forms3.htm
As
filed with the Securities and Exchange Commission on February 25,
2009
Registration
No. 333-135055
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
________________
POST-EFFECTIVE
AMENDMENT NO. 1 TO
FORM
S-3
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 Number)
|
1999
Broadway, Suite 3700
Denver,
Colorado 80202
(303)
999-4400
(Address,
including zip code, and telephone number, including area code,
of
registrant’s principal executive offices)
_______________
Robert
F. Heinemann
1999
Broadway, Suite 3700
Denver,
Colorado 80202
(303)
999-4400
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
________________
Copies
of all communications to:
Laura
K. McAvoy
Musick,
Peeler & Garrett LLP
2801
Townsgate Road, Suite 200
Westlake
Village, California 91361
(805)
418-3115
|
Kelly
B. Rose
Baker
Botts L.L.P.
One
Shell Plaza, 910 Louisiana Street
Houston,
Texas 77002
(713)
229-1234
|
________________
Approximate date of commencement of
proposed sale to the public: From time to time after the effective date
of this Registration Statement.
________________
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box: o
If any of
the securities on this form are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check
the following box: þ
If this
form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering: o
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering: o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box.
þ
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and
“smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
Large
accelerated filer þ Accelerated
filer o
Non-accelerated
filer ¨ Smaller
reporting company o
(Do not
check if a smaller reporting company)
CALCULATION
OF REGISTRATION FEE
|
Amount
to be Registered/Proposed Maximum Aggregate
Offering
Price (1)(2)
|
Amount
of
Registration
Fee
|
Title
of Each Class of<TABLE><CAPTION>
Securities
to be Registered
|
Debt
Securities (which may be senior or subordinated, convertible or
non-convertible)
|
|
|
Preferred
Stock, par value $0.01 per share
|
|
|
Class
A Common Stock, par value $0.01 per share(3)
|
|
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Warrants
|
|
|
Total
|
$750,000,000
|
$29,475
|
(1)
|
Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(o) under the Securities Act and exclusive of accrued interest,
distributions and dividends, if any. The aggregate initial offering price
of all securities issued from time to time pursuant to this registration
statement shall not exceed $750,000,000 or the equivalent thereof in
foreign currencies, foreign currency units or composite currencies. If any
debt securities are issued at an original issue discount, then the
offering price shall be in such greater principal amount as shall result
in an aggregate initial offering price of up to $750,000,000 or the
equivalent thereof in foreign currencies, foreign currency units or
composite currencies, less the dollar amount of any securities previously
issued hereunder. Any securities registered hereunder may be sold
separately or with other securities registered
hereunder.
|
(2)
|
There
is being registered hereunder such indeterminate number or amount of debt
securities, common stock, preferred stock and warrants as may from time to
time be issued at indeterminate prices and as may be issuable upon
conversion, redemption, exchange, exercise or settlement of any securities
registered hereunder, including under any applicable antidilution
provisions.
|
(3)
|
Includes
rights to purchase shares of Series B Junior Participating Preferred Stock
upon the occurrence of certain events pursuant to the Berry Petroleum
Company Rights Agreement dated December 8,
1999.
|
________________
PROSPECTUS
BERRY
PETROLEUM COMPANY
Debt
Securities
Preferred
Stock
Class
A Common Stock
Warrants
________________
The
following are types of securities that we may offer, issue and sell from time to
time, together or separately: debt securities, which may be senior debt
securities or subordinated debt securities and may be convertible; shares of our
preferred stock; shares of our Class A Common Stock; and warrants to purchase
debt or equity securities.
This
prospectus contains summaries of the general terms of these
securities. At the time of each offering we will provide the specific
terms, manner of offering and the initial public offering price of the
securities in a supplement to this prospectus. The prospectus
supplements may also add, update or change information contained in this
prospectus. You should carefully read this prospectus and the
applicable prospectus supplement before you decide to invest. This
prospectus may not be used to sell securities unless accompanied by a prospectus
supplement.
We may
offer and sell these securities through one or more underwriters, dealers and
agents, through underwriting syndicates managed or co-managed by one or more
underwriters, or directly to purchasers, on a continuous or delayed
basis. The prospectus supplement for each offering of securities will
describe in detail the plan of distribution for that offering.
Our Class
A Common Stock is listed on the New York Stock Exchange under the symbol “BRY.”
Each prospectus supplement will indicate if the securities offered thereby will
be listed on any securities exchange.
You
should consider carefully the risk factors beginning on page 7 of this
prospectus before purchasing any of our securities.
________________
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a
criminal offense.
________________
This
prospectus is dated February 25, 2009.
TABLE
OF CONTENTS
Page
ABOUT
THIS PROSPECTUS [5]
INCORPORATION
BY REFERENCE [5]
WHERE YOU
CAN FIND MORE INFORMATION [6]
FORWARD-LOOKING
STATEMENTS [6]
BERRY
PETROLEUM COMPANY [6]
RISK
FACTORS [6]
UNAUDITED
PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS [7]
RATIO OF
EARNINGS TO FIXED CHARGES [10]
DESCRIPTION
OF DEBT SECURITIES [10]
DESCRIPTION
OF PREFERRED STOCK [11]
DESCRIPTION
OF COMMON STOCK [12]
DESCRIPTION
OF WARRANTS [13]
PLAN OF
DISTRIBUTION [14]
VALIDITY
OF OFFERED SECURITIES [15]
ABOUT
THIS PROSPECTUS
This
prospectus is part of a “shelf” registration statement that we filed with the
U.S. Securities and Exchange Commission (“SEC”). By using a shelf
registration statement, we may sell from time to time in one or more offerings
any combination of the securities described in this prospectus. For
further information about the securities and us, you should refer to our
registration statement and its exhibits. The registration statement
can be obtained from the SEC as described below under the heading “Where You Can
Find More Information.” References in this prospectus to “we,” “our” or “us”
refer to Berry Petroleum Company and its direct and indirect
subsidiaries.
This
prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus
supplement that contains more specific information about the terms of those
securities. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with the additional
information included in our reports, proxy statements and other information
filed with the SEC. If there is any inconsistency between the
information in this prospectus and any prospectus supplement, you should rely on
the information in the prospectus supplement.
