<PAGE>
As filed with the Securities and Exchange Commission on September 22, 1995
Registration No. 33-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
Form S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BURLINGTON NORTHERN SANTA FE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE EIN 41-1804964
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization )
3800 Continental Plaza
777 Main Street
Fort Worth, Texas 76102-5384
(817) 333-2000
(Address, including zip code, and telephone number of Principal Executive
Offices)
BURLINGTON NORTHERN SANTA FE CORPORATION
401(K) RETIREMENT SAVINGS PLAN
(Full title of the plan)
Jeffrey R. Moreland, Esq.
Senior Vice President, Law and General Counsel
Burlington Northern Santa Fe Corporation
1700 East Golf Road
Schaumburg, Illinois 60173
(708) 995-6000
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================
Title of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered offering price aggregate offering registration
registered per unit (1) price fee
==============================================================================================
<S> <C> <C> <C> <C>
Common Stock 1,000,000 shares $74.88 $74,875,000.00 $25,818.97
Interests in the
Plan(2)
----------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 457(h), the proposed maximum offering price per unit is
estimated solely for the purpose of calculating the registration fee and is
based upon the average of the high and low sales prices of the common stock
of Burlington Northern Inc., a predecessor of the registrant as reported on
the consolidated reporting system on September 18, 1995, a date within five
business days of the date on which this registration statement is being
filed.
(2) Pursuant to Rule 416(c), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
----------------
As permitted by the rules of the Securities and Exchange
Commission (the "Commission"), this Registration Statement omits the
information specified in Part I of Form S-8. The documents containing
the information specified in Part I will be delivered to the
participants in the plan as required by Securities Act Rule 428(b).
Such documents are not being filed with the Securities and Exchange
Commission as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424.
i
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
------------------------------------------------
The following documents filed with the Commission by Burlington Northern
Santa Fe Corporation (the "Company") are incorporated in this Registration
Statement on Form S-8 (the "Registration Statement") by reference:
(a) The Company's latest prospectus filed pursuant to Rule 424(b)
(File No. 33-57069), including the Company's Balance Sheet as of December
22, 1994.
(b) The description of the Company's Common Stock contained in the
prospectus included in the Company's registration statement on Form S-4
filed with the Commission under the Securities Act of 1933 (File No. 33-
57069) under the caption "CERTAIN ADDITIONAL INFORMATION CONCERNING
HOLDINGS--DESCRIPTION OF CAPITAL STOCK ".
The following documents filed with the Commission by Burlington Northern
Inc. ("BNI") are incorporated in this Registration Statement by reference:
(a) BNI's Annual Report on Form 10-K for the year ended December
31, 1994;
(b) BNI's Quarterly Reports on Form 10-Q for the quarters ended
March 31 and June 30, 1995; and
(c) BNI's Current Reports on Form 8-K dated January 19, 1995 and
January 24, 1995 and an amendment to Form 8-K on Form 8-K/A dated January 24,
1995.
The following documents filed with the Commission by Santa Fe Pacific
Corporation ("SFP") are incorporated in this Registration Statement by
reference:
(a) SFP's Annual Report on Form 10-K for the year ended December
31, 1994;
(b) SFP's Quarterly Reports on Form 10-Q for the quarters ended
March 31 and June 30, 1995; and
(c) SFP's Current Reports on Form 8-K reporting events as of
January 18, 1995, January 24, 1995, February 21, 1995, March 7, 1995, April 19,
1995, and May 31, 1995.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities registered hereunder have been
sold or which deregisters all of the securities offered then remaining unsold,
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of filing of such documents.
II-1
<PAGE>
Item 4. Description of Securities
----------------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel
-----------------------------------------------
Not Applicable.
II-2
<PAGE>
Item 6. Indemnification of Directors and Officers
--------------------------------------------------
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
attorneys' 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, bylaws,
disinterested director vote, stockholder vote, agreement or otherwise.
Article X of the Bylaws of the Company 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 Bylaws provide 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 Company or, at the request of the
Company, of another corporation, partnership, joint venture, trust or other
enterprise, including an employee benefit plan. The Bylaws also provide that
the Company 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.
Officers and directors of the Company 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.
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 Company provides
that to the full extent that the Delaware General Corporation Law, as it now
exists or may hereafter be amended,
II-3
<PAGE>
permits the limitation or elimination of the liability of directors, a director
of the Company shall not be liable to the Company 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 a director of the Company for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal.
Item 7. Exemption from Registration Claimed
--------------------------------------------
Not applicable.
Item 8. Exhibits
-----------------
4.1 Copy of 401(k) Retirement Savings Plan
5.1 Opinion of Counsel
The registrant will submit, or has submitted, the plan and any
amendment thereto to the Internal Revenue Service ("IRS") in
a timely manner, and has made or will make all changes
required by the IRS in order to qualify the plan.
23.1 Consent of Counsel (included in
the opinion filed as Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Coopers & Lybrand L.L.P.
23.4 Consent of Price Waterhouse LLP
24.1 Powers of Attorney (included herein on page II-7).
Item 9. Undertakings
---------------------
Rule 415 Offering
-----------------
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 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.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
II-4
<PAGE>
Incorporation of Subsequent Exchange Act Documents by Reference
---------------------------------------------------------------
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act 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 he deemed to be
the initial bona fide offering thereof.
Indemnification of Directors and Officers
-----------------------------------------
Insofar as indemnification for liabilities arising under the Securities
Act 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 Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities Act
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 matter
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 and will be governed by the final
adjudication of such issue.
II-5
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
--------------
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fort Worth, State of Texas, on September 22,
1995.
BURLINGTON NORTHERN SANTA FE CORPORATION
By: /s/ Robert D. Krebs
-----------------------
Robert D. Krebs
President and
Chief Executive Officer
II-6
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Gerald Grinstein, Robert D. Krebs and Jeffrey R. Moreland, and each of them, his
or her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution for him or her in his or her name,
place and stead, in any and all capacities, to sign any post-effective
amendments to this Registration Statement, and any and all documents in
connection therewith, and to file the same, with all exhibits thereto, and all
documents in connection therewith with the Securities and Exchange Commission
under the Securities Act of 1933, grants to said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as he or she might or could do in person, and hereby ratifies, approves
and confirms all that each of such attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gerald Grinstein Chairman of the Board and Director September 22, 1995
-----------------------
Gerald Grinstein
/s/ Robert D. Krebs President, Chief Executive Officer September 22, 1995
----------------------- and Director
Robert D. Krebs
/s/ Denis E. Springer Senior Vice President and September 22, 1995
----------------------- Chief Financial Officer
Denis E. Springer
/s/ Thomas N. Hund Vice President and Controller September 22, 1995
-----------------------
Thomas N. Hund
/s/ Joseph F. Alibrandi Director September 22, 1995
-----------------------
Joseph F. Alibrandi
/s/ Jack S. Blanton Director September 22, 1995
-----------------------
Jack S. Blanton
/s/ John J. Burns, Jr. Director September 22, 1995
-----------------------
John J. Burns, Jr.
/s/ Daniel P. Davison Director September 22, 1995
-----------------------
Daniel P. Davison
</TABLE>
II-7
<PAGE>
<TABLE>
<S> <C> <C>
/s/ George Deukmejian Director September 22, 1995
---------------------------
George Deukmejian
/s/ Daniel J. Evans Director September 22, 1995
---------------------------
Daniel J. Evans
/s/ Barbara Jordan Director September 22, 1995
---------------------------
Barbara Jordan
/s/ Bill M. Lindig Director September 22, 1995
---------------------------
Bill M. Lindig
/s/ Ben F. Love Director September 22, 1995
---------------------------
Ben F. Love
/s/ Roy S. Roberts Director September 22, 1995
---------------------------
Roy S. Roberts
/s/ Marc J. Shapiro Director September 22, 1995
---------------------------
Marc J. Shapiro
/s/ Arnold R. Weber Director September 22, 1995
---------------------------
Arnold R. Weber
/s/ Robert H. West Director September 22, 1995
---------------------------
Robert H. West
/s/ J. Steven Whisler Director September 22, 1995
---------------------------
J. Steven Whisler
/s/ Edward E. Whitacre, Jr. Director September 22, 1995
---------------------------
Edward E. Whitacre, Jr.
/s/ Ronald B. Woodard Director September 22, 1995
---------------------------
Ronald B. Woodard
/s/ Michael B. Yanney Director September 22, 1995
---------------------------
Michael B. Yanney
</TABLE>
II-8
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
---------
Employee Benefits Committee of the Burlington Northern Santa Fe Corporation have
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 September 22, 1995.
BURLINGTON NORTHERN SANTA FE CORPORATION
401(K) RETIREMENT SAVINGS PLAN
By /s/ James B. Dagnon
--------------------------------
James B. Dagnon
MEMBER, EMPLOYEE BENEFITS COMMITTEE
II-9
<PAGE>
EXHIBIT INDEX
Sequentially
Exhibit Number Description of Exhibit Numbered Page
-------------- ---------------------- -------------
4.1 Copy of 401(k) Retirement Savings Plan
5.1 Opinion of Counsel
23.1 Consent of Counsel (included in
the opinion filed as Exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Coopers & Lybrand L.L.P.
23.4 Consent of Price Waterhouse LLP
24.1 Powers of Attorney (included
on page II-7).
<PAGE>
EXHIBIT 4.1
-----------
AMENDMENT NUMBER ONE
TO THE
BURLINGTON NORTHERN
401(k) RETIREMENT SAVINGS PLAN
WHEREAS, effective January 1, 1994, the Board of Directors of Burlington
Northern Railroad Company (the "Company") adopted the Burlington Northern 401(k)
Retirement Savings Plan (the "Plan"); and
WHEREAS, the Company desires to make changes to the Plan; and
WHEREAS, the Plan may be amended pursuant to Article XI therein;
NOW, THEREFORE, the Plan is hereby amended by this Amendment Number One
effective January 1, 1994, except as otherwise provided, as follows:
A. Section 2.3 is amended in its entirety to read as follows:
"Section 2.3 Active Participant. An employee is an "Active Participant" if
------------------
he is a Participant, if he is or has been a Qualified Employee, and if he
has not become an Inactive Participant pursuant to Section 3.5."
B. Section 2.9 is amended to add a new Subsection (c) at the close of such
Section:
"(c) Effective for Plan Years beginning on or after January 1, 1995,
Certified Earnings shall not include any wages or other compensation that
are not covered by a collective bargaining agreement between the Company or
Participating Employer and the Union, or any extension or renewal thereof."
C. Subsection 3.5(b) is deleted.
D. Subsection 4.2(e) is amended in its entirety to read as follows:
"(e) Limitation of Certain Annual Compensation. Certified Earnings, and any
-----------------------------------------
other elements of remuneration considered under the Plan, shall be limited
as necessary to comply with the requirement of Code Section 401(a)(17) (and
related Code sections and regulations) such that the annual compensation
(within the meaning of such Code sections and regulations) of each Employee
taken into account under the Plan for the year shall not exceed $200,000
(or such adjusted amount as may be prescribed by the Secretary of the
Treasury in connection with the adjustments
<PAGE>
prescribed under Code Section 415(d)). Effective for Plan Years
beginning on or after the earlier of:
(1) The latest of:
(i) January 1, 1994;
(ii) The date of execution of an extension or replacement
of the last collective bargaining agreement between
the Company or Participating Employer and the Union
in effect on August 10, 1993; or
(2) January 1, 1997, $150,000 shall replace $200,000 where it
appears in the preceding sentence."
