UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date
of
Report (Date of earliest event reported): December 14, 2007
BERRY
PETROLEUM COMPANY
(Exact
Name of Registrant as Specified in its Charter)
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DELAWARE
(State
or Other Jurisdiction of
Incorporation
or Organization)
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1-9735
(Commission
File Number)
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77-0079387
(IRS
Employer
Identification
Number)
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5201
TRUXTUN AVE., STE. 300, BAKERSFIELD, CA
(Address
of Principal Executive Offices)
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93309
(Zip
Code)
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Registrant’s
telephone number, including area code: (661)
616-3900
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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1
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Item
1.01 Entry Into A Material Definative
Agreement
On
December 14, 2007, the Board of Directors of Berry Petroleum Company (Berry)
approved forms of Amended and Restated Stock Award Agreements for Restricted
Stock Unit Grants which are being used for all Restricted Stock Unit Grants
issued under Berry's 2005 Equity Compensation Plan to Berry’s Directors and
Officers. The Amended and Restated Stock Award Agreements amend and restate
the
Stock Award Agreement filed with the SEC on Form 8-K on December 22,
2005. The 2005 Equity Compensation Plan was filed with the SEC on
Form S-8 on July 29, 2005. The information contained in the Stock Award
Agreement forms are incorporated herein by reference and furnished as Exhibit
99.1 and Exhibit 99.2.
Item 9.01. Financial
Statements and Exhibits
(d)
Exhibits
99.1
Berry Petroleum Company Amended and Restated Stock Award Agreement Form for
Restricted Stock Unit Grant - Directors.
99.2
Berry Petroleum Company Amended and Restated Stock Award Agreement Form for
Restricted Stock Unit Grant – Officers.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereto
duly authorized.
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BERRY
PETROLEUM COMPANY
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By:
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/s/
Kenneth A. Olson
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Kenneth
A. Olson
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Corporate
Secretary
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Date:December
14, 2007
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2
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Exhibit 99.1
BERRY
PETROLEUM COMPANY
2005
EQUITY INCENTIVE PLAN
RESTRICTED
STOCK UNIT AWARD AGREEMENT
DIRECTORS
Unless
otherwise defined herein, the terms defined in the Berry Petroleum Company
2005
Equity Incentive Plan shall have the same defined meanings in this Restricted
Stock Unit Award Agreement.
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I.
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NOTICE
OF RESTRICTED STOCK UNIT
GRANT
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You
have
been granted restricted Stock Units, subject to the terms and conditions
of the
Plan and this Restricted Stock Unit Award Agreement, as follows:
Name
of
Awardee:
Total
Number of Stock Units Granted:
Grant
Date:
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II.
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AGREEMENT
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A. Grant
of
Stock Units. Pursuant to the terms and conditions set forth in this
Restricted Stock Unit Award Agreement (including Section I above) and the
Plan,
the Administrator hereby grants to the Awardee named in Section I above,
on the
Grant Date set forth in Section I above, the number of Stock Units set forth
in
Section I above.
B. Purchase
of Stock Units. No payment of cash is required for the Stock
Units.
C. Vesting/Delivery
of Shares.
(1) Vesting.
(2) Form
of
Delivery.
The
granted Stock Units are payable in ordinary shares of Company
Stock. This distribution may be made either as a single lump sum
transfer of shares or through the transfer of shares in five substantially
equal
annual installments. Subject to the provisions of this Restricted
Stock Unit Award Agreement, the Awardee shall elect the form in which the
distribution shall be made and the applicable Transfer Commencement
Date in the form and manner prescribed by the Administrator pursuant to the
requirements of Section 409A of the Code (the “Payment Election”). If
the Administrator has not received the Awardee’s Payment Election by the
applicable deadline, then the Awardee shall receive the Stock Units in a
single
lump sum payment.
(3) General
Provisions Regarding Timing of Delivery.
