View:
As filed with the Securities and Exchange Commission on August
20, 2002
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BERRY PETROLEUM COMPANY
(Exact name of registrant as specified in its charter)
Delaware 77-0079387
(State or other (I.R.S. Employer
jurisdiction Identification No.)
of incorporation or
organization)
5201 Truxtun Avenue, Suite 300
Bakersfield, California 93309
(Address of principal executive offices, including zip code)
Berry Petroleum Company 1994 Stock Option Plan
(Full Title of the Plan)
Jerry V. Hoffman Copies to:
Chairman of the Board, Laura K. McAvoy, Esq.
President and Chief Executive Jackson DeMarco & Peckenpaugh
Officer 2815 Townsgate Road, Suite 200
5201 Truxtun Avenue, Suite 300 Westlake Village, California
Bakersfield, California 93309 91361
(661) 616-3900
(Name, Address, and Telephone
number, including area code, of
agent for service)
1
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount to Offering Aggregate Amount of
to be be Price per Offering Registration
Registered Registered Share Price Fee
(1) (2) (3) (4)
___________ ___________ __________ ___________ ____________
_______ _______ ________ _______ ______
Class A 1,000,000 $16.65 $16,650,000 $1,531.80
Common shares
Stock, $.01
par value
Rights to 1,000,000
Purchase shares
Shares of
Class A
Common
Stock
(1) This Registration Statement also covers such additional
number of shares, presently indeterminable, as may become
issuable in the event of stock dividends, stock splits,
recapitalizations or other changes in the Class A Common
Stock.
(2) Includes Rights to purchase shares of Class A Common Stock
upon the occurrence of certain events pursuant to the Berry
Petroleum Company Rights Agreement dated December 8, 1999
("Rights Agreement").
(3) Estimated solely for purposes of calculating the amount of
the registration fee pursuant to Rule 457(h) and Rule 457 (c
) of the Securities Act of 1933, as amended (the
"Securities Act"). The Proposed Maximum Offering Price Per
Share has been computed on the basis of the price of
securities of the same class using the average of the high
and low prices of the Common Stock as reported by the New
York Stock Exchange of $16.65 per share on August 16, 2002.
(4) Amount to be Registered multiplied by the Proposed Maximum
Offering Price Per Share.
2
The Company's Registration Statement on Form S-8 (File No.
33-61337) filed with the Commission on July 27, 1995 and the
Registration Statement on Form S-8 (File No. 333-62873) filed
with the Commission on September 4, 1998 are incorporated herein
by reference.
At the Annual Meeting of Stockholders of Berry Petroleum
Company held on May 16, 2002, the Stockholders approved an
amendment to the Berry Petroleum Company Restated and Amended
1994 Stock Option Plan (the "Plan") that (i) increased, by
1,000,000 shares, the number of shares of Class A Common Stock,
$0.01 par value ("Shares"), authorized for issuance under the
Plan to a total of 3,000,000 Shares and (ii) provided that the
Option exercise price shall be not less than the Fair Market
Value on the date of grant. This Registration Statement
registers such additional securities.
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
Bakersfield, State of California, on this 19 day of August 2002.
BERRY PETROLEUM COMPANY
By: s/s Jerry V. Hoffman
Jerry V. Hoffman, Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer)
By: s/s Ralph J. Goehring
Ralph J. Goehring, Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
By: s/s Donald A. Dale
Donald A. Dale, Controller
(Principal Accounting Officer)
3
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the
following persons in the capacities and on the date indicated.
SIGNATURES TITLE DATE
S/s Jerry V. Hoffman Chairman of the July 16, 2002
Jerry V. Hoffman Board, President and
Director
S/s William F. Berry Director July 22, 2002
William F. Berry
S/s Ralph B. Busch, III Director July 19, 2002
Ralph B. Busch, III
S/s William E. Bush Director July 22, 2002
William E. Bush, Jr.
S/s Steven L. Cropper Director July 23, 2002
Steven L. Cropper
S/s J. Herbert Gaul, Jr. Director July 19, 2002
J. Herbert Gaul, Jr.
S/s John A. Hagg Director August 13, 2002
John A. Hagg
S/s Robert Heinemann Director August 5, 2002
Robert Heinemann
S/s Thomas J. Jamieson Director July 17, 2002
Thomas J. Jamieson
S/s Roger G. Martin Director July 19, 2002
Roger G. Martin
S/s Martin H. Young, Jr. Director July 30, 2002
Martin H. Young. Jr.