E. Section 7.6(a) is amended in its entirety to read as follows:
"(a) The amount of any loan to such Participant shall not exceed the lesser
of the following amounts:
(1) $50,000, reduced by the highest outstanding loan balance
in the previous twelve (12) months, or
(2) 50% of the Participant's vested Account balance as of the
Valuation Date immediately preceding the date the loan is
made."
F. Section 8.1(d) is amended in its entirety to read as follows:
"(d) If the Participant dies before receiving a distribution, the
Participant's Account (less any outstanding loan balance) shall be
distributed to his Beneficiary in an immediate lump sum payment,
except that if the Beneficiary is the Participant's spouse, the spouse
Beneficiary may elect not to take such immediate distribution, subject
to all the other provisions of this Section as though the spouse were
a Participant."
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Amendment Number One to be
executed and adopted this 28th day of June, 1994, to be effective January 1,
1994, except as otherwise provided.
Attest: BURLINGTON NORTHERN RAILROAD
COMPANY (the "Company")
(SEAL)
BY: /s/(signature appears here) BY: /s/ Alan W. Speaker
--------------------------- -------------------------
Alan W. Speaker
Vice President Human Resources
<PAGE>
BURLINGTON NORTHERN 401(k) RETIREMENT SAVINGS PLAN
(Adopted Effective As of January 1, 1994)
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Name of Plan...................................................... 1
Purpose........................................................... 1
Effective Date.................................................... 1
Company........................................................... 1
Union............................................................. 1
Construction and Applicable Law................................... 1
Applicability of Future Amendments................................ 2
ARTICLE II: MISCELLANEOUS DEFINITIONS
Acceptance Agreement............................................. 2
Account.......................................................... 2
Active Participant............................................... 2
Adoption Resolution.............................................. 2
Affiliate........................................................ 3
Alternate Payee.................................................. 3
Beneficiary...................................................... 3
Board............................................................ 3
Certified Earnings............................................... 3
Code............................................................. 4
Committee........................................................ 4
Common Control................................................... 4
Disability....................................................... 4
Employment Commencement Date..................................... 4
ERISA............................................................ 5
Highly Compensated Employee...................................... 5
Investment Fund.................................................. 6
Leased Employee.................................................. 7
Named Fiduciary.................................................. 8
Normal Retirement Age............................................ 8
Participant...................................................... 8
Participating Employer........................................... 8
Plan............................................................. 8
Plan Assets...................................................... 8
Plan Year........................................................ 9
Qualified Domestic Relations Order............................... 9
Qualified Employee............................................... 9
Successor Employer............................................... 9
Termination of Employment........................................ 9
Trustee.......................................................... 10
Valuation Date................................................... 10
ARTICLE III: PLAN PARTICIPATION
Entry Date...................................................... 10
<PAGE>
Eligibility for Participation.................................... 10
Duration of Participation........................................ 11
No Guarantee of Employment....................................... 11
Inactive Participants............................................ 12
ARTICLE IV: DEPOSITS, CONTRIBUTIONS, AND ROLLOVERS
A. Deposits
Before Tax Deposits............................................. 12
a. Initial Election............................................. 12
b. Subsequent Modifications..................................... 12
c. Election Procedure........................................... 13
d. Internal Revenue Code Limits................................. 13
B. Limitations on Deposits
Limitation on Allocations....................................... 13
Adjustment of Deposits if Required by Code Section 401(k)....... 15
Rollovers....................................................... 17
ARTICLE V: INVESTMENT FUNDS AND ACCOUNTS
Accounts for Participants....................................... 18
Investment Funds................................................ 18
Investment Fund Designations.................................... 18
Valuation of Investment Funds................................... 19
Valuation of Accounts in Investment Funds....................... 19
Statement of Account............................................ 19
ARTICLE VI: DESIGNATION OF BENEFICIARY
Persons Eligible to Designate................................... 19
Special Requirements for Married Participants................... 19
Form and Method of Designation.................................. 20
No Effective Designation........................................ 20
ARTICLE VII: BENEFIT REQUIREMENTS; WITHDRAWALS; LOANS
Vesting......................................................... 21
Benefit on Termination of Employment............................ 21
Death........................................................... 21
Divorce......................................................... 21
Withdrawals While Employed...................................... 21
Plan Loans to Participants who are Current Employees............ 23
Distribution Rollovers.......................................... 26
ARTICLE VIII: DISTRIBUTION OF BENEFITS
Time and Method of Payment...................................... 27
ii
<PAGE>
Accounting Following Termination of Employment................. 29
Source of Benefits............................................. 29
Incompetent Payee.............................................. 30
Benefits May Not be Assigned or Alienated...................... 30
Payment of Taxes............................................... 30
Conditions Precedent........................................... 30
Company Directions to Trustee.................................. 31
ARTICLE IX: PLAN
Composition.................................................... 31
Trustee........................................................ 31
Compensation and Expenses of Trustee........................... 32
Investment Fees and Expenses................................... 32
No Diversion................................................... 32
ARTICLE X: ADMINISTRATION OF PLAN
Named Fiduciaries.............................................. 33
Employee Benefits Committee.................................... 33
Organization of Committee...................................... 34
Procedures..................................................... 34
Committee's Powers and Duties.................................. 35
Committee's Decisions Conclusive............................... 36
Indemnity...................................................... 36
Prohibited Transactions........................................ 37
Bonding........................................................ 37
Claims Procedure............................................... 37
a. Claims for Benefits........................................ 37
b. Notice of Denial of Claim.................................. 37
c. Request for Review of Denial of Claim...................... 38
d. Decision of Review of Denial of Claim...................... 38
ARTICLE XI: PLAN AMENDMENT, TERMINATION, MERGER, AND
ADOPTION BY AFFILIATES
Amendment and Termination...................................... 39
Distribution Upon Termination.................................. 39
Corporate Reorganization....................................... 40
Plan Merger or Transfer........................................ 40
Affiliate Participation........................................ 41
Action Binding on Participating Affiliates..................... 41
Termination of Participation of Affiliate .................... 41
iii
<PAGE>
BURLINGTON NORTHERN 401(k) RETIREMENT SAVINGS PLAN
ARTICLE I
Section 1.1 Name of Plan. The name of the 401(k) plan set forth herein is
------------
"Burlington Northern 401(k) Retirement Savings Plan." It is sometimes herein
referred to as the "Plan."
Section 1.2 Purpose. The purposes of the Plan are to provide a means for
-------
employees to adopt a regular savings program and to provide a supplement to
their retirement income.
Section 1.3 Effective Date. The "Effective Date" of the Plan is January 1,
--------------
1994, the date as of which the Plan is established.
Section 1.4 Company. The "Company" is the Burlington Northern Railroad
-------
Company and any successor company thereof.
Section 1.5 Union. "Union" means a labor organization which represents
-----
employees of the Company or a Participating Employer under the Railway Labor Act
and which has the authority to accept this Plan on behalf of the employees of
the Participating Employer it represents.
Section 1.6 Construction and Applicable Law. The Plan is intended to meet
-------------------------------
the requirements for qualification under Code Section 401(a) and to be in full
compliance with applicable requirements of ERISA. The Plan shall be
administered and construed consistent with said intent. It shall also be
construed and administered according to the laws of the State of Texas to the
extent that such laws are not preempted by the laws of the United States of
America. The Plan shall be construed in accordance with the following rules:
(a) Headings at the beginning of articles and sections hereof are for
convenience of reference, shall not be considered a part of the text of the
Plan, and shall not influence its construction.
<PAGE>
(b) Capitalized terms used in the Plan shall have their meaning as
defined in the Plan unless the context clearly indicates to the contrary.
(c) Any references to the masculine gender include the feminine and
vice versa.
(d) Use of the words "hereof," "herein," "hereunder," or similar
compounds of the word "here" shall mean and refer to the entire Plan unless the
context clearly indicates to the contrary.
(e) The provisions of the Plan shall be construed as a whole in such
manner as to carry out the provisions thereof and shall not be construed
separately without relation to the context.
Section 1.7 Applicability of Future Amendments. Except as may be
----------------------------------
specifically provided to the contrary, any amendment to the Plan shall apply
only to the benefits accrued to individuals who are employees of a Participating
Employer or Affiliate on or after the effective date of such amendment.
ARTICLE II
MISCELLANEOUS DEFINITIONS
-------------------------
Section 2.1 Acceptance Agreement. "Acceptance Agreement" is the separate
--------------------
document through which a Union accepts this Plan for its members who are
employees of the Company or a Participating Employer.
Section 2.2 Account. "Account" means a Participant's or Beneficiary's
-------
interest in the Plan Assets as described in Section 5.1.
Section 2.3 Active Participant. An employee is an "Active Participant"
------------------
only while he is both a Participant and a Qualified Employee.
Section 2.4 Adoption Resolution. "Adoption Resolution" is the separate
-------------------
document through which the Company or a Participating Employer adopts this Plan.
<PAGE>
Section 2.5 Affiliate. "Affiliate" means any trade or business entity
---------
under Common Control with a Participating Employer, or under Common Control with
a Predecessor Employer while it is such.
Section 2.6 Alternate Payee. "Alternate Payee" means a spouse, former
---------------
spouse, child, or other dependent of a Participant who is recognized by a
Qualified Domestic Relations Order as having a right to receive all or a portion
of the benefits payable under the Plan to a Participant.
Section 2.7 Beneficiary. "Beneficiary" means the person or persons
-----------
designated as such pursuant to Article VI.
Section 2.8 Board. The "Board" is the board of directors of the Company,
-----
and includes any executive committees thereof authorized to act for such bodies.
Section 2.9 Certified Earnings. "Certified Earnings" of a Participant from
------------------
a Participating Employer for a Plan Year means the total compensation reported
by the Company or Participating Employer to the Internal Revenue Service in Box
10 of its Form W-2 on behalf of the Participant, and includes performance
incentive amounts, such as a bonus and reserve board payments, guarantee
payments, and payments made under the Company's wage continuation program, but
is subject to the following limitations:
(a) Except as provided in subsection (b), allowances or
reimbursements for expenses, including, but not limited to, moving expenses
and allowances, severance or separation pay payments of any kind, payments
or contributions to or for the benefit of the employee under any other
deferred compensation, pension, profit sharing, insurance, sickness or
other employee benefit plan, productivity payments of any type, any stock-
based payments, merchandise discounts, safety awards, smoking cessation and
tuition reimbursement payments, Christmas gifts and payments of like
character, non-cash employee awards, including stock, club dues or benefits
in the form of property or the use of property shall not be included in
computing Certified Earnings.
<PAGE>
(b) If a Participant elects to have his compensation reduced for
purposes of having his employer make Before Tax Deposits, his Certified Earnings
shall be the amount he would have received but for the reduction.
