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

February 20, 2013

Date of Report (Date of earliest event reported)

BERRY PETROLEUM COMPANY

(Exact name of registrant as specified in its charter)

Registrant's telephone number, including area code: (303) 999-4400

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:

[  ]   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

[X]   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

[  ]   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

[  ]   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

ITEM 1.01  ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT

On February 20, 2013, Berry Petroleum Company (“Berry” or the “Company”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Linn Energy, LLC (“Linn Energy”), LinnCo, LLC (“LinnCo”), Linn Acquisition Company, LLC, a direct wholly owned subsidiary of LinnCo (“LinnCo Merger Sub”), Bacchus HoldCo, Inc., a direct wholly owned subsidiary of the Company (“HoldCo”), and Bacchus Merger Sub, Inc., a direct wholly owned subsidiary of HoldCo (“Bacchus Merger Sub”), pursuant to which LinnCo will acquire the Company in an all-stock transaction in which the Company’s stockholders would receive 1.25 shares (the “Exchange Ratio”) representing limited liability company interests in LinnCo (“LinnCo Shares”) for each share of the Company’s common stock.

The transaction will occur through multiple steps.  First, the Company will engage in a holding company merger (the “HoldCo Merger”) involving HoldCo and Bacchus Merger Sub.  In the HoldCo Merger, Bacchus Merger Sub will merge with and into the Company, with the Company surviving as a wholly owned subsidiary of HoldCo, and each issued and outstanding share of the Company’s Class A common stock and Class B common stock will convert into the right to receive one equivalent share of Class A common stock and one equivalent share of Class B common stock, respectively, of HoldCo.

Second, promptly after the HoldCo Merger, the Company will be converted into a limited liability company (the “Conversion”).  Third, promptly following the Conversion, HoldCo will be merged with and into LinnCo Merger Sub, with LinnCo Merger Sub surviving as the surviving company (the “LinnCo Merger” and together with the HoldCo Merger the “Mergers”).  In the LinnCo Merger, each share of Holdco’s Class A common stock and Class B common stock will be converted into 1.25 LinnCo Shares. 

Finally, promptly following the LinnCo Merger, LinnCo will contribute all of the outstanding equity interests in LinnCo Merger Sub (and therefore also its indirect ownership interest in the Company) to Linn (the “Contribution”) in exchange for the issuance to LinnCo (the “Issuance”) of newly issued Linn common units (the “Linn Units”).  The number of Linn Units to be issued to LinnCo in the Issuance will be equal to the greater of (i) the aggregate number of LinnCo Shares issued in the LinnCo Merger and (ii) the number of Linn Units required to cause LinnCo to own no less than one-third of all of the outstanding Linn Units following the Contribution.  In addition, for three years following the closing, Linn will pay to LinnCo additional cash distributions in the amount of $6 million per year.  

The HoldCo Merger, the Conversion, the LinnCo Merger, the Contribution and the Issuance are collectively referred to herein as the “Transactions.”  

In connection with the Transactions, each stock option outstanding under the Company’s equity plans immediately prior to the HoldCo Merger effective time will be converted into a stock option representing an option to acquire Linn Units with equivalent terms and conditions, as adjusted to reflect the Exchange Ratio and for differences in the trading prices of Linn Units and LinnCo common shares in the period prior to the closing of the LinnCo Merger.  Each unvested restricted stock unit outstanding under the Company’s equity plans immediately prior to the HoldCo Merger effective time (excluding any restricted stock unit held by a current or former non-employee director of the Company and any performance-based restricted stock unit) will be converted into a restricted stock unit in respect of Linn Units, as adjusted to reflect the Exchange Ratio and for differences in the trading prices of Linn Units and LinnCo Common Shares in the period prior to the closing of the LinnCo Merger.  Each performance-based restricted stock unit, each vested restricted stock unit and each restricted stock unit held by a current or former non-employee director of the Company, in each case outstanding under the Company’s equity plans immediately prior to the HoldCo Merger effective time, will be converted into LinnCo common shares, in an amount calculated based on the Exchange Ratio.

The closing of the Transactions is conditioned on (1) adoption of the Merger Agreement by holders of a majority of the outstanding shares of the Company’s common stock, (2) approval of the issuance of LinnCo Shares by a majority of the votes cast by holders of LinnCo Shares at a meeting at which a quorum is present, (3) approval of certain amendments to LinnCo’s LLC agreement and the Contribution by holders of a majority of the outstanding LinnCo Shares, (4) approval of the Issuance by a majority of the votes cast by holders of Linn Units at a meeting at which a quorum is present, (5) receipt of certain opinions by the parties with respect to the tax-free nature of the Transactions, and (6) other customary conditions such as expiration of the waiting period under the Hart-Scott-Rodino Act.  

The board of directors of the Company has unanimously approved and adopted the Merger Agreement and has agreed to recommend that the Company’s stockholders approve and adopt the Merger Agreement, subject to certain exceptions set forth in the Merger Agreement.  The foregoing summary of the Merger Agreement and the transactions contemplated by the Merger Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Merger Agreement, which is filed as Exhibit 2.1 to this Form 8-K.

