<PAGE>
As filed with the Securities and Exchange Commission on July 25, 1995
Registration No.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
BURLINGTON NORTHERN INC.
(Exact name of issuer as specified in its charter)
----------------
DELAWARE 41-1400580
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3800 Continental Plaza
777 Main Street
Fort Worth, Texas 76102
(Address of principal executive offices, including zip code)
----------------
1995 BURLINGTON NORTHERN INC. 2.5 CLUB
STOCK OPTION PLAN
(Full title of the Plan)
EDMUND W. BURKE
Executive Vice President, Law and Secretary
BURLINGTON NORTHERN INC.
3800 Continental Plaza
777 Main Street
Fort Worth, Texas 76102
(Name, address, and telephone number of agent for service)
----------------
Approximate date of proposed commencement of sales pursuant to the Plan:
From time to time after the Registration Statement becomes effective.
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE PRICE FEE
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock............................... 300,000 $67.750(1) $20,325,000 $7,009
</TABLE>
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculation of the registration fee
pursuant to Rule 457(h) based on the average of the high and low prices of
the Registrant's Common Stock on the consolidated reporting system on July
21, 1995.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PROSPECTUS
BURLINGTON NORTHERN INC.
300,000 Shares of Common Stock
(without par value)
1995 Burlington Northern Inc.
2.5 Club Stock Option Plan
------------------------
This Prospectus covers 300,000 shares of Common Stock, subject to
adjustment, as hereinafter set forth, of Burlington Northern Inc. (the
"Company") offered, as set forth herein, to certain employees of the Company and
its Subsidiaries pursuant to stock options granted under The 1995 Burlington
Northern Inc. 2.5 Club Stock Option Plan (the "Plan") described herein.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS
THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is July 25, 1995
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC"). Such reports, proxy statements
and other information can be inspected and copied at the public reference
facilities maintained by the SEC at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the SEC's Regional Offices at 500
West Madison Street, Suite 1400, Chicago, Illinois 60604, and World Trade
Center, Thirteenth Floor, New York, New York 10048, and copies of such material
can be obtained from the Public Reference Section of the SEC in Washington,
D.C., at prescribed rates. In addition, reports, proxy material and other
information concerning the Company may be inspected at the office of the New
York Stock Exchange, 20 Broad Street, New York, New York 10005, at the office of
the Chicago Stock Exchange, 440 South LaSalle Street, One Financial Place,
Chicago, Illinois 60603 and at the office of the Pacific Stock Exchange, 301
Pine Street, San Francisco, California 94104.
This Prospectus does not contain all the information set forth in the
Registration Statement (the "Registration Statement"), of which this Prospectus
is a part, and exhibits relating thereto, which the Company has filed with the
SEC in Washington, D.C. Statements contained herein concerning the provisions
of documents are necessarily summaries of such documents, and each statement is
qualified in its entirety by reference to the copy of the applicable document
filed with the Commission. Copies of the Registration Statement and the
exhibits thereto are on file at the offices of the Commission and may be
obtained, upon payment of the fee prescribed by the Commission, or may be
examined without charge at the public reference facilities of the Commission
described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the SEC are incorporated
herein by reference and made a part hereof:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1994 and Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995;
2. The description of the Company's Common Stock contained in its S-14
Registration Statement No. 2-71519, effective April 19, 1981; and
3. The Company's definitive Proxy Statement, dated March 17, 1995, for the
Annual Meeting of Stockholders on April 20, 1995.
2
<PAGE>
All reports and documents filed by the Company pursuant to Section 13, 14
or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the respective
date of filing of such documents. Any statement incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement modified or superseded
shall not be deemed, except as so modified or superseded, to constitute part of
this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of the Prospectus has been
delivered, on the written request of any such person, a copy of any or all of
the documents referred to above which have been or may be incorporated by
reference in this Prospectus, other than exhibits to such documents. Written
requests for such copies should be directed to Beverly A. Edwards-Adams,
Assistant Vice President and Corporate Secretary, Burlington Northern Inc.,
3800 Continental Plaza, 777 Main Street, Fort Worth, Texas 76102-5384, telephone
(817) 333-7951.
3
<PAGE>
TABLE OF CONTENTS
Page
----
General................................................................... 5
The Offering.............................................................. 5
Description of the Plan
Purpose................................................................. 5
Definitions............................................................. 6
Management Committee.................................................... 7
Eligibility............................................................. 7
Shares Available for the Plan........................................... 7
Grant of Options........................................................ 8
Terms and Conditions of Options......................................... 8
Amendment Termination or Discontinuance of the Plan..................... 9
Tax Aspects of the Plan................................................. 10
Experts................................................................... 11
Legal Opinion............................................................. 11
Indemnification........................................................... 11
Neither the delivery of this Prospectus nor any sales hereunder shall under
any circumstances create any implication that there has been no change in the
affairs of the Company since the date hereof. No person has been authorized to
give any information or to make any representation, other than those contained
in this Prospectus, in connection with the offer contained in this Prospectus,
and if given or made, such other information or representation must not be
relied upon as having been made by the Company. This Prospectus does not
constitute an offer by the Company, or any other corporation, person or entity,
to sell shares of the Company's Common Stock in any state to any person to whom
it is unlawful to make such offer in such state.