4
EXHIBIT INDEX
Exhibit Description Sequentially
No. Numbered
Pages
4.1 Restated and Amended 1994 Stock Option
Plan 6
5.1 Opinion of Jackson DeMarco & Peckenpaugh 13
regarding validity of securities
23.1 Consent of Jackson DeMarco & Peckenpaugh 13
(included in Exhibit 5.1)
23.2 Consent of PriceWaterhouseCoopers L.L.P. 14
5
BERRY PETROLEUM COMPANY
RESTATED AND AMENDED
1994 STOCK OPTION PLAN
ARTICLE I
PURPOSE OF PLAN
The purpose of this Plan is to promote the growth and
profitability of the Company and other Participating Companies by
providing, through the ownership of Options, incentives to
attract and retain highly talented persons to provide managerial,
administrative and other specialized services to the Company and
other Participating Companies and to motivate such persons to use
their best efforts on behalf of the Company and other
Participating Companies.
ARTICLE II
DEFINITIONS
For purposes of this Plan, the following terms shall have
the meanings set forth in this Article II:
2.1 Accrued Installment. The term "Accrued installment"
shall mean any vested installment of an Option.
2.2 Board. The term "Board" shall mean the Board of
Directors of the Company.
2.3 Committee. The term "Committee" shall mean the
Compensation Committee, or a successor committee, appointed by
the Board and constituting not less than two members of the
Board, each of whom is a Disinterested Person.
2.4 Company. The term "Company" shall mean Berry Petroleum
Company, a Delaware corporation, or any successor thereof.
2.5 Director. The term "Director" shall mean a member of
the Board, or a member of the board of directors of any
Participating Company.
2.6 Disinterested Person. The term "Disinterested Person"
shall mean any person defined as a Disinterested Person in Rule
16b-3 of the Securities and Exchange Commission as amended from
time to time and as promulgated under the Exchange Act.
2.7 Effective Date. The term "Effective Date" shall mean
December 2, 1994.
2.8 Eligible Person. The term "Eligible Person" shall mean,
except as provided in Section 3.1, any full-time or part-time
employee, officer or Director of any Participating Company.
2.9 Exchange Act. The term "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended.
2.10 Fair Market Value. The term "Fair Market Value shall
mean the closing sale price on the trading day in question of the
Shares on the Composite Tape for New York Stock Exchange Listed
Stocks, or, if the Shares are not quoted on the Composite Tape,
on the New York Stock Exchange, or, if the Shares are not listed
on such Exchange, on the principal United States securities
exchange on which the Shares are listed, or, if the Shares are
not listed on any such exchange, the closing bid quotation with
respect to the Shares on the trading day in question on the
National Association of Securities Dealers, Inc. Automated
Quotations Systems or any similar system then in use, or if no
such quotation is available, the fair market value on the date in
question of the Shares as determined in good faith by the
Committee. If the day in question is not a trading day, the
determination of Fair Market Value shall be made as of the
nearest preceding trading day,
Exhibit 4.1 Page A-1
2.11 Option. The term "Option" shall mean a nonstatutory
option to acquire Shares granted under this Plan.
2.12 Optionee. The term "Optionee" shall mean an Eligible
Person who has been granted an Option.
2.13 Parent Corporation. The term "Parent Corporation"
shall mean a corporation as defined in Internal Revenue Code
Section 424(e) or any successor thereto.
2.14 Participating Company. The term "Participating
Company" shall mean the Company and any Parent Corporation or
Subsidiary Corporation of the Company.
2.15 Plan. The term "Plan" shall refer to the Company's
1994 Stock Option Plan.
2.16 Shares. The term "Shares" shall mean shares of the
Company's Class A Common Stock, $.01 par value, and may be
unissued shares or treasury shares or shares purchased for
purposes of this Plan.
2.17 Subsidiary Corporation. The term "Subsidiary
Corporation" shall mean a corporation as defined in Internal
Revenue Code Section 424(f) or any successor thereto.