Except
as
specifically set forth in this Restricted Stock Unit Award Agreement,
distribution of shares subject to this award of Stock Units shall commence
on
the Transfer Commencement Date in the following form:
(i) in
a
single lump sum transfer of shares; or
(ii) if
elected by the Awardee pursuant to a Payment Election in accordance with
Section
II.C.2, in a series of five substantially equal annual installments commencing
on the Transfer Commencement Date and continuing on the four succeeding
anniversaries of such Transfer Commencement Date;
provided,
however, that no distribution of shares shall occur prior to
____________.
1
BERRY
PETROLEUM COMPANY
(4) Circumstances
Requiring Distributions Regardless of Payment Election:
(i) Death
Prior to Distribution of Entire Account
Notwithstanding
any Payment Election to the contrary, if the Awardee dies prior to the transfer
of all of the shares to which he is entitled pursuant to this Restricted
Stock
Unit Award Agreement, then any shares that have not been transferred as of
the
date of the Awardee’s death will be transferred in a single lump sum to the
Awardee’s beneficiary under the terms of Section 18 of the Plan. If
no such beneficiary has been designated, then any such shares shall be
transferred to the Awardee’s estate. Such transfer shall occur on the
date that is 90 days after the date of the Awardee’s death.
(ii) Disability
Prior to Distribution of Entire Account
Notwithstanding
any Payment Election to the contrary, if, as a result of his Disability,
the
Awardee separates from service prior to the transfer of all of the shares
to
which he is entitled pursuant to this Restricted Stock Unit Award Agreement,
then any shares that have not been transferred as of the date of the Awardee’s
Disability will be transferred in a single lump sum to the
Awardee. Such transfer shall occur on the date that is 90 days after
the Awardee’s separation from service due to Disability.
(iii) Change
in
Control
Notwithstanding
any Payment Election to the contrary, all undistributed shares associated
with
this Restricted Stock Unit Award Agreement shall be transferred to the Awardee
in a single lump sum on the fifth business day following the date of the
Change
in Control.
(5) Delayed
Distribution to Specified Employees.
If
the
Awardee is identified by the Company as a “specified employee” within the
meaning of Section 409A(a)(2)(B)(i) of the Code on the date on which he has
a
Separation from Service (other than due to death), any transfer of shares
payable on account of a Separation from Service shall not take place prior
to
the earlier of (i) the first business day following the expiration of six
months
from the Awardee’s Separation from Service, (ii) the date of the Awardee’s
death, or (iii) such earlier date as complies with the requirements of Section
409A of the Code (the “Specified Employee Transfer Date”). If the
Awardee elected to receive his distribution in a series of installments,
he
shall receive the first installment on his Specified Employee Transfer Date,
but
any subsequent installments shall be payable without regard to his status
as a
specified employee.
(6) Definitions:
(i) The
term
“Disability” has the meaning set forth in Section 1.409A-3(i)(4) of the Treasury
Regulations and shall be determined by the Administrator
in its sole discretion.
(ii) The
term
“Payment Election” shall have the meaning set forth in Section II.C.(ii)
hereof.
(iii) The
term
“Transfer Commencement Date” shall mean the fifth business day of January of the
year following (a) the fourth anniversary of the Grant Date, but in no event
later than the date of the Awardee’s Separation from Service or (b) if elected
by the Awardee pursuant to a Payment Election, the Awardee’s Separation from
Service.
(iv) The
term
“Separation from Service” shall mean a “separation from service” within the
meaning of Treasury Regulation section 1.409A-1(h).
D. No
Interest in Company Assets. The Awardee shall not have any interest
in any fund or specific asset of the Company by reason of the Stock
Units.
E. No
Rights
as a Stockholder Prior to Delivery. The Awardee shall not have any
right, title or interest in, or be entitled to vote in respect of, or otherwise
be considered the owner of, any of the shares of Common Stock covered by
the
Stock Units. Except as provided for in subsection F below, the Awardee shall
not
be entitled to receive distributions from the shares of Common Stock covered
by
the Stock Units.