4
<PAGE>
GENERAL
Burlington Northern Inc. was incorporated in Delaware in 1981. Its
principal executive offices are located at 3800 Continental Plaza, 777 Main
Street, Fort Worth, Texas 76102, and its telephone number is (817) 333-2000.
THE OFFERING
The Company is offering a maximum of 300,000 shares of its Common Stock
(without par value), subject to adjustment, as hereinafter described, to certain
employees of the Company and its Subsidiaries who were members of Burlington
Northern Railroad Company's ("Railroad") 2.5 Club pursuant to nonqualified stock
options granted under the Plan.
DESCRIPTION OF THE PLAN
Copies of the Plan are available for inspection in the office of the
Corporate Secretary of the Company at 3800 Continental Plaza, 777 Main Street,
Fort Worth, Texas 76102. Reference is made to the Plan for complete information.
The information in this Prospectus is a summary only and is subject to and
qualified by such reference.
Purpose
- -------
The purpose of the Plan is to promote the interests of the Company and its
shareholders by furnishing suitable recognition of outstanding safety
performance by teams of employees who finished 1994 in the 2.5 Club. This
safety performance has contributed materially to the success of the
Company. The Plan provides for the grant of stock options, in accordance
with the terms and conditions set forth below.
5
<PAGE>
Definitions
- -----------
Unless otherwise required by the context, the following terms when used in
the Plan shall have the meanings set forth in this section:
(a) Board of Directors: The Board of Directors of the Company.
(b) Code: The Internal Revenue Code of 1986, as amended and in effect from
time to time, and the temporary or final regulations of the Secretary
of the Treasury adopted pursuant to the Code.
(c) Common Stock: The Common Stock of the Company, without par value, or
such other class of shares or other securities as may be applicable
pursuant to the provisions of section 5.
(d) Exchange Act: The Securities Exchange Act of 1934, as amended.
(e) Management Committee: The committee designated to administer the Plan
in accordance with the provisions of section 3. of the Plan.
(f) Participant: Any person who is selected by the Board Committee to
receive options hereunder.
(g) Nonqualified Option: Options which are not intended to meet the
requirements of an Incentive Stock Option as defined in Section 422 of
the Code.
(h) Option Price: The price per share of Common Stock at which each
option is exercisable.
(i) Permanent Disability: A disability which would qualify a participant
to receive benefits under the Burlington Northern Inc. Long Term
Disability Plan (after satisfying the elimination period thereunder)
as now or hereafter in effect.
(j) Subsidiary: An entity that is designated by the Board Committee as a
subsidiary for purposes of this Plan and that is a corporation (or
other form of business association that is treated as a corporation
for tax purposes) of which shares (or other ownership interests)
having more than 50% of the voting power are owned or controlled,
directly or indirectly, by the Company so as to qualify as a
"subsidiary corporation" (within the meaning of Code Section 424(f)).
6
<PAGE>
Management Committee
- --------------------
Except with respect to determinations as to eligibility to participate in
the Plan and the timing, pricing and amount of awards thereunder, which
have been determined by the Board of Directors of the Company, the Plan
shall be administered with respect to Participants by a Management
Committee composed of the Chief Executive Officer of the Company and the
Executive Vice President - Safety and Corporate Support of the Railroad and
such other persons as the Chief Executive Officer shall designate (the
"Management Committee").
Eligibility
- -----------
To be eligible for selection to participate in the Plan, an individual must
be an employee of the Company, or of any Subsidiary, other than an employee
the Company or any who is an officer or director or a "key employee" of the
Company and would, in either case, be eligible to receive options under the
1992 Burlington Northern Inc. Stock Option Incentive Plan, as of the date
on which the Board of Directors grants to such individual an option. In
addition, each individual must be a member of a safety team which has
qualified for membership in the 2.5 Club for 1994.
Shares Available for the Plan
- -----------------------------
The maximum number of shares with respect to which options, may at any time
be granted under the Plan is 300,000 shares of Common Stock, from shares
held in the Company's treasury or out of the authorized but unissued shares
of the Company, or partly out of each, as shall be determined by the Board
of Directors. Upon the expiration or termination in whole or in part of
unexercised options, shares of Common Stock which were subject thereto
shall again be available for options.
In the event of a recapitalization, stock split, stock dividend, exchange
of shares, merger, reorganization, change in the corporate structure or
shares of the Company or similar event, the Board of Directors, shall make
appropriate adjustments in the number of shares authorized for the Plan
and, with respect to outstanding options, shall make appropriate
adjustments in the number of shares, amount of any payment, and the Option
Price.
7
<PAGE>
Grant of Options
- ----------------
Options may be granted to eligible employees in an amount of 25 shares each
as the Board of Directors shall determine, taking into account whether the
employee is a member of the 2.5 Club for 1994. The granting of an option
shall take place when the Board of Directors by resolution, written consent
or other appropriate action determines to grant such an option to 1994
members of the 2.5 Club at a particular price. Each option shall be
evidenced by a written instrument delivered by or on behalf of the Company
containing provisions not inconsistent with the Plan which may be signed on
behalf of the Company by printed or facsimile signature.
