toronto Stock Exchange Listing Fee................................. 20,000
Blue Sky Fees and Expenses............................................. 10,000
Accounting Fees........................................................ 50,000
Legal Fees and Expenses................................................ 150,000
Printing and Engraving Fees and Expenses............................... 225,000
Trustee Fees........................................................... 15,000
Rating Agency Fee...................................................... 65,000
Miscellaneous.......................................................... 75,000
-------
Total......................................................... $710,000
========
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law (the "DGCL"), empowers
us under specified circumstances, to indemnify our directors, officers,
employees and agents in connection with actions, suits or proceedings brought
against them or threatened by reason of the fact that they were our directors,
officers, employees or agents, so long as they acted in good faith and in a
manner that they reasonably believed to be in, or not opposed to, the best
interests of our Company, and with respect to any criminal action, that they had
no reasonable cause to believe their conduct was unlawful. With respect to suits
by or in the right of our Company, however, indemnification is generally limited
to attorneys' fees and other expenses and is not available if such person is
adjudged to be liable to us, unless a court determines that indemnification is
appropriate.
Article IX of our Certificate of Incorporation requires indemnification of
directors, officers and other employees to the fullest extent permitted by
Section 145 of the DGCL. Furthermore, Article IX explicitly provides that:
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o we may advance expenses, including reasonable attorneys' fees, to
individuals entitled to indemnification;
o we may not take any action to diminish or reduce the rights of
individual entitled to indemnification after the occurrence of the
events to which the indemnification relates; and
o any person entitled to indemnification by us may bring suit against us
if we do not pay them within 30 days after receiving a written demand
for indemnification and, if successful, such person may recover their
expenses for such suit, including attorneys' fees, from us. In the
suit, we will have the burden of proving any defense that the person
is not eligible for indemnification under the DGCL.
Additionally, Denbury maintains directors and officers insurance which
includes coverage for liability under the federal securities laws.
Article X of our Certificate of Incorporation limits the personal liability
of a director to us or our stockholders for monetary damages for breach of
fiduciary duty as a director provided that a director's liability may not be
limited (i) for any breach of the director's duty of loyalty to Denbury 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
(relating to liability for unauthorized acquisitions or redemptions of, or
dividends on, capital stock) of the DGCL or (iv) for any transaction from which
the director derived an improper personal benefit.
ITEM 16. EXHIBITS
EXHIBIT NO. DOCUMENT DESCRIPTION
----------- --------------------
**1.1 Form of Underwriting Agreement (Debt Securities)
**1.2 Form of Underwriting Agreement (Common Stock)
**1.3 Form of Underwriting Agreement (Preferred Stock)
**1.4 Form of Underwriting Agreement (Depositary Shares)
**1.5 Form of Underwriting Agreement (Warrants)
*4.1 Form(s) of Indenture between Denbury Resources Inc. and Trustee to be
designated therein covering Debt Securities to be offered thereunder, including Form of Note or Debenture
attached thereto
**4.2 Form of Certificate of Designation for Preferred Stock, including Specimen Certificate
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Exhibit No. Document Description
----------- --------------------
**4.3 Form of Depositary Agreement between Denbury Resources Inc. and Depositary to be designated therein covering
Depositary Shares to be offered hereunder, including Form of Depositary Receipt attached hereto
**4.4 Form of Warrant Agreement and Trustee to be designated
therein covering Common Stock Warrants to be offered
hereunder, including Form of Common Stock Warrant
attached thereto
**4.5 Form of Warrant Agreement and Trustee to be designated therein covering Preferred Stock Warrants to be
offered hereunder, including Form of Preferred Stock Warrant attached thereto
4.6 Certificate of Incorporation of Denbury Resources, Inc. filed with the Delaware
Secretary of State on April 20, 1999 (incorporated by reference as Exhibit 3(a) of
the Registrant's Form 10-Q for the quarter ended March 31, 1999).
4.7 Bylaws of Denbury Resources, Inc., a Delaware corporation, adopted April 20,
1999 (incorporated by reference as Exhibit 3(b) of the Registrant's Form 10-Q for
the quarter ended March 31, 1999).
*5 Form(s) of Opinion of Jenkens & Gilchrist, A Professional Corporation, as to the validity of the Securities
being registered hereunder
**8 Form(s) of Opinion of Jenkens & Gilchrist, A Professional Corporation, as to Tax Matters
***12 Denbury Resources Inc. Computation of Ratio of Earnings to Fixed Charges
***23.1 Consent of Netherland, Sewell & Associates, Inc.
***23.2 Consent of DeGolyer and MacNaughton
***23.3 Consent of Deloitte & Touche, LLP
*23.4 Form of Consent of Jenkens & Gilchrist, A Professional Corporation (included in Exhibit 5)
**23.5 Form of Consent of Jenkens & Gilchrist, A Professional Corporation (included in Exhibit 8)
***24 Power of Attorney (included on signature page)
**25 Statement(s) on Form T-1 of Eligibility of Trustee for the Debt Securities
- -------------------------
* Filed herewith
** To be filed by amendment or Form 8-K
*** Previously filed
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17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of securities registered hereby, a post-effective amendment to this
registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission pursuant
to Rule 424(b) under the Securities Act of 1933 if, in the aggregate,
the changes in volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; provided, however, that the undertakings set
forth in paragraph (i) and (ii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby understands that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
(d) For the purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(e) For the purpose of determining any liability under the Securities Act of
1933, each post- effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(f) The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of that Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Pre-Effective Amendment No. 1 to Registration
Statement No. 333-57382 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Plano, State of Texas, on April 6, 2001.
DENBURY RESOURCES INC.
By: /s/ Phil Rykhoek
-------------------------------------
Phil Rykhoek
Chief Financial Officer and Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURES TITLE DATE
/s/ Gareth Roberts*
- --------------------------------------- Chief Executive Officer April 6, 2001
Gareth Roberts and Director (Principal
Executive Officer)
/s/ Phil Rykhoek
- --------------------------------------- Chief Financial Officer and April 6, 2001
Phil Rykhoek Secretary (Principal
Financial Officer)
/s/ Mark C. Allen*
- --------------------------------------- Chief Accounting Officer April 6, 2001
Mark C. Allen and Controller (Principal
Accounting Officer)
/s/ Ronald G. Greene*
- --------------------------------------- Chairman of the Board and April 6, 2001
Ronald G. Greene Director
/s/ David I. Heather*
- --------------------------------------- Director April 6, 2001
David I. Heather
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/s/ Wieland F. Wettstein*
- --------------------------------------- Director April 6, 2001
Wieland F. Wettstein
By: /s/ Phil Rykhoek
----------------------
Phil Rykhoek
* Attorney-in-fact pursuant to
Power of Attorney contained
in original filing of the
Registration Statement
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INDEX TO EXHIBITS
EXHIBIT NO. DOCUMENT DESCRIPTION
- ----------- --------------------
*4.1 Form of Indenture between Denbury Resources Inc. and Trustee to
be designated therein covering Debt Securities to be offered
thereunder, including Form of Note or Debenture attached thereto
*5 Form of Opinion of Jenkens & Gilchrist, A Professional
Corporation, as to the validity of the Securities being
registered hereunder
*23.4 Form of Consent of Jenkens & Gilchrist, A Professional
Corporation (included in Exhibit 5)
- --------------------
* Filed herewith
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