F. Dividend
Equivalents. The Awardee will be entitled to receive a cash payment
equal to the dividends paid with respect to Common Stock covered by the Stock
Units, payable in the same amount and at the same time as dividends on Common
Stock are paid to any other stockholder.
G. Regulatory
Compliance. The issuance of Common Stock pursuant to this Restricted
Stock Unit Award Agreement shall be subject to full compliance with all
applicable requirements of law and the requirements of any stock exchange
or
interdealer quotation system upon which the Common Stock may be listed or
traded.
2
BERRY
PETROLEUM COMPANY
H. Withholding
Tax. The Company's obligation to deliver any Shares upon vesting of
Stock Units shall be subject to the satisfaction of all applicable federal,
state, local and foreign income, and employment tax withholding requirements.
The Awardee shall pay to the Company an amount equal to the withholding amount
(or the Company may withhold such amount from the Awardee's salary) in cash.
At
the Administrator's election, the Awardee may pay the withholding amount
with
Shares; provided, however, that payment in Shares shall be limited to the
withholding amount calculated using the minimum statutory withholding
rates.
I. Plan. This
Restricted Stock Unit Award Agreement is subject to all of the terms and
provisions of the Plan, receipt of a copy of which is hereby acknowledged by the
Awardee. The Awardee hereby agrees to accept as binding, conclusive, and
final
all decisions and interpretations of the Administrator upon any questions
arising under the Plan and this Restricted Stock Unit Award
Agreement.
J. Successors. This
Restricted Stock Unit Award Agreement shall inure to the benefit of and be
binding upon the parties hereto and their legal representatives, heirs, and
permitted successors and assigns.
K. Restrictions
on Transfer. The Stock Units may not be sold, assigned, transferred,
pledged or otherwise encumbered, whether voluntarily or involuntarily, by
operation of law or otherwise. No right or benefit under this Agreement shall
be
subject to transfer, anticipation, alienation, sale, assignment, pledge,
encumbrance or charge, whether voluntary, involuntary, by operation of law
or
otherwise, and any attempt to transfer, anticipate, alienate, sell, assign,
pledge, encumber or charge the same shall be void. No right or benefit hereunder
shall in any manner be liable for or subject to any debts, contracts,
liabilities or torts of the person entitled to such benefits. Any assignment
in
violation of this subsection K shall be void.
L. Restrictions
on Resale. The Awardee agrees not to sell any Shares that have been
issued pursuant to the vested Stock Units at a time when Applicable Laws,
Company policies or an agreement between the Company and its underwriters
prohibit a sale. This restriction shall apply as long as the Awardee is a
Service Provider and for such period of time after the Awardee's Termination
of
Service as the Administrator may specify.
M. Tax
Compliance Issues.
The
Company, in its sole discretion, may take any steps that it deems appropriate
or
necessary to satisfy its state and federal tax withholding obligations in
connection with this award of Stock Units.
This
Restricted Stock Unit Award Agreement shall be interpreted and operated in
a
manner consistent with Section 409A of the Code, so as to avoid adverse tax
consequences in connection with this award of Stock Units. The Company reserves
the right, exercisable in its sole discretion and without the Awardee’s consent,
to amend the Plan and this Restricted Stock Unit Award Agreement in order
to
accomplish such result.
N. Entire
Agreement; Governing Law. This Restricted Stock Unit Award Agreement,
the Plan and the Payment Election constitute the entire agreement of the
parties
with respect to the subject matter hereof and supersede in their entirety
all
prior undertakings and agreements of the Company and the Awardee with respect
to
the subject matter hereof, and, except as provided in subsection M above,
may
not be modified adversely to the Awardee's interest except by means of a
writing
signed by the Company and the Awardee. This Restricted Stock Unit Award
Agreement is governed by the internal substantive laws, but not the choice
of
law rules, of California.