Section 2.10 Code. "Code" means the Internal Revenue Code of 1986 as from
----
time to time amended.
Section 2.11 Committee. The "Committee" is the Employee Benefits Committee
---------
appointed by the Chief Executive Officer of the Company to administer the Plan,
as described in Article X hereof.
Section 2.12 Common Control. An entity (whether corporation, partnership,
--------------
sole proprietorship, or otherwise) is under "Common Control" with another entity
(i) if both entities are corporations which are members of a controlled group of
corporations as defined in Code Section 414(b), or (ii) if both entities are
trades or businesses (whether or not incorporated) which are under common
control as defined in regulations under Code Section 414(c), or (iii) if both
entities are members of an "affiliated service group" as defined in Code Section
414(m) or otherwise required to be aggregated under Code Section 414(o).
However, in determining Common Control for purposes of determining which
entities are Affiliates and for purposes of applying the limits under Code
Section 415, the phrase, "more than 50 percent" shall be substituted for the
phrase "at least 80 percent" each place it appears in Code Section 1563(a)(1)
(which is referred to in Code Section 414(b)) or in the regulations under Code
Section 414(c).
Section 2.13 Disability. "Disability" occurs if and when the Committee
----------
receives notice that the Railroad Retirement Board or, if applicable, the Social
Security Administration, has approved a disability award for a Participant.
Section 2.14 Employment Commencement Date. "Employment Commencement Date"
----------------------------
means the date on which a person first becomes an employee of a Participating
Employer (whether before or after the Participating Employer becomes such) or an
Affiliate.
<PAGE>
Section 2.15 ERISA. "ERISA" means the Employee Retirement Income Security
-----
Act of 1974 as from time to time amended.
Section 2.16 Highly Compensated Employee. "Highly Compensated Employee"
---------------------------
shall include highly compensated active employees and highly compensated former
employees. A highly compensated active employee includes any employee who
performs service for the employer during the determination year, and who, during
the lookback year or the appropriate calendar year:
(i) received compensation from the employer in excess of $75,000 (as
adjusted pursuant to Code Section 415(d));
(ii) received compensation from the employer in excess of $50,000 (as
adjusted pursuant to Code Section 415(d)) and was a member of
the top-paid group for such year; or
(iii) was an officer of the employer and received compensation during
such year that is greater than 50 percent of the dollar
limitation in effect under Code Section 415(b)(1)(A).
The term "Highly Compensated Employee" also includes:
(iv) Employees who are both described in the preceding sentence if
the term "determination year" is substituted for the term "look-
back year" and the employee is one of the 100 employees who
received the most compensation from the employer during the
determination year; and
(v) Employees who are five percent owners at any time during the
look-back year, the calendar year, or the determination year. If
no officer has satisfied the compensation requirement of (iii)
above during either a determination year, calendar year, or
look-back year, the highest paid officer for such year shall be
treated as a Highly Compensated Employee.
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the 12-month period immediately preceding the
determination year. The calendar year shall be the appropriate calendar year.
A highly compensated former employee includes any employee who separated
from service (or was deemed to have separated) prior to the determination year,
performs no service for the employer during the determination year, and was a
highly compensated active employee for either the separation year or any
determination year ending on or after the employee's 55th birthday.
<PAGE>
If an employee is, during a determination year or lookback year, a family
member of either a five percent owner who is an active or former employee or a
Highly Compensated Employee who is one of the ten most highly compensated
employees ranked on the basis of compensation paid by the employer during such
year, then the family member of the five percent owner or top-ten Highly
Compensated Employee shall be treated as a single employee receiving
compensation and plan contributions or benefits equal to the sum of such
compensation and contributions or benefits of the family member and the five
percent owner or top-ten Highly Compensated Employee. For purposes of this
section, family member includes the spouse, lineal ascendants and descendants of
the employee or former employee, and the spouses of such lineal ascendants and
descendants.
The determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of employees in the top-paid group,
the top 100 employees, the number of employees treated as officers and the
compensation that is considered, will be made in accordance with Section 414(q)
of the Code and the regulations thereunder. Highly compensated Employees may be
determined by any appropriate method, in the Committee's discretion.
Section 2.17 Investment Fund. "Investment Fund" means any of the following
---------------
funds for investment of Plan Assets, all of which may hold a reasonable amount
of cash and liquid assets, in addition to the assets described below, and each
of which may make appropriate investments, either directly or indirectly, by
means of securities of a regulated investment company or trust or interests in
an investment company's pooled account or a common trust fund or collective
investment fund of a bank or similar financial institution with a similar
investment purpose, in accordance with the description of the fund:
(a) A "BNI Stock Fund," which shall be invested primarily in shares
of the common stock of Burlington Northern Inc. and may, following the
receipt of shares of common stock of another company as a result of a
distribution to stockholders of Burlington Northern Inc., include such
shares of such other company pending their
<PAGE>
sale or exchange in order to reinvest in common stock of Burlington
Northern Inc. within the time limit specified by Code Section 401(j) for
reinvestment in employer securities in a manner that preserves net
unrealized appreciation.
(b) A "Balanced Fund," which shall be invested in a mix of U.S. and
non-U.S. bonds, a mix of U.S. and non-U.S. equities, and money market
instruments, as described in the Trust, as the Trustee, acting in
accordance with the provisions of the Trust and instructions from the
Committee or an investment manager designated by the Committee, deems
advisable.
(c) An "Income Fund," which shall be invested in any combination of
investment contracts and money market instruments as described in the
Trust, as the Trustee, acting in accordance with the provisions of the
Trust and instructions from the Committee or an investment manager
designated by the Committee, deems advisable.
(d) A "U.S. Equity Index Fund," which shall be invested in equities
whose aggregate composition will replicate the performance of its namesake
index as described in the Trust, as the Trustee, acting in accordance with
the provisions of the Trust and instructions from the Committee or an
investment manager designated by the Committee, deems advisable.
(e) A "Loan Fund," which shall be invested individually for each
borrowing Participant in any loans that such Participant has under the
Plan.
(f) "Additional Funds," which may be established from time to time by
the Committee and which shall be invested in such appropriate investments,
as described in the Trust, as the Trustee, acting in accordance with the
provisions of the Trust and instructions from the Committee or an
investment manager designated by the Committee, deems advisable.
Section 2.18 Leased Employee. "Leased Employee" means a person who is not a
---------------
common law employee but who performs services for the Company or an affiliate
pursuant
<PAGE>
to an agreement with a leasing organization (within the meaning of Code Section
414(n)(2)), if such person has performed the services on substantially a
full-time basis for a period of at least one year, and the services are of a
type historically performed by Employees.
Section 2.19 Named Fiduciary. The Committee is a "Named Fiduciary" for
---------------
purposes of ERISA with, subject to the terms, conditions and restrictions
elsewhere contained in this Plan, authority to control or manage the operation
and administration of the Plan. Other persons are also fiduciaries under said
Act if so provided by said Act. Such other person or persons shall have such
authority to control or manage the operation and administration of the Plan,
including control or management of the assets of the Plan, as may be provided by
said Act.
Section 2.20 Normal Retirement Age. "Normal Retirement Age" is age 65.
---------------------
Section 2.21 Participant. A "Participant" is an individual described as
-----------
such in Article III hereof.
Section 2.22 Participating Employer. The Company, as well as Western Fruit
----------------------
Express Company, are Participating Employers in the Plan. With the consent of
the Company, any other employer may also become a Participating Employer
effective as of a date specified by it in its adoption of the Plan. Also with
such Company consent, any such adopting employer may modify the provisions of
the Plan as they shall be applicable to its employees. Any Successor Employer to
the Company shall also be a Participating Employer.
Section 2.23 Plan. "Plan" means the Company's particular plan evidenced by
----
this plan document, accompanying Adoption Resolution and Acceptance Agreement,
any trust agreement, and any amendments, all as executed by the Company.
Section 2.24 Plan Assets. "Plan Assets" means the aggregate of assets
-----------
described in Section 9.1.
<PAGE>
Section 2.25 Plan Year. The "Plan Year" means the calendar year and the
---------
first effective partial calendar year, if any.
Section 2.26 Qualified Domestic Relations Order. "Qualified Domestic
----------------------------------
Relations Order" means a judgment, decree, or order (including approval of a
property settlement agreement) pursuant to a state domestic relations law
(including a community property law) that provides benefits to an alternate
payee in accordance with Code Section 414(p) and ERISA Section 206(d).
Section 2.27 Qualified Employee. "Qualified Employee" means any individual
------------------
who is employed by a Participating Employer, and whose wages and working
conditions are covered by a collective bargaining agreement between the Company
or Participating Employer and the Union, or any extension or renewal thereof,
during any part of a payroll period. Qualified Employee shall not include,
however, any employee who has elected volunteer surplus status, or who is a
Leased Employee.
Section 2.28 Successor Employer. A "Successor Employer" is an entity that
------------------
succeeds to the business of a Participating Employer through merger,
consolidation, acquisition of all or substantially all of its assets, or any
other means; provided, however, that in the case of such succession with respect
to any Participating Employer other than the Company, the acquiring entity shall
be a Successor Employer only if consent thereto is granted by the Company.
Section 2.29 Termination of Employment. The "Termination of Employment" of
-------------------------
an employee for purposes of the Plan shall be deemed to occur on the date of his
resignation, discharge, retirement, or death; provided, however, "Termination of
Employment" shall not be deemed to occur upon a transfer between any combination
of Participating Employers and Affiliates of a Participating Employer. This term
encompasses a voluntary termination by the Employee, as well as an involuntary
termination initiated by the Participating Employer.
<PAGE>
Section 2.30 Trustee. "Trustee" means the corporation or persons acting as
-------
trustee appointed under Section 9.2 for the purpose of holding, investing, and
disbursing all or a portion of the Plan Assets.
Section 2.31 Valuation Date. "Valuation Date" means the date on which
--------------
the Fund and Accounts are valued as provided in Article V. "Valuation Dates"
will be at least the last day of each month, or such other dates as may be
determined by the Committee.
ARTICLE III
PLAN PARTICIPATION
------------------
Section 3.1 Entry Date. "Entry Date" means the first day of any month on
----------
which Participants may enter the Plan.
Section 3.2 Eligibility for Participation. Eligibility to participate in
-----------------------------
the Plan shall be determined in accordance with the following:
(a) Each Qualified Employee of a Participating Employer shall become
a Participant in the Plan on the earliest Entry Date on or after the date
the Plan becomes effective with respect to his Participating Employer and
his Union as evidenced by the execution of an appropriate Acceptance
Agreement, and on which he has completed one year Period of Service. For
purposes hereof, the following terms shall be defined as follows:
1) "Period of Service" shall mean the period of time beginning on
the day an employee first performs an Hour of Service and ending
on the date of his Separation from Service.
2) "Hour of Service" means each hour for which the employee is
directly or indirectly paid or entitled to payment by a
Participating Employer or an Affiliate for the performance of
duties.