An option granted under the Plan will be a Nonqualified Option.
Terms and Conditions of Options
- -------------------------------
Option Price
------------
The Option Price with respect to each Nonqualified Option is $53.50 which
was the fair market value of the Common Stock on January 18, 1995.
Additional Terms.
----------------
Options under the Plan shall be granted subject to the following terms and
conditions:
(a) Duration of Options. Options shall be exercisable at such time and
-------------------
under such conditions as set forth in the option grant, but in no
event except as set forth below, shall any Stock Option be
exercisable prior to February 15, 1996 or subsequent to the day before
the third anniversary of the date thereof i.e., February 14, 1998.
(b) Exercise of Options.
-------------------
(i) Subject to the terms of the option grant, an optionee may not
exercise an option prior to February 15, 1996. This requirement
is waived in the event of death or Permanent Disability of an
optionee before such period is completed.
(ii) Shares of Common Stock covered by an option must be purchased
only at one time and not in installments if any shares are to be
purchased. To the extent that the right to purchase shares has
accrued thereunder,
8
<PAGE>
options may be exercised at any time by written notice to
the Company.
(c) Payment. Unless otherwise provided in the option grant, the purchase
-------
price of shares purchased under options shall be paid in full to the
Company upon the exercise of the option (i) in cash, (ii) by delivery
of shares of Common Stock (including shares acquired pursuant to the
exercise of an option other than the option currently being exercised,
to the extent permitted by applicable regulations) equal in fair
market value to the purchase price of the shares to be acquired under
options, or (iii) any combination of cash and Common Stock. The Fair
Market Value of such Common Stock as delivered shall be valued as of
the day prior to delivery and shall be the mean between the highest
and lowest quoted selling price at which the Company's Common Stock
was sold on such date as reported in the NYSE - Composite Transactions
by the Wall Street Journal. Shares of Common Stock with a fair market
value equal to all or a portion of the purchase price of shares
purchased under options may be withheld from the shares issuable to
the optionee upon the exercise of the option only if specifically
authorized in the option grant. The Fair Market Value of such Common
Stock as is withheld shall be valued as of the day prior to exercise
of the option.
(e) Nontransferability of Options. During an optionee's lifetime, the
-----------------------------
option may be exercisable only by him. Any attempt to transfer,
assign, pledge, hypothecate or otherwise dispose of the option, or any
attachment or similar process upon the option, shall cause the rights
and privileges conferred hereby to become null and void.
Amendment, Termination or Discontinuance of the Plan
- ----------------------------------------------------
Subject to the Board of Directors, the Management Committee may from time
to time make such amendments to the Plan as it may deem proper and in the
best interest of the Company without further approval of the Board of
Directors of the Company, including, but not limited to, any amendment
necessary to ensure that the Company may obtain any regulatory approval
referred to in section 8 of the Plan; provided, however, that no change in
any option, theretofore granted may be made without the consent of the
optionee or holder which would impair the right of the optionee or holder
to acquire or retain Common Stock, or receive a payment from the Company,
which he may have acquired as a result of the Plan.
9
<PAGE>
The Board of Directors may at any time suspend the operation of or
terminate the Plan with respect to any shares of the Company's Common Stock
not at the time subject to option.
Tax Aspects of the Plan
- -----------------------
Nonqualified Options.
--------------------
Generally, a recipient will not realize taxable income at the time a
Nonqualified Option is granted nor will the Company be entitled to a
deduction at that time. Upon exercise, the recipient will generally realize
ordinary income in the case of the exercise of a Nonqualified Option, in an
amount equal to the difference between the fair market value of the shares
at the time of exercise and the option price. At any time, subject to
proper withholding, the Company will normally be entitled to a tax
deduction in an amount equal to the amount of ordinary income realized by
the recipient. Generally, the Company is required to withhold for federal
income tax purpose, railroad retirement and other taxes payable in
connection with the exercise of a Non-qualified Option, or otherwise ensure
that the amount of tax required to be withheld is remitted by the recipient
to the Company.
In the event an optionee exercises a Nonqualified Option by surrendering
Common Stock already owned by the optionee with a fair market value equal
to all or a portion of the exercise price, the optionee will not recognize
any gain or loss upon the surrender of already-owned shares of Common Stock
for an equal number of new shares of Common Stock. In addition, the basis
and holding period of the old shares is carried over to an equal number of
new shares.
Upon the sale of stock acquired upon the exercise of a Nonqualified Option,
the seller will realize a capital gain or loss, as the case may be, equal
to the difference between the amount realized on such disposition and the
employee's basis for the shares. The employee's basis will equal the fair
market value of the shares acquired upon the exercise as of the date such
shares were includable in income.
The foregoing discussion is only a general summary of the federal income
tax consequences of the grant and exercise of options, and the subsequent
disposition of shares received pursuant to the exercise of options. It does
not address all possible tax aspects of such transactions, including the
tax consequences of restrictions which the company may place on option
stock. An optionee should consult his or her own tax adviser to determine
the tax consequences of any particular transaction.