O. NO
GUARANTEE OF CONTINUED SERVICE. THE AWARDEE ACKNOWLEDGES AND AGREES
THAT THIS RESTRICTED STOCK UNIT AWARD AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREUNDER DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF
CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR ANY PERIOD, OR AT ALL, AND
SHALL
NOT INTERFERE WITH AWARDEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE AWARDEE'S
RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT
CAUSE.
By
the
Awardee's signature and the signature of the Company's representative below,
the
Awardee and the Company agree that this Award is granted under and governed
by
the terms and conditions of this Restricted Stock Unit Award Agreement and
the
Plan. The Awardee has reviewed this Restricted Stock Unit Award Agreement
and
the Plan in their entirety, has had an opportunity to obtain the advice of
counsel prior to executing this Restricted Stock Unit Award Agreement and
fully
understands all provisions of this Restricted Stock Unit Award Agreement
and the
Plan. The Awardee hereby agrees to accept as binding, conclusive and final
all
decisions or interpretations of the Administrator upon any questions relating
to
this Restricted Stock Unit Award Agreement and the Plan.
The
Awardee further agrees that the Company may deliver by email all documents
relating to the Plan or this Award (including, without limitation, prospectuses
required by the Securities and Exchange Commission) and all other documents
that
the Company is required to deliver to its security holders (including, without
limitation, annual reports and proxy statements). The Awardee also agrees
that
the Company may deliver these documents by posting them on a web site maintained
by the Company or by a third party under contract with the Company.
[Signature
page follows]
3
BERRY
PETROLEUM COMPANY
AWARDEE:
Signature:
Printed
Name:
BERRY
PETROLEUM COMPANY
Signature
Printed
Name:
Title:
Exhibit
99.2
BERRY
PETROLEUM COMPANY
2005
EQUITY INCENTIVE PLAN
RESTRICTED
STOCK UNIT AWARD AGREEMENT
OFFICERS
Unless
otherwise defined herein, the terms defined in the Berry Petroleum Company
2005
Equity Incentive Plan shall have the same defined meanings in this Restricted
Stock Unit Award Agreement.
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I.
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NOTICE
OF RESTRICTED STOCK UNIT
GRANT
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You
have
been granted restricted Stock Units, subject to the terms and conditions
of the
Plan and this Restricted Stock Unit Award Agreement, as follows:
Name
of
Awardee:
Total
Number of Stock Units Granted:
Grant
Date:
Vesting
Schedule:
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II.
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AGREEMENT
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A. Grant
of
Stock Units. Pursuant to the terms and conditions set forth in this
Restricted Stock Unit Award Agreement (including Section I above) and the
Plan,
the Administrator hereby grants to the Awardee named in Section I above,
on the
Grant Date set forth in Section I above, the number of Stock Units set forth
in
Section I above.
B. Purchase
of Stock Units. No payment of cash is required for the Stock
Units.
C. Vesting/Delivery
of Shares.
(1) Vesting.
The
award
of Stock Units shall vest in accordance with the Vesting
Schedule set forth in Section I above. In addition, the Stock Units
become vested in full if the Company is subject to a Change in Control before
the Awardee’s Termination of Service, and the Awardee is subject to an
Involuntary Termination (defined below) within 12 months after the Change
in
Control. The Stock Units may also vest in accordance with subsection
L below.
The
term
“Involuntary Termination” shall mean the Awardee’s Termination of Service by
reason of: (i) the involuntary discharge of the Awardee by the
Company (or the Affiliate employing him or her) for reasons other than Cause
(defined below); or (ii) the voluntary resignation of the Awardee following
(A)
a material adverse change in his or her title, stature, authority or
responsibilities with the Company (or the Affiliate employing him or her),
(B) a
material reduction in his or her base salary or annual bonus opportunity
or (C)
receipt of notice that his or her principal workplace will be relocated by
more
than 50 miles. The term “Cause” shall mean any of the following acts
or omissions on the part of the Awardee: any act of dishonesty, any
disclosure of confidential information, negligence or misconduct, failure
to
perform duties to the standards required by the Company (or the Affiliate
employing him or her) or neglect of his or her duties, as determined in the
Administrator's sole and absolute discretion, any illegal act, drug, alcohol
or
other substance abuse, or any act or omission which has an adverse effect
on the
Company or any Affiliate's reputation or business operations.