You
should rely only on information contained or incorporated by reference in this
prospectus and any applicable prospectus supplement. We have not
authorized anyone to provide different information. If anyone
provides you with different or inconsistent information, you should not rely on
it. You should assume that the information contained in this
prospectus and information that we previously filed with the SEC and
incorporated by reference in this prospectus is accurate as of the date on the
front cover of this prospectus. Our business, financial condition,
results of operations and prospects may have changed since that
date. We are not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted.
INCORPORATION
BY REFERENCE
The SEC
allows us to “incorporate by reference” information we file with
it. This means that we can disclose important information to you by
referring you to those documents. Any information we reference in
this manner is considered part of this prospectus. Information we
file with the SEC after the date of this prospectus will automatically update
and, to the extent inconsistent, supersede the information contained in this
prospectus.
We
incorporate by reference the documents listed below and future filings we make
with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 (excluding, unless otherwise provided therein or herein,
information furnished pursuant to Item 2.02 and Item 7.01 on any Current Report
on Form 8-K) after the effectiveness of this registration statement and before
the termination of the offering.
·
|
Our
Annual Report on Form 10-K/A for the year ended December 31, 2007 as
amended on February 27, 2008;
|
·
|
Our
Quarterly Reports on Form 10-Q for the quarterly periods ended March 31,
2008, June 30, 2008 and September 30,
2008;
|
·
|
Our
Current Reports on Form 8-K and 8-K/A filed on May 30, 2008, June 11,
2008, June 19, 2008, June 26, 2008, July 16, 2008, July 31, 2008, August
6, 2008, September 29, 2008, October 17, 2008, November 17, 2008, November
21, 2008, November 21, 2008, December 4, 2008, December 19, 2008, December
29, 2008, December 30, 2008, January 12, 2009, January 26, 2009 and
February 20, 2009;
|
·
|
The
description of our Class A Common Stock contained in our Registration
Statement on Form 8-A which was declared effective by the Securities and
Exchange Commission on or about October 20,
1987;
|
·
|
The
description of our Rights to Purchase Series B Junior Participating
Preferred Stock contained in our Registration Statement on Form 8-A filed
with the Securities and Exchange Commission on December 7, 1999;
and
|
·
|
All
other documents filed by us with the SEC under Sections 13 and 14 of the
Securities Exchange Act of 1934 after the date of this prospectus but
before the end of the offering of the securities made by this
prospectus.
|
As a
recipient of this prospectus, you may request a copy of any document we
incorporate by reference, except exhibits to the documents that are not
specifically incorporated by reference, at no cost to you, by writing or calling
us at:
Berry
Petroleum Company
Attn:
Investor Relations
5201
Truxtun Avenue, Suite 300
Bakersfield,
California 93309
(661)
616-3900
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. Our filings are available over the Internet at the
SEC’s web site at http://www.sec.gov and at our web site at
http://www.bry.com. Information on our website or any other website
is not incorporated by reference in this prospectus and does not constitute part
of this prospectus.
This
prospectus is part of a registration statement and, as permitted by SEC rules,
does not contain all of the information included in the registration
statement. Whenever a reference is made in this prospectus to any of
our contracts or other documents, the reference may not be complete and, for a
copy of the contract or document, you should refer to the exhibits that are part
of the registration statement. You may also read and copy any
document we file with the SEC at the SEC’s public reference rooms
at:
100 F
Street, N.E.
Room
1580
Washington,
D.C. 20549
You may
call the SEC at 1-800-SEC-0330 for more information on the public reference
rooms and their copy charges. You may also inspect the reports and
other information we file with the SEC at:
New York
Stock Exchange
20 Broad
Street
New York,
New York 10005.
FORWARD-LOOKING
STATEMENTS
This prospectus and the information
incorporated by reference in this prospectus contains statements that are, or
may be deemed to be, “forward-looking statements” within the meaning of Section
27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act
of 1934. Any statements in this prospectus that are not historical
facts are forward-looking statements that involve risks and
uncertainties. Words such as “expect,” “could,” “would,” “may,”
“believe,” “estimate,” “anticipate,” “intend,” “plans,” other forms of those
words and others indicate forward-looking statements, but their absence does not
mean that a statement is not forward-looking. A statement is
forward-looking if the discussion involves strategy, beliefs, plans, targets, or
intentions.
Forward-looking
statements are made based on our management’s current expectations and beliefs
concerning future developments and their potential effects upon
us. Important factors which could affect actual results are discussed
in detail in the following pages of this document.
BERRY
PETROLEUM COMPANY
We are an
independent energy company engaged in the production, development, acquisition,
exploitation and exploration of crude oil and natural gas. While we
were incorporated in Delaware in 1985 and have been a publicly traded company
since 1987, we can trace our roots in California oil production back to
1909. Currently, our principal reserves and producing properties are
located in California (San Joaquin Valley and Los Angeles Basins), Utah (Uinta
Basin), Colorado (Denver-Julesburg and Piceance Basins) and Texas (East Texas
Basin).
Berry
Petroleum Company is a Delaware corporation. Our corporate
headquarters and principal executive offices are located at 1999 Broadway, Suite
3700, Denver, Colorado 80202, and our telephone number is (303)
999-4400.
RISK
FACTORS
An
investment in our securities involves risks. You should carefully consider all
of the information contained in or incorporated by reference in this prospectus
and other information which may be incorporated by reference in this prospectus
or any prospectus supplement as provided under “Incorporation by Reference,”
including the risks described under “Risk Factors” and “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” in our Annual
Reports on Form 10-K and our Quarterly Reports on Form 10-Q. This prospectus
also contains forward-looking statements that involve risks and uncertainties.
Please read “Forward-Looking Statements.” Our actual results could differ
materially from those anticipated in the forward-looking statements as a result
of certain factors, including the risks described elsewhere in this prospectus
or any prospectus supplement and in the documents incorporated by reference into
this prospectus or any prospectus supplement. If any of these risks occur, our
business, financial condition or results of operations could be adversely
affected. Additional risks not currently known to us or that we currently deem
immaterial may also have a material adverse effect on us.
UNAUDITED
PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
The
following unaudited pro forma condensed combined financial statements and
related notes give effect to the acquisition by Berry Petroleum Company of
certain oil and gas producing properties from O’Brien Resources, LLC, SEPCO II,
LLC, Liberty Energy, LLC, Crow Horizons Company, and O’Brien II, LP
(collectively referred to as “O’Brien”) on July 15,
2008.
The
unaudited pro forma condensed combined statements of income are derived from the
individual statements of operations of Berry Petroleum Company and the
statements of combined revenues and direct operating expenses of O’Brien, and
combines the results of operations of Berry Petroleum Company for the nine
months ended September 30, 2008 and O’Brien for the period from January 1, 2008
to the acquisition date of July 15, 2008 as if the acquisition occurred on
January 1, 2007.
Pro forma
data is based on assumptions and include adjustments as explained in the notes
to the unaudited pro forma condensed combined financial
statements. As adjustments are based on currently available
information, actual adjustments may differ from the pro forma adjustments;
therefore, the pro forma data is not necessarily indicative of the financial
results that would have been attained had the O’Brien transaction occurred on
the dates referenced above, and should not be viewed as indicative of operations
in future periods. The unaudited pro forma condensed combined
financial statements, including any notes thereto, are qualified in their
entirety to, and should be read in conjunction with the notes thereto, Berry
Petroleum Company’s Annual Report on Form 10-K/A for the year ended December 31,
2007 filed with the Securities and Exchange Commission and Form 10-Q for the
quarter ended September 30, 2008 filed with the Securities and Exchange
Commission, and the Statement of Combined Revenues and Direct Operating Expenses
for the Oil and Gas Properties Purchased by Berry Petroleum Company from a
Consortium of Private Sellers filed as part of Berry Petroleum Company’s Current
Report on Form 8-K/A filed on September 29, 2008.
UNAUDITED
PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME
FOR THE
NINE MONTHS ENDED SEPTEMBER 30, 2008
(In
thousands, except per share amounts)
|
|
|
|
|
O’BRIEN
PROPERTIES HISTORICAL
|
|
|
|
|
|
|
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REVENUES
AND OTHER INCOME ITEMS
|
|
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|
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Interest
and other income, net
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|
|
|
|
|
|
|
|
|
|
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641,563
|
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52,706
|
|
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694,269
|
|
|
|
|
|
|
|
|
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Operating
costs – oil and gas production
|
|
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152,852
|
|
1,870
|
|
|
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154,722
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Operating
costs - electricity generation
|
|
|
|
|
|
|
|
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Production
taxes
|
|
|
23,121
|
|
|
|
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30,600
|
Depreciation,
depletion & amortization - oil and gas production
|
|
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96,588
|
|
|
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9,451
|
a,d
|
106,039
|
Depreciation,
depletion & amortization - electricity
generation
|
|
|
|
|
|
|
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Gas
marketing
|
|
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26,087
|
|
|
|
|
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26,087
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General
and administrative
|
|
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37,067
|
|
|
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2,675
|
b
|
39,742
|
|
|
|
|
|
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|
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Commodity
derivatives
|
|
|
172
|
|
|
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172
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Dry
hole, abandonment, impairment and exploration
|
|
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9,162
|
|
|
|
|
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9,162
|
|
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409,104
|
|
9,349
|
|
36,581
|
|
455,034
|
Income
before income taxes
|
|
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232,459
|
|
43,357
|
|
(36,581)
|
|
239,235
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Provision
for income taxes
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Basic
net income per share
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Diluted
net income per share
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Weighted
average number of shares of capital stock outstanding used to calculate
basic net income per share
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Effect
of dilutive securities:
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Equity
based compensation
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914
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914
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Director
deferred compensation
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Weighted
average number of shares of capital stock used to calculate diluted net
income per share
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NOTES TO
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENT
NOTE 1 –
BASIS OF PRESENTATION
The unaudited pro forma statements of
income for the nine months ended September 30, 2008 are based on the unaudited
financial statements of Berry Petroleum Company for the nine months ended
September 30, 2008, the unaudited statement of combined revenues and direct
operating expenses of the O’Brien properties for the period from January 1, 2008
to the acquisition date of July 15, 2008, and the adjustments and assumptions
described below.
The financial statements presented are
not indicative of the results of operations of the acquired properties going
forward due to changes in the business and the need to include certain operating
expenses on a prospective basis.
NOTE 2 –
ADJUSTMENTS TO PRO FORMA STATEMENT OF INCOME
The
unaudited pro forma statement of income gives effect to the following pro forma
adjustments necessary to reflect the acquisition:
a.
|
Record
incremental pro forma depreciation, depletion and amortization expense
recorded in accordance with the successful efforts method of accounting
for oil and gas activities based on the purchase price allocation to
depreciable and depletable assets.
|
b.
|
Record
assumed increase in general and administrative expenses as a result of the
purchase of the O’Brien properties primarily relating to an increase of 14
additional employees and other costs incurred to support increased
operating activities.
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c.
|
Record
interest expense for the additional debt of approximately $666 million
incurred in conjunction with the purchase of O’Brien properties at a rate
of 7.715% per annum based on the terms of Berry Petroleum Company’s credit
agreement. A one-tenth of one percent change in interest rate
would have an approximately $897 thousand annual impact on interest
expense.
|
d.
|
Record
pro forma accretion of asset retirement obligation on properties acquired
in accordance Statement of Financial Accounting Standards No. 143,
“Accounting for Asset Retirement Obligations,” computed using an inflation
rate of 2.85% and a discount rate of
8.05%.
|
e.
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Record
a pro forma income tax provision on the incremental pre-tax income at a
net statutory rate approximating 39% and certain other tax
adjustments.
|
BERRY
PETROLEUM COMPANY
NOTES TO
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENT
(CONTINUED)
NOTE 3 –
PURCHASE PRICE ALLOCATION
Record
the pro forma allocation of the purchase price of the acquisition of the O’Brien
properties using the purchase method of accounting. The following is
a calculation and allocation of purchase price to the O’Brien properties and
liabilities based on their relative fair values, pending completion of Berry
Petroleum Company’s valuation analysis in accordance with FAS 141:
Purchase
price (in thousands):
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Original
purchase price
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$
|
622,356
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Closing
adjustments for property costs, and operating expenses in excess of
revenues between the effective date and closing date funded by borrowings
from senior secured revolving credit facility
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43,811
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Total
purchase price allocation
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$
|
666,167
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Preliminary
Allocation of purchase price (in thousands):
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Gas
properties
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$
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651,803
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(i)
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Pipeline
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17,288
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Total
asset acquired
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669,091
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Current
liabilities
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1,569
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(ii)
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Asset
retirement obligation
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1,355
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Net
assets acquired
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$
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666,167
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(i)
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Determined
by reserve analysis.
|
(ii) Record
accrual for royalties payable and transaction costs, which are primarily legal
and accounting fees.
NOTE 4 –
NET INCOME PER SHARE
Basic net
income per share is computed by dividing income available to common shareholders
(the numerator) by the weighted average number of shares of capital stock
outstanding (the denominator). The Company’s Class B stock is
included in the denominator of basic and diluted net income. The
computation of diluted net income per share is similar to the computation of
basic net income per share except that the denominator is increased to include
the dilutive effect of the additional common shares that would have been
outstanding if all convertible securities had been converted to common shares
during the period.
RATIO
OF EARNINGS TO FIXED CHARGES
The
following table presents our historical ratio of earnings to fixed charges for
the nine months ended September 30, 2008 and for each of the years in the
five-year period ended December 31, 2007.
|
Nine
Months Ended
|
Year
Ended December 31,
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|
September
30, 2008
|
2007
|
2006
|
2005
|
2004
|
2003
|
Ratio
of Earnings to Fixed Charges
|
7.8x<TABLE><CAPTION>
|
6.4x
|
9.5x
|
27.9x
|
44.3x
|
27.1x
|
For
purposes of this table, “earnings” consists of income before income taxes plus
fixed charges and less capitalized interest. “Fixed charges” consists
of interest expense and capitalized interest.
USE
OF PROCEEDS
Unless we
have indicated otherwise in the accompanying prospectus supplement, we expect to
use the net proceeds we receive from any offering of these securities for our
general corporate purposes, including working capital, repayment or reduction of
debt, capital expenditures, acquisitions of additional oil and natural gas
properties or companies owning oil and natural gas properties and repurchases
and redemptions of securities. Pending any specific application, we
may initially invest funds in short-term marketable securities or apply them to
the reduction of other short-term indebtedness.
DESCRIPTION
OF DEBT SECURITIES
The debt
securities will either be senior debt securities or subordinated debt
securities. Senior debt securities will be issued under a senior
indenture and subordinated debt securities will be issued under a subordinated
indenture. Unless otherwise specified in the applicable prospectus
supplement, the trustee under the indentures will be Wells Fargo Bank, National
Association. The forms of indentures are filed as exhibits to the
registration statement of which this prospectus forms a part. We will
include in a supplement to this prospectus the specific terms of each series of
debt securities being offered, including the terms, if any, on which a series of
debt securities may be convertible into or exchangeable for our common stock,
preferred stock or other debt securities. The statements and
descriptions in this prospectus or in any prospectus supplement regarding
provisions of the indentures and debt securities are summaries thereof, do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all of the provisions of the indentures (and any amendments or
supplements we may enter into from time to time which are permitted under each
indenture) and the debt securities, including the definitions therein of certain
terms.
Unless
otherwise specified in a prospectus supplement, the debt securities will be
direct unsecured obligations of Berry Petroleum Company. The senior
debt securities will rank equally with any of our other senior and
unsubordinated debt. The subordinated debt securities will be
subordinate and junior in right of payment to any senior
indebtedness. The indentures do not limit the aggregate principal
amount of debt securities that we may issue and provide that we may issue debt
securities from time to time in one or more series, in each case with the same
or various maturities, at par or at a discount. Unless indicated in a
prospectus supplement, we may issue additional debt securities of a particular
series without the consent of the holders of the debt securities of such series
outstanding at the time of the issuance. Any such additional debt
securities, together with all other outstanding debt securities of that series,
will constitute a single series of debt securities under the applicable
indenture.
DESCRIPTION
OF PREFERRED STOCK
This
section summarizes the general terms of the preferred stock that we may
offer. The prospectus supplement relating to a particular series of
preferred stock offered will describe the specific terms of that series, which
may be in addition to or different from the general terms summarized in this
section. The summary in this section and in any prospectus supplement
does not describe every aspect of the preferred stock and is subject to and
qualified in its entirety by reference to all the provisions of our restated
certificate of incorporation, the certificate of designation relating to the
applicable series of preferred stock and the Delaware General Corporation
Law. The certificate of designation will be filed as an exhibit to or
incorporated by reference in the registration statement.
Our
restated certificate of incorporation authorizes us to issue 2,000,000 shares of
preferred stock, par value of $.01 per share. As of February 2, 2009,
no shares of preferred stock were outstanding, and 500,000 were reserved for
issuance under our Shareholder Rights Agreement. We may issue
preferred stock from time to time in one or more classes or series with such
rights and preferences, including voting, dividend and conversion rights and
other terms, as our board of directors may establish without any further
authorization by the shareholders.
The
preferred stock that we may offer will be issued in one or more classes or
series. The prospectus supplement relating to the particular class or
series of preferred stock will describe the specific terms of the class or
series, including:
·
|
the
designation and stated value, if any, per share and the number of shares
offered;
|
·
|
the
amount of liquidation preference per share and any priority relative to
any other class or series of preferred stock or common
stock;
|
·
|
the
initial public offering price at which shares will be
issued;
|
·
|
the
dividend rate (or method of calculation), the dates on which dividends
will be payable and the dates from which dividends will commence to
cumulate, if any;
|
·
|
any
redemption or sinking fund
provisions;
|
·
|
any
conversion or exchange rights;
|
·
|
any
other rights, preferences, privileges, limitations and
restrictions.
|
General
The
holders of preferred stock will have no preemptive rights. Upon
issuance against full payment of the purchase price, the preferred stock will be
fully paid and non-assessable. Unless otherwise provided in the
prospectus supplement relating to the particular class or series, the preferred
stock will have the rights described below.
