UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): November 19, 2008
BERRY PETROLEUM
COMPANY
(Exact
Name of Registrant as Specified in its Charter)
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DELAWARE
(State
or Other Jurisdiction of
Incorporation
or Organization)
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1-9735
(Commission
File Number)
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77-0079387
(IRS
Employer
Identification
Number)
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1999 Broadway, Suite 3700
- Denver, CO 80202
(Address
of Principal Executive Offices)
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93309
(Zip
Code)
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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:
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Item
1.01 Entry into a Material Definitive Agreement.
On
November 19, 2008, Berry Petroleum Company (the “Company”) and Mr. Michael
Duginski, Executive Vice-President and Chief Operating Officer, entered into an
Employment Agreement (the “Employment Agreement”). Mr. Duginski has
been an employee of the Company since February 2002 and was named Executive
Vice-President and Chief Operating Officer in September 2007. The
Employment Agreement provides for a three year term of employment and provides
that the term of employment will thereafter be automatically renewed for
successive one year terms unless cancelled by either the Company or Mr. Duginski
upon six months notice. The Employment Agreement confirms Mr.
Duginski’s current annual salary of $320,000 and eligibility for a discretionary
annual bonus with a range from 50% to 200% of the base salary per
year. In the event the Company terminates Mr. Duginski’s employment
without cause, Mr. Duginski’s employment terminates due to death or disability,
or Mr. Duginski terminates employment for good reason, any outstanding equity
awards (“Equity Awards”) may immediately vest.
Additionally,
in the event the Company terminates Mr. Duginski’s employment without cause, or
Mr. Duginski terminates employment for good reason, Mr. Duginski will be
entitled to severance in an amount equal to one and one-half times his (1)
annual base salary, (2) highest annual bonus in the last two years, and (3) the
then maximum annual Company matching contribution to the Company's 401(k) plan,
plus certain other benefits for an eighteen month period.
In the
event the Company terminates Mr. Duginski’s employment without cause, or Mr.
Duginski terminates employment for good reason within two years after a change
in control, as defined, Mr. Duginski will be entitled to the above benefits with
respect to his Equity Awards, and enhanced severance representing a two and
one-half times multiple of his (1) annual base salary, (2) highest annual bonus
in the last two years, and continuing other benefits for periods of up to three
years. The Company also agrees to pay Mr. Duginski for any taxes on
“parachute payments” imposed as a result of the foregoing benefits. If Mr.
Duginski resigns or if the Company terminates his employment for cause, Mr.
Duginski is not eligible for any separation benefits and will forfeit all
unvested Equity Awards when his employment ends. The independent Directors acted
unanimously to approve the Employment Agreement, upon the recommendation of the
Compensation Committee, as an inducement and incentive to Mr. Duginski to
continue in his employment with the Company. A copy of the Employment Agreement
is attached as Exhibit 99.1 and is incorporated herein by
reference.
Item
1.02 Termination of A Material Definitive Agreement
On
November 19, 2008, as a result of including the same terms and conditions in the
Employment Agreement described in Item 1.01 above, the Change in Control
Severance Protection Agreement dated August 23, 2006 by and between the Company
and Mr. Duginski (the form of which was filed as Exhibit 99.1 to the Company’s
Form 8-K filed on August 24, 2006) was terminated.
Item 9.01
Financial Statements and Exhibits
(d) Exhibits
10.1
Employment Agreement dated November 19, 2008 by and between Berry Petroleum
Company and Michael Duginski.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereto
duly authorized.
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BERRY PETROLEUM
COMPANY
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By:
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/s/ Kenneth A.
Olson
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Kenneth
A. Olson
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Corporate
Secretary
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Date: November
20, 2008
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