            The Merger Agreement and the above description have been included to provide investors and security holders with information regarding the terms of the Merger Agreement. They are not intended to provide any other factual information about the Company, Linn, LinnCo or their respective subsidiaries or affiliates or equityholders.  The representations, warranties and covenants contained in the Merger Agreement were made only for purposes of those agreements and as of specific dates; were solely for the benefit of the parties to the Merger Agreement; and may be subject to limitations agreed upon by the parties, including being qualified by confidential disclosures made by each contracting party to the other for the purposes of allocating contractual risk between them that differ from those applicable to investors.  Investors should be aware that the representations, warranties and covenants or any description thereof may not reflect the actual state of facts or condition of the Company, Linn, LinnCo or any of their respective subsidiaries, affiliates, businesses, or equityholders.  Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures by the Company, Linn or LinnCo.  Accordingly, investors should read the representations and warranties of the Company, Linn or LinnCo and their respective subsidiaries that the respective companies include in reports, statements and other filings they make with the U.S. Securities and Exchange Commission.

ITEM 7.01  REGULATION FD DISCLOSURE

On February 21, 2013, the Company, Linn Energy and LinnCo issued a joint press release announcing the execution of the Merger Agreement.  The press release is attached hereto as Exhibit 99.1 and is incorporated into this Item 7.01 by reference.

The information in Exhibit 99.1 shall not be deemed “filed” for purposes of Section 18 of the U.S. Securities Exchange Act of 1934, as amended, nor shall it be incorporated by reference in any filing under the U.S. Securities Act of 1933, as amended.

ITEM 9.01  FINANCIAL STATEMENTS AND EXHIBITS

 (d)      Exhibits

^†  Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K.   The Company hereby undertakes to furnish supplementally copies of any of the omitted schedules upon request by the U.S. Securities and Exchange Commission.

IMPORTANT ADDITIONAL INFORMATION WILL BE FILED WITH THE SEC

In connection with the proposed transactions, LinnCo intends to file with the SEC a registration statement on Form S-4 that will include a joint proxy statement of LinnCo, LINN and Berry that also constitutes a prospectus of LinnCo.  Each of Berry, LINN and LinnCo also plan to file other relevant documents with the SEC regarding the proposed transactions. INVESTORS ARE URGED TO READ THE JOINT PROXY STATEMENT/PROSPECTUS AND OTHER RELEVANT DOCUMENTS FILED WITH THE SEC IF AND WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. You may obtain a free copy of the joint proxy statement/prospectus (if and when it becomes available) and other relevant documents filed by Berry, LINN and LinnCo with the SEC at the SEC’s website at www.sec.gov. You may also obtain these documents by contacting LINN’s and LinnCo’s Investor Relations department at (281) 840-4193 or via e-mail at ir@linnenergy.com or by contracting Berry’s Investor Relations department at (866) 472-8279 or via email at ir@bry.com. 

PARTICIPANTS IN THE SOLICITATION

Berry, LINN and LinnCo and their respective directors and executive officers and other members of management and employees may be deemed to be participants in the solicitation of proxies in respect of the proposed transactions. Information about LINN’s directors and executive officers is available in LINN’s proxy statement dated March 12, 2012, for its 2012 Annual Meeting of Unitholders.  Information about LinnCo’s directors and executive officers is available in LinnCo’s Registration Statement on Form S-1 dated June 25, 2012, as amended, with respect to its initial public offering of common shares. Information about Berry’s directors and executive officers is available in Berry’s proxy statement dated April 6, 2012, for its 2012 Annual Meeting of Stockholders.  Other information regarding the participants in the proxy solicitations and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the joint statement, LinnCo proxy statement/prospectus and other relevant materials to be filed with the SEC regarding the proposed transactions when they become available. Investors should read the joint proxy statement/prospectus carefully when it becomes available before making any voting or investment decisions. You may obtain free copies of these documents from Berry, LINN or LinnCo using the sources indicated above.

This document shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the U.S. Securities Act of 1933, as amended.

5

Exhibit Index

^†  Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K.  The Company hereby undertakes to furnish supplementally copies of any of the omitted schedules upon request by the U.S. Securities and Exchange Commission.

Agreement and plan of merger

by and among

BERRY PETROLEUM COMPANY,

BACCHUS HOLDCO, INC.

BACCHUS MERGER SUB, INC.

LINNCO, LLC,

LINN ACQUISITION COMPANY, LLC

and

LINN ENERGY, LLC

Dated as of February 20, 2013

TABLE OF CONTENTS

AGREEMENT AND PLAN OF MERGER

                        This AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of February 20, 2013, is by and among Berry Petroleum Company, a Delaware corporation (the “Company”), Bacchus HoldCo, Inc., a Delaware corporation and a direct wholly owned subsidiary of the Company (“HoldCo”), Bacchus Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of HoldCo (“Bacchus Merger Sub”), LinnCo, LLC, a Delaware limited liability company (“LinnCo”), Linn Acquisition Company, LLC, a Delaware limited liability company and a direct wholly owned subsidiary of LinnCo (“LinnCo Merger Sub”), and Linn Energy, LLC, a Delaware limited liability company (“Linn”). 

WITNESSETH: 

                        WHEREAS, the parties intend that (a) at the HoldCo Effective Time, Bacchus Merger Sub shall be merged with and into the Company pursuant to the HoldCo Merger, with (i) each outstanding share of Company Common Stock being converted into one share of HoldCo Common Stock and (ii) the Company surviving as a direct wholly owned subsidiary of HoldCo, and (b) after the HoldCo Merger and prior to the LinnCo Effective Time, the Company shall be converted from a Delaware corporation to a Delaware limited liability company pursuant to the Company Conversion, in each case as more fully described in this Agreement and on the terms and subject to the conditions set forth in this Agreement;  

                        WHEREAS, the parties further intend that, following the Conversion, (a) at the LinnCo Effective Time, HoldCo shall be merged with and into LinnCo Merger Sub pursuant to the LinnCo Merger, with (i) each outstanding share of HoldCo Common Stock being converted into the right to receive 1.25 newly issued LinnCo Common Shares and (ii) LinnCo Merger Sub surviving as a direct wholly owned subsidiary of LinnCo, and (b) after the LinnCo Merger, all of the outstanding limited liability company interests in LinnCo Merger Sub shall be contributed to Linn in exchange for newly issued Linn Units pursuant to the Contribution and Issuance, in each case as more fully described in this Agreement and on the terms and subject to the conditions set forth in this Agreement;  

                        WHEREAS, the Board of Directors of the Company has (a) unanimously determined that it is in the best interests of the Company and its stockholders, and declared it advisable, to enter into this Agreement, (b) approved the execution, delivery and performance of this Agreement and the consummation of the Transactions, including the HoldCo Merger, the Conversion and the LinnCo Merger and (c) resolved to recommend adoption of this Agreement by the stockholders of the Company;

                        WHEREAS, the respective Boards  of Directors of HoldCo and Bacchus Merger Sub have (a) unanimously determined that it is in the best interests of HoldCo and Bacchus Merger Sub, respectively, and their respective sole stockholders, and declared it advisable, to enter into this Agreement and (b) approved the execution, delivery and performance of this Agreement and the consummation of the Transactions, including the HoldCo Merger and the Conversion;

                        WHEREAS, the Board of Directors of LinnCo has (a) unanimously determined that it is in the best interests of LinnCo and its shareholders, and declared it advisable, to enter into this Agreement, (b) approved the execution, delivery and performance of this Agreement and the consummation of the Transactions, including the LinnCo Merger and the Contribution and Issuance, (c) declared advisable the LinnCo Amendments and (d) resolved to recommend approval of the issuance of LinnCo Common Shares in the LinnCo Merger (the “LinnCo Issuance”) and the approval of the LinnCo Amendments and the Contribution by the shareholders of LinnCo; 

                        WHEREAS, LinnCo, as the sole member of LinnCo Merger Sub has (a) determined that it is in the best interests of LinnCo Merger Sub, and declared it advisable, to enter into this Agreement and (b) approved the execution, delivery and performance of this Agreement and the consummation of the Transactions, including the LinnCo Merger;

                        WHEREAS, the Board of Directors of Linn has (a) unanimously determined that it is in the best interests of Linn and its members, and declared it advisable, to enter into this Agreement, (b) approved the execution, delivery and performance of this Agreement and the consummation of the Transactions, including the Contribution and Issuance and (c) resolved to recommend approval of the Issuance by the members of Linn; 

                        WHEREAS, for U.S. federal income tax purposes, it is intended that (a) each of (i) the HoldCo Merger and the Company Conversion, taken together, and (ii) the LinnCo Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations promulgated thereunder, and this Agreement is intended to be and is adopted as a separate “plan of reorganization” for each Merger within the meaning of Treasury Regulation Section 1.368-2(g) for purposes of Sections 354 and 361 of the Code; and (b) the issuance of Linn Units to LinnCo pursuant to the Contribution and Issuance will qualify as an exchange to which Section 721(a) of the Code applies; and

                        WHEREAS, the Company, HoldCo and Bacchus Merger Sub (collectively, the “Company Parties”), on the one hand, and LinnCo, LinnCo Merger Sub and Linn (collectively, the “Linn Parties”), on the other hand, desire to make certain representations, warranties, covenants and agreements specified herein in connection with this Agreement.

                        NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:

Article I.

THE transactions

Section 1.1            The Mergers; The Conversion; The Contribution and Issuances.

(a)                The HoldCo Merger. 

(i)                 At the HoldCo Effective Time, upon the terms and subject to the conditions set forth in this Agreement and in accordance with the applicable provisions of the Delaware General Corporation Law (the “DGCL”), Bacchus Merger Sub shall be merged with and into the Company (the “HoldCo Merger”), whereupon the separate corporate existence of Bacchus Merger Sub shall cease, and the Company shall continue its existence under Delaware law as the surviving corporation in the HoldCo Merger and a direct wholly owned subsidiary of HoldCo.