3) "Separation from Service" date shall mean the earlier of (a) the
date of the employee's resignation, retirement, or discharge, or
(b) the employee's Disability.
4) "Period of Separation" means the period commencing on the
employee's Separation from Service date and ending on the date
the employee again performs an Hour of Service.
<PAGE>
(b) In determining a one year Period of Service for purposes of
eligibility to participate, the following Periods of Separation shall be
taken into account:
1) If an employee separates from service by reason of a
resignation, discharge, Disability, or retirement and then
performs an House of Service within 12 months of the Separation
from Service date, the Period of Separation shall count as a
Period of Service; and
2) If an employee separates from service by reason of a
resignation, discharge, Disability or retirement during an
absence from service, and then performs an Hour of Service
within 12 months from the date the employee was first absent
from service, the Period of Separation shall be counted as a
Period of Service.
(c) In the case of an employee who separates from service before
becoming a Participant hereunder and who returns to the employ of the
Employer after incurring a one-year Period of Separation, his Period of
Service prior to the one-year Period of Separation shall be disregarded if
his Period of Separation equals or exceeds five (5) years.
(d) In the case of a Participant who separates from service and is
reemployed, he shall again become a Participant on the date he again
becomes a Qualified Employee.
Section 3.3 Duration of Participation. A Participant shall continue to be
-------------------------
such until the later of:
(a) The date of his Termination of Employment.
(b) The date all benefits, if any, to which the Participant is
entitled hereunder have been distributed to him.
Section 3.4 No Guarantee of Employment. Participation in the Plan does
--------------------------
not constitute a guarantee or contract of employment with the employee's
Participating Employer. Such participation shall in no way interfere with any
rights the Participating Employer would have in the absence of such
participation to determine the duration of the employee's employment with the
Participating Employer.
<PAGE>
Section 3.5 Inactive Participants. Any Participant who:
---------------------
(a) is no longer receiving any payroll earnings from a Participating
Employer;
(b) transfers from the craft or class represented by a Union;
(c) occupies a position not covered by a collective bargaining
agreement (exempt position); or
(d) discontinues deposits and contributions shall be deemed an
Inactive Participant.
ARTICLE IV
DEPOSITS, CONTRIBUTIONS, AND ROLLOVERS
--------------------------------------
A. Deposits
--------
Section 4.1 Before Tax Deposits. "Before Tax Deposits" are amounts
-------------------
contributed by a Participating Employer at the election of a Participant. A
Participant who elects to have Before Tax Deposits made in his behalf shall have
his current compensation from his Participating Employer reduced by an amount
equal to the Before Tax Deposits in any whole percentage of Certified Earnings
ranging from one percent to eight percent, or such other percentage as the
Committee may determine. In no event may a Participant elect to defer more than
the dollar limit described in Code Section 402(g), as indexed from time to time.
However, under Section 4.2, the Committee may, at any time, limit the maximum
amount of Before Tax Deposits for an employee or group of employees to a whole
or fractional percentage of less than 25 percent. Participant elections
regarding Before Tax Deposits are subject to the following:
(a) Initial Election. Each person who has become an Active
----------------
Participant may direct the initial level of his Before Tax Deposits as of
the next Entry Date following his election.
(b) Subsequent Modifications. Once each month, an Active Participant
------------------------
may change the rate of his Before Tax Deposits to any amount permitted
under this
<PAGE>
section. In addition, a Participant, may at any time during a Plan Year,
discontinue his Deposits. Such elections shall take effect on the first
business day of the following month.
(c) Election Procedure. Elections under this section shall be made
------------------
in accordance with rules and procedures established by the Committee. Said
rules may require that the election be filed a reasonable time prior to the
date it will become effective.
(d) Internal Revenue Code Limits. In no event may the Participant's
----------------------------
Before Tax Deposits to this Plan, together with any elective deferrals to
any other tax-qualified retirement plan, exceed the maximum allowable under
Code Section 402(g), as adjusted by the Secretary of the Treasury or his
delegate in accordance with Code Section 415(d), or other applicable law
adjusted for each Plan Year to take into account any cost of living
increase prescribed for that year in accordance with the regulations
promulgated under Section 402(g).
If the Participant notifies the Committee in writing no later than March 1
following the close of a taxable year of the amount of any excess Before
Tax Deposits due solely to the limits in this paragraph (d) of this
subsection 4.1, the Plan may, but need not, distribute such excess and any
gain or loss allocable to such excess to such Participant no later than
April 15 following such taxable year. If so distributed, such excess shall
not be included as an Annual Addition for the immediately preceding Plan
Year. The Participating Employers shall cause the Before Tax Deposits, with
respect to any month, to be paid as early as practicable during the
following month. Before Tax Deposits shall be reflected in Accounts as
provided in Article V.
B. Limitations on Deposits
-----------------------
Section 4.2 Limitation on Allocations. Notwithstanding any provisions of
-------------------------
the Plan to the contrary, allocations to Participants under the Plan shall not
exceed the maximum amount permitted under Code Section 415. For purposes of the
preceding sentence:
<PAGE>
(a) The Annual Addition with respect to a Participant's Accounts in any
Plan Year shall not exceed the lesser of:
(1) $30,000 adjusted for each Plan Year to take into account any cost of
living increase provided for that year in accordance with regulations
prescribed by the Secretary of the Treasury;
(2) 25 percent of such Participant's compensation, as defined in Code
Section 415(c)(3) and the regulations thereunder, for such Plan Year.
(b) If, for any Plan Year, the limitations described in subsection (a)
would be exceeded with respect to any Participant, the Annual Additions shall be
adjusted in accordance with the following, but only to the extent necessary to
reduce the Annual Additions to the level permitted in subsection (a):
(1) The Participant's share of Before Tax Deposits under Code Section
401(k) shall be reduced and his Participating Employer shall pay an
equivalent amount to him in cash.
(2) If, after the adjustment in (1), there is an excess amount with
respect to a Participant for a Plan Year, such excess amount shall be
held unallocated in a suspense account. The suspense account will be
applied to reduce future Participating Employer contributions for all
Participants in the next Plan Year, and in each succeeding Plan Year,
if necessary. The suspense account will participate in gains and
losses of the Plan Assets.
(c) The following definitions shall be applicable for purposes of this
section:
"Annual Addition" means employer contributions (including contributions
made under Code Section 401(k)). An Annual Addition with respect to a
Participant's Accounts shall be deemed credited thereto with respect to a
Plan Year if it is allocated to the Participant's Accounts under the terms
of the Plan as of any date within such Plan Year.
(d) Defined Benefit Plans. If a Participant in this Plan is or was also a
---------------------
Participant in a defined benefit plan, as defined in Section 414(j) of the Code,
maintained by the Participating Employer or any Affiliate, then in addition to
the limitations contained in Section 4.1 of this Plan, the projected benefit of
the
<PAGE>
Participant under the defined benefit plan shall be limited to the extent
necessary to comply with the limitation set forth in Code Section 415(e).
(e) Limitation of Certain Annual Compensation to $200,000. Certified
-----------------------------------------------------
Earnings, and any other elements of remuneration considered under the Plan,
shall be limited as necessary to comply with the requirement of Code
Section 401(a)(17) (and related Code sections and regulations) such that
the annual compensation (within the meaning of such Code sections and
regulations) of each Employee taken into account under the Plan for the
year shall not exceed $200,000 (or such adjusted amount as may be
prescribed by the Secretary of the Treasury in connection with the
adjustments prescribed under Code Section 415(d)).
Section 4.3 Adjustment of Deposits If Required By Code Section 401(k). If
---------------------------------------------------------
necessary to satisfy the requirements of Code Section 401(k), Before Tax
Deposits shall be adjusted as follows:
(a) Each Plan Year the Committee shall calculate the deferral
percentage for each Active Participant. Each such Participant's "deferral
percentage" is calculated by dividing his compensation, as defined in Code
Section 414(s), for the Plan Year into the total Before Tax Deposits which
would be allocated to such Participant's Account for said Plan Year but for
the limitations imposed by this section.
(b) Each Plan Year the Committee shall calculate the average deferral
percentage for Participants who are Highly Compensated Employees and the
average deferral percentage for Participants who are not Highly Compensated
Employees, subject to the following:
In each case the average is the average of the percentages calculated
under subsection (a) for all of the employees in the particular
group.
(c) If the requirements of either paragraph (1) or (2) are satisfied,
then no further action is needed under this section:
<PAGE>
(1) The average deferral percentage for Highly Compensated
Participants is not more than 1.25 times the average
deferral percentage for not Highly Compensated Participants.
(2) The excess of the average deferral percentage for Highly
Compensated Participants over the average deferral
percentage for not Highly Compensated Participants is not
more than two percentage points, and the average deferral
percentage for Highly Compensated Participants is not more
than 2.0 times the average deferral percentage for not
Highly Compensated Participants.
(d) If neither of the requirements of paragraph (c)(1) nor the
requirements of paragraph (c)(2) are satisfied, then one or more of the
following adjustments shall be made to the extent the Committee deems
reasonably necessary so that the requirements of one of those paragraphs
are satisfied.
(1) The maximum percentage of Certified Earnings which the
Participating Employers may contribute as a Before Tax
Deposit with respect to any Highly Compensated Employee
shall be reduced.
(2) The Participating Employers shall limit future Before Tax
Deposits with respect to Highly Compensated Employees.
(3) The Participating Employers shall distribute the excess
amount of such deposits (and gain or loss attributable
thereto) to Highly Compensated Employees in the order of
their average deferral percentages, beginning with the
Highly Compensated Employees with the highest average
deferral percentage until the limitations of this section
are met. Except as otherwise required by applicable
regulations, any amount distributed under this paragraph
within two and one-half months after the close of the prior
Plan Year shall be included in the Participant's taxable
wages for the Plan Year for which the contribution was made.
Any amount distributed hereunder more than two and one-half
months after the close of the prior Plan Year shall be
included in the Participant's taxable wages for the Plan
Year in which the distribution was made. The distribution
described in this section may be made notwithstanding any
other Plan provisions.
(e) In order to comply with Code Sections 401(k) and regulations
adopted pursuant thereto, and to perform any appropriate testing procedures
in connection therewith, the Committee shall have the discretion to
aggregate or disaggregate Unions representing different collective
bargaining units in any appropriate manner.
<PAGE>
Section 4.4 Rollovers. Amounts which have been received by or on behalf of
---------
a Participant from any other qualified employee benefit plan may, in accordance
with uniform, nondiscriminatory procedures designed to protect the qualification
and the integrity of the administrative design of the Plan, be transferred by or
on behalf of the Participant to this Plan in cash only, provided the following
conditions are satisfied:
(a) Amounts that have previously been distributed to or on behalf of
the Participant from another qualified plan and rolled over to this Plan
shall be fully vested and shall be credited to the Participant's Rollover
Account.
(b) The amounts tendered to the Committee must have previously been
received by or on behalf of the Participant as a qualified total
distribution described in Code Section 402(a)(5) and must be transferred
following a distribution from:
(1) A plan qualified under Code Section 401(a); or
(2) A rollover or conduit individual retirement account or
annuity which has received a Rollover Contribution described
in Code Section 408(d)(3) (determined without regard to
Section 408(D)(3)(D) thereof.