Dividends
The
preferred stock will be preferred over any class or series of common stock as to
payment of dividends. Before we can declare, pay or set apart for
payment any dividends or distributions, other than dividends or distributions
payable in common stock, on the common stock, we will pay dividends to the
holders of shares of each class and series of preferred stock entitled to
receive dividends when, as and if declared by our board of
directors. We will pay those dividends either in cash, shares of
common stock or preferred stock or otherwise, at the rate and on the date or
dates set forth in the prospectus supplement. For each class or
series of preferred stock, the dividends on each share of the class or series
will be cumulative from the date of issue of the share unless some other date is
set forth in the prospectus supplement relating to the
series. Accruals of dividends will not bear interest.
Liquidation
The
preferred stock will be preferred over the common stock as to asset
distributions so that the holders of each class and series of preferred stock
will be entitled to be paid the amount stated in the applicable prospectus
supplement upon our voluntary or involuntary liquidation, dissolution or winding
up and before any distribution is made to the holders of common
stock. If upon any liquidation, dissolution or winding up, our net
assets are insufficient to permit the payment in full of the respective amounts
to which the holders of all outstanding preferred stock are entitled, unless
otherwise described in a prospectus supplement, our entire remaining net assets
will be distributed among the holders of each class and series of preferred
stock in amounts proportional to the full amounts to which the holders of each
class and series are entitled.
Redemption
or Conversion
The
shares of any class or series of preferred stock will be redeemable or will be
convertible into shares of common stock or any other class or series of
preferred stock to the extent described in the prospectus supplement relating to
the series.
DESCRIPTION
OF COMMON STOCK
We are
authorized to issue up to 100,000,000 shares of Class A Common Stock, par value
$.01 per share, and up to 3,000,000 shares of Class B Common Stock, par value
$.01 per share. As of February 2, 2009, there were 42,782,521 shares
of Class A Common Stock and 1,797,784 shares of Class B Common Stock
outstanding.
If we
issue any common stock under this prospectus, we will issue shares of Class A
Common Stock. This section summarizes the general terms of our Class
A Common Stock and Class B Common Stock. The prospectus supplement
relating to the common stock offered will state the number of shares offered,
the initial offering price and market price, dividend information and any other
relevant information. The summary in this section and in the
prospectus supplement does not describe every aspect of the common stock and is
subject to and qualified in its entirety by reference to all the provisions of
our restated certificate of incorporation and bylaws and the Delaware General
Corporation Law.
General
Shares of
Class A Common Stock and Class B Stock are each entitled to one vote and 95% of
one vote, respectively. Each share of Class B Stock is entitled to a
$0.50 per share preference in the event of liquidation or
dissolution. Further, each share of Class B Stock is convertible into
one share of Class A Common Stock at the option of the holder. All
shares of common stock have equal rights to participate in
dividends. Stockholders have the right to vote their shares on a
cumulative basis with respect to the election of directors. Shares of
common stock carry no conversion rights, other than the right to convert shares
of Class B Common Stock into Shares of Class A Common Stock, carry no preemptive
or subscription rights and are not subject to redemption. All
outstanding shares of common stock are, and any shares of common stock issued
upon conversion of any convertible securities will be, fully paid and
non-assessable. We may pay dividends on the common stock when, as and
if declared by our board of directors. Dividends may be declared in
the discretion of the board of directors from funds legally available, subject
to any restrictions under agreements related to our indebtedness.
The
outstanding shares of Class A Common Stock are listed on the New York Stock
Exchange and trade under the symbol “BRY.” The transfer agent, registrar and
dividend disbursement agent for the common stock is Mellon Investor
Services.
Shareholder
Rights
In
November 1999, we adopted a Shareholder Rights Agreement and declared a dividend
distribution of one Right for each outstanding share of Class A Common Stock and
Class B Common Stock on December 8, 1999. Each Right, when
exercisable, entitles the holder to purchase one one-hundredth of a share of a
Series B Junior Participating Preferred Stock, or in certain cases other
securities, for $19.00. The exercise price and number of shares
issuable are subject to adjustment to prevent dilution. The Rights
would become exercisable, unless earlier redeemed by us, 10 days following a
public announcement that a person or group has acquired, or obtained the right
to acquire, 20% or more of the outstanding shares of Class A Common Stock or 10
business days following the commencement of a tender or exchange offer for such
outstanding shares which would result in such person or group acquiring 20% or
more of the outstanding shares of Class A Common Stock, either event occurring
without our prior consent.
The
Rights will expire on December 8, 2009 or may be redeemed by us at $.005 per
Right prior to that date unless they have theretofore become
exercisable. The Rights do not have voting or dividend rights, and
until they become exercisable, have no diluting effect on our
earnings. A total of 500,000 shares of our preferred stock has been
designated Series B Junior Participating Preferred Stock and reserved for
issuance upon exercise of the Rights.
DESCRIPTION
OF WARRANTS
The
following is a description of the general terms and provisions of the
warrants. The particular terms of any series of warrants will be
described in a prospectus supplement. If so indicated in a prospectus
supplement, the terms of that series may differ from the terms set forth
below.
General
We may
issue warrants to purchase debt securities, preferred stock or common
stock. Warrants may be issued independently or together with any debt
securities, preferred stock or common stock and may be attached to or separate
from the debt securities, preferred stock or common stock. Each
series of warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent. The warrant agent will
act solely as our agent in connection with the warrants and will not assume any
obligation or relationship of agency or trust for or with any holders or
beneficial owners of warrants.
