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
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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
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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.
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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.
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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,
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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.
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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.
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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.
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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.
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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
----------------------------------------
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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.
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