[Letterhead of Jenkens & Gilchrist]
1100 Louisiana, Suite 1800
Houston, Texas 77002
Attn: Donald W. Brodsky
April 6, 2001
Denbury Resources Inc.
5100 Tennyson Pkwy., Ste. 3000
Plano, Texas 75024
Ladies and Gentlemen:
We have acted as securities counsel to Denbury Resources Inc., a
Delaware corporation ("Denbury"), in connection with Registration Statement No.
333-57382 on Form S-3, as amended (the "Registration Statement"), filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), by Denbury which relates to common stock, par
value $.001 per share, of Denbury ("Common Stock"), preferred stock, par value
$.001 per share, of Denbury ("Preferred Stock"), unsecured notes, debentures or
other evidences of indebtedness of Denbury ("Debt Securities"), shares of
Preferred Stock which may be issued in the form of depositary shares
("Depositary Shares") evidenced by depositary receipts, and warrants to purchase
Common Stock or Preferred Stock ("Warrants") which may be issued and sold by
Denbury, and Common Stock owned by certain of its shareholders ("Selling
Shareholders"), which may be sold by the Selling Shareholders, in each case
from time to time pursuant to Rule 415 under the Act for an aggregate initial
offering price (as to all such Securities as may be sold by Denbury and the
Selling Shareholders) not to exceed $200,000,000. The Common Stock, Preferred
Stock, Debt Securities, Depositary Shares and Warrants will be referred to
herein collectively as the "Securities."
In connection with this opinion, we have examined and relied upon the
accuracy of original, certified or photographic copies of such records,
agreements, certificates and other documents as we have deemed necessary or
appropriate to enable us to render the opinions set out below, including (i) the
Registration Statement, (ii) Denbury's Certificate of Incorporation and Bylaws;
and (iii) copies of resolutions of Denbury's board of directors ("Board")
authorizing the filing of the Registration Statement. In all such examinations,
we have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies and the authenticity of the originals of such latter
documents. In conducting our examination of documents executed by parties other
than Denbury, we have assumed that such parties had the power, corporate or
other, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or other, and
execution and delivery by such parties of such documents and that such documents
constitute valid and binding obligations of such parties.
We have also assumed that (i) the Registration Statement, and any
amendments thereto (including post-effective amendments) will have become
effective under the Act, (ii) a proper prospectus supplement ("Prospectus
Supplement") will have been prepared and filed with the Commission describing
the Securities offered thereby, (iii) all Securities issued will be issued and
sold in compliance with applicable federal and state securities laws and solely
in the manner stated in the Registration Statement and the appropriate
Prospectus Supplement, (iv) the aggregate principal amount of any Debt
Securities or series of Debt Securities issued and sold by Denbury will be in
excess of $2,500,000, (v) at the time of any offering or sale of any shares of
Common Stock or Preferred Stock, Denbury will have such number of shares of
Common Stock or Preferred Stock authorized or created and available for issuance
as may be offered and sold and as are issuable upon the conversion, exchange or
exercise of any Securities that may be offered and sold, (vi) any definitive
purchase, underwriting or similar agreement with respect to any Securities
offered will have been duly authorized and validly executed and delivered by
Denbury and the other parties thereto, (vii) there shall be no change in law
affecting the validity of any of the Securities (between the date hereof and the
date of issuance and sale of such Securities), and (viii) all parties to
agreements involving the issuance or sale of the Securities will perform their
obligations thereunder in compliance with the terms of such documents.
Based upon the foregoing, and subject to the assumptions, qualifications
and limitations stated herein, we are of the opinion that:
1. The Common Stock that may be offered and sold by the Selling
Shareholders and which is covered by the Registration Statement is
legally issued, fully paid and nonassessable.
2. With respect to Common Stock that may be issued, offered and sold by
Denbury, when (i) the Board (or a committee thereof) has taken
all necessary corporate action to approve the issuance and sale of the
Common Stock to be issued, the terms of the offering thereof and
related matters, (ii) such shares of Common Stock have been issued and
delivered in accordance with the provisions of any applicable
definitive purchase or underwriting or other agreement binding on
Denbury and the terms approved by the Board (or a committee thereof)
and (iii) Denbury has received payment of the cash or other lawful
consideration provided to be paid for the Common Stock, which
consideration shall not be less than the par value thereof, such
shares of Common Stock will be legally issued, fully paid and
nonassessable.