You
should review the applicable prospectus supplement for the specific terms of any
warrants that may be offered including the following:
·
|
the
title of the warrants;
|
·
|
the
aggregate number of the warrants;
|
·
|
the
price or prices at which the warrants will be
issued;
|
·
|
the
designation, aggregate principal amount, denominations and terms of the
debt securities purchasable upon exercise of a warrant to purchase debt
securities and the price at which the debt securities may be purchased
upon exercise;
|
·
|
the
designation, stated value, terms (including liquidation, dividend,
conversion and voting rights), number of shares and purchase price per
share of the class or series of preferred stock purchasable upon the
exercise of warrants to purchase shares of preferred
stock;
|
·
|
the
number of shares and the purchase price per share of common stock
purchasable upon the exercise of warrants to purchase shares of common
stock;
|
·
|
if
applicable, the date on and after which the warrants and the related
securities will be separately
transferable;
|
·
|
the
date on which the right to exercise the warrants will commence and the
date on which the right will
expire;
|
·
|
if
applicable, the minimum or maximum number of warrants that may be
exercised at any one time;
|
·
|
information
relating to book-entry procedures, if
any;
|
·
|
if
applicable, a discussion of material United States federal income tax
considerations; and
|
·
|
any
other terms of the warrants, including terms, procedures and limitations
relating to the exchange and exercise of the
warrants.
|
PLAN
OF DISTRIBUTION
We may
sell the securities in and outside the United States through underwriters or
dealers, directly to purchasers, through agents or through a combination of
these methods. The prospectus supplement will include the following
information:
·
|
the
terms of the offering;
|
·
|
the
name of any underwriters or agents;
|
·
|
the
purchase price of the securities from us and, if the purchase price is not
payable in U.S. dollars, the currency or composite currency in which the
purchase price is payable;
|
·
|
the
net proceeds to us from the sale of the
securities;
|
·
|
any
delayed delivery arrangements;
|
·
|
any
underwriting discounts, commissions and other items constituting
underwriters’ compensation;
|
·
|
any
initial public offering price;
|
·
|
any
discounts or concessions allowed or reallowed or paid to dealers;
and
|
·
|
any
commissions paid to agents.
|
Sale
Through Underwriters or Dealers
If we use
underwriters in the sale of securities, the underwriters will acquire the
securities for their own account. The underwriters may resell the securities
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more firms acting as underwriters. Unless we inform you
otherwise in the prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to conditions, and the underwriters will
be obligated to purchase all the securities if they purchase any of them. The
underwriters may change from time to time any initial public offering price and
any discounts or concessions allowed or reallowed or paid to
dealers.
During
and after an offering through underwriters, the underwriters may purchase and
sell the securities in the open market. These transactions may include
overallotment and stabilizing transactions and purchases to cover syndicate
short positions created in connection with the offering. The underwriters may
also impose a penalty bid, whereby selling concessions allowed to syndicate
members or other broker-dealers for the offered securities sold for their
account may be reclaimed by the syndicate if such offered securities are
repurchased by the syndicate in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the
offered securities, which may be higher than the price that might otherwise
prevail in the open market. If commenced, these activities may be discontinued
at any time.
If we use
dealers in the sale of securities, we will sell the securities to them as
principals. They may then resell those securities to the public at varying
prices determined by the dealers at the time of resale. The dealers
participating in any sale of the securities may be deemed to be underwriters
within the meaning of the Securities Act with respect to any sale of those
securities. We will include in the prospectus supplement the names of the
dealers and the terms of the transaction.
Direct
Sales and Sales Through Agents
We may
sell the securities directly. In that event, no underwriters or agents would be
involved. We may also sell the securities through agents we designate from time
to time. In the prospectus supplement, we will name any agent involved in the
offer or sale of the securities, and we will describe any commissions payable by
us to the agent. Unless we inform you otherwise in the prospectus supplement,
any agent will agree to use its reasonable best efforts to solicit purchases for
the period of its appointment.
We may
sell the securities directly to institutional investors or others who may be
deemed to be underwriters within the meaning of the Securities Act with respect
to any sale of those securities. We will describe the terms of any such sales in
the prospectus supplement.
Delayed
Delivery Contracts
If we so
indicate in the prospectus supplement, we may authorize agents, underwriters or
dealers to solicit offers from certain types of institutions to purchase
securities from us at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions
described in the prospectus supplement. The prospectus supplement will describe
the commission payable for solicitation of those contracts.
Remarketing
We may
offer and sell any of the securities in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment by their terms or
otherwise, by one or more remarketing firms acting as principals for their own
accounts or as our agents. We will identify any remarketing firm, the terms of
any remarketing agreement and the compensation to be paid to the remarketing
firm in the prospectus supplement. Remarketing firms may be deemed underwriters
under the Securities Act.
Derivative
Transactions
We may
enter into derivative transactions with third parties, or sell securities not
covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in connection
with those derivatives, the third parties may sell securities covered by this
prospectus and the applicable prospectus supplement, including in short sale
transactions. If so, the third parties may use securities pledged by us or
borrowed from us or others to settle those sales or to close out any related
open borrowings of stock, and may use securities received from us in settlement
of those derivatives to close out any related open borrowings of stock. The
third parties in these sale transactions will be underwriters and will be
identified in the applicable prospectus supplement or in a post-effective
amendment to the registration statement of which this prospectus forms a
part.
VALIDITY
OF OFFERED SECURITIES
The
validity of the offered securities and other matters in connection with any
offering of the securities will be passed upon for us by Musick, Peeler &
Garrett LLP, Westlake Village, California, and for the underwriters or agents,
if any, by a firm named in the prospectus supplement relating to the particular
security.
EXPERTS
The
financial statements and management’s assessment of the effectiveness of
internal control over financial reporting (which is included in Management’s
Report on Internal Control over Financial Reporting) incorporated in this
prospectus by reference to the Annual Report on Form 10-K/A for the year ended
December 31, 2007 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
The
audited Statements of Combined Revenues and Direct Operating Expenses for the
oil and gas properties purchased by Berry Petroleum Company from a consortium of
private sellers for each of the two years in the period ended December 31, 2007
included in Exhibit 99.4 of Berry Petroleum Company’s Current Report on Form
8-K/A dated September 29, 2008 have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on the authority of said firm as experts in auditing and
accounting.
Certain
information incorporated by reference in this prospectus regarding estimated
quantities of oil and natural gas reserves owned by us, the future net revenues
from those reserves and their present value is based on estimates of the
reserves and present values prepared by or derived from estimates prepared by
DeGolyer and MacNaughton, independent consulting petroleum engineers, and all
such information has been so incorporated in reliance on the authority of such
firm as experts regarding the matters contained in their
report. Future estimates of oil and natural gas reserves and related
information hereafter incorporated by reference in this prospectus and the
registration statement will be incorporated in reliance upon the reports of the
firm examining such oil and gas reserves and related information and upon the
authority of that firm as experts regarding the matters contained in their
reports, to the extent the firm has consented to the use of their
reports.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses
of Issuance and Distribution
Set forth
below is an estimate of the approximate amount of the fees and expenses expected
to be incurred by Berry Petroleum Company in connection with offerings described
in this registration statement.