(ii)               On the Closing Date, the Company and Bacchus Merger Sub shall file with the Secretary of State of the State of Delaware a certificate of merger (the “HoldCo Certificate of Merger”), executed in accordance with, and containing such information as is required by, the relevant provisions of the DGCL in order to effect the HoldCo Merger.  The HoldCo Merger shall become effective at such time as the HoldCo Certificate of Merger has been filed with the Secretary of State of the State of Delaware or at such other, later date and time as is agreed among the parties and specified in the HoldCo Certificate of Merger in accordance with the relevant provisions of the DGCL (such date and time is referred to herein as the “HoldCo Effective Time”). 

(b)               The Conversion. 

(i)                 On the Closing Date, following the HoldCo Effective Time and prior to the LinnCo Effective Time, upon the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL and the Delaware Limited Liability Company Act (the “DLLCA”), the Company shall be converted from a Delaware corporation to a Delaware limited liability company (the “Company Conversion”) and each corporate Subsidiary of the Company shall convert to a limited liability company (the “Subsidiary Conversions” and collectively with the Company Conversion, the “Conversion”). 

(ii)               On the Closing Date, the Company shall file with the Secretary of State of the State of Delaware one or more certificates of conversion (each, a “Certificate of Conversion”) and one or more certificates of formation (each, a “Certificate of Formation”), executed in accordance with, and containing such information as is required by, the relevant provisions of the DGCL and the DLLCA to effect the Conversion.  The Conversion shall become effective at such time as the applicable Certificate of Conversion and Certificate of Formation has been filed with the Secretary of State of the State of Delaware or at such other, later date and time as is agreed among the parties and specified in the Certificate of Conversion and Certificate of Formation in accordance with the relevant provisions of the DGCL and the DLLCA; provided  that such date and time

must be after the HoldCo Effective Time and prior to the LinnCo Effective Time (such date and time is referred to herein as the “Conversion Effective Time”).  

(c)                The LinnCo Merger. 

(i)                 On the Closing Date, following the Conversion Effective Time, upon the terms and subject to the conditions set forth in this Agreement and in accordance with the applicable provisions of the DGCL and DLLCA, HoldCo shall be merged with and into LinnCo Merger Sub (the “LinnCo Merger” and together with the HoldCo Merger, the “Mergers”), whereupon the separate corporate existence of HoldCo shall cease, and LinnCo Merger Sub  shall continue its existence under Delaware law as the surviving company in the LinnCo Merger.  LinnCo Merger Sub is sometimes referred to herein as the “Surviving Company”.  

(ii)               On the Closing Date, LinnCo and HoldCo shall file with the Secretary of State of the State of Delaware a certificate of merger (the “LinnCo Certificate of Merger” and together with the HoldCo Certificate of Merger, the “Certificates of Merger”), executed in accordance with, and containing such information as is required by, the relevant provisions of the DGCL and DLLCA in order to effect the LinnCo Merger.  The LinnCo Merger shall become effective at such time as the LinnCo Certificate of Merger has been filed with the Secretary of State of the State of Delaware or at such other, later date and time as is agreed among the parties and specified in the LinnCo Certificate of Merger in accordance with the relevant provisions of the DGCL and DLLCA; provided  that such date and time must be after the Conversion Effective Time (such date and time is referred to herein as the “LinnCo Effective Time”). 

(d)               The Contribution and Issuance. 

(i)                 On the Closing Date, following the LinnCo Effective Time, LinnCo shall contribute all of the outstanding equity interests in the Surviving Company to Linn (the “Contribution”) in exchange for the issuance by Linn to LinnCo of a number of newly issued Linn Units equal to the greater of (1) the aggregate number of LinnCo Common Shares issuable pursuant to Section 2.1(b)(i) (including the Excess Merger Shares sold pursuant to Section 2.1(e)) and Section 2.3(c) and (2) the number of Linn Units as is necessary to cause LinnCo to own no less than one-third (1/3^rd) of all of the outstanding Linn Units following the Contribution (the “Issuance”).  As a result of the Contribution, the Company shall become an indirect wholly owned subsidiary of Linn. If, between the date of this Agreement  and the Issuance, the outstanding shares of Company Common Stock, LinnCo Common Shares or Linn Units shall have  been changed into a different number of shares or units or a different class of shares or units by  reason of any equity dividend or distribution, subdivision, reorganization, reclassification, recapitalization, equity split, reverse  equity split, combination or exchange  of shares or units, or any similar event shall have  occurred, then the number of Linn Units to be issued in the Issuance pursuant to clause (1) of this Section 1.1(d)(i) shall  be  equitably  adjusted, without duplication, to proportionally  reflect such  change; provided  that nothing in this Section 1.1(d)(i) shall be construed  to permit any Company

Party or any Linn Party to take any action with respect to its securities that is prohibited by the terms of this Agreement. 

