<PAGE>
As filed with the Securities and Exchange Commission September 26, 1995
File 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 41-1804964
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OF INCORPORATION OR ORGANIZATION)
3800 CONTINENTAL PLAZA 76102
777 MAIN STREET (ZIP CODE)
FORT WORTH, TEXAS
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE:
(817) 333-2000
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY
COMPANY-BROTHERHOOD OF LOCOMOTIVE ENGINEERS
401(k) RETIREMENT PLAN
(FULL TITLE OF THE PLAN)
JEFFREY R. MORELAND
SENIOR VICE PRESIDENT, LAW AND GENERAL COUNSEL
BURLINGTON NORTHERN SANTA FE CORPORATION
3800 CONTINENTAL PLAZA
777 MAIN STREET
FORT WORTH, TEXAS 76102
(817) 333-2000
(AGENT FOR SERVICE)
-----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================
Proposed Proposed
Maximum Maximum
Title of Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share* Offering Price* Registration Fee
- - -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par 1,230,000
value..................... Shares $71.15625 $87,522,188 $30,180
=======================================================================================================
</TABLE>
* Estimated solely for the purpose of computing the registration fee on the
basis of the average of the high and low prices for the Common Stock as
reported on the New York Stock Exchange on September 22, 1995.
================================================================================
In addition, pursuant to Rule 416(c) of the Securities Act of 1933, this
registration also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan described herein.
<PAGE>
Part II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by Burlington
Northern Santa Fe Corporation (the "Company" or "Registrant"), with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, and
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference herein and shall be deemed to be a part hereof:
(a) The Company's Registration Statement on Form S-4 filed with the
Securities and Exchange Commission on December 22, 1994, including the
description of Common Stock contained therein.
(b) Post-effective Amendments Nos. 1, 2, 3 and 4 to the Company's
Registration Statement on Form S-4.
(c) Annual Report on Form 10-K for the year ended December 31, 1994 for
the Company's subsidiary, Santa Fe Pacific Corporation ("SFP"), as
amended by Form 10-K/A.
(d) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995
and June 30, 1995 for SFP.
(e) Annual Report on Form 10-K for the year ended December 31, 1994 for
the Company's wholly-owned subsidiary, Burlington Northern Inc.
("BNI").
(f) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995
and June 30, 1995 for BNI.
(g) Current Report on Form 8-K for SFP (date of earliest event reported,
January 18, 1995).
(h) Current Report on Form 8-K for SFP (date of earliest event reported,
January 24, 1995).
(i) Current Report on Form 8-K for SFP (date of earliest event reported,
February 21, 1995).
(j) Current Report on Form 8-K for SFP (date of earliest event reported,
March 7, 1995).
(k) Current Report on Form 8-K for SFP (date of earliest event reported,
April 19, 1995).
(l) Current Report on Form 8-K for SFP (date of earliest event reported,
May 31, 1995).
(m) Current Report on Form 8-K for BNI (date of earliest event reported,
January 19, 1995).
(n) Current Report on Form 8-K for BNI (date of earliest event reported,
January 24, 1995).
(o) Current Report on Form 8-K/A for BNI (date of earliest event reported,
January 24, 1995).
<PAGE>
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference and shall be deemed a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable
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 is in 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.
<PAGE>
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, 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.
See Index to Exhibits.
ITEM 9. UNDERTAKINGS.
A. 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:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a post-
effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
<PAGE>
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.
B. Filings Incorporating Subsequent Exchange Act Documents
by Reference.
---------------------------------------------------------------------
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Indemnification of Directors and Officers.
-----------------------------------------
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions of the registrant's articles of
incorporation or by-laws 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 of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the 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 of 1933 and will be governed by the
final adjudication of such issue.