(2) Forfeiture
of Stock Units. The unvested Stock Units shall automatically be forfeited
upon
the Awardee’s Termination of Service.
(3) Form
of
Delivery.
The
granted Stock Units are payable in shares of Company Stock. This
distribution may be made either as a single lump sum transfer of shares or
through the transfer of shares in five substantially equal annual
installments. Subject to the provisions of this Restricted Stock Unit
Award Agreement, the Awardee shall elect the form in which the distribution
shall be made in the form and manner prescribed by the Administrator pursuant
to
the requirements of Section 409A of the Code (the “Payment
Election”). If the Administrator has not received the Awardee’s
Payment Election by the applicable deadline, then the Awardee shall receive
the
Stock Units in a single lump sum payment.
(4) General
Provisions Regarding Timing of Delivery.
Except
as
specifically set forth in this Restricted Stock Unit Award Agreement,
distribution of shares subject to this award of Stock Units shall commence
on
the Transfer Commencement Date in the following form:
(i) in
a
single lump sum transfer of shares; or
1
BERRY
PETROLEUM COMPANY
(ii) if
elected by the Awardee pursuant to a Payment Election in accordance with
Section
II.C.2, in a series of five substantially equal annual installments commencing
on the Transfer Commencement Date and continuing on the four succeeding
anniversaries of such Transfer Commencement Date; provided,
however, that no distribution of shares shall occur prior to
__________.
(5) Circumstances
Requiring Distributions Regardless of Payment Election:
(i) Death
Prior to Distribution of Entire Account
Notwithstanding
any Payment Election to the contrary, if the Awardee dies prior to the transfer
of all of the vested shares to which he is entitled pursuant to this Restricted
Stock Unit Award Agreement, then any vested shares that have not been
transferred as of the date of the Awardee’s death will be transferred in a
single lump sum to the Awardee’s beneficiary under the terms of Section 18 of
the Plan and all unvested shares as of the date of the Awardee’s death shall be
forfeited. If no such beneficiary has been designated, then any such
shares shall be transferred to the Awardee’s estate. Such transfer
shall occur on the date that is 90 days after the date of the Awardee’s
death.
(ii) Disability
Prior to Distribution of Entire Account
Notwithstanding
any Payment Election to the contrary, if, as a result of his Disability,
the
Awardee separates from service prior to the transfer of all of the vested
shares
to which he is entitled pursuant to this Restricted Stock Unit Award Agreement,
then any vested shares that have not been transferred as of the date of the
Awardee’s Disability will be transferred in a single lump sum to the Awardee and
all unvested shares as of the date of the Awardee’s Disability shall be
forfeited. Such transfer shall occur on the date that is 90 days
after the Awardee’s separation from service due to Disability.
(iii) Change
in
Control
Notwithstanding
any Payment Election to the contrary, all undistributed vested shares associated
with this Restricted Stock Unit Award Agreement shall be transferred to the
Awardee in a single lump sum on the fifth business day following the date
of the
Change in Control. The Awardee’s remaining unvested shares will vest
in accordance with the terms of this Restricted Stock Unit Award Agreement,
or
the terms of any other applicable agreement, and, upon subsequent vesting
of
such shares, shall be paid to the Awardee in a single lump sum transfer on
the
fifth business day following the date such shares vest.
(6) Delayed
Distribution to Specified Employees.