2.18 Terminating Transaction. The term "Terminating
Transaction" shall mean any of the following events: (a) the
dissolution or liquidation of the Company; (b) a reorganization,
merger or consolidation of the Company with one or more other
corporations as a result of which the Company goes out of
existence or becomes a subsidiary of another corporation (which
shall be deemed to have occurred if another corporation shall
own, directly or indirectly, over eighty percent (80%) of the
aggregate voting power of all outstanding equity securities of
the Company); (c) a sale of all or substantially all of the
Company's assets; or (d) a sale of the equity securities of the
Company representing more than eighty percent (80%) of the
aggregate voting power of all outstanding equity securities of
the Company to any person or entity, or any group of persons and
entities acting in concert.
2.19 Termination Date. The term "Termination Date" shall
mean December 2, 2004.
2.20 Total Disability. The term "Total Disability" shall
mean a permanent and total disability as that term is defined in
Internal Revenue Code Section 22(e)(3) or any successor thereto.
ARTICLE III
ADMINISTRATION OF PLAN; GRANT TO DIRECTORS
3.1 Administration by the Committee. This Plan shall be
administered by the Compensation Committee of the Board, or its
successor (the "Committee"). Subject to the provisions of this
Plan document, the Committee shall have full and absolute power
and authority in its sole discretion to (i) determine which
Eligible Persons shall receive Options, (ii) determine the time
when Options shall be granted, (iii) determine the terms and
conditions, not inconsistent with the provisions of this Plan, of
any Option granted hereunder, (iv) determine the number of shares
subject to or covered by each Option, and (v) interpret the
provisions of this Plan and of any Option granted under this
Plan. A member of the Committee shall not be an Eligible Person,
and shall not have been an Eligible Person at any time within one
(1) year prior to appointment to the Committee. Except as
otherwise provided herein or otherwise permitted by Rule 16b-
3(c)(3) of the Exchange Act, during said one (1) year prior to
such appointment, no member of the Committee shall have been
eligible to acquire stock, stock options or stock appreciation
rights under any plan of the Company.
3.2 Grant to Non-employee Directors. All non-employee
Directors of the Company holding office on December 2nd of each
year shall automatically receive a grant of 5,000 Options.
Exhibit 4.1 Page A-2
The above referenced Options to non-employee Directors shall
be granted upon the following terms and conditions:
a. The exercise price of the Options shall be Fair
Market Value on the date of grant.
b. The Options shall vest immediately upon grant.
c. This "formula" grant to non-employee Directors shall
not be amended more than once every (6) six months, other than to
comport with changes in the Internal Revenue Code, the Employee
Retirement Income Security Act or the rules thereunder.
3.3 Rules and Regulations. The Committee may adopt such
rules and regulations as the Committee may deem necessary or
appropriate to carry out the purposes of this Plan and shall have
authority to take all action necessary or appropriate to
administer this Plan.
3.4 Binding Authority. All decisions, determinations,
interpretations, or other actions by the Committee shall be
final, conclusive, and binding on all Eligible Persons,
Optionees, Participating Companies and any successors-in-interest
to such parties.
ARTICLE IV
NUMBER OF SHARES AVAILABLE UNDER THIS PLAN
The maximum aggregate number of Shares which may be optioned
and sold under this Plan is 3,000,000 Shares. In the event that
Options granted under this Plan shall for any reason terminate,
lapse, be forfeited, or expire without being exercised, the
Shares subject to such unexercised Options may again be subjected
to Options under this Plan. In any event, however, no Option may
be granted hereunder if the sum of Shares subject to such Option
and the number of Shares subject to unexpired Options previously
granted hereunder (or subject to unexercised options or stock
appreciation rights under any other stock option or stock
appreciation right plan of the Company) would exceed twenty
percent (20%) of the total shares of voting stock outstanding at
such time.
ARTICLE V
TERM OF PLAN
This Plan shall be effective as of the Effective Date and
shall terminate on the Termination Date. No Option may be granted
hereunder after the Termination Date.