(ii)               The Linn Parties shall cause the Contribution and Issuance to be consummated on the Closing Date after the LinnCo Effective Time by executing an assignment and assumption agreement or other instrument of transfer or conveyance (in each case, in form and substance reasonably acceptable to the parties hereto) to (A) sell, transfer and convey to Linn all of the outstanding equity interests in the Surviving Company and by issuing to LinnCo evidence of ownership of the Linn Units issued in the Issuance and (B) to assume all liabilities of HoldCo and the Company to which LinnCo or the Surviving Company succeeds.

Section 1.2            Closing. 

   The closing of the Transactions  (the “Closing”) shall take place at the offices of Latham & Watkins LLP, 811 Main Street,  Suite 3700, Houston, Texas at 10:00 a.m., local time, on the fifth business day after the satisfaction or waiver (to the extent permitted by applicable Law) of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions), or at such other place, date and time as the parties may agree in writing. The date on which the Closing actually occurs is referred to as the “Closing Date.” 

Section 1.3            Effects of the Mergers.

   The effects of the Mergers  shall be as provided in this Agreement and in the applicable provisions of the DGCL  and DLLCA.  Without limiting the generality of the foregoing, and subject thereto, (a) at the HoldCo Effective Time, all of the property, rights, privileges, powers and franchises of Bacchus Merger Sub shall vest in the Company as the surviving corporation in the HoldCo Merger, and all debts, liabilities and duties of Bacchus Merger Sub shall become the debts, liabilities and duties of the Company, as provided under the DGCL, and (b) at the LinnCo Effective Time, all of the property, rights, privileges, powers and franchises of HoldCo, including all of the outstanding equity interests in the Company, shall vest in the Surviving Company, and all debts, liabilities and duties of HoldCo shall become the debts, liabilities and duties of the Surviving Company, as provided under the DGCL and DLLCA.

Section 1.4            Organizational Documents. 

(a)                At the HoldCo Effective Time, the certificate of incorporation and bylaws of the Company shall be the certificate of incorporation and bylaws of the surviving corporation in the HoldCo Merger.

(b)               At the Conversion Effective Time, the certificate of formation and limited liability company agreement of the Company (the “Company LLC Agreement”) shall be as set forth in Annex A and Annex B, respectively, until thereafter amended in accordance with the provisions thereof and applicable Law.

(c)                At the LinnCo Effective Time, the certificate of formation of LinnCo Merger Sub shall be the certificate of formation of the Surviving Company, until thereafter amended in accordance with the provisions thereof and applicable Law.  At the LinnCo Effective Time, the limited liability company agreement of LinnCo Merger Sub shall be the limited

(d)               In the event that the LinnCo Amendments shall have been approved by the LinnCo shareholders, at the LinnCo Effective Time, the limited liability company agreement of LinnCo shall be amended as set forth in Annex C. 

Section 1.5            Directors. 

(a)                Subject to applicable Law, (i) the directors of the Company immediately prior to the HoldCo Effective Time shall be, as of the Holdco Effective Time, the directors of the surviving corporation in the HoldCo Merger and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation or removal and (ii) the directors of LinnCo immediately prior to the LinnCo Effective Time shall be, as of the LinnCo Effective Time, the directors of the Surviving Company and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation or removal.

(b)               Subject to applicable Law, the Board of Directors of Linn shall take such actions as are necessary to appoint, effective as of the LinnCo Effective Time, at least one member of the Board of Directors of the Company prior to the HoldCo Effective Time to serve either on the Board of Directors of Linn or the Board of Directors of LinnCo.

Section 1.6            Officers.

.  The officers of the Company immediately prior to the HoldCo Effective Time shall be the officers of the surviving corporation in the HoldCo Merger and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation or removal.  The officers of LinnCo immediately prior to the LinnCo Effective Time shall be, as of the LinnCo Effective Time, the officers of the Surviving Company and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation or removal. 

Article II.

CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES

Section 2.1            Effect on Capital Stock or Common Shares.

(a)                Effect of HoldCo Effective Time.  At the HoldCo Effective Time, by virtue of the HoldCo Merger and without any action on the part of the Company, HoldCo, Bacchus Merger Sub or the  holder  of  any  shares of Company Common Stock, shares of HoldCo Common Stock or shares of Bacchus Merger Sub Common Stock:

(i)                 Conversion of Bacchus Merger Sub Common Stock.  Each share of Bacchus Merger Sub common stock, par value $0.01 per share (“Bacchus Merger Sub Common Stock”), issued and outstanding immediately prior to the HoldCo Effective Time shall automatically be converted into and become one share of common stock of the Company as the surviving corporation in the Holdco Merger. 

(ii)               Cancellation of Certain Company Common Stock.  Each share  of  Company Class A Common Stock, par value $0.01 per share (“Class A Common Stock”), and each share of Company Class B Common Stock, par value $0.01 per share (“Class B Common Stock” and together with the Class A Common Stock, “Company Common Stock”), that is owned or held  in treasury  by the Company and  each share  of  Company Common Stock issued and outstanding immediately  prior  to the HoldCo Effective Time that is owned by LinnCo, Linn or any of their respective Subsidiaries shall no longer be outstanding and shall automatically be cancelled and shall cease to exist  (the  “Cancelled Shares”), and no consideration shall be delivered in exchange therefor. 