If
the
Awardee is identified by the Company as a “specified employee” within the
meaning of Section 409A(a)(2)(B)(i) of the Code on the date on which he has
a
Separation from Service (other than due to death), any transfer of shares
payable on account of a Separation from Service shall not take place prior
to
the earlier of (i) the first business day following the expiration of six
months
from the Awardee’s Separation from Service, (ii) the date of the Awardee’s
death, or (iii) such earlier date as complies with the requirements of Section
409A of the Code (the “Specified Employee Transfer Date”). If the
Awardee elected to receive his distribution in a series of installments,
he
shall receive the first installment on his Specified Employee Transfer Date,
but
any subsequent installments shall be payable without regard to his status
as a
specified employee.
(7) Definitions:
(i) The
term
“Disability” has the meaning set forth in Section 1.409A-3(i)(4) of the Treasury
Regulations and shall be determined by the Administrator
in its sole discretion.
(ii) The
term
“Payment Election” shall have the meaning set forth in Section II.C.(ii)
hereof.
(iii) The
term
“Transfer Commencement Date” shall mean the fifth business day of January of the
year following the earlier of the Awardee’s Separation from Service or the
fourth anniversary of the Grant Date.
(iv) The
term
“Separation from Service” shall mean a “separation from service” within the
meaning of Treasury Regulation section 1.409A-1(h).
D. No
Interest in Company Assets. The Awardee shall not have any interest
in any fund or specific asset of the Company by reason of the Stock
Units.
E. No
Rights
as a Stockholder Prior to Delivery. The Awardee shall not have any
right, title or interest in, or be entitled to vote in respect of, or otherwise
be considered the owner of, any of the shares of Common Stock covered by
the
Stock Units. Except as provided for in subsection F below, the Awardee shall
not
be entitled to receive distributions from the shares of Common Stock covered
by
the Stock Units.
F. Dividend
Equivalents. The Awardee will be entitled to receive a cash payment
equal to the dividends paid with respect to Common Stock covered by the Stock
Units, payable in the same amount and at the same time as dividends on Common
Stock are paid to any other stockholder.
2
BERRY
PETROLEUM COMPANY
G. Regulatory
Compliance. The issuance of Common Stock pursuant to this Restricted
Stock Unit Award Agreement shall be subject to full compliance with all
applicable requirements of law and the requirements of any stock exchange
or
interdealer quotation system upon which the Common Stock may be listed or
traded.
H. Withholding
Tax. The Company's obligation to deliver any Shares upon vesting of
Stock Units shall be subject to the satisfaction of all applicable federal,
state, local and foreign income, and employment tax withholding requirements.
The Awardee shall pay to the Company an amount equal to the withholding amount
(or the Company may withhold such amount from the Awardee's salary) in cash.
At
the Administrator's election, the Awardee may pay the withholding amount
with
Shares; provided, however, that payment in Shares shall be limited to the
withholding amount calculated using the minimum statutory withholding
rates.
I. Plan. This
Restricted Stock Unit Award Agreement is subject to all of the terms and
provisions of the Plan, receipt of a copy of which is hereby acknowledged
by the
Awardee. The Awardee hereby agrees to accept as binding, conclusive, and
final
all decisions and interpretations of the Administrator upon any questions
arising under the Plan and this Restricted Stock Unit Award
Agreement.
J. Successors. This
Restricted Stock Unit Award Agreement shall inure to the benefit of and be
binding upon the parties hereto and their legal representatives, heirs, and
permitted successors and assigns.
K. Restrictions
on Transfer. The Stock Units may not be sold, assigned, transferred,
pledged or otherwise encumbered, whether voluntarily or involuntarily, by
operation of law or otherwise. No right or benefit under this Agreement shall
be
subject to transfer, anticipation, alienation, sale, assignment, pledge,
encumbrance or charge, whether voluntary, involuntary, by operation of law
or
otherwise, and any attempt to transfer, anticipate, alienate, sell, assign,
pledge, encumber or charge the same shall be void. No right or benefit hereunder
shall in any manner be liable for or subject to any debts, contracts,
liabilities or torts of the person entitled to such benefits. Any assignment
in
violation of this subsection K shall be void.
