BERRY PETROLEUM COMPANY
Exhibit 99.1
XXXXX
PETROLEUM COMPANY
2005
EQUITY INCENTIVE PLAN
DIRECTORS
Unless
otherwise defined herein, the terms defined in the Xxxxx Petroleum Company
2005
Equity Incentive Plan shall have the same defined meanings in this Restricted
Stock Unit Award Agreement.
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I.
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NOTICE
OF RESTRICTED STOCK UNIT
GRANT
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You
have
been granted restricted Stock Units, subject to the terms and conditions
of the
Plan and this Restricted Stock Unit Award Agreement, as follows:
Name
of
Awardee:
Total
Number of Stock Units Granted:
Grant
Date:
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II.
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AGREEMENT
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X. Xxxxx
of
Stock Units. Pursuant to the terms and conditions set forth in this
Restricted Stock Unit Award Agreement (including Section I above) and the
Plan,
the Administrator hereby grants to the Awardee named in Section I above,
on the
Grant Date set forth in Section I above, the number of Stock Units set forth
in
Section I above.
B. Purchase
of Stock Units. No payment of cash is required for the Stock
Units.
C. Vesting/Delivery
of Shares.
(1) Vesting.
(2) Form
of
Delivery.
The
granted Stock Units are payable in ordinary shares of Company
Stock. This distribution may be made either as a single lump sum
transfer of shares or through the transfer of shares in five substantially
equal
annual installments. Subject to the provisions of this Restricted
Stock Unit Award Agreement, the Awardee shall elect the form in which the
distribution shall be made and the applicable Transfer Commencement
Date in the form and manner prescribed by the Administrator pursuant to the
requirements of Section 409A of the Code (the “Payment Election”). If
the Administrator has not received the Awardee’s Payment Election by the
applicable deadline, then the Awardee shall receive the Stock Units in a
single
lump sum payment.
(3) General
Provisions Regarding Timing of Delivery.
Except
as
specifically set forth in this Restricted Stock Unit Award Agreement,
distribution of shares subject to this award of Stock Units shall commence
on
the Transfer Commencement Date in the following form:
(i) in
a
single lump sum transfer of shares; or
(ii) if
elected by the Awardee pursuant to a Payment Election in accordance with
Section
II.C.2, in a series of five substantially equal annual installments commencing
on the Transfer Commencement Date and continuing on the four succeeding
anniversaries of such Transfer Commencement Date;
provided,
however, that no distribution of shares shall occur prior to
____________.
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XXXXX
PETROLEUM COMPANY
(4) Circumstances
Requiring Distributions Regardless of Payment Election:
(i) Death
Prior to Distribution of Entire Account
Notwithstanding
any Payment Election to the contrary, if the Awardee dies prior to the transfer
of all of the shares to which he is entitled pursuant to this Restricted
Stock
Unit Award Agreement, then any shares that have not been transferred as of
the
date of the Awardee’s death will be transferred in a single lump sum to the
Awardee’s beneficiary under the terms of Section 18 of the Plan. If
no such beneficiary has been designated, then any such shares shall be
transferred to the Awardee’s estate. Such transfer shall occur on the
date that is 90 days after the date of the Awardee’s death.
(ii) Disability
Prior to Distribution of Entire Account
Notwithstanding
any Payment Election to the contrary, if, as a result of his Disability,
the
Awardee separates from service prior to the transfer of all of the shares
to
which he is entitled pursuant to this Restricted Stock Unit Award Agreement,
then any shares that have not been transferred as of the date of the Awardee’s
Disability will be transferred in a single lump sum to the
Awardee. Such transfer shall occur on the date that is 90 days after
the Awardee’s separation from service due to Disability.
(iii) Change
in
Control
Notwithstanding
any Payment Election to the contrary, all undistributed shares associated
with
this Restricted Stock Unit Award Agreement shall be transferred to the Awardee
in a single lump sum on the fifth business day following the date of the
Change
in Control.
(5) Delayed
Distribution to Specified Employees.
If
the
Awardee is identified by the Company as a “specified employee” within the
meaning of Section 409A(a)(2)(B)(i) of the Code on the date on which he has
a
Separation from Service (other than due to death), any transfer of shares
payable on account of a Separation from Service shall not take place prior
to
the earlier of (i) the first business day following the expiration of six
months
from the Awardee’s Separation from Service, (ii) the date of the Awardee’s
death, or (iii) such earlier date as complies with the requirements of Section
409A of the Code (the “Specified Employee Transfer Date”). If the
Awardee elected to receive his distribution in a series of installments,
he
shall receive the first installment on his Specified Employee Transfer Date,
but
any subsequent installments shall be payable without regard to his status
as a
specified employee.
(6) Definitions:
(i) The
term
“Disability” has the meaning set forth in Section 1.409A-3(i)(4) of the Treasury
Regulations and shall be determined by the Administrator
in its sole discretion.
(ii) The
term
“Payment Election” shall have the meaning set forth in Section II.C.(ii)
hereof.
(iii) The
term
“Transfer Commencement Date” shall mean the fifth business day of January of the
year following (a) the fourth anniversary of the Grant Date, but in no event
later than the date of the Awardee’s Separation from Service or (b) if elected
by the Awardee pursuant to a Payment Election, the Awardee’s Separation from
Service.
(iv) The
term
“Separation from Service” shall mean a “separation from service” within the
meaning of Treasury Regulation section 1.409A-1(h).
D. No
Interest in Company Assets. The Awardee shall not have any interest
in any fund or specific asset of the Company by reason of the Stock
Units.