(iii)             Cancellation of Certain HoldCo Common Stock.  Each share of HoldCo Class A common stock, par value $0.01 per share (“HoldCo Class A Common Stock”), and each share of HoldCo Class B common stock, par value $0.01 per share (“HoldCo Class B Common Stock” and together with the HoldCo Class A Common Stock “HoldCo Common Stock”), that is owned or held by the Company shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and no consideration shall be delivered in exchange therefor.

(iv)             Conversion of Company Common Stock.  Each share of Class A Common Stock issued and outstanding immediately prior to the HoldCo Effective Time, other  than any Cancelled Shares and other than any Dissenting Shares,  shall be converted automatically into the right to receive one share of HoldCo Class A Common Stock. Each share of Class B Common Stock issued and outstanding immediately prior to the HoldCo Effective Time, other than any Cancelled Shares and other than any Dissenting Shares, shall be converted automatically into the right to receive one share of HoldCo Class B Common Stock.

(v)               Effect of Conversion of Company Common Stock. All of the  shares of  Company Common Stock converted into the shares of HoldCo Common Stock pursuant to this Article  II  shall no longer  be  outstanding  and  shall automatically be cancelled and shall cease to exist as of the  HoldCo Effective Time, and uncertificated shares of Company Common Stock represented by  book-entry  form (“Company Book-Entry Shares”) and each certificate  that, immediately  prior to the HoldCo Effective Time, represented any  such shares of Company Common Stock (a “Company Certificate”) shall thereafter  represent only  the shares of HoldCo Common Stock into which the shares of Company Common Stock represented by such Company Book-Entry Shares or Company Certificate have been converted pursuant to this Section 2.1.       

(b)               Effect of LinnCo Effective Time.  At the LinnCo Effective Time, by virtue of the LinnCo Merger and without any action on the part of LinnCo Merger Sub, HoldCo or the holder of any limited liability company interest in LinnCo Merger Sub or shares of HoldCo Common Stock: 

(i)                 Conversion of HoldCo Common Stock.  Subject to the other provisions of this Article II, each share of HoldCo Common Stock issued and outstanding immediately prior to the LinnCo Effective Time, other than any Dissenting Shares, shall

be converted automatically into and shall thereafter represent the right to receive 1.25 (the “Exchange Ratio”) newly issued LinnCo Common Shares (the “Merger Consideration”). 

(ii)               Effect of Conversion of HoldCo Common Stock. All of the shares of HoldCo Common Stock converted into the right to receive  the  Merger Consideration pursuant to this Article  II shall no longer be outstanding and shall automatically  be cancelled and shall cease to exist as of the LinnCo Effective Time, and uncertificated shares of HoldCo Common Stock represented by book-entry form (“HoldCo Book-Entry Shares” and together with Company Book-Entry Shares, “Book-Entry Shares”) and each certificate that, immediately prior to the LinnCo Effective Time, represented any such shares of HoldCo Common Stock (a “HoldCo Certificate” and together with a Company Certificate, a “Certificate”) shall thereafter  represent only the  right to receive the Merger Consideration and the Fractional Share Cash Amount into which the shares of HoldCo Common Stock represented by such  HoldCo Book-Entry Shares or HoldCo Certificates  have  been converted pursuant to this Section 2.1, as well as any Fractional Share Cash Amount payable in accordance with Section 2.1(e) and dividends or other distributions to which holders of Book-Entry Shares or Certificates become entitled in accordance with Section 2.2(e). 

(c)                Shares of Dissenting  Stockholders.  Notwithstanding anything in this Agreement to the contrary,  any issued  and outstanding shares of Company Common Stock or Holdco Common Stock held by a person (a  “Dissenting  Stockholder”) who has not voted in favor of, or consented to, the adoption of this Agreement and has complied with all the provisions of the DGCL concerning the right of holders of shares of Company Common Stock to demand appraisal of their shares (the  “Appraisal Provisions”) of  Company Common Stock or Holdco Common Stock, as applicable (such shares, the “Dissenting Shares”), to the extent the Appraisal Provisions are applicable, shall not be converted into the right to receive shares of HoldCo Common Stock as set forth in Section 2.1(a)(iv) or the Merger Consideration as set forth in Section 2.1(b)(i), as applicable, but instead shall become the right to receive such consideration as may be determined to be due to such Dissenting Stockholder  pursuant to the procedures set forth in Section 262 of the  DGCL. If such Dissenting  Stockholder withdraws its demand for appraisal or fails to perfect or otherwise loses its right of appraisal, in any case pursuant to the DGCL, each of such  Dissenting  Stockholder’s shares of Company Common Stock or Holdco Common Stock, as the case may be, shall thereupon be deemed to have  been converted into and to have  become, as of  the LinnCo Effective Time, the right to receive  shares of HoldCo Common Stock as set forth in Section 2.1(a)(iv) that were thereafter converted into the right to receive the Merger Consideration as set forth in Section 2.1(b)(i).  The Company shall  give LinnCo prompt notice of  any demands  for  appraisal of shares received by  any Company Party, withdrawals of such demands and any other  instruments served  pursuant to Section 262 of the DGCL and shall  give  LinnCo the opportunity  to participate in all negotiations and proceedings with respect thereto.  No Company Party shall, without the prior written consent of LinnCo, make any payment with respect to, or settle or offer to settle, any such demands. 