(c) The amounts tendered must not include nondeductible employee
contributions to a qualified plan by a participant or amounts attributed
to:
(1) Contributions to an individual retirement account or
annuity that are deductible under Code Section 219;
(2) Accumulated deductible Employee Contributions described in
Code Section 72(o)(5)(B); or
(3) A partial distribution described in Code Section
402(a)(5)(D).
(d) The transfer to this Plan of amounts described in paragraph (b)
will only be accepted if the Participant presents to the Committee the
Internal Revenue Service Form 1099, or equivalent, or the original and any
other distribution checks, a copy thereof, or, where such evidence is
unavailable, then such other evidence as the Committee may require to
ensure that they verify the nature of the amount and ensure that its
receipt will not adversely affect the qualified status of this Plan.
<PAGE>
(e) Amounts must be received by the Committee not later than 60 days
after a distribution was received by or on behalf of the Participant.
(f) In any case in which the Committee believes that acceptance of the
rollover might have adverse effect on the qualification of the Plan, the
advice of counsel selected by the Committee shall be determinative as to
whether the rollover should be accepted.
Rollover amounts shall be transmitted to the Trustee to be invested in such
Investment Funds as the Participant may select in accordance with the rules
provided in Article V.
ARTICLE V
INVESTMENT FUNDS AND ACCOUNTS
-----------------------------
Section 5.1 Accounts for Participants. An Account shall be established
-------------------------
under the Plan for each Participant who elects to have deposits made in his
behalf. All Before Tax Deposits with respect to a Participant shall be credited
to his Account.
Section 5.2 Investment Funds. At least four (4) Investment Funds shall be
----------------
established at the direction of the Committee. The Committee shall determine the
types of investments to be held in each Investment Fund and the investment
manager or trustee responsible for selecting investments. Income on investments
of each Investment Fund shall be reinvested in the same Investment Fund.
Section 5.3 Investment Fund Designations. Deposits shall be invested in
----------------------------
the Investment Funds referred to in Section 5.2, pursuant to the self-directed
designations by the respective Active and Inactive Participants.
No more than once each day in each Plan Year, such Participant may change
his designation of the Investment Funds in which future Deposits shall be
invested.
No more than once each day in each Plan Year, such Participant also may
direct a transfer of all or a part of his Account among the various Investment
Funds.
<PAGE>
Elections under this section shall be made in accordance with rules and
procedures established by the Committee. Said rules may require that the
election be made a reasonable time prior to the date it will become effective.
Section 5.4 Valuation of Investment Funds. As of each Valuation Date, the
-----------------------------
Trustee shall determine, in accordance with generally accepted accounting
principles, the fair market value of each Investment Fund. Promptly thereafter,
the Trustee shall advise the Committee of the values so determined.
Section 5.5 Valuation of Accounts in Investment Funds. There shall be
-----------------------------------------
determined as of each Valuation Date the value of each Participant's various
accounts in the Investment Funds. The value of each such Account shall be
adjusted to reflect the effect of income, realized and unrealized profits and
losses, withdrawals, interfund transfers, and all other transactions since the
next preceding Valuation Date.
Section 5.6 Statement of Account. The Committee shall issue a statement
--------------------
valuated as of the end of each quarter during each Plan Year advising each
Active and Inactive Participant of the amount held in his Account.
ARTICLE VI
DESIGNATION OF BENEFICIARY
--------------------------
Section 6.1 Persons Eligible to Designate. Any Participant may designate a
-----------------------------
Beneficiary, and any Beneficiary may designate a successor Beneficiary, to
receive any amount payable from the Fund as a result of the Participant's death.
The Beneficiary may be one or more persons, natural or otherwise. By way of
illustration, but not by way of limitation, the Beneficiary may be an
individual, trustee, executor, or administrator. Subject to Section 6.2, a
Participant or Beneficiary may also change or revoke a designation previously
made without the consent of any Beneficiary named therein.
Section 6.2 Special Requirements for Married Participants. Notwithstanding
---------------------------------------------
the provisions of Section 6.1, as required by ERISA, if a Participant is married
at the time of his death, his Beneficiary shall be his spouse, unless the spouse
has consented in writing to
<PAGE>
the designation of a different Beneficiary by name, the spouse's consent
acknowledges the effect of the election, and the spouse's consent is witnessed
by a representative of the Plan or a notary public. The previous sentence shall
not apply if it is established to the satisfaction of the Committee that such
consent cannot be obtained because there is no spouse, because the spouse cannot
be located, or because of such other circumstances as may be prescribed by
federal regulations.
Section 6.3 Form and Method of Designation. Any designation or a
------------------------------
revocation of a prior designation of Beneficiary shall be in writing on such
form as the Committee may prescribe and shall be filed with the Committee. The
Committee and all other parties involved in making payment to a Beneficiary may
rely on the latest Beneficiary designation on file with the Committee at the
time of payment or may make payment pursuant to Section 6.4 if an effective
designation is not on file, shall be fully protected in doing so, and shall
have no liability whatsoever to any person making claim for such payment under
a subsequently filed designation of Beneficiary or for any other reason.
Section 6.4 No Effective Designation. If there is not on file with the
------------------------
Committee an effective designation of Beneficiary by a deceased Participant, his
Beneficiary shall be the person or persons surviving him in the first of the
following classes in which there is a survivor, share and share alike:
(a) His spouse.
(b) His biological and legally-adopted children, except that if any
of his children predecease him but leave issue surviving him, such issue shall
take by right of representation the share their parent would have taken, if
living.
(c) His parents.
(d) His brothers and sisters.
(e) His personal representative (executor or administrator).
Determination of the identity of the Beneficiary in each case shall be made by
the Committee.
<PAGE>
ARTICLE VII
BENEFIT REQUIREMENTS; WITHDRAWALS; LOANS
----------------------------------------
Section 7.1 Vesting. The interest of a Participant in his Account shall be
-------
fully vested in him at all times.
Section 7.2 Benefit on Termination of Employment. If a Participant's
------------------------------------
Termination of Employment occurs (for any reason other than his death), he shall
be entitled to a benefit equal to the value of his Account, determined as of the
Valuation Date coincident with or next following his Termination of Employment.
The benefit shall be paid at the times and in the manner determined under
Article VIII.
Section 7.3 Death. If a Participant's Termination of Employment is the
-----
result of his death, his Beneficiary shall be entitled to a benefit equal to the
value of his Account, determined as of the Valuation Date coincident with or
preceding the date of distribution. If a Participant's death occurs after his
Termination of Employment, his Beneficiary shall be entitled to such benefit as
the Participant would have been entitled thereafter from the Fund had he lived.
Benefits to which Beneficiaries become entitled under this section shall be paid
at the times and in the manner determined under Article VIII.
Section 7.4 Divorce. Benefits under the Plan may be paid to an Alternate
-------
Payee pursuant to a court order that is determined by the Committee to be a
Qualified Domestic Relations Order as described in Code Section 414(p) and ERISA
Section 206(d).
Section 7.5 Withdrawals While Employed. A Participant whose benefits have
--------------------------
not commenced under Sections 7.2 and 7.3 may make withdrawals from his Account
subject to the following rules:
(a) Any Participant that has not attained age 59-1/2 may request a
withdrawal from his Account, excluding earnings on his Before Tax
Deposits, for the purpose of enabling him to meet a hardship imposed by an
unusual or special situation in his financial affairs.
(1) For purpose of this Section 7.5 "financial hardship" means an
immediate and heavy financial need occurring in the personal
<PAGE>
financial affairs of the Participant (including a need that is
reasonably foreseeable or voluntarily incurred by the Participant) as
determined by the Committee based on all relevant facts and
circumstances, taking into consideration that the need to pay the
funeral expenses of a family member would generally constitute an
immediate and heavy financial need and the need to purchase a boat or
television set generally would not. In any event, the following
distributions shall be deemed to be made on account of an immediate
and heavy financial need:
(i) Payment of medical expenses (described in Code Section 213(d))
previously incurred by the Participant, the Participant's
spouse, or dependents (as defined in Code Section 152), or
necessary for these persons to obtain medical care.
(ii) Purchase, excluding mortgage payments, of a principal residence
for the Participant.
(iii) Payment of tuition for the next twelve months of post-
secondary education for the Participant, the Participant's
spouse, children, or dependents.
(iv) Payment to prevent the eviction of the Participant from his
principal residence or the foreclosure of a mortgage on the
Participant's principal residence.
(v) Such other deemed financial needs as published from time to
time by the Commissioner of Internal Revenue.
(2) A hardship distribution may not exceed the amount necessary to meet
the immediate and heavy financial need created by the hardship and
must not be capable of being satisfied from other resources
reasonably available to the Participant, generally including assets
held by his spouse or minor children, but not including assets held
for a child under an irrevocable trust or under the Uniform Gift to
Minors Act. The amount necessary to meet the immediate and heavy
financial need shall include an additional amount calculated to cover
any federal, estate, or local income taxes or penalties reasonably
anticipated to result from the distribution, where such additional
amount is requested by a Participant in his application for
withdrawal, and provided that such increase is allowed under Code
Section 401(k) and implementing regulations. The Committee shall
consider all relevant facts and circumstances and will generally
treat the requested distribution as necessary to meet the financial
need upon receipt of a certification from the Participant that his
financial need cannot reasonably be relieved:
(i) Through reimbursement or compensation by insurance or otherwise;
<PAGE>
(ii) By reasonable liquidation of the Participant's assets,
to the extent that such liquidation itself is feasible
and does not itself cause an immediate and heavy
financial need;
(iii) By suspension of the Participant's Before Tax Deposits
under the Plan; or
(iv) By other distributions or nontaxable loans from plans
maintained by the Employer and any other employer, or
by borrowing, including a loan from the Participant's
Account under this Plan, if such loans are permitted,
from commercial sources on reasonable commercial
terms.
(3) The Committee may, without further investigation, accept the
certification of the Participant as to the foregoing matters
unless it has reason to believe the statement is in error.
In addition, hardship withdrawals shall be further limited
to prevent the distribution of earnings on Before Tax
Deposits.
(c) Application for withdrawals shall be made on such forms as the
Committee prescribes and may be made at any time, effective upon the last
day of the month following satisfaction of the advance notice requirements
specified by the Committee. Distributions of withdrawals shall be made in a
lump sum as soon as is administratively possible following such date.
Withdrawal distributions shall be based on the value of a Participant's
Account as of the Valuation Date immediately preceding, or coinciding with,
the effective date of the withdrawal. A Participant may make more than one
hardship withdrawal in any one Plan Year.
(d) All hardship distributions will be paid in a lump sum in cash.
(e) All hardship distributions will be withdrawn pro rata from
available funds in each of the Investment Funds in the applicant
Participant's Account at the time that the application is approved by the
Committee.
Section 7.6 Plan Loans to Participants who are Current Employees. The
----------------------------------------------------
Committee, in its discretion, may authorize a loan to a Participant who is a
current employee of a Participating Employer and who makes application therefor.