ARTICLE VI
OPTION TERMS
6.1 Form of Option Agreement. Any option granted under this
Plan shall be evidenced by an agreement ("Option Agreement") in
such form as the Committee, in its discretion, may from time to
time approve. Any Option Agreement shall contain such terms and
conditions as the Committee may deem, in its sole discretion,
necessary or appropriate and which are not inconsistent with the
provisions of this Plan.
6.2 Vesting and Exercisability of Options. Subject to the
limitations set forth herein and/or in any applicable Option
Agreement entered into hereunder, Options granted under this Plan
shall vest and be exercisable in accordance with the rules set
forth in this Section 6.2:
a. General. Subject to the other provisions of this
Section 6.2, Options shall vest and become exercisable at such
times and in such installments as the Committee shall provide in
each individual Option Agreement. Notwithstanding the foregoing,
the Committee may in its sole discretion accelerate the time at
which an Option or installment thereof may be exercised. Unless
otherwise provided in this Section 6.2 or in the Option Agreement
pursuant to which an Option is granted, an Option may be
exercised when Accrued Installments accrue as provided in such
Option Agreement and at any time thereafter until, and including,
the Option Termination Date (as defined below).
Exhibit 4.1 Page A-3
b. Termination of Options. All installments and
Options shall expire and terminate on such date as the Committee
shall determine ("Option Termination Date"), which in no event
shall be later than ten (10) years from the date on which such
Option was granted.
c. Termination of Eligible Person Status Other Than by
Reason of Death or Disability. In the event that the employment
of an Eligible Person with a Participating Company is terminated
for any reason (other than by reason of death or Total
Disability), any installments under an Option held by such
Eligible Person which have not accrued as of such termination
date shall expire and become unexercisable as of such termination
date. Except as otherwise provided herein, in the event that an
Eligible Person who is a Director terminates his directorship or
otherwise ceases to be a Director for any reason (other than by
reason of death or Total Disability), any installments under an
Option held by such Eligible Person which have not accrued as of
the directorship termination date shall expire and become
unexercisable as of the directorship termination date. All
Accrued installments as of the employment termination date and/or
the directorship termination date shall remain exercisable only
within such period of time as the Committee may determine, but in
no event shall any Accrued installments remain exercisable for a
period in excess of three (3) months following such termination
date or for a period in excess of the original Option Termination
Date, whichever is earlier. For purposes of this Plan, an
Eligible Person who is an employee or Director of any
Participating Company shall not be deemed to have incurred a
termination of his employment or his directorship (whichever may
be applicable) so long as such Eligible Person is an employee or
Director (whichever may be applicable) of any Participating
Company.
d. Leave of Absence. In the case of any employee on an
approved leave of absence, the Committee may make such provision
respecting continuance of any Options held by the employee as the
Committee deems appropriate in its sole discretion, except in no
event shall an Option be exercisable after the original Option
Termination Date.
e. Death or Total Disability of Eligible Person. In
the event that the employment or directorship of an Eligible
Person with a Participating Company is terminated by reason of
death or Total Disability, any unexercised Accrued installments
of Options granted hereunder to such Eligible Person shall expire
and become unexercisable as of the earlier of:
1. The applicable Option Termination Date, or
2. The first anniversary of the date of
termination of the employment or directorship of such Eligible
Person by reason of the Eligible Person's death or Total
Disability. Any such Accrued Installments of a deceased Eligible
Person may be exercised prior to their expiration only by the
person or persons to whom the Eligible Person's Option rights
pass by will or the laws of descent and distribution. Any Option
installments under such a deceased or disabled Eligible Person's
Option that have not accrued as of the date of the termination of
employment, or directorship due to death or Total Disability
shall expire and become unexercisable as of such termination
date.
f. Termination of Affiliation of Participating Company.
Notwithstanding the foregoing provisions of this section, in the
case of an Eligible Person who is an employee or Director of a
Participating Company other than the Company, upon an Affiliation
Termination (as defined herein) of such Participating Company
such Eligible Person shall be deemed (for all purposes of this
Plan) to have incurred a termination of his employment or
directorship with such Participating Company for reasons other
than death or Total Disability, with such termination to be
deemed effective as of the effective date of said Affiliation
Termination. As used herein the term "Affiliation Termination"
shall mean, with respect to a Participating Company, the
termination of such Participating Company's status as a
Participating Company (as defined herein) with respect to the
Company.