10
<PAGE>
The state income tax treatment of exercising stock options, and selling the
shares so acquired will vary depending upon the state in which an optionee
resides. If the optionee is a resident of or is employed in a country other
than the United States, such optionee may be subject to taxation in
accordance with the tax laws of that particular country in addition to or
in lieu of United States federal income taxes. Optionees should consult
their own tax advisers regarding the tax consequences and compliance
requirements of any particular transaction.
The plan is not subject to Section 401(a) of the Code or the Employee
Retirement Income Security Act of 1974, as amended.
EXPERTS
The consolidated financial statements and financial statement schedule of
the Company included in the Company's Annual Report on Form 10-K for the year
ending December 31, 1994, ("Form 10-K") incorporated by reference in this
Prospectus, have been incorporated herein in reliance on the report of Coopers &
Lybrand, L.L.P., independent accountants, given on the authority of that firm as
experts in accounting and auditing.
LEGAL OPINION
The legality of the Common Stock offered hereby was passed on for the
Company by Francis T. Kelly, Esq., Securities and Finance Counsel of the
Company. As of July 1, 1995, Mr. Kelly owned 2,915 shares of BNI Common Stock
and has options to purchase 9,381 additional shares.
INDEMNIFICATION
The By-Laws of the Company provide for indemnification of directors and
officers to the full extent permitted or allowed by the laws of the State of
Delaware including liabilities under the Act.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers, or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is therefore unenforceable.
11
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. Incorporation of Certain Documents by Reference
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements, and other information with the
Commission. The Plan will also file reports with the Commission pursuant to
certain provisions of the Exchange Act. The following documents filed with the
Commission by the Company are hereby incorporated by reference in this
Prospectus:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1994;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995;
(3) The description of the Company's Common Stock contained in its S-14
Registration Statement No. 2-71519, effective April 19, 1981.
(4) The Company's definitive Proxy Statement, dated March 17, 1995, for
the Annual Meeting of Stockholders on April 20, 1995.
In addition to the foregoing documents, all documents subsequently filed by
the Company or by the Plan pursuant to Sections 13(a), 13(c), 14, and 15(d) of
the Exchange Act, prior to the filing of a post-effective amendment to the
Registration Statement of which this Prospectus is a part which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the respective date of filing of such documents. Any
statement incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently-filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement modified or superseded shall not be deemed, except as
so modified or superseded, to constitute part of this Prospectus.
ITEM 5. Experts
The consolidated financial statements and financial statement schedule of
the Company included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1994, incorporated by reference in this Prospectus, have been
II-1
<PAGE>
incorporated herein in reliance on the report of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
Legal Opinion
The legality of the securities offered hereby and compliance with the
requirements of ERISA has been passed upon for the Company by Francis T. Kelly,
Esq., Securities and Finance Counsel of the Company.
ITEM 6. Indemnification
Section 145 of the General Corporation Law of Delaware provides that a
corporation may indemnify directors and officers, as well as other employees
and individuals, against expenses (including attorneys' fees), judgments, fines,
and amounts paid in settlement in connection with specified actions, suits, or
proceedings, whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the corporation -- a "derivative action"),
if they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorney's fees) incurred in connection with defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement, or otherwise.
Article X of the by-laws of the Registrant requires indemnification to the
full extent permitted under Delaware law as from time to time in effect. Subject
to any liabilities imposed by Delaware law, the By-laws provide by an
unconditional right to indemnification for all expenses, liability, and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
and amounts paid in settlement) actually and reasonably incurred by any person
in connection with any actual or threatened proceeding (including, to the extent
permitted by law, any derivative action) by reason of the fact that such person
is or was serving as a director or officer of the Registrant or, at the request
of the Registrant, of another corporation, partnership, joint venture, trust, or
other enterprise, including an employee benefit plan. The By-laws also provide
that the Registrant may, by action of its Board of Directors, provide
indemnification to its employees and agents with the same scope and effect as
the foregoing indemnification of directors and officers.
II-2
<PAGE>
Officers and directors of the Registrant are covered by insurance which
(with certain exceptions and within certain limitations) indemnifies them
against losses and liabilities arising from any alleged "wrongful act,"
including any alleged error or misstatement or misleading statement, or wrongful
act or omission or neglect or breach of duty.
It is likely that if underwriters are utilized, they will agree to
indemnify, under certain conditions, the Registrant, its directors, certain of
its officers and persons who control the Registrant within the meaning of the
Securities Act of 1933 against certain liabilities.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
payments of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit.
Article VIII of the Certificate of Incorporation of the Registrant provides
that to the full extent that the Delaware General Corporation Law, as it now
exists or may hereafter be amended, permits the limitation or elimination of the
liability of directors, a director of the Registrant shall not be liable to
Registrant or its stockholders from monetary damages for breach of fiduciary
duty as a director. Any amendment to or repeal of such Article VIII shall not
adversely affect any right or protection of any director of the Registrant for
or with respect to any acts or omissions of such director occurring prior to
such amendment or repeal.
The By-laws of the Company provide for indemnification of directors and
officers to the full extent permitted or allowed by the laws of the state of
Delaware, including liabilities under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
II-3
<PAGE>
Item 8. Exhibits
Exhibit
Number Description of Document
------ -----------------------
3 Certificate of Incorporation, as amended, and By-laws,
as amended, of Registrant are incorporated by reference
to Exhibit 3 of Registrant's Annual Report on Form 10-K
for the year ended December 31, 1993 (Form 10-K, File No.