Each such loan shall be subject to the following provisions:
<PAGE>
(a) The amount of any loan to such Participant shall not exceed
whichever of the following amounts is less:
(1) $50,000, or
(2) 50% of the Participant's Account balance as of the Valuation
Date immediately preceding the date the loan is made.
(b) A loan may not be less than $1,000.
(c) Only one loan may be outstanding to a Participant at any one time.
(d) To receive a loan from the Plan, such Participant must authorize a
promissory note in the proper amount on a form or in an electronic medium
and manner prescribed by the Committee and authorize payroll deductions for
payment of interest and principal in accordance with procedures adopted by
the Plan. To secure repayment of the loan, the Participant shall, within
the 90 day period before the loan is made, consent to any distribution
resulting from a set-off of the loan against the Participant's Account.
Each loan shall be adequately secured as determined by the Committee. A
loan shall be considered adequately secured when, at the time the loan is
initially approved, the outstanding balance does not exceed 50% of the
amount in the Participant's Account in which the Participant would have a
vested interest in the event of his Termination of Employment.
(e) The Committee shall determine the rate of interest to be paid with
respect to each loan, which shall be a reasonable rate of interest within
the meaning of Section 408(b)(1)(D) of ERISA and the regulations
promulgated thereunder. If considered reasonable under such standard, the
interest rate will be one percentage point above the prime rate, as shown
in the Money Rates published in The Wall Street Journal on the first
-----------------------
business day of the month immediately prior to the quarter in which the
loan is approved. The interest rate so determined shall be fixed for the
term of the loan.
(f) Each such loan shall provide for repayment in installments of
interest and principal through regular payroll deductions. The obligation
to make
<PAGE>
repayments of principal and interest shall be suspended during the period
not to exceed 90 days that such Participant is laid off and the loan and
the term of the loan will be automatically extended by the length of
layoff; provided, however, in no event may the term of the loan exceed five
years. Where it is not feasible in such a case to continue processing the
loan repayments as payroll deductions under a payroll system that currently
covers such Participant, the repayments shall be made by such Participant
at least quarterly. Such Participant shall be entitled to prepay, without
penalty, the total accrued interest and outstanding principal amount of the
loan by direct payment.
(g) Each loan shall extend for a stated period determined by
agreement of such Participant and the Committee, up to five years. Any
outstanding loan shall become due and payable as of the end of the second
month following the month of the Participant's Termination of Employment.
(h) In the event Termination of Employment occurs and such
Participant (i) either receives an immediate distribution of his remaining
Account balance in the Plan or does not pay the total accrued interest and
outstanding principal amount of the loan within 60 days or (ii) is in
default for 90 days on any required loan payment prior to his repayment of
the total principal and interest on an outstanding loan under the Plan,
such Participant's note shall be cancelled and the principal deemed
distributed to him or, if applicable, his Beneficiary. The amount
distributed will be considered a withdrawal and will be subject to
applicable tax penalties, and the vested interest in the Participant's
Account shall be correspondingly reduced.
(i) In accordance with the foregoing standards and requirements,
loans shall be available to all such Participants on a reasonably
equivalent basis.
(j) All loans shall be governed by such guidelines as the Committee
may adopt, and applications for loans shall be made on such forms or in
such manner as
<PAGE>
the Committee may provide for such purpose. The Committee may revise such
guidelines or such application at any time and for any reason.
(k) The Committee shall cause to be furnished to any such Participant
receiving a loan any information required to be furnished pursuant to the
Federal Truth in Lending Act, if applicable, or pursuant to any other
applicable law.
(l) The portion of such Participant's or Beneficiary's Account
represented by the outstanding loan principal shall be segregated and shall
not share in the income or losses of the Fund. In lieu thereof, all
interest paid by such Participant on the loan shall be allocated to the
Participant's Account.
(m) All loans will be made in cash, to be withdrawn pro rata from
available funds in each of the Investment Funds in the Participant's
Account at the time that the loan is approved by the Committee.
(n) Notwithstanding any other provision in this Plan to the contrary,
the Company may amend the Plan at any time to cease the granting of loans
under this Plan.
Section 7.7 Distribution Rollovers. Notwithstanding any provision of the
----------------------
Plan to the contrary that would otherwise limit a distributee's election under
this Section, a distributee may elect, at the time and in the manner prescribed
by the Committee, to have any portion of an Eligible Rollover Distribution paid
directly to an Eligible Retirement Plan specified by the distributee in a Direct
Rollover. In carrying out this Section, the Committee may mail the distribution
to the Distributee.
The following definitions apply to distribution rollovers permitted under
this subsection.
(a) "Eligible Rollover Distribution" is any distribution of all or any
portion of the balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any distribution that is
one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life
<PAGE>
expectancy) of the distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's designated
beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under Code Section
401(a)(9); and the portion of any distribution that is not includible in
gross income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(b) "Eligible Retirement Plan" is an individual retirement account
described in Code Section 408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan described in Code Section
403(a), or a qualified trust described in Code Section 401(a), that accepts
the distributee's eligible rollover distribution. However, in the case of
an eligible rollover distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account or individual
retirement annuity.
(c) "Distributee" includes an employee or former employee. In
addition, the employee's or former employee's surviving spouse and the
employee's or former employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as defined in
Code Section 414(p), are distributees with regard to the interest of the
spouse or former spouse.
(d) "Direct Rollover" is a payment by the Plan to the eligible
retirement plan specified by the distributee.
ARTICLE VIII
DISTRIBUTION OF BENEFITS
------------------------
Section 8.1 Time and Method of Payment. The benefit to which a Participant
---------------------------
or Beneficiary may become entitled under Article VII shall be distributed to him
as soon as practicable after he becomes so entitled or after the deferred
distribution date and in the following manner: Payment in a single lump sum, as
soon as practicable after the Valuation Date which is coincident with or
immediately following Termination of
<PAGE>
Employment or after any deferred Valuation Date; provided, however, that a
Participant or Beneficiary having an interest in the Burlington Northern
Inc. Stock Fund may elect to receive a final distribution of that
investment in shares of stock, except that fractional shares will be paid
in cash.
(a) The precise timing of any distribution is subject to normal
processing delays and any other administrative exigencies or special
circumstances affecting the distribution and cannot, therefore, be
guaranteed. However, distributions will normally be paid within
approximately 45 days after the end of the month following the later to
occur of (i) the Participant's Termination of Employment or other
distribution event, or (ii) receipt of any properly completed election form
that is necessary to process the distribution. No interest or investment
gains or losses will be allocated for the processing period with respect to
an amount that is distributed. Moreover, unless the Participant otherwise
elects in accordance with the Plan, the payment of his benefits must begin
no late than the sixtieth day after the close of the Plan Year in which the
Participant's Termination of Employment occurs; provided, however, that a
Participant may defer distribution only if his Account balance exceeds
$3,500 at that time; and, provided further, that if the amount of the
payment to be made cannot be determined by said date, a payment retroactive
to such date may be made no later than 60 days after the earliest date on
which the amount of such payment can be ascertained.
(b) A Participant may elect not to take a distribution under
subsection (a). In such event, he shall remain a Participant until
distribution, and his Account shall be subject to an annual expense fee of
$28.00, or such other amount as the Committee may, in its discretion,
determine to be reasonable. Such amount will be deducted directly from the
Participant's account.
(c) In all events, a distribution of all benefits must occur by April
1, following the calendar year in which the Participant attains age 70-1/2
and must in
<PAGE>
all events comply with Code Section 401(a)(9) and regulations promulgated
thereunder.
(d) If the Participant dies before receiving a distribution, the
Participant's Account (less any outstanding loan) shall be distributed to
his Beneficiary in an immediate single lump sum payment.
(e) Notwithstanding anything in the Plan to the contrary, amounts
credited to a Participant's Before Tax Deposits Account are not
distributable to a Participant or his Beneficiaries except on or after
Termination of Employment, death, or Disability. Such amounts may also be
distributed upon:
(i) termination of the Plan without the establishment of a
successor plan;
(ii) the date of the sale by the Participating Employer of
substantially all of the assets (within the meaning of
Section 409(d)(2) of the Code) used by the Employer in a
trade or business with respect to an employee who continues
employment with the entity acquiring such assets; or
(iii) the date of the sale by the Participating Employer of its
interest in a subsidiary (within the meaning of Section
409(d)(3) of the Code) with respect to an employee who
continues employment with such subsidiary.
Before Tax Deposits, by not earnings thereon, may also be distributed account of
financial hardship in accordance with Section 7.5 of Article VII of this Plan.
Section 8.2 Accounting Following Termination of Employment. If distribution
----------------------------------------------
of all or any part of a benefit is deferred or delayed for any reason, the
undistributed portion of any Account shall continue to be revalued as of each
Valuation Date as provided in Article V.
Section 8.3 Source of Benefits. All benefits to which persons become
------------------
entitled hereunder shall be provided only out of the Plan Assets and only to the
extent that the Plan Assets are adequate therefor. No benefits are provided
under the Plan except those expressly described herein.
<PAGE>
Section 8.4 Incompetent Payee. If a person entitled to payments hereunder
-----------------
is disabled from caring for his affairs because of mental condition, physical
condition, or minority age status, payment due such person may be made to such
person's guardian, conservator, or other legal or personal representative upon
furnishing the Committee with an appropriate court order from a court of
competent jurisdiction. Prior to the furnishing of such evidence, the Committee
may make payments to the person or institution then caring for or maintaining
the person under disability. The Committee shall have no liability with respect
to payments so made. The Committee shall have no duty to make inquiry as to the
competence of any person entitled to receive payments hereunder.
Section 8.5 Benefits May Not be Assigned or Alienated. Except as otherwise
-----------------------------------------
expressly permitted by the Plan or required by law, the interests of persons
entitled to benefits under the Plan may not in any manner whatsoever be assigned
or alienated, whether voluntarily or involuntarily, or directly or indirectly.
However, the Plan shall comply with the provisions of any court order which the
Committee determines is a Qualified Domestic Relations Order as defined in Code
Section 414(p) and ERISA Section 206(d).
Section 8.6 Payment of Taxes. The Plan Trustee may pay any estate,
----------------
inheritance, income, or other tax, charge, or assessment attributable to any
benefit payable hereunder which, in the Trustee's opinion, it shall be or may be
required to pay out of such benefit. The Trustee may require, before making
any payment, such release or other document from any taxing authority and such
indemnity from the intended payee as the Trustee shall deem necessary for its
protection.
Section 8.7 Conditions Precedent. No person shall be entitled to a benefit
--------------------
hereunder until his right thereto has been finally determined by the Committee
and until he has submitted to the Committee relevant data reasonably requested
by the Committee, including, but not limited to, proof of birth or death.
<PAGE>
Section 8.8 Company Directions to Trustee. The Company shall issue such
-----------------------------
directions, written or otherwise, to the Trustee as are necessary to accomplish
distributions to the Participants and Beneficiaries in accordance with the
provisions of the Plan.