6.3 Options Not Transferable. Options granted under this
Plan may not be sold, pledged, hypothecated, assigned,
encumbered, gifted or otherwise transferred or alienated in any
manner, either voluntarily or involuntarily or by operation of
law, other than by will or the laws of descent and distribution,
and (except as specifically provided to the contrary in Section
6.2(e) hereof) may be exercised during the lifetime of an
Optionee only by such Optionee.
6.4 Restrictions on Issuance of Shares.
Exhibit 4.1 Page A-4
a. No Shares shall be issued or delivered upon
exercise of an Option unless and until there shall have been
compliance with all applicable requirements of the Securities Act
of 1933, all applicable listing requirements of any market or
securities exchange on which the Company's Common Stock is then
listed, and any other requirements of law or of any regulatory
body having jurisdiction over such issuance and delivery. The
inability of the Company to obtain any required permits,
authorizations or approvals necessary for the lawful issuance and
sale of any Shares hereunder on terms deemed reasonable by the
Committee shall relieve the Company, the Board, and the Committee
of any liability in respect of the nonissuance or sale of such
Shares as to which such requisite permits, authorizations or
approvals shall not have been obtained.
b. As a condition to the granting or exercise of any
Option, the Committee may require the person receiving or
exercising such Option to make any representations and warranties
to the Company as may be required or appropriate under any
applicable law or regulation, including, but not limited to, a
representation that the Option or Shares are being acquired only
for investment and without any present intention to sell or
distribute such Option or Shares, if such a representation is
required under the Securities Act of 1933 or any other applicable
law, rule or regulation.
c. The exercise of any Option under this Plan is
conditioned on approval of this Plan, within twelve (12) months
of the adoption of this Plan by the Board, by (i) the vote of the
holders of a majority of the outstanding securities of the
Company present, or represented, and entitled to vote at a
meeting duly held in accordance with applicable law, or (ii) the
written consent of the holders of a majority of the securities of
the Company entitled to vote if the requirements of Rule 16b-
3(b)(2) promulgated under the Exchange Act are otherwise
satisfied. In the event such shareholder approval is not obtained
within such time period, any Options granted hereunder shall be
void.
6.5 Option Adjustments.
a. If the outstanding Shares are increased, decreased,
changed into or exchanged for a different number or kind of
shares of the Company through reorganization, recapitalization,
reclassification, stock dividend, stock split or reverse stock
split, an appropriate and proportionate adjustment shall be made
in the number or kind of shares, and the per-share Option price
thereof which may be issued in the aggregate and to any
individual Optionee under this Plan upon exercise of Options
granted under this Plan; provided, however, that no such
adjustment need be made if, upon the advice of counsel, the
Committee determines that such adjustment may result in the
receipt of federally taxable income to holders of Options granted
hereunder or the holders of Shares or other classes of the
Company's securities,
b. Upon the occurrence of a Terminating Transaction
(as defined in Article II hereof), as of the effective date of
such Terminating Transaction, this Plan and any then outstanding
Options (whether or not vested) shall terminate unless (i)
provision is made in writing in connection with such transaction
for the continuance of this Plan and for the assumption of such
Options, or for the substitution of such Options of new options
covering the securities of the successor or surviving corporation
in the Terminating Transaction or an affiliate thereof, with
appropriate adjustments as to the number and kind of securities
and prices, in which event this Plan and such outstanding Options
shall continue or be replaced, as the case may be, in the manner
and under the terms so provided; or (ii) the Committee otherwise
shall provide in writing for such adjustments as it deems
appropriate in the terms and conditions of the then outstanding
Options (whether or not vested), including without limitation (A)
accelerating the vesting of outstanding Options, and/or (B)
providing for the cancellation of Options and their automatic
conversion into the right to receive the securities or other
properties which a holder of the Shares underlying such Options
would have been entitled to receive upon consummation of such
Terminating Transaction had such Shares been issued and
outstanding (net of the appropriate option exercise prices). If
this Plan or the Options shall terminate pursuant to the
foregoing provisions of this paragraph (b) because neither (i)
nor (ii) is satisfied, any Optionee holding outstanding Options
shall have the right, at such time immediately prior to the
consummation of the Terminating Transaction as the Company shall
designate, to exercise his or her Options to the full extent not
theretofore exercised, including any installments which have not
yet become Accrued installments.
c. In all cases, the nature and extent of adjustments
under this Section 6.5 shall be determined by the Committee in
its sole discretion, and any such determination as to what
adjustments shall he made, and the extent thereof, shall be
final, binding and conclusive. No fractional shares of stock
shall be issued under this Plan pursuant to any such adjustment.