1-18159).
*4 1995 Burlington Northern Inc. 2.5 Club Stock Option Plan
*5 Opinion of Counsel
*23 Consent of Independent Accountants is filed as Exhibit 23
hereto. Consent of Counsel is contained in the opinion
filed as Exhibit 5 to this Registration Statement.
*24 Powers of Attorney are contained on the signature page of
this Registration Statement.
- ---------------
* Filed herewith, all other exhibits are incorporated by reference.
Item 9. Undertakings
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) 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.
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the Prospectus to each employee to whom the Prospectus is sent or
given, a copy of the Registrant's annual report to stockholders for its last
fiscal year, unless such employee otherwise has received a copy of such report,
in which case, the Registrant shall state in the Prospectus that it will
promptly furnish without charge, a copy of such report on written request of
the employee. If the last fiscal year of the Registrant has ended within 120
days prior to the use of the Prospectus, the annual report of the Registrant for
the preceding fiscal year may be so delivered, but within such 120-day period
II-4
<PAGE>
the annual report for the last fiscal year will be furnished to any such
employee.
The undersigned Registrant hereby undertakes to transmit or cause to be
transmitted to all employees participating in the Plan who do not otherwise
receive such material as stockholders of the Registrant, at the time and in the
manner such material is sent to its stockholders, copies of all reports, proxy
statements, and other communications distributed to its stockholders generally.
II-5
<PAGE>
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 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 Fort Worth, State of Texas, on this 15th day of
February 1995.
BURLINGTON NORTHERN INC.
By: /s/ EDMUND W. BURKE
-----------------------------
Edmund W. Burke
Executive Vice President,
Law and Secretary
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Edmund W. Burke, Esq., and Douglas J. Babb, Esq., his or her true and lawful
attorney-in-fact and agent, each acting alone, with full power of substitution
and resubstitution, for him or her and in his or her name, place, and stead, in
any and all capacities, to sign any or all Amendments (including post-effective
Amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his or her substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities as officers and/or directors of Burlington Northern Inc. on the
15th day of February 1995.
Signature Title
--------- -----
/s/ GERALD GRINSTEIN Chairman, Chief Executive
- -------------------------------- Officer and Director
(Gerald Grinstein)
/s/ DAVID C. ANDERSON Executive Vice President,
- -------------------------------- Chief Financial Officer
(David C. Anderson) and Chief Accounting Officer
II-6
<PAGE>
/s/ JACK S. BLANTON Director
- -------------------------------
(Jack S. Blanton)
/s/ DANIEL P. DAVISON Director
- -------------------------------
(Daniel P. Davison)
/s/ DANIEL J. EVANS Director
- -------------------------------
(Daniel J. Evans)
/s/ BARBARA C. JORDAN Director
- -------------------------------
(Barbara C. Jordan)
/s/ BEN F. LOVE Director
- -------------------------------
(Ben F. Love)
/s/ ARNOLD R. WEBER Director
- -------------------------------
(Arnold R. Weber)
/s/ EDWARD E. WHITACRE, JR. Director
- -------------------------------
(Edward E. Whitacre, Jr.)
/s/ MICHAEL B. YANNEY Director
- -------------------------------
(Michael B. Yanney)
II-7
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description Page
- ------ ----------- ----
3 Certificate of Incorporation, as amended, and By-laws,
as amended, of Registrant are incorporated by reference
to Exhibit 3 of Registrant's Annual Report on Form 10-K
for the year ended December 31, 1993 (Form 10-K, File No.
1-18159)
*4 1995 Burlington Northern Inc. 2.5 Club Stock Option Plan
*5 Opinion of Counsel
*23 Consent of Independent Accountants is filed as Exhibit 23
hereto. Consent of Counsel is contained in the opinion
filed as Exhibit 5 to this Registration Statement
*24 Powers of Attorney are contained on the signature page of
this Registration Statement
- ---------------
* Filed herewith, all other exhibits are incorporated by reference
<PAGE>
EXHIBIT 4
THE 1995 BURLINGTON NORTHERN INC.
2.5 CLUB STOCK OPTION PLAN
--------------------------
Section 1.
Purposes
--------
1.1 The purpose of The 1995 Burlington Northern Inc. 2.5 Club Stock Option
Plan (Plan) is to promote the interests of Burlington Northern Inc.
(Company) and its shareholders by furnishing suitable recognition of
outstanding safety performance by teams of employees who finished 1994 in
the 2.5 Club. This safety performance has contributed materially to the
success of the Company. The Plan provides for the grant of stock options
in accordance with the terms and conditions set forth below.
Section 2.
Definitions
-----------
2.1 Unless otherwise required by the context, the following terms when used in
the Plan shall have the meanings set forth in this section 2.1:
(a) Board of Directors: The Board of Directors of the Company.
(b) Code: The Internal Revenue Code of 1986, as amended and in effect
from time to time, and the temporary or final regulations of the
Secretary of the Treasury adopted pursuant to the Code.
(c) Common Stock: The Common Stock of the Company, without par value, or
such other class of shares or other securities as may be applicable
pursuant to the provisions of section 5.
(d) Exchange Act: The Securities Exchange Act of 1934, as amended.
(e) Management Committee: The committee designated to administer the
Plan in accordance with the provisions of section 3.2.
(f) Participant: Any person who is selected by the Committee to receive
options hereunder.
(g) Nonqualified Option: Options which are not intended to meet the
requirements of an Incentive Stock Option as defined in Section
422 of the Code.
(h) Option Price: The price per share of Common Stock at which each
option is exercisable.
(i) Permanent Disability: A disability which would qualify a participant
to receive benefits under the Burlington Northern Inc. Long Term
Disability Plan (after satisfying the elimination period thereunder)
as now or hereafter in effect.
(j) Subsidiary: An entity that is designated by the Committee as a
subsidiary for purposes of this Plan and that is a corporation (or
other form of business association that is treated as a corporation
for tax purposes) of which shares
- 1 -
<PAGE>
(or other ownership interests) having more than 50% of the voting
power are owned or controlled, directly or indirectly, by the
Company so as to qualify as a "subsidiary corporation" (within the
meaning of Code Section 424(f)).
Section 3.
Administration
--------------
3.1 Management Committee. Except with respect to determinations as to
--------------------
eligibility to participate in the Plan, and the timing, pricing, and
amount of awards thereunder, which have been determined by the Board of
Directors of the Company, the Plan shall be administered with respect to
Participants by a Management Committee composed of the Chief Executive
Officer of the Company and Executive Vice President - Safety & Corporate
Support of Burlington Northern Railroad and such other persons as the
Chief Executive Officer shall designate (the "Management Committee"). The
Management Committee shall have full authority to construe and interpret
the Plan with respect to Participants, to establish, amend and rescind
rules and regulations relating to the administration of the Plan with
respect to Participants, to administer the Plan with respect to Noninsider
Participants, and to perform such other functions and make such
determinations as shall be necessary for the operation of the Plan, which
determinations shall be final and binding upon all affected participants.
The Management Committee shall cause the Company, at its expense, to take
any action related to the Plan which may be required or necessary to
comply with the provisions of any federal or state law or any regulations
issued thereunder.
Section 4.
Eligibility
-----------
4.1 To be eligible for selection to participate in the Plan, an individual
must be an employee of the Company, or of any Subsidiary, other than an
employee who is an officer or director or a "key employee" of the Company
and would, in either case, be eligible to receive options under the 1992
Burlington Northern Inc. Stock Option Incentive Plan as of the date on
which the Management Committee grants to such individual an option. In
addition, each individual must be a member of a safety team which has
qualified for membership in the 2.5 Club for 1994. Each eligible employee
to whom an option is granted is hereinafter referred to as an "optionee."
Section 5.
Shares Available for the Plan
-----------------------------
5.1 Subject to section 5.2 hereof, the maximum number of shares with respect
to which options may at any time be granted under the Plan is 300,000
shares of Common Stock from shares held in the Company's treasury or out
of the authorized but unissued shares of the Company, or partly out of
each, as shall be determined by the Board of Directors. Upon the
expiration or termination in whole or in part of unexercised options,
shares of Common Stock which were subject thereto shall again be available
for options under the Plan.
5.2 In the event of a recapitalization, stock split, stock dividend, exchange
of shares, merger, reorganization, change in the corporate structure or
shares of the Company or similar event, the Board of Directors shall make
appropriate adjustments in the number
-2-
<PAGE>
of shares authorized for the Plan and, with respect to outstanding
options, stock appreciation rights, and limited stock appreciation rights,
shall make appropriate adjustments in the number of shares, amount of any
payment, and the Option Price.
Section 6.
Grant of Options
----------------
6.1 Options may be granted to eligible employees in an amount of 25 shares
each as the Committee shall determine, taking into account whether the
employee is a member of the 2.5 Club. The granting of an option shall take
place when the Board of Directors, by resolution, written consent, or
other appropriate action determines to grant such an option to 1994
members of the 2.5 Club at a particular price. Each option shall be
evidenced by a written instrument delivered by or on behalf of the Company
containing provisions not inconsistent with the Plan which may be signed
on behalf of the Company by printed or facsimile signature.
6.2 An option granted under the Plan shall be a Nonqualified Option.
Section 7.
Terms and Conditions of Options
-------------------------------
7.1 Option Price.
------------
Option Price. The Option Price with respect to each Option shall be the
------------
Fair Market Value of the Company's Common Stock on January 18, 1995.
7.2 Additional Terms. Options under the Plan shall be granted subject to the
----------------
following terms and conditions:
(a) Duration of Options. Options shall be exercisable at such time and
-------------------
under such conditions as set forth in the option grant, but in no
event, except as set forth below, shall any Stock Option be
exercisable prior to February 15, 1996, nor subsequent to the day
before the third anniversary of the date thereof, i.e.,
February 14, 1998.
(b) Exercise of Options.
-------------------
(i) Subject to the terms of the option grant, an optionee may not
exercise an option prior to February 15, 1996. This
requirement is waived in the event of death or Permanent
Disability of an optionee before such period is completed. In
such cases, the option may be exercised prior to February 15,
1996, if the optionee desires to do so.
(ii) Shares of Common Stock covered by an option must be purchased
only at one time and not in installments, if any such shares
are to be purchased. To the extent that the right to purchase
shares has accrued thereunder, options may be exercised at any
time by written notice to the Company.
(c) Payment. Unless otherwise provided in the option grant, the
-------
purchase price of shares purchased under options shall be paid in
full to the Company upon the exercise of the option (i) in cash,
(ii) by delivery of shares of Common Stock
-3-
<PAGE>
(including shares acquired pursuant to the exercise of an option
other than the option currently being exercised, to the extent
permitted by applicable regulations) equal in Fair Market Value to
the purchase price of the shares to be acquired under options, or
(iii) any combination of cash and Common Stock. The Fair Market
Value of such Common Stock as delivered shall be valued as of the
day prior to delivery and shall be the mean between the highest and
lowest quoted selling prices at which the Company's Common Stock was
sold on such date as reported in the NYSE - Composite Transactions
by the Wall Street Journal. Shares of Common Stock with a Fair
Market Value equal to all or a portion of the purchase price of
shares purchased under options may be withheld from the shares
issuable to the optionee upon the exercise of the option only if
specifically authorized in the option grant. The Fair Market Value
of such Common Stock as is withheld shall be valued as of the day
prior to exercise of the option.
(d) Nontransferability of Options. During an optionee's lifetime, the
-----------------------------
option may be exercisable only by him. Options granted under the
Plan and the rights and privileges conferred thereby shall not be
subject to execution, attachment or similar process and may not be
transferred, assigned, pledged or hypothecated in any manner
(whether by operation of law or otherwise) other than by will or by
the applicable laws of descent and distribution, except that to the
extent permitted by applicable law, the Management Committee may
permit a recipient of an option to designate in writing during his
or her lifetime a beneficiary to receive and exercise options in the
event of such optionee's death. Any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of the option, or any
attachment or similar process upon the option, shall cause the
rights and privileges conferred hereby to become null and void.
Section 8.
Regulatory Approvals and Listing
--------------------------------
8.1 The Company shall not be required to issue any certificate for shares of
Common Stock or to make any payment relating to shares of Common Stock in
connection with the exercise of an option, granted under the Plan prior
to:
(a) The obtaining of any approval or ruling from the Securities and
Exchange Commission, the Internal Revenue Service or any other
governmental agency which the Company, in its sole discretion, shall
determine to be necessary or advisable.
(b) The listing of such shares on any stock exchange on which the Common
Stock may then be listed.
(c) The completion of any registration or other qualification of such
shares under any federal or state laws, rulings or regulations of
any governmental body which the Company, in its sole discretion,
shall determine to be necessary or advisable.
-4-
<PAGE>
Section 9.
General Provisions
------------------
9.1 Nothing contained in the Plan, or in any option granted pursuant to the
Plan, shall confer upon any employee any right with respect to
continuance of employment by the Company or a Subsidiary, nor interfere
in any way with the right of the Company or a Subsidiary to terminate
the employment of such employee.
9.2 Appropriate provision shall be made for all taxes required to be
withheld in connection with options, and the exercise thereof, under the
applicable laws or regulations of any governmental authority, whether
federal, state, or local and whether domestic or foreign. Unless
otherwise provided in the option grant, a participant is permitted to
deliver shares of Common Stock (including shares acquired pursuant to
the exercise of an option other than the option currently being
exercised, to the extent permitted by applicable regulations) for
payment of withholding taxes on the exercise of an option. The Fair
Market Value of such Common Stock as delivered shall be valued as of the
day prior to delivery. Shares of Common Stock may be withheld from the
shares issuable to the optionee upon exercise of an option to satisfy
tax withholding obligations only if specifically authorized in the
option grant. The Fair Market Value of such Common Stock as is withheld
shall be valued as of the day prior to the exercise of the option.
Section 10.
Amendment, Termination or Discontinuance of the Plan
----------------------------------------------------
10.1 Subject to the Board of Directors and section 13.2, the Management
Committee may from time to time make such amendments to the Plan as it
may deem proper and in the best interest of the Company without further
approval of the Board of Directors of the Company, including, but not
limited to, any amendment necessary to ensure that the Company may
obtain any regulatory approval referred to in Section 8 hereof;
provided, however, that no change in any option theretofore granted may
be made without the consent of the optionee or holder which would impair
the right of the optionee or holder to acquire or retain Common Stock
which he may have acquired as a result of the Plan.
10.2 The Board of Directors may at any time suspend the operation of or
terminate the Plan with respect to any shares of the Company's Common
Stock not at the time subject to option.
-5-
<PAGE>
BURLINGTON NORTHERN INC.
2.5 CLUB STOCK OPTION
RULES AND PROCEDURES
To: ___________________
Subject to your execution of this document with Burlington Northern Inc.
("BNI"), the Board of Directors of BNI has awarded to you a Nonqualified Option
pursuant to the 1995 Burlington Northern Inc. 2.5 Club Stock Option Plan (the
"Plan") to purchase 25 shares of BNI Common Stock, commencing February 15, 1996,
at a price of $________ per share (the "Option"). This Option expires on
February 15, 1998. You and BNI agree as follows:
Except in the event of death or permanent disability, this Option may be
exercised only after February 15, 1996. If you terminate your employment with
BNI or one of its subsidiaries for reasons other than death or permanent
disability, the Option will be exercisable only after such date. In no event
shall this Option be exercisable after its expiration date of February 15, 1998.
In the event of your death, your Option may be exercised by your legal
representative, your estate, or the person to whom such Option shall have passed
by will or by the laws of descent or distribution. Otherwise, the Option is
nontransferable during your life and may be exercised only by you.
The shares which you shall receive upon exercise of this Option shall be fully
paid and non-assessable, shall be represented by a certificate or certificates
registered in your name, and shall be subject to the restrictions set forth
below.
The Option received by you and your right to exercise such Option and receive
any shares of BNI Common Stock therefrom, and the sale of said shares
thereafter, shall be subject to all of the restrictions, terms, and conditions
specified in the Plan and this document and that all of such restricting terms
and conditions of such Plan are incorporated by reference into this document. To
the extent there may be any conflict between any term or provision of the Plan
and any term or provision of this document, the term or provision of the Plan
shall control.
BNI shall have the right to withhold or direct the withholding of all federal,
state, and municipal income, employment, medicare, Railroad Retirement, or other
taxes (collectively "Taxes") as shall be required pursuant to any statute or
governmental regulation or ruling from (i) any stock received upon exercise of
any stock option granted under this Plan or (ii) from any other payment,
including normal salary then or in the future due you from BNI or Burlington
Northern Railroad Company ("BNRR"), and that you shall complete any
documentation necessary to effect such withholding. You understand that, if
appropriate withholding amounts have not been paid to BNI, the current policy of
BNI, which is subject to change from time to time without notice, is to commence
such withholding from salary on the 60th day following the date of exercise of
any stock option or portion thereof under the Plan. You further agree to pay to
BNI or BNRR, in cash, within 21 days of the date of exercise of any stock option
or portion thereof under the Plan any amount required to be withheld by BNI or
BNRR on account of Taxes. In the event that you
<PAGE>
do not make such payment within such 21-day period, then BNI and BNRR shall
charge you interest, commencing on the date of exercise of the relevant stock
option or portion thereof, upon any unpaid amount at an annual rate of 15
per cent until fully paid, including interest. You agree that BNI may condition
delivery of stock certificates upon receipt of such payment(s). You understand
that there may be tax implications associated with the exercise of stock options
under this Plan, and agree that it is your responsibility to consult a tax
advisor regarding any such tax implications.
The terms and provisions of this document shall be binding upon, and shall
inure to the benefit of, yourself and your executors or administrators, heirs,
and personal and legal representatives.
Any dispute or disagreement that may arise under or as a result of or pursuant
to this document shall be determined by the Management Committee in its sole
discretion, and any interpretation by the Management Committee of the terms of
this document or the Plan shall be final, binding, and conclusive. This
document shall be construed and enforced in accordance with the laws of the
State of Texas.
This document together with the Plan set forth all of the promises, agreements,
conditions, understandings, warranties, and representatations between the
parties with respect to the Option referred to above and that there are no
promises, agreements, conditions, understandings, warranties, or
representations, oral or written, express or implied, between the parties with
respect to the Option, other than as set forth in such Plan and this document.
In the event of invalidity of any part or provision of the Plan or this
document, such invalidity shall not affect the validity of any other part or
provision of the Plan or this document.
BURLINGTON NORTHERN INC.
BY:_______________________________ Date:_______________________________
ACCEPTED AND AGREED TO:
BY:_______________________________ Date:_______________________________
<PAGE>
EXHIBIT 5
[BURLINGTON NORTHERN RAILROAD LOGO APPEARS HERE]
LAW DEPARTMENT 3800 Continental Plaza
777 Main Street
Ft. Worth, Texas 76102
(817) 333-2366
July 19, 1995
Board of Directors
Burlington Northern Inc.
3800 Continental Plaza
777 Main Street
Fort Worth, Texas 76102
Gentlemen:
This will refer to the Registration Statement ("Registration Statement") on Form
S-8 filed by Burlington Northern Inc. with the Securities and Exchange
Commission, relating to the 1995 Burlington Northern Inc. 2.5 Club Stock Option
Plan (the "Plan").
I have examined or caused to be examined such documents, including the Plan, and
have made, or have caused to be made, such further investigation as I have
deemed necessary or appropriate in connection with this opinion.
I am of the opinion that the Plan is not subject to the requirements of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
I am of the further opinion that the shares of Burlington Northern Inc. Common
Stock, no par value, will be, when issued in accordance with the terms and
conditions contained in the Registration Statement, validly issued, fully paid,
and non-assessable.
I hereby consent to the inclusion in the Registration Statement of this opinion
as an exhibit and the reference to me and this opinion the Prospectus thereof
under the caption "Legal Opinion."
Sincerely,
/s/ Francis T. Kelly
Francis T. Kelly
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-8 of
our report dated January 16, 1995, on our audits of the consolidated financial
statements and financial statement schedules of Burlington Northern Inc. and
Subsidiaries. We also consent to the reference to our firm under the caption
"Experts".
/s/ Coopers & Lybrand L.L.P.
Fort Worth, Texas
July 24, 1995
