EXHIBIT 5
Jenkens & Gilchrist Letterhead
August 5, 2003
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 a registration statement on Form S-3
(the "Registration Statement"), being filed by Denbury with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), which relates to common stock, par value $.001 per share,
of Denbury ("Common Stock"), preferred stock, par value $.001 per share, of
Denbury in one or more series ("Preferred Stock"), unsecured debt securities, in
one or more series, consisting of 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 $350,000,000.
The Common Stock, Preferred Stock, Debt Securities, Depositary Shares and
Warrants will be referred to herein collectively as the "Securities". The
Securities will be offered in amounts, at prices and on terms to be determined
in light of market conditions contained in the Registration Statement to which
this opinion is an exhibit.
Unless otherwise provided in any prospectus supplement forming a part of
the Registration Statement (i) any series of the Debt Securities will be issued
under an Indenture (the "Indenture") between Denbury and a United States banking
institution to be selected by Denbury, as trustee, a form of which is filed as
an exhibit to the Registration Statement; (ii) any series of the Preferred Stock
will be issued under Denbury's Certificate of Incorporation and a Certificate of
Designations (the "Certificate of Designations"); (iii) any shares of the Common
Stock are to be issued under Denbury's Certificate of Incorporation; (iv) any
Depositary Shares will be issued under one or more Deposit Agreements (each a
"Deposit Agreement") to be entered into between Denbury and depositories to be
named by Denbury (each a "Depository"); and (v) any Warrants will be issued
under one or more Warrant Agreements (each a "Warrant Agreement") to be
entered into between Denbury and warrant agents to be named by Denbury (each a
"Warrant Agent").
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;
(iii) copies of resolutions of Denbury's board of directors ("Board")
authorizing the filing of the Registration Statement; and (iv) the form of
Indenture. In addition, we have reviewed such questions of law as we have
considered appropriate. As to any facts material to our opinion, we have made no
independent investigation of such facts and have relied, to the extent that we
deem such reliance proper, upon certificates of public officials and officers or
other representatives of Denbury.
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.
We have also assumed that (i) the Registration Statement and any amendments
thereto (including post-effective amendments) will have become effective under
the Act and comply with all applicable laws, (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 Indenture, together with any
supplemental indenture or other instruments establishing a series of Debt
Securities to be issued under the Indenture, will each be duly authorized,
executed and delivered by the parties thereto in substantially the form reviewed
by us or with changes that do not affect the opinions given hereunder; (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
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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 the 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 of which have been 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 the 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
of which have been 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 the Debt Securities, when (i) the applicable Indenture
relating to the Debt Securities has been duly qualified under the
Trust Indenture Act of 1939,
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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,
authenticated, countersigned, registered, issued and delivered in
accordance with the Indenture and any applicable definitive purchase,
underwriting or similar agreement, (vii) the Debt Securities have been
issued and delivered in accordance with the provisions of any
applicable definitive purchase, underwriting or similar agreement and
the terms of which have been approved by the Board (or a committee
thereof), and (viii) 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 Depository
thereunder is duly appointed and the related depositary receipts have
been duly authorized and validly executed and delivered by Denbury and
the Depository appointed by Denbury, (iii) the shares of Preferred
Stock underlying the Depositary Shares have been deposited with the
Depository (iv) 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 of which have been 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
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Warrants), (ii) any Warrant Agreement entered into in connection
therewith (the "Warrant Agreement") has been duly authorized and
validly executed and delivered by Denbury and the warrant agent
thereunder appointed 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 of which have been 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 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 the Delaware General Corporation
Law ("DGCL"), including provisions of the Delaware Constitution that are
applicable to the DGCL and reported judicial interpretations under 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
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Donald W. Brodsky