3. With respect to Preferred Stock, when (i) the Board (or a committee
thereof) has taken all necessary corporate action to approve the
issuance and terms of such Preferred Stock that may be issued, the
terms of the offering thereof and related matters, (ii) a Certificate
of Designation under, or an amendment of, Denbury's Certificate of
Incorporation setting forth the powers, designations, preferences and
relative, participating, optional or other special rights of the
Preferred Stock and the qualifications and restrictions of such
preferences and/or rights has been filed with the Secretary of State
of Delaware, (iii) such shares of Preferred Stock have been issued and
delivered in accordance with the provisions of any applicable
definitive purchase, underwriting or similar agreement and the terms
approved by the Board (or a committee thereof), and (iv) Denbury has
received payment of the cash or other lawful consideration provided to
be paid for the Preferred Stock, which consideration shall not be less
than the par value thereof, such shares of Preferred Stock will be
legally issued, fully paid and nonassessable.
4. With respect to Debt Securities, when (i) the applicable Indenture
relating to the Debt Securities has been duly qualified under the
Trust Indenture Act of 1939, as amended, (ii) the Trustee that is a
party to the Indenture relating to such Debt Securities has been duly
qualified and has filed with the Commission a Statement of Eligibility
of Trustee on Form T-1 for the Debt Securities, (iii) the Board (or a
committee thereof) has taken all necessary corporate action to approve
the issuance and terms of such Debt Securities, (iv) the terms of such
Debt Securities and of their issuance and sale have been duly
established in conformity with the applicable Indenture so as not to
violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon Denbury and so as to comply
with any requirements or restriction imposed by any court or
governmental body having jurisdiction over Denbury, (v) the Indenture
has been duly authorized, executed and delivered by the parties
thereto, (vi) the certificates representing the Debt Securities have
been duly executed, countersigned, registered and delivered in
accordance with the Indenture and any applicable definitive purchase,
underwriting or similar agreement, and (vii) Denbury has received
payment of the consideration provided to be paid for the Debt
Securities, such Debt Securities will constitute valid and legally
binding obligations of Denbury.
5. With respect to the Depositary Shares, when (i) the Board (or a
committee thereof) has taken all necessary corporate action to approve
the creation of and issuance and terms of the Depositary Shares, the
terms of the offering thereof and related matters (ii) the deposit
agreement relating to the Depositary Shares in which the depositary
thereunder is duly appointed (the "Deposit Agreement") has been duly
authorized and validly executed and delivered by Denbury, (iii) such
Depositary Shares have been issued and delivered in accordance
with the provisions of the Deposit Agreement, the terms of any
applicable definitive purchase underwriting or similar agreement, and
the terms approved by the Board ( or a committee thereof), and (iv)
Denbury has received payment of the consideration provided to be paid
for the Depositary Shares, such Depositary Shares will be legally
issued, fully paid and nonassessable.
6. With respect to the Warrants, when (i) the Board (or a committee
thereof) has taken all necessary corporate action to approve the
creation of and issuance and terms of the Warrants, the terms of the
offering thereof and related matters (including any Common Stock or
Preferred Stock issued upon exercise of the Warrants), (ii) any
Warrant Agreement entered into in connection therewith (the "Warrant
Agreement") has been duly authorized and validly executed and
delivered by Denbury, (iii) the Warrants or certificates representing
the Warrants have been duly executed, countersigned, registered and
delivered in accordance with the applicable Warrant Agreement and any
applicable definitive purchase, underwriting or similar agreement, and
the terms approved by the Board (or a committee thereof) and (iv)
Denbury has received payment of the consideration provided to be paid
for the Warrants, such Warrants will be legally issued, fully paid and
nonassessable and will constitute valid and legally binding
obligations of Denbury.
7. With respect to Preferred Stock, Common Stock and Debt Securities
("Underlying Securities") that may be issued on the conversion,
exchange or exercise of any Securities, when (i) the Underlying
Security is issued in accordance with the term of the Security for
which it is exchangeable, exercisable or convertible, including the
receipt by Denbury of any additional consideration to be paid
therefor, and (ii) with respect to Underlying Securities that are Debt
Securities, the conditions set forth in paragraph 4 above, as
applicable, are satisfied, shares of Preferred Stock and Common Stock
that are issued as Underlying Securities will be legally issued, fully
paid and nonassessable and Debt Securities that are issued as
Underlying Securities will constitute valid and legally binding
obligations of Denbury.
The opinions set forth in paragraphs 4, 6 and 7 above are subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
The foregoing opinions are limited to the laws of the State of New York,
the laws of the United States of America and to the Delaware General Corporation
Law ("DGCL"), including provisions of the Delaware Constitution that are
applicable to the DGCL and reported judicial interpretations of the DGCL.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the use of our name under the caption "Legal
Opinions" in the Prospectus forming a part of the Registration Statement. In
giving this consent, this firm does not admit that it is within the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission promulgated thereunder.
Respectfully submitted,
Jenkens & Gilchrist, a Professional Corporation
By: /s/ Donald W. Brodsky
Authorized Signatory