(d)               Certain Adjustments.   If, between the date of this Agreement and the LinnCo Effective Time, the outstanding shares of Company Common Stock or LinnCo Common Shares shall have been changed into a different number of shares or a different class of shares by   

(e)                No Fractional Shares.   No fractional LinnCo Common Shares shall be issued in connection with the LinnCo Merger, no certificates or  scrip representing  fractional LinnCo Common Shares shall be delivered upon the conversion  of  HoldCo Common Stock pursuant to Section 2.1(b)(i), and  such fractional share  interests shall not entitle the owner  thereof  to vote or  to any  other  rights of a  holder  of  LinnCo Common Shares.  Notwithstanding any  other  provision of this Agreement,  each holder  of  shares of HoldCo Common Stock converted pursuant to the LinnCo Merger who would otherwise  have  been entitled to receive  a  fraction of a  LinnCo Common Share (after  aggregating  all shares represented by  the  Certificates and  Book-Entry  Shares delivered by  such holder)  shall receive from the Escrow Agent, in lieu thereof  and upon surrender  thereof, a cash  payment (without interest)  in an amount representing such holder’s proportionate interest in the net proceeds from the sale by the Escrow Agent on behalf of all such holders of LinnCo Common Shares that would otherwise be issued (the “Excess Merger Shares”).  The sale of the Excess Merger Shares by the Escrow Agent shall be executed on a national securities exchange, including the NASDAQ Stock Market LLC (the “NASDAQ”).  Until the net proceeds of such sale or sales have been distributed to such holders of HoldCo Common Stock, the Escrow Agent shall hold such proceeds in trust for such holders (the “Fractional Share Trust”).  LinnCo shall pay all commissions, transfer taxes and other out-of-pocket transaction costs incurred in connection with such sale of the Excess Merger Shares.  The Escrow Agent shall determine the portion of the Fractional Share Trust to which each holder of HoldCo Common Stock shall be entitled, if any, by multiplying the amount of the aggregate net proceeds comprising the Fractional Share Trust by a fraction, the numerator of which is the amount of fractional interests to which such holder of HoldCo Common Stock is entitled and the denominator of which is the aggregate amount of fractional interests to which all holders of HoldCo Common Stock are entitled.  As soon as practicable after the determination of the amount of cash, if any, to be paid to holders of HoldCo Common Stock in lieu of fractional interests, the Escrow Agent shall make available such amounts to such holders of HoldCo Common Stock (the “Fractional Share Cash Amount”).  Any such sale shall be made within ten business days or such shorter period as may be required by applicable Law after the Effective Time.  No such holder  shall be entitled to distributions, voting  rights or any  other  rights in respect of any fractional LinnCo Common Share.

Section 2.2            Exchange  of Certificates.

(a)                Appointment of Exchange Agent.  LinnCo shall appoint a bank or trust company that is reasonably acceptable to the Company to act as exchange agent (the “Exchange Agent”) for the payment of the Merger Consideration and shall enter into an agreement relating to the Exchange Agent’s responsibilities under this Agreement.

(b)               Deposit of Merger Consideration.  As of the LinnCo Effective Time, LinnCo shall deposit or cause to be deposited with the Exchange Agent, for the benefit of holders of

(c)                Exchange  Procedures.  As soon as reasonably  practicable  after  the LinnCo Effective Time and in any  event within five business days of the  Closing  Date, LinnCo and the Surviving Company shall cause  the  Exchange  Agent to mail to each holder  of  record of shares of  Company Common Stock whose shares were converted pursuant to Section 2.1(a)(iv) into shares of HoldCo  Common Stock in the HoldCo Merger and whose shares of HoldCo Common Stock were subsequently converted pursuant to Section 2.1(b)(i) into the right to receive  the  Merger Consideration (A)  a  letter  of  transmittal (which shall specify  that delivery  shall be effected,  and risk of loss and title to the  Certificates shall pass, only  upon delivery  of  the  Certificates to the Exchange  Agent and shall be in such form and have  such other  provisions as the parties may  reasonably  agree  upon prior  to the  LinnCo Effective Time)  (the  “Letter  of Transmittal”)  and (B) instructions for  use  in effecting  the  surrender  of  Certificates or Book-Entry Shares in exchange  for  the  Merger  Consideration,  the  Fractional Share  Cash Amount and any dividends or other  distributions to which such holder of Certificates or Book-Entry  Shares becomes  entitled in accordance  with Section 2.2(e). 

(d)               Surrender of Certificates or Book-Entry Shares. Upon surrender  of Certificates or Book-Entry Shares to the Exchange  Agent together  with a  Letter  of  Transmittal, duly  completed and validly  executed in accordance  with the instructions thereto, and such other  documents as may  customarily  be  required by  the  Exchange  Agent, the holder  of  such Certificates or Book-Entry  Shares shall be entitled to receive  in exchange  therefor the Merger  Consideration deliverable in respect of the shares represented by  such Certificates or Book-Entry Shares pursuant to this Agreement, together  with the Fractional Share  Cash Amount and any  dividends or other  distributions to which such holder of Certificates  or  Book-Entry Shares becomes  entitled in accordance  with Section 2.2(e).  In the event of a transfer  of ownership of shares of Company Common Stock that is not registered in the transfer  or  stock records of the Company or of HoldCo  Common Stock that is not registered in the transfer or stock records of HoldCo, any  cash to be paid upon, or LinnCo Common Shares to be issued upon, due surrender  of  the  Certificate  or Book-Entry  Share  formerly  representing  such shares of Company Common Stock or HoldCo Common Stock may  be  paid or issued, as the case  may  be, to such a transferee  if  such Certificate  or Book-Entry  Share  is presented to the Exchange  Agent, accompanied by  all documents required to evidence  and effect such transfer  and to evidence  that any  applicable  stock transfer  or  other  similar  Taxes have  been paid or are  not applicable.  No interest shall be paid or shall accrue  on the cash payable  upon surrender  of any  Certificate  or Book-Entry  Share. Until surrendered as  contemplated by this Section 2.2, each Certificate  and Book-Entry  Share  shall be deemed at any  time  after  the  LinnCo Effective Time to represent only  the right to receive, with respect to Certificates and Book-Entry Shares, upon such surrender, the Merger Consideration deliverable in respect of the shares represented by  such Certificates or Book-Entry  Shares pursuant to this Agreement, together  with the Fractional Share  Cash Amount and any  dividends or other distributions to which such holder of Certificates or Book-Entry  Shares becomes  entitled in accordance with Section 2.2(e). 

(e)                Treatment of Unexchanged Shares.  No dividends  or  other  distributions, if any,  with a record date  after  the  LinnCo Effective Time with respect to LinnCo Common Shares, shall be paid to the holder  of  any  unsurrendered Book-Entry Shares or Certificate until such holder  shall surrender  such Book-Entry Shares or Certificates in accordance  with this Section 2.2.  After  the  surrender  in accordance  with this Section 2.2 of such Book-Entry Shares or Certificates, the holder  thereof  shall be entitled to receive  (in addition to the Merger  Consideration and the Fractional Share  Cash Amount payable to such holder  pursuant to this Article  II)  any  such dividends or other  distributions, without any interest thereon, which theretofore  had become  payable  with respect to the LinnCo Common Shares to be issued in exchange for such Book-Entry Shares or Certificates. 

(f)                No Further  Ownership Rights in Exchanged Shares.  The shares of HoldCo Common Stock delivered in accordance with the terms of this Article II upon conversion of any shares of Company Common Stock and the LinnCo Common Shares delivered  in accordance  with the terms of this Article  II  upon  conversion of any  shares of HoldCo  Common Stock, together with the payment of any Fractional Share Cash Amounts, shall be deemed to have  been delivered and  paid in full satisfaction of all rights pertaining  to such shares of Company Common Stock and shares of HoldCo Common Stock, respectively.  From and  after  the  LinnCo Effective Time, (i)  all holders of Certificates and Book-Entry  Shares shall cease  to have  any  rights as stockholders of the Company or HoldCo other  than the right to receive  the  Merger  Consideration into which the shares represented by  such Certificates or Book-Entry  Shares have  been  converted pursuant to this Agreement upon the surrender  of  such Certificate  or  Book-Entry  Share  in accordance  with Section 2.2(d)  (together with the Fractional Share  Cash Amount and any  dividends or other  distributions to which such Certificates or Book-Entry  Shares become  entitled  in accordance  with Section 2.2(e)), without interest, and (ii)  the  stock  transfer  books of the Company shall be closed with respect to all shares of Company Common Stock outstanding  immediately  prior  to the HoldCo Effective Time and the stock transfer books of HoldCo shall be closed with respect to all shares of HoldCo Common Stock outstanding immediately prior to the LinnCo Effective Time.  From  and after  the  LinnCo Effective Time,  the  stock transfer  books  of  HoldCo  shall be closed, and there  shall be no further  registration  of  transfers on the stock transfer  books of the  Surviving  Company  of shares of HoldCo  Common Stock that were  outstanding  immediately  prior  to the LinnCo Effective Time.  If, after  the LinnCo Effective Time, any  Certificates or Book-Entry  Shares formerly  representing shares of Company Common Stock or HoldCo Common Stock are  presented to the Surviving  Company or the Exchange  Agent for  any  reason, such Certificates or Book-Entry  Shares shall be cancelled and exchanged as provided in this Article  II, subject to applicable  Law in the case  of  Dissenting Shares.