Exhibit 4.1 Page A-5
6.6 Taxes. The Committee shall make such provisions and
take such steps as it deems necessary or appropriate for the
withholding of any federal, state, local and other tax required
by law to be withheld with respect to the grant or exercise of an
Option under this Plan, including, but without limitation, the
withholding of the number of Shares at the time of the grant or
exercise of an Option the Fair Market Value of which would
satisfy any withholding tax on said exercise or grant, the
deduction of the amount of any such withholding tax from any
compensation or other amounts payable to an Optionee by any
member of the Participating Companies, or requiring an Optionee
(or the Optionee's beneficiary or legal representative) as a
condition of granting or exercising an Option to pay to any
member of the Participating Companies any amount required to be
withheld, or to execute such other documents a s the Committee
deems necessary or appropriate in connection with the
satisfaction of any applicable withholding obligation.
6.7 Legends. Each Option Agreement and each certificate
representing Shares acquired upon exercise of an Option shall be
endorsed with all legends, if any, required by applicable federal
and state securities laws to be placed thereon. The determination
of which legends, if any, shall be placed upon Option Agreements
and/or said Share certificates shall be made by the Committee in
its sole discretion and such decision shall be final, binding and
conclusive.
ARTICLE VII
SPECIAL OPTION TERMS UNDER THIS PLAN
7.1 Option Exercise Price. The Option exercise price for
Shares to be issued under this Plan shall be determined by the
Committee in its sole discretion, but shall not be less than one
hundred percent (100%) of the Fair Market Value of the Shares on
the date of grant. The date of grant shall be deemed to be the
date on which the Committee authorizes the grant of the Option,
unless a subsequent date is specified in such authorization.
7.2 Exercise of Options. An Option may be exercised in
accordance with this Section 7.2 as to all or any portion of the
Shares covered by an Accrued installment of the Option from time
to time during the applicable Option period, except that an
Option shall not be exercisable with respect to fractions of a
Share. Options may be exercised, in whole or in part, by giving
written notice of exercise to the Company, which notice shall
specify the number of Shares to be purchased and shall be
accompanied by payment in full of the purchase price in
accordance with Section 7.3. An Option shall be deemed exercised
when such written notice of exercise and payment has been
received by the Company. No Shares shall be issued until full
payment has been made and the Optionee has satisfied such other
conditions as may be required by this Plan, as may be required by
applicable law, rules, or regulations, or as may be adopted or
imposed by the Committee. Until the stock certificates have been
issued, no right to vote or receive dividends or any other rights
as a stockholder shall exist with respect to optioned Shares
notwithstanding the exercise of the Option. No adjustment will be
made for a dividend or other rights for which the record date is
prior to the date the stock certificate is issued, except as
provided in Section 6.5.
7.3 Payment of Option Exercise Price.
a. Except as otherwise provided in Section 7.3(b), the
entire Option exercise price shall be paid in cash at the time
the Option is exercised.
b. In the discretion of the Committee, an Optionee may
elect to pay for all or some of the Optionee's Shares with Common
Stock of the Company previously acquired and owned at the time of
exercise by the Optionee, subject to all restrictions and
limitations of applicable laws, rules and regulations, and
subject to the satisfaction of any conditions the Committee may
impose, including, but not limited to, the making of such
representations and warranties and the providing of such other
assurances that the Committee may require with respect to the
Optionee's title to the Company's Common Stock used for payment
of the exercise price. Such payment shall be made by delivery of
certificates representing the Company's Common Stock, duly
endorsed or with duly signed stock power attached, such Common
Stock to be valued at its Fair Market Value on the date notice of
exercise is received by the Company.