L. Change
in
Control. In the event of a Change in Control prior to the Awardee’s
Termination of Service, the Stock Units will be assumed or an equivalent
stock
unit or right substituted by the successor corporation or a parent or subsidiary
of the successor corporation. In the event that the successor
corporation refuses to assume or substitute for the Stock Units, the Awardee
will fully vest in and have the right to receive the Common Stock. In
addition, if the Stock Units become fully vested in lieu of assumption or
substitution in the event of a Change in Control, the Administrator will
notify
the Awardee in writing or electronically that the Stock Units will be fully
vested.
M. Restrictions
on Resale. The Awardee agrees not to sell any Shares that have been
issued pursuant to the vested Stock Units at a time when Applicable Laws,
Company policies or an agreement between the Company and its underwriters
prohibit a sale. This restriction shall apply as long as the Awardee is a
Service Provider and for such period of time after the Awardee's Termination
of
Service as the Administrator may specify.
N. Tax
Compliance Issues.
The
Company, in its sole discretion, may take any steps that it deems appropriate
or
necessary to satisfy its state and federal tax withholding obligations in
connection with this award of Stock Units.
This
Restricted Stock Unit Award Agreement shall be interpreted and operated in
a
manner consistent with Section 409A of the Code, so as to avoid adverse tax
consequences in connection with this award of Stock Units. The Company reserves
the right, exercisable in its sole discretion and without the Awardee’s consent,
to amend the Plan and this Restricted Stock Unit Award Agreement in order
to
accomplish such result.
O. Entire
Agreement; Governing Law. This Restricted Stock Unit Award Agreement,
the Plan and the Payment Election constitute the entire agreement of the
parties
with respect to the subject matter hereof and supersede in their entirety
all
prior undertakings and agreements of the Company and the Awardee with respect
to
the subject matter hereof, and, except as provided in subsection N above,
may
not be modified adversely to the Awardee's interest except by means of a
writing
signed by the Company and the Awardee. This Restricted Stock Unit Award
Agreement is governed by the internal substantive laws, but not the choice
of
law rules, of California.
P. NO
GUARANTEE OF CONTINUED SERVICE. THE AWARDEE ACKNOWLEDGES AND AGREES THAT
THE
VESTING OF THE STOCK UNITS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (AND
NOT
THROUGH THE ACT OF BEING HIRED OR BEING GRANTED STOCK UNITS). THE AWARDEE
FURTHER ACKNOWLEDGES AND AGREES THAT THIS RESTRICTED STOCK UNIT AWARD AGREEMENT,
THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH
HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT
AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL,
AND
SHALL NOT INTERFERE WITH AWARDEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE
AWARDEE'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT
CAUSE.
By
the
Awardee's signature and the signature of the Company's representative below,
the
Awardee and the Company agree that this Award is granted under and governed
by
the terms and conditions of this Restricted Stock Unit Award Agreement and
the
Plan. The Awardee has reviewed this Restricted Stock Unit Award Agreement
and
the Plan in their entirety, has had an opportunity to obtain the advice of
counsel prior to executing this Restricted Stock Unit Award Agreement and
fully
understands all provisions of this Restricted Stock Unit Award Agreement
and the
Plan. The Awardee hereby agrees to accept as binding, conclusive and final
all
decisions or interpretations of the Administrator upon any questions relating
to
this Restricted Stock Unit Award Agreement and the Plan.
The
Awardee further agrees that the Company may deliver by email all documents
relating to the Plan or this Award (including, without limitation, prospectuses
required by the Securities and Exchange Commission) and all other documents
that
the Company is required to deliver to its security holders (including, without
limitation, annual reports and proxy statements). The Awardee also agrees
that
the Company may deliver these documents by posting them on a web site maintained
by the Company or by a third party under contract with the Company.
[Signature
page follows]
3
BERRY
PETROLEUM COMPANY
AWARDEE:
Signature:
Printed
Name:
BERRY
PETROLEUM COMPANY
Signature
Printed
Name:
Title: