EXHIBIT 3(a)
Certificate of Incorporation
CERTIFICATE OF INCORPORATION
OF
DENBURY RESOURCES INC.
The undersigned, a natural person acting as incorporator of a corporation
under the General Corporation Law of the State of Delaware, as the same exists
or may hereafter from time to time be amended (the "DGCL"), hereby makes this
Certificate of Incorporation for such corporation.
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
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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.
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;
(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
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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 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
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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 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.
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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 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.
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.
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ARTICLE XIII
INCORPORATOR
The name and mailing address of the incorporator:
Phil Rykhoek
Denbury Resources Inc.
5100 Tennyson Parkway, Suite 3000
Plano, Texas 75024
ARTICLE XIV
DOMESTICATION
The Corporation 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, the Corporation was converted to a limited
company. On September 13, 1984, the Corporation was continued under the Canada
Business Corporations Act. Simultaneously with the filing of this Certificate of
Incorporation, the Corporation has 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. This Certificate of Incorporation amends and
supersedes in all respects the previously adopted Articles of Continuance, as
amended to date, of the Corporation. Each common share of the Corporation
outstanding on the effective date of this Certificate of Incorporation is hereby
converted into one share of the Common Stock without any further action by the
Corporation or any stockholder, and the currently outstanding share certificates
representing such common shares outstanding on the effective date of this
Certificate of Incorporation shall represent one share of the Common Stock until
such share certificate is surrendered for transfer or reissue.
I, the undersigned, being the incorporator, for the purpose of forming a
corporation pursuant to the DGCL, do make this 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
Certificate of Incorporation effective as of April 20, 1999.
Phil Rykhoek, Sole Incorporator
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