<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
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below authorizes any Authorized
Officer acting alone to execute in the name of such person and in the capacity
indicated below, and to file, any amendments to the Registration Statement which
any Authorized Officer deems necessary or advisable to enable the Registrant to
comply with the Securities Act of 1933, as amended, and any rules, regulations,
and requirements of the Securities and Exchange Commission in respect thereof,
and to take any other action on behalf of such person which any Authorized
Officer deems necessary or desirable in connection herewith. The term
"Authorized Officer" as applied with respect to any action taken pursuant to
this authorization means (i) any person who is the Chief Executive Officer or a
Senior Vice President of the Registrant and (ii) any other officer of the
Registrant who shall be authorized by a person identified in clause (i) to act
as an Authorized Officer for purposes of this paragraph.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities stated below on the 22nd day of September 1995:
Signature Title
--------- -----
/s/ Gerald Grinstein Chairman of the Board and Director
- - --------------------------------------
Gerald Grinstein
/s/ Robert D. Krebs President, Chief Executive Officer
- - -------------------------------------- and Director
Robert D. Krebs
/s/ Denis E. Springer Senior Vice President and Chief
- - -------------------------------------- Financial Officer
Denis E. Springer
/s/ Thomas N. Hund Vice President and Controller
- - --------------------------------------
Thomas N. Hund
/s/ Joseph F. Alibrandi Director
- - --------------------------------------
Joseph F. Alibrandi
/s/ Jack S. Blanton Director
- - --------------------------------------
Jack S. Blanton
/s/ John J. Burns, Jr. Director
- - --------------------------------------
John J. Burns, Jr.
/s/ Daniel P. Davison Director
- - --------------------------------------
Daniel P. Davison
/s/ George Deukmejian Director
- - --------------------------------------
George Deukmejian
<PAGE>
/s/ Daniel J. Evans Director
- - --------------------------------------
Daniel J. Evans
/s/ Barbara Jordan Director
- - --------------------------------------
Barbara Jordan
/s/ Bill M. Lindig Director
- - --------------------------------------
Bill M. Lindig
/s/ Ben F. Love Director
- - --------------------------------------
Ben F. Love
/s/ Roy S. Roberts Director
- - --------------------------------------
Roy S. Roberts
/s/ Marc J. Shapiro Director
- - --------------------------------------
Marc J. Shapiro
/s/ Arnold R. Weber Director
- - --------------------------------------
Arnold R. Weber
/s/ Robert H. West Director
- - --------------------------------------
Robert H. West
/s/ J. Steven Whisler Director
- - --------------------------------------
J. Steven Whisler
/s/ Edward E. Whitacre, Jr. Director
- - --------------------------------------
Edward E. Whitacre, Jr.
/s/ Ronald B. Woodard Director
- - --------------------------------------
Ronald B. Woodard
/s/ Michael B. Yanney Director
- - --------------------------------------
Michael B. Yanney
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, The Atchison,
Topeka and Santa Fe Railway Company Brotherhood of Locomotive Engineers 401(k)
Reitrement Plan has caused this registration statement to be signed on its
behalf by the undersigned Plan Administrator, thereunto duly authorized, in the
City of Schaumburg, State of Illinois, on the 22nd day of September, 1995.
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY
BROTHERHOOD OF LOCOMOTIVE ENGINEERS 401(k)
RETIREMENT PLAN
/s/ John J. Fleps
--------------------------------------
John J. Fleps
Chairman, Administration Committee
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit Sequential
Number Description of Document Page Number
- - ------- ----------------------- -----------
4(a) Certificate of Incorporation of the Registrant
(incorporated by reference to the Company's Registration
Statement on Form S-4, filed December 22, 1994)
4(b) By-Laws of the Registrant (incorporated by reference to
the Company's Registration Statement on Form S-4, filed
December 22, 1994)
4(c) The Atchison, Topeka and Santa Fe Railway Company-
Brotherhood of Locomotive Engineers 401(k) Retirement Plan
5(b) Neither an opinion concerning the plan's
compliance with the requirements of ERISA
nor an Internal Revenue Service ("IRS") determination
letter is required because the plan has been or will
be submitted to the IRS and the registrant undertakes
that it will make all changes required by the IRS to
qualify the plan.
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
<PAGE>
___________________________________________________
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY -
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
401(k) RETIREMENT PLAN
___________________________________________________
Effective April 1, 1993
(