SEC
Registration Fee
|
$ 29,475
|
Trustee
Fees and Expenses
|
*
|
Printing
and Engraving
|
*
|
Accounting
Fees and Expenses
|
*
|
Rating
Agency Fees and Expenses
|
*
|
Legal
Fees and Expenses
|
*
|
Engineering
Fees and Expenses
|
*
|
Miscellaneous
|
*
|
Total
|
$ *
|
*
|
Estimated
expenses are not presently known. The foregoing sets forth the
general categories of expenses (other than underwriting discounts and
commissions) that we anticipate we will incur in connection with the
offering of securities under this registration statement. An
estimate of the aggregate expenses in connection with the issuance and
distribution of the securities being offered will be included in the
applicable prospectus supplement.
|
Item
15. Indemnification
of Directors and Officers.
Berry
Petroleum Company is incorporated in Delaware. Under Section 145 of
the Delaware General Corporation Law (the “DGCL”), a Delaware corporation has
the power, under specified circumstances, to indemnify its directors, officers,
employees and agents in connection with actions, suits or proceedings brought
against them by a third party or in the right of the corporation, by reason that
they were or are such directors, officers, employees or agents, against expenses
and liabilities incurred in any such action, suit or proceeding so long as they
acted in good faith and in a manner that they reasonably believed to be in, or
not opposed to, the best interests of such corporation, and with respect to any
criminal action, that they had no reasonable cause to believe their conduct was
unlawful. With respect to suits by or in the right of such
corporation, however, indemnification is generally limited to attorneys’ fees
and other expenses and is not available if such person is adjudged to be liable
to such corporation unless the court determines that indemnification is
appropriate. A Delaware corporation also has the power to purchase
and maintain insurance for such persons. Article 8 of the Bylaws of
Berry Petroleum Company permits indemnification of directors and officers to the
fullest extent permitted by Section 145 of the DGCL. Reference is
made to the Bylaws of Berry Petroleum Company. Additionally, Berry
Petroleum Company has acquired directors and officers insurance, which includes
coverage for liability under the federal securities laws. Berry
Petroleum Company has also entered into indemnification agreements with each of
its directors and certain of its officers that provide contractual rights to
indemnity and expense advancement and include related provisions meant to
facilitate the indemnitees’ receipt of such benefits.
Section
102(b)(7) of the DGCL provides that a certificate of incorporation may contain a
provision eliminating or limiting the personal liability of a director to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director provided that such provisions may not eliminate or limit the
liability of a director (i) for any breach of the director’s duty of loyalty to
the corporation or its shareholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 (relating to liability for unauthorized acquisitions or
redemptions of, or dividends on, capital stock) of the DGCL, or (iv) for any
transaction from which the director derived an improper personal
benefit.
The above
discussion of Berry Petroleum Company’s Bylaws and Sections 102(b)(7) and 145 of
the DGCL is not intended to be exhaustive and is qualified in its entirety by
such Restated Certificate of Incorporation and statutes.
Item
16. Exhibits
|
|
1*
|
Form
of Underwriting Agreement
|
4.1
|
Amended
and Restated Certificate of Incorporation of Berry Petroleum Company,
incorporated by reference from Berry Petroleum Company’s Quarterly Report
on Form 10-Q for the quarterly period ended June 30, 2006 (File No.
1-09735)
|
4.2
|
Restated
Bylaws of Berry Petroleum Company dated July 1, 2005, incorporated by
reference from Exhibit 3.1 to Berry Petroleum Company’s Quarterly Report
on Form 10-Q for the quarterly period ended June 30, 2005 (File No.
1-09735)
|
4.3
|
First
Supplemental Indenture between Berry Petroleum Company and Wells Fargo
Bank, National Association dated as of October 24, 2006, incorporated by
reference from Exhibit 4.1 to Berry Petroleum Company’s Current Report on
Form 8-K filed on October 26, 2006 (File No. 1-9735)
|
4.4
|
8.25%
Senior Subordinated Notes of Berry Petroleum Company, incorporated by
reference to Berry Petroleum Company’s Form 424B5 filed on October 19,
2006
|
4.5
|
Certificate
of Designation, Preferences and Rights of Series B Junior Participating
Preferred Stock of Berry Petroleum Company, incorporated by reference from
Exhibit A to Berry Petroleum Company’s Registration Statement on Form
8-A12B filed on December 7, 1999 (File No.
778438-99-000016)
|
4.6
|
Rights
Agreement between Berry Petroleum Company and ChaseMellon Shareholder
Services L.L.C. dated as of December 8, 1999, incorporated by reference
from Exhibit 1 to Berry Petroleum Company’s Registration Statement on Form
8-A12B filed on December 7, 1999 (File No.
778438-99-000016)
|
4.7**
|
Form of Indenture for Senior Debt
Securities
|
4.8**
|
Form
of Indenture for Subordinated Debt Securities
|
4.9*
|
Form
of Certificate of Designations of Preferred Stock
|
4.10*
|
Form
of Debt Warrant Agreement (including form of Debt Warrant
Certificate)
|
4.11*
|
Form
of Preferred Stock Warrant Agreement (including form of Preferred Stock
Warrant Certificate)
|
4.12*
|
Form
of Common Stock Warrant Agreement (including form of Common Stock Warrant
Certificate)
|
5.1**
|
Opinion
of Musick, Peeler & Garrett LLP
|
12.1
|
Computation
of Ratios of Earnings to Fixed Charges
|
23.1
|
Consent
of PricewaterhouseCoopers LLP, Independent Registered Public
Accountants
|
23.2
|
Consent
of PricewaterhouseCoopers LLP, Independent Registered Public
Accountants
|
23.3
|
Consent
of DeGolyer and MacNaughton
|
23.4**
|
Consent
of Musick, Peeler & Garrett LLP (set forth in their opinion filed as
Exhibit 5.1)
|
24.1
|
Powers
of Attorney
|
25.1**
|
Statement
of Eligibility of Trustee on Form T-1 with respect to Debt
Securities
|
*
|
To
be filed as an exhibit to a current report on Form 8-K and incorporated by
reference herein in connection with a specific offering of
securities.
|
** Previously
filed.
