As filed with the Securities and Exchange Commission on September 4, 1998
Registration No. 33-
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
(State or other jurisdiction of incorporation or organization)
77-0079387
(I.R.S. Employer Identification No.)
28700 Hovey Hills Road
P.O. Bin X
Taft, California 93268
(805) 769-8811
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Berry Petroleum Company 1994 Stock Option Plan
(Full Title of the Plan)
JERRY V. HOFFMAN
Chairman of the Board,
President and Chief Executive Officer
28700 Hovey Hills Road
P.O. Bin X
Taft, California 93268
(805) 769-8811
(Address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Laura K. McAvoy, Esq.
Nordman, Cormany, Hair & Compton
1000 Town Center Drive, Sixth Floor
P.O. Box 9100
Oxnard, California 93031-9100
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered per Share Price Fee
Class A Common 1,000,000 (1) $ 12.4688 (3) $12,468,800 (3) $ 3,678.30(3)
Stock, $.01 par shares
value
Rights to 1,000,000 (2)
Purchase Shares shares
Of 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 that could be purchased upon the occurrence of certain
events pursuant to the Berry Petroleum Company Rights Plan.
(3) Pursuant to Rule 457(c) and Rule 457(h), the maximum offering
price per share is a recent average of the high and low sales prices
for the Class A Common Stock as reported by the New York Stock Exchange
of $ 12.4688 per share.
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The Registration Statement on Form S-8 (Registration No. 33-61337)
filed with the Commission on July 27, 1995, is hereby incorporated by
reference.
At the Annual Meeting of Stockholders of Berry Petroleum Company held
on May 15, 1998, the Stockholders approved an amendment to the Berry
Petroleum Company 1994 Stock Option Plan (the "Plan") that increased the
number of shares of Class A Common Stock, $0.01 par value, authorized for
issuance under the Plan from 1,000,000 to 2,000,000. 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 Taft, State of
California, on this 1 day of September, 1998.
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)
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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 September 1, 1998
Jerry V. Hoffman Board, President
and Director
s/s William F. Berry Director September 1, 1998
William F. Berry
s/s Gerry A. Biller Director September 1, 1998
Gerry A. Biller
s/s Ralph B. Busch, III Director September 1, 1998
Ralph B. Busch, III
s/s William E. Bush, Jr. Director September 1, 1998
William E. Bush, Jr.
s/s Richard F. Downs Director September 1, 1998
Richard F. Downs
s/s John A. Hagg Director September 1, 1998
John A. Hagg
s/s Thomas J. Jamieson Director September 1, 1998
Thomas J. Jamieson
s/s Roger G. Martin Director September 1, 1998
Roger G. Martin
s/s James A. Middleton Director September 1, 1998
James A. Middleton
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EXHIBIT INDEX
Exhibit No. Description Sequentially
Numbered Pages
4.1 Restated and Amended 1994 Stock 6
Option Plan
5.1 Opinion of Nordman, Cormany, 13
Hair & Compton regarding
validity of securities.
23.1 Consent of Nordman, Cormany, 13
Hair & Compton (included in
Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP. 14
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EXHIBIT 4.1
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.
2.11 Option. The term "Option" shall mean a nonstatutory option to
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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 5, 1997, shall receive a grant of 5,000
Options, (3,000 of which have been granted to the 12 directors on that date
except for Mr. Middleton) conditioned upon the receipt of Shareholder Approval
at the May 15, 1998 Annual Meeting of Shareholders. For the duration of the
1994 Plan, each non-employee Director holding office on December 2nd of each
year shall automatically receive a grant of 5,000 Options.
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.
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(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 2,000,000 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).
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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
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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.
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
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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.
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 as 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 eighty percent (80%) 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
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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.
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.
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EXHIBIT 5.1
Law offices of
Nordman, Cormany, Hair & Compton
1000 Town Center Drive
6th Floor
Post Office Box 9100
Oxnard, California 93031-9100
(805) 485-1000
(805) 656-3304
6th Floor Fax (805) 988-8387
5th Floor Fax (805) 988-7790
September 3, 1998
Berry Petroleum Company
28700 Hovey Hills Road
P.O. Bin X
Taft, CA 93268
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 1,000,000 shares of Class A Common Stock,
$.01 par value per share, and 1,000,000 rights to purchase fractions of
shares of the Company's Series A Junior Participating Preferred
Stock (collectively, the "Shares"), which may be purchased pursuant to the
exercise of options granted pursuant to the Company's 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
that we are of the 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,
s/s Nordman, Cormany, Hair & Compton
NORDMAN, CORMANY, HAIR & COMPTON
<PAGE> 14
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated February 20, 1998, on our
audit of the financial statements of Berry Petroleum Company as of
December 31, 1997 and 1996 and for the three years in the period
ended December 31, 1997.
s/s PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Los Angeles, California
September 3, 1998