ARTICLE IX
PLAN
----
Section 9.1 Composition. All sums of money and all securities and other
-----------
property received by the Trustee for purposes of the Plan, together with all
investments made therewith, the proceeds thereof, and all earnings and
accumulations thereon, and the part from time to time remaining shall constitute
the "Plan Assets." The Committee may cause the Plan Assets to be divided into
any number of parts for investment purposes or any other purposes necessary or
advisable for the proper administration of the Plan.
Section 9.1 Trustee. The Plan Assets may be held and invested as one fund
-------
or may be divided into any number of parts for investment purposes. Each part of
the Plan Assets, or the entire Plan Assets if it is not divided into parts for
investment purposes, shall be held and invested by one or more trustees. The
trustee or trustees so acting with respect to any part of the Plan Assets is
referred to herein as the Trustee with respect to such part of the Plan Assets.
The selection and appointment of each Trustee shall be made by the Committee.
The Committee shall have the right at any time to remove a Trustee, in which
case the Committee may appoint a successor thereto, subject only to the terms of
any applicable trust agreement. The Committee shall have the right to determine
the form and substance of each trust agreement under which any part of the Plan
Assets are held, subject to the requirement that they are not inconsistent with
the provisions of the Plan. Any such trust agreement may contain provisions
pursuant to which the Trustee will make investments on direction of a third
party.
The form and term of any trust agreement and any subsequent amendment
thereto is subject to the written consent of the Committee. The appointment or
removal of an
<PAGE>
investment manager shall, likewise, be made only with the written consent of the
Committee.
Section 9.3 Compensation and Expenses of Trustee. The Trustee shall be
------------------------------------
entitled to receive such reasonable compensation for its services as may be
agreed upon with the Committee. The Trustee shall also be entitled to
reimbursement for all reasonable and necessary costs, expenses, and
disbursements incurred by it in the performance of its services. Such
compensation and reimbursements shall be paid by the Company.
Section 9.4 Investment Fees and Expenses. All fees and related expenses
----------------------------
charged or incurred in investing the Plan Assets as provided in the Plan shall
be paid out of the Plan Assets.
Section 9.5 No Diversion. The Plan Assets shall be for the exclusive
------------
purposes of providing benefits to Participants under the Plan and their
beneficiaries and defraying reasonable investment fees and expenses under the
Plan. No part of the corpus or income of the Plan Assets may be used for, or
diverted to, purposes other than for the exclusive benefit of Participants or
their beneficiaries. Notwithstanding the foregoing:
(a) If any contribution or portion thereof is made by a Participating
Employer by a mistake of fact, the Trustee shall, upon written request of
the Participating Employer, return such contribution to the Participating
Employer within one year after the payment of the contribution to the
Trustee.
(b) Contributions by a Participating Employer are conditioned upon
initial qualification of the Plan as to such Participating Employer under
Code Section 401(a). If the Plan does not qualify as to such Participating
Employer, the Trustee shall, upon written request of the Participating
Employer, return the amount of such contribution to the Participating
Employer within one year after the date of denial of qualification of the
Plan.
(c) If any contribution by a Participating Employer is conditioned
upon the deductibility of the contribution under Code Section 404, then, to
the extent the
<PAGE>
deduction is deemed disallowed, the Trustee shall, upon written request of
the Committee, return such contribution (to the extent disallowed) to the
Participating Employer within one year after the disallowance of the
deduction.
(d) If any amounts remain in a suspense account under Code Section
415 upon termination of the Plan, such amounts may revert to the Company.
ARTICLE X
ADMINISTRATION OF PLAN
----------------------
Section 10.1 Named Fiduciaries. The Fiduciaries named in this Section shall
-----------------
have only those specific powers, duties, responsibilities, and obligations as
are specifically given them under this Plan or the Trust. The Participating
Employers shall have the sole responsibility for making the contributions
specified in Article IV. The Company shall have the sole authority to appoint
and remove the Trustee. The Company shall have the sole authority to amend or
terminate, in whole or in part, this Plan or the Trust. The Committee shall have
the sole responsibility for the administration of this Plan, which
responsibility is specifically described in this Plan and the Trust Agreement.
The Trustee shall have the sole responsibility for the administration of the
Trust and the management of the assets held under the Trust, all as specifically
provided in the Trust Agreement. A fiduciary may rely upon any direction,
information, or action of another fiduciary as being proper under this Plan,
without the need to inquire into the propriety of any such direction,
information, or action. It is intended under this Plan and the Trust that each
fiduciary shall be responsible for the proper exercise of his or its own powers,
duties, responsibilities, and obligations under this Plan and the Trust and
shall not be responsible for any act or failure to act of another fiduciary. No
fiduciary guarantees the Trust fund in any manner against investment loss or
depreciation in asset value. Any party may serve in more than one fiduciary
capacity with respect to the Plan or Trust.
Section 10.2 Employee Benefits Committee. Responsibility for the general
---------------------------
administration of the Plan and for implementing and carrying out the provisions
hereof
<PAGE>
shall be placed in a Committee of three or more members, each of whom shall be
an employee of a Participating Employer and each of whom shall be appointed by
the Chief Executive Officer of the Company and serve at the pleasure of the
latter. Any member of the Committee may resign by notice in writing filed with
the Secretary of the Committee, such resignation to become effective no earlier
than the date of such written notice.
All usual and reasonable expenses of administering the Plan, including
expenses of the Committee, will be paid by the Participating Employer.
Section 10.3 Organization of Committee. The Committee shall elect a
-------------------------
Chairman and a Secretary. The Secretary need not be one of the members of the
Committee. The Committee shall issue directions to the Trustee concerning all
benefits which are to be paid from the Trust fund pursuant to the provisions of
the Plan. The Committee may authorize one or more of its number, or any agent,
to direct any payment on behalf of the Committee (including instructions to the
Trustee as to the application or disbursement of the Trust fund) and may appoint
agents and clerks, and retain such professional services, including legal,
medical, accounting, record keeping, and actuarial specialists, as may be
required in carrying out the provisions of the Plan.
The Committee shall hold meetings upon notice, at such place or places, and
at such time or times, as they may determine. A majority of the members of the
Committee at the time in office shall constitute a quorum for the transaction of
business. All resolutions or actions taken by the Committee at a meeting shall
be by vote of the majority of the Committee present.
Action by the Committee may be taken without a formal meeting by the
written authorization of all of the members thereof. A Committee member shall
be disqualified from acting upon any matter affecting only himself.
Section 10.4 Procedures. The Committee shall adopt administrative rules as
----------
it deems desirable and shall keep all such books of accounts, records, and other
data as may be necessary for the proper administration of the Plan. The
Committee shall keep a record
<PAGE>
of all actions and forward all necessary communications to the Trustee,
Company, or Participating Employers, Participants, inactive Participants,
Beneficiaries, Alternate Payees, providers of services to the Plan, and other
interested parties, as the case may be.
Section 10.5 Committee's Powers and Duties. The Committee shall have such
-----------------------------
powers, duties, and discretion as may be necessary to discharge its functions
hereunder, including, but not limited to, the following:
(a) To construe and interpret the Plan, to decide all questions of
eligibility and determine the amount, manner and time of payment of any
benefits hereunder;
(b) To make a determination as to the right of any person to a
benefit;
(c) To obtain from the Participating Employers and from employees
such information as shall be necessary for the proper administration of the
Plan and, when appropriate, to furnish such information promptly to the
Trustees or other persons entitled thereto;
(d) To prepare and distribute, in such manner as the Committee
determines to be appropriate, information explaining the Plan;
(e) To furnish Participating Employers, upon request, such reports
with respect to the administration of the Plan as are reasonable and
appropriate;
(f) To establish and maintain such Accounts in the name of the
Participating Employers and of each Participant as are necessary;
(g) To instruct the Trustee with respect to the payment of benefits
hereunder;
(h) To provide for any required bonding of fiduciaries and other
persons who may from time to time handle Plan Assets;
(i) To prepare and file any reports required by the Code, ERISA, The
Securities Act of 1933, The Securities Exchange Act of 1934, or any other
applicable law;
<PAGE>
(j) To engage an independent public accountant to conduct such
examinations and to render such opinions as may be required by ERISA;
(k) To allocate contributions and Trust fund earnings and investment
gains or losses to the Accounts of Participants;
(l) To correct any errors and remedy any defects in the
administration of this Plan, including, if necessary, by requiring any
Participating Employer to make a Qualified Nonelective Contribution that
prevents discrimination under Code Section 401(k) or 401(m) without
materially increasing the cost of the Plan;
(m) To establish reasonable claims procedures in accordance with the
terms of this Plan and ERISA; and
(n) To establish procedures for identifying and complying with
Qualified Domestic Relations Orders.
Section 10.6 Committee's Decisions Conclusive. The Committee shall
--------------------------------
exercise its power hereunder in a uniform and nondiscriminatory manner. Any and
all disputes with respect to the Plan which may arise involving Participants or
their Beneficiaries shall be referred to the Committee and its decision shall be
final, conclusive, and binding. Furthermore, if any question arises as to the
meaning, interpretation, or application of any provision hereof, the decision of
the Committee with respect thereto shall be final.
Section 10.7 Indemnity. The Company shall indemnify each member of the
---------
Committee (which, for purposes of this section, includes any employee to whom
the Committee has delegated fiduciary duties) against any and all claims,
losses, damages, expenses, including counsel fees, incurred by the Committee and
any liability, including any amounts paid in settlement with the Company's
approval, arising from the member's or the Committee's action or failure to act,
except when the same is judicially determined to be attributable to the gross
negligence or willful misconduct of such member. The right of indemnity
described in the preceding sentence shall be conditioned upon (i) the timely
receipt of notice of any claim asserted against the Committee member, which
notice, in the
<PAGE>
event of a lawsuit, shall be given within ten days after receipt by the
Committee member of the complaint, and (ii) the receipt by the Company of an
offer from the Committee member of an opportunity to participate in the
settlement or defense of such claim.
Section 10.8 Prohibited Transactions. A fiduciary with respect to the Plan
-----------------------
shall not cause the Plan to engage in any prohibited transaction within the
meaning of ERISA.
Section 10.9 Bonding. Plan personnel shall be bonded to the extent required
-------
by ERISA. Premiums for such bonding shall be paid by the Plan unless paid by the
Company.
Section 10.10 Claims Procedure.
-----------------
(a) Claims for Benefits. Inquiries about benefits under the Plan may
-------------------
be made to appropriate persons as designated by the Committee. Formal
claims for benefits shall be made in writing to the Chairman of the
Committee. Written inquiries to administrative personnel and
representatives that cannot be resolved within a reasonable time will be
treated as formal claims and forwarded to the Chairman of the Committee, in
which case the claimant shall be advised of this action and of the claims
procedure under the Plan. The claim procedures for this Plan, including
those for review of any claim decision or determination, shall be
exclusively those set forth in this Section 10.10. Such procedures shall be
in lieu of all other claims procedures, including those under the Railway
Labor Act, 45 U.S.C. (S)(S) 151 et seq.