Item
17. Undertakings
(a) The
undersigned registrant hereby undertakes:
(1)
|
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
|
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided, however, That
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if
the registration statement is on Form S-3 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2)
|
That,
for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
|
(3)
|
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
|
(4)
|
That,
for purposes of determining liability under the Securities Act of 1933 to
any purchaser:
|
(A) Each
prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which the prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof. Provided,
however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date.
(5)
|
That,
for purposes of determining liability of a registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such
purchaser:
|
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report, pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended, (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934, as amended) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the claim
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
(d) The
undersigned registrant hereby undertakes that:
|
(A) For
purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared
effective.
|
|
(B) For
the purpose of determining any liability under the Securities Act of 1933,
each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering
thereof.
|
SIGNATURES
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-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in Denver, Colorado
on the 25th day of February, 2009.
BERRY
PETROLEUM COMPANY
By: /s/ DAVID D.
WOLF
David
D. Wolf
Executive
Vice President and
Chief
Financial Officer
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities indicated on
February 25, 2009.
Signature
|
Title
|
Dated
|
*
|
Chairman
of the Board and Director
|
February
25, 2009
|
____________________________
Martin
H. Young, Jr.
|
|
|
/s/
ROBERT F. HEINEMANN
|
President,
Chief Executive Officer (Principal Executive Officer) and
Director
|
February
25, 2009
|
____________________________
Robert
F. Heinemann
|
|
|
/s/
DAVID D. WOLF
|
Executive
Vice President and Chief Financial Officer (Principal Financial
Officer)
|
February
25, 2009
|
____________________________
David
D. Wolf
|
|
|
/s/
SHAWN M. CANADAY
|
Vice
President and Controller
(Principal
Accounting Officer)
|
February
25, 2009
|
____________________________
Shawn
M. Canaday
|
|
|
*
|
Director
|
February
25, 2009
|
____________________________
Joseph
H. Bryant
|
|
|
*
|
Director
|
February
25, 2009
|
____________________________
Ralph
B. Busch
|
|
|
*
|
Director
|
February
25, 2009
|
____________________________
William
E. Bush, Jr.
|
|
|
*
|
Director
|
February
25, 2009
|
____________________________
Stephen
L. Cropper
|
|
|
*
|
Director
|
February
25, 2009
|
____________________________
J.
Herbert Gaul, Jr.
|
|
|
*
|
Director
|
February
25, 2009
|
____________________________
Thomas
J. Jamieson
|
|
|
*
|
Director
|
February
25, 2009
|
____________________________
J.
Frank Keller
|
|
|
*
|
Director
|
February
25, 2009
|
____________________________
Ronald
J. Robinson
|
|
|
*By:
/s/ ROBERT F. HEINEMANN
__________________________
Robert F. Heinemann, Attorney-in-fact
EXHIBIT
INDEX
|
|
1*
|
Form
of Underwriting Agreement
|
4.1
|
Amended
and Restated Certificate of Incorporation of Berry Petroleum Company,
incorporated by reference from Berry Petroleum Company’s Quarterly Report
on Form 10-Q for the quarterly period ended June 30, 2006 (File No.
1-09735)
|
4.2
|
Restated
Bylaws of Berry Petroleum Company dated July 1, 2005, incorporated by
reference from Exhibit 3.1 to Berry Petroleum Company’s Quarterly Report
on Form 10-Q for the quarterly period ended June 30, 2005 (File No.
1-09735)
|
4.3
|
First
Supplemental Indenture between Berry Petroleum Company and Wells Fargo
Bank, National Association dated as of October 24, 2006, incorporated by
reference from Exhibit 4.1 to Berry Petroleum Company’s Current Report on
Form 8-K filed on October 26, 2006 (File No. 1-9735)
|
4.4
|
8.25%
Senior Subordinated Notes of Berry Petroleum Company, incorporated by
reference to Berry Petroleum Company’s Form 424B5 filed on October 19,
2006
|
4.5
|
Certificate
of Designation, Preferences and Rights of Series B Junior Participating
Preferred Stock of Berry Petroleum Company, incorporated by reference from
Exhibit A to Berry Petroleum Company’s Registration Statement on Form
8-A12B filed on December 7, 1999 (File No.
778438-99-000016)
|
4.6
|
Rights
Agreement between Berry Petroleum Company and ChaseMellon Shareholder
Services L.L.C. dated as of December 8, 1999, incorporated by reference
from Exhibit 1 to Berry Petroleum Company’s Registration Statement on Form
8-A12B filed on December 7, 1999 (File No.
778438-99-000016)
|
4.7**
|
Form of Indenture for Senior Debt
Securities
|
4.8**
|
Form
of Indenture for Subordinated Debt Securities
|
4.9*
|
Form
of Certificate of Designations of Preferred Stock
|
4.10*
|
Form
of Debt Warrant Agreement (including form of Debt Warrant
Certificate)
|
4.11*
|
Form
of Preferred Stock Warrant Agreement (including form of Preferred Stock
Warrant Certificate)
|
4.12*
|
Form
of Common Stock Warrant Agreement (including form of Common Stock Warrant
Certificate)
|
5.1**
|
Opinion
of Musick, Peeler & Garrett LLP
|
12.1
|
Computation
of Ratios of Earnings to Fixed Charges
|
23.1
|
Consent
of PricewaterhouseCoopers LLP, Independent Registered Public
Accountants
|
23.2
|
Consent
of PricewaterhouseCoopers LLP, Independent Registered Public
Accountants
|
23.3
|
Consent
of DeGolyer and MacNaughton
|
23.4**
|
Consent
of Musick, Peeler & Garrett LLP (set forth in their opinion filed as
Exhibit 5.1)
|
24.1
|
Powers
of Attorney
|
25.1**
|
Statement
of Eligibility of Trustee on Form T-1 with respect to Debt
Securities
|
*
|
To
be filed as an exhibit to a current report on Form 8-K and incorporated by
reference herein in connection with a specific offering of
securities.
|
** Previously
filed.