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.
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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.
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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;
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(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
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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
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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
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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.
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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
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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
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Phil Rykhoek, Secretary
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