Exhibit 4.1 Page A-6
ARTICLE VIII
AMENDMENT OR TERMINATION OF PLAN
8.1 Board Authority. The Board may amend, alter, and/or
terminate this Plan at any time; provided, however, that unless
required by applicable law, rule, or regulation or unless no
longer required to satisfy the requirements of Rule 16b-3
promulgated under the Exchange Act, the Board shall not amend
this Plan without the approval of stockholders (as obtained in
accordance with the provisions of Section 6.4(c) hereof) if the
amendment would (A) materially increase the benefits accruing to
participants under this Plan, (B) materially increase the number
of securities which may be issued under this Plan, or (C)
materially modify the requirements as to eligibility for
participation in this Plan. In determining whether a given
amendment is within the scope of (A), (B) or (C), the Company may
rely, without limitation, upon the regulations promulgated and
the advice provided by the Securities and Exchange Commission
with respect to Rule 16b-3. No amendment of this Plan or of any
Option Agreement shall affect in a material and adverse manner
Options granted prior to the date of any such amendment without
the consent of any Optionee holding any such affected Options.
8.2 Contingent Grants Based on Amendments. Options may be
granted in reliance on and consistent with any amendment adopted
by the Board alone which is necessary to enable such Options to
be granted under this Plan, even though such amendment requires
future stockholder approval; provided, however, that any such
contingent Option by its terms may not be exercised prior to
stockholder approval of such amendment and provided, further,
that in the event stockholder approval is not obtained within
twelve (12) months of the date of grant of such contingent
Option, then such contingent Option shall be deemed canceled and
no longer outstanding.
ARTICLE IX
GENERAL PROVISIONS
9.1 Availability of Plan. A copy of this Plan shall be
delivered to the Secretary and Assistant Secretary of the Company
and shall be shown by the Secretary or Assistant Secretary to any
Eligible Person making reasonable inquiry concerning this Plan.
9.2 Notice. Any notice or other communication required or
permitted to be given pursuant to this Plan or under any Option
Agreement must be in writing and shall be deemed to have been
given when delivered to and actually received by the party to
whom addressed. Notice shall be given to Optionees at their most
recent addresses shown in the Company's records. Notice to the
Company shall be addressed to the Company at the address of the
Company's principal executive offices, to the attention of the
Secretary of the Company.
9.3 Titles and Headings. Titles and headings of sections of
this Plan are for convenience of reference only and shall not
affect the construction of any provision of this Plan.
Exhibit 4.1 Page A-7
Jackson DeMarco & Peckenpaugh
A LAW CORPORATION
2030 MAIN STREET, SUITE 1200
Irvine, California 92614
Tel 949.752.8585
Fax 949.752.0597
www.jdplaw.com
August 19, 2002
Berry Petroleum Company
5201 Truxtun Avenue, Suite 300
Bakersfield, CA 93309
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel for Berry Petroleum Company, a
Delaware corporation (the "Company"), in connection with the
various legal matters relating to the Registration Statement on
Form S-8 (the "Registration Statement") to be filed by the
Company with the Securities and Exchange Commission with respect
to the additional 1,000,000 shares of Class A Common Stock, $.01
par value per share ("Shares"), which may be purchased pursuant
to the exercise of options granted pursuant to the Company's 2002
Restated and Amended 1994 Stock Option Plan.
We have examined such corporate records, certificates, and
such questions of law as we have considered necessary or
appropriate for the purposes of this opinion and on the basis of
such examination, advise you we that in our opinion that the
Shares have been duly authorized and upon issuance and sale in
conformity with and pursuant to the Registration Statement, and
receipt of the purchase price therefor as specified in the
Registration Statement, the Shares will be legally and validly
issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name in the
Prospectus constituting any part thereof.
Very truly yours,
JACKSON, DEMARCO & PECKENPAUGH
RRM/sjg
Exhibit 5.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 (File Nos. 333-62799, 333-
62871 and 333-62873) of our report dated February 11, 2002,
except as to Note 14, which is as of March 1, 2002, relating
to the financial statements of Berry Petroleum Company,
which appears in Berry Petroleum Company's Annual Report on
Form 10-K for the year ended December 31, 2001.
PricewaterhouseCoopers LLP
Los Angeles, CA
August 19, 2002
Exhibit 23.2