(b) Notice of Denial of Claim. If a claim for benefits is wholly or
-------------------------
partially denied, the Committee shall, within a reasonable period of time,
but no later than 90 days after receipt of the claim, notify the claimant
of the denial of benefits. If special circumstances justify extending the
period up to an additional 90 days, the claimant shall be given written
notice of this extension within the initial 90-day period and such notice
shall set forth the special circumstances and the date a decision is
expected. A notice of denial:
(1) Shall be written in a manner calculated to be understood by
the claimant; and
<PAGE>
(2) Shall contain (i) the specific reasons for denial of a claim,
(ii) specific reference to the Plan provisions on which the
denial is based, (iii) a description of any additional
material or information necessary for the claimant to perfect
the claim, along with an explanation why such material or
information is necessary, and (iv) an explanation of the
Plan's claim review procedures.
(c) Request for Review of Denial of Claim. Within 60 days of the
-------------------------------------
receipt by the claimant of the written denial of his claim or, if the claim
has not been granted within a reasonable period of time (which shall not be
less than the 90 days described in subsection (b)), the claimant may file a
written request with the full Committee that it conduct a full review of
the denial of the claim, including a hearing if deemed necessary by the
full Committee. In connection with the claimant's appeal, the claimant may
review pertinent documents and may submit issues and comments in writing.
(d) Decision of Review of Denial of Claim. The full Committee shall
-------------------------------------
deliver to the claimant a written decision on the claim promptly, but not
later than 60 days after the receipt of the claimant's request for such
review, unless special circumstances exist which justify extending this
period up to an additional 60 days. If the period is extended, the claimant
shall be given written notice of this extension during the initial 60-day
period. The decision on review of the denial of the claim:
(1) Shall be written in a manner calculated to be understood by
the claimant;
(2) Shall include specific reasons for the decision; and
(3) Shall contain specific references to the Plan provisions on
which the decision is based.
All decisions made under the procedures set out in this section shall be
final, binding, and conclusive, subject only to review in accordance with ERISA.
<PAGE>
ARTICLE XI
PLAN AMENDMENT, TERMINATION, MERGER,
AND ADOPTION BY AFFILIATES
Section 11.1 Amendment and Termination. The Company expects the Plan to
-------------------------
continue indefinitely, but since future conditions affecting the Company cannot
be anticipated or foreseen, the Company must necessarily and does hereby reserve
the right to amend, modify, or terminate the Plan for itself and all other
Participating Employers at any time by action of the Board of Directors. In
addition, the officer or other manager of the Company with principal
responsibility for the Company's Human Resources function may approve any
modifications or amendments to the Plan that are necessary or appropriate to
meet the requirements of the ERISA, the Code, or any other law now in effect or
hereafter amended and may also approve any other modification or amendment which
does not significantly increase benefit costs. No amendment of the Plan shall
cause any part of the Trust fund to be used for, or diverted to, purposes other
than for the exclusive benefit of the Participants or their Beneficiaries
covered by the Plan. Retroactive Plan amendments may not decrease the accrued
benefits of any Participant determined as of the effective date the amendment
applies or, if later, as of the time the amendment was adopted; provided,
however, that retroactive amendments to preserve the qualification of the Plan
shall be permitted to the full extent provided in Section 1140 of the Tax Reform
Act of 1986 or in other applicable laws.
Section 11.2 Distribution Upon Termination. Upon termination of the Plan
-----------------------------
in whole or in part, or upon complete discontinuance of contributions to the
Plan by the Participating Employers, the value of the proportionate interest in
the Plan Assets of each Participant affected by such termination having an
interest in the Plan Assets shall be determined as of the date of such
termination or discontinuance. The Accounts of such Participants shall
continue to be fully vested and nonforfeitable, and thereafter distribution
shall be made to such Participants as directed by the Committee in accordance
with the Plan and applicable law.
<PAGE>
Upon the partial termination of the Plan, the Committee may, in its sole
discretion, determine the timing of a distribution of the balance of the
affected Participants' Accounts in accordance with the provisions of the Plan
and applicable law.
Section 11.3 Corporate Reorganization. The bankruptcy, dissolution,
------------------------
merger, consolidation, or reorganization of the Company or any other
Participating Employer, or the sale of all or substantially all of the assets or
stock of the Company or any other Participating Employer, shall not
automatically terminate the Plan, unless a Plan termination is otherwise
required under this Article XI and no provision is made for continuation of the
Plan, or the Plan is terminated in accordance with its terms.
Section 11.4 Plan Merger or Transfer. In the event of and effective as of
-----------------------
the date of merger or consolidation with, or transfer of assets and liabilities
of the Plan to or from any other employee benefit plan, each Participant in this
Plan will (if the Plan had then terminated) receive a benefit immediately after
the merger, consolidation, or transfer which is not less than the benefit the
Participant would have been entitled to receive immediately before the merger,
consolidation, or transfer of assets (if this Plan had then terminated).
In addition, the Committee may implement the following provision regarding
Employee transfers by establishing nondiscriminatory rules of general
application to administer such provision. Unless and until the Committee
exercises such discretion, these provisions shall be of no effect. In the event
that an employee covered by this Plan transfers to the employment of an employer
which maintains another pension plan and such employee gives his consent to the
transaction, all balances to his credit under this Plan shall be transferred
directly to the trustee of the other pension plan in compliance with the
provisions of this Section 11.4 and the corresponding provison of the other
pension plan. Similarly, in the event of the transfer of an employee covered by
the other pension plan to the employment of a Participating Employer maintaining
this Plan, and subject to the consent of such employee to the transaction, all
balances to the credit of such employee in
<PAGE>
the other plan shall be transferred directly to the Trustee of this Plan in
compliance with the like provisions of both plans. Any such transfer shall take
place at an administratively convenient time after both plans have satisfied
applicable legal requirements, including the furnishing of any necessary advance
notices to the Internal Revenue Service. Following such a transfer, the
employee's years of participation in the transferring plan shall be carried over
and continued under the transferee plan, which shall preserve his vesting and
other legally protected rights with respect to the transferred balances.
Section 11.5 Affiliate Participation. Subject to the approval of the
-----------------------
Company, any Affiliate desiring to become a Participating Employer may elect to
become a party to the Plan by adopting the Plan for the benefit of its Qualified
Employees, with such modification of the terms of the Plan with respect to such
employees as the Company may approve, effective as of the date specified in such
adoption, by filing with the Company an adoption agreement or such other
additional instruments evidencing the adoption as the Company require.
Section 11.6 Action Binding on Participating Affiliates. As long as the
------------------------------------------
Company is a party to the Plan and the Trust Agreement, it shall be empowered to
act thereunder for any Participating Employer in all matters respecting the
Committee and the Trustee and the designation of Affiliates and any action taken
by the Company with respect thereto shall automatically include and be binding
upon any Employer which is a party to the Plan.
Section 11.7 Termination of Participation of Affiliate. The Company
-----------------------------------------
reserves the right, in its sole discretion and at any time, to terminate the
participation in this Plan of any or all Participating Employers. Such
termination shall be effective immediately upon notice of such termination from
the Company to the Trustee and the Employer being terminated. In the event of
such termination, this Plan shall not terminate, but the portion of the Plan
attributable to the Affiliate shall become a separate Plan, and the Company
shall inform the Trustee of the portion of the Plan Assets that is then
attributable to the participation of such terminated Affiliate. Such portion
shall, as soon thereafter as is
<PAGE>
administratively feasible, be set apart by the Trustee as a separate Trust which
shall be a part of the separate Plan of such terminated Affiliate.
Any Affiliate may withdraw from the Plan and Trust and end its status as a
Participating Employer hereunder, by action of its Board of Directors, after
obtaining approval of the Company.
Thereafter, the administration, control, and operation of the Plan with
respect to such terminated Affiliate shall be on a separate basis in accordance
with the terms hereof, or as such terms may be amended by appropriate action of
such terminated Affiliate in accordance with the provisions of Article XI.
<PAGE>
ADOPTION RESOLUTION
WHEREAS, Burlington Northern Railroad Company wishes to adopt and implement
for its scheduled employees a supplemental retirement savings plan to assist
them in their retirement planning, and
WHEREAS, the foregoing Burlington Northern 401(k) Retirement Savings Plan
will provide such assistance for those scheduled employees whose labor
organization representatives accept the Plan on behalf of their respective
members,
NOW, THEREFORE, IT IS HEREBY RESOLVED, that the foregoing Burlington Northern
401(k) Retirement Savings Plan is adopted by Burlington Northern Railroad
Company for its scheduled employees whose labor organization representatives
accept the Plan for their respective members, as indicated by execution of the
attached Acceptance Agreement.
By: /s/ James B. Dagnon
---------------------------
James B. Dagnon
Executive Vice President, Employee Relations
Burlington Northern Railroad Company
July 30, 1993
---------------------------
Date
<PAGE>
EXHIBIT 5.1
-----------
September 22, 1995
Burlington Northern Santa Fe Corporation
3800 Continental Plaza
777 Main Street
Fort Worth, Texas 76102
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended, of 1,000,000 shares of Common Stock (the "Shares") of Burlington
Northern Santa Fe Corporation (the "Company"), we have examined the Registration
Statement on Form S-8 to be filed by the Company with the Securities and
Exchange Commission (the "Registration Statement") and such public and corporate
records, certificates and other documents and conducted such other examinations
as we have considered necessary for the purposes of the opinions hereinafter
expressed.
On the basis of the foregoing, we are of the opinion that all
necessary corporate action has been taken by the Company to authorize the
issuance of up to 1, 000,000 shares pursuant to the Company's 401(k) Retirement
Savings Plan (the "Plan") referred to in the Registration Statement and any
such Shares will be, if and when issued in accordance with the Plan, validly
issued as fully paid and non-assessable Shares of the Company.
We consent to the filing of this opinion as an exhibit to the
Registration Statement, and to the reference to our firm under the caption
"Legal Matters" in the Prospectus to be used in connection with the Registration
Statement.
Very truly yours,
/s/ Steptoe & Johnson
Steptoe & Johnson
<PAGE>
EXHIBIT 23.2
------------
(Accountants Letterhead)
Consent of Independent Accountants
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of Burlington Northern Santa Fe Corporation of our report dated
December 22, 1994 on our audit of the balance sheet of BNSF Corporation (now
known as Burlington Northern Santa Fe Corporation) as of December 22, 1994.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Fort Worth, Texas
September 21, 1995
<PAGE>
EXHIBIT 23.3
------------
(Accountants Letterhead)
Consent of Independent Accountants
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of Burlington Northern Santa Fe Corporation of our report
dated January 16, 1995, on our audits of the consolidated financial statements
and the financial statement schedules of Burlington Northern Inc. and
Subsidiaries as of December 31, 1994 and 1993, and for the years ended December
31, 1994, 1993 and 1992.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Fort Worth, Texas
September 21, 1995
<PAGE>
EXHIBIT 23.4
------------
(Accountants Letterhead)
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Burlington Northern Santa Fe Corporation of our report
dated February 21, 1995, which appears on page 19 of the 1994 Annual report of
Santa Fe Pacific Corporation, which is incorporated by reference in Santa Fe
Pacific Corporation's Annual Report on Form 10-K for the year ended December 31,
1994.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Kansas City, Missouri
September 22, 1995