E. No
Rights
as a Stockholder Prior to Delivery. The Awardee shall not have any
right, title or interest in, or be entitled to vote in respect of, or otherwise
be considered the owner of, any of the shares of Common Stock covered by
the
Stock Units. Except as provided for in subsection F below, the Awardee shall
not
be entitled to receive distributions from the shares of Common Stock covered
by
the Stock Units.
F. Dividend
Equivalents. The Awardee will be entitled to receive a cash payment
equal to the dividends paid with respect to Common Stock covered by the Stock
Units, payable in the same amount and at the same time as dividends on Common
Stock are paid to any other stockholder.
G. Regulatory
Compliance. The issuance of Common Stock pursuant to this Restricted
Stock Unit Award Agreement shall be subject to full compliance with all
applicable requirements of law and the requirements of any stock exchange
or
interdealer quotation system upon which the Common Stock may be listed or
traded.
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XXXXX
PETROLEUM COMPANY
H. Withholding
Tax. The Company's obligation to deliver any Shares upon vesting of
Stock Units shall be subject to the satisfaction of all applicable federal,
state, local and foreign income, and employment tax withholding requirements.
The Awardee shall pay to the Company an amount equal to the withholding amount
(or the Company may withhold such amount from the Awardee's salary) in cash.
At
the Administrator's election, the Awardee may pay the withholding amount
with
Shares; provided, however, that payment in Shares shall be limited to the
withholding amount calculated using the minimum statutory withholding
rates.
I. Plan. This
Restricted Stock Unit Award Agreement is subject to all of the terms and
provisions of the Plan, receipt of a copy of which is hereby acknowledged by the
Awardee. The Awardee hereby agrees to accept as binding, conclusive, and
final
all decisions and interpretations of the Administrator upon any questions
arising under the Plan and this Restricted Stock Unit Award
Agreement.
J. Successors. This
Restricted Stock Unit Award Agreement shall inure to the benefit of and be
binding upon the parties hereto and their legal representatives, heirs, and
permitted successors and assigns.
K. Restrictions
on Transfer. The Stock Units may not be sold, assigned, transferred,
pledged or otherwise encumbered, whether voluntarily or involuntarily, by
operation of law or otherwise. No right or benefit under this Agreement shall
be
subject to transfer, anticipation, alienation, sale, assignment, pledge,
encumbrance or charge, whether voluntary, involuntary, by operation of law
or
otherwise, and any attempt to transfer, anticipate, alienate, sell, assign,
pledge, encumber or charge the same shall be void. No right or benefit hereunder
shall in any manner be liable for or subject to any debts, contracts,
liabilities or torts of the person entitled to such benefits. Any assignment
in
violation of this subsection K shall be void.
L. Restrictions
on Resale. The Awardee agrees not to sell any Shares that have been
issued pursuant to the vested Stock Units at a time when Applicable Laws,
Company policies or an agreement between the Company and its underwriters
prohibit a sale. This restriction shall apply as long as the Awardee is a
Service Provider and for such period of time after the Awardee's Termination
of
Service as the Administrator may specify.
M. Tax
Compliance Issues.
The
Company, in its sole discretion, may take any steps that it deems appropriate
or
necessary to satisfy its state and federal tax withholding obligations in
connection with this award of Stock Units.
This
Restricted Stock Unit Award Agreement shall be interpreted and operated in
a
manner consistent with Section 409A of the Code, so as to avoid adverse tax
consequences in connection with this award of Stock Units. The Company reserves
the right, exercisable in its sole discretion and without the Awardee’s consent,
to amend the Plan and this Restricted Stock Unit Award Agreement in order
to
accomplish such result.
N. Entire
Agreement; Governing Law. This Restricted Stock Unit Award Agreement,
the Plan and the Payment Election constitute the entire agreement of the
parties
with respect to the subject matter hereof and supersede in their entirety
all
prior undertakings and agreements of the Company and the Awardee with respect
to
the subject matter hereof, and, except as provided in subsection M above,
may
not be modified adversely to the Awardee's interest except by means of a
writing
signed by the Company and the Awardee. This Restricted Stock Unit Award
Agreement is governed by the internal substantive laws, but not the choice
of
law rules, of California.
O. NO
GUARANTEE OF CONTINUED SERVICE. THE AWARDEE ACKNOWLEDGES AND AGREES
THAT THIS RESTRICTED STOCK UNIT AWARD AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREUNDER DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF
CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR ANY PERIOD, OR AT ALL, AND
SHALL
NOT INTERFERE WITH AWARDEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE AWARDEE'S
RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT
CAUSE.
By
the
Awardee's signature and the signature of the Company's representative below,
the
Awardee and the Company agree that this Award is granted under and governed
by
the terms and conditions of this Restricted Stock Unit Award Agreement and
the
Plan. The Awardee has reviewed this Restricted Stock Unit Award Agreement
and
the Plan in their entirety, has had an opportunity to obtain the advice of
counsel prior to executing this Restricted Stock Unit Award Agreement and
fully
understands all provisions of this Restricted Stock Unit Award Agreement
and the
Plan. The Awardee hereby agrees to accept as binding, conclusive and final
all
decisions or interpretations of the Administrator upon any questions relating
to
this Restricted Stock Unit Award Agreement and the Plan.
The
Awardee further agrees that the Company may deliver by email all documents
relating to the Plan or this Award (including, without limitation, prospectuses
required by the Securities and Exchange Commission) and all other documents
that
the Company is required to deliver to its security holders (including, without
limitation, annual reports and proxy statements). The Awardee also agrees
that
the Company may deliver these documents by posting them on a web site maintained
by the Company or by a third party under contract with the Company.
[Signature
page follows]
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XXXXX
PETROLEUM COMPANY
AWARDEE:
Signature:
Printed
Name:
XXXXX
PETROLEUM COMPANY
Signature
Printed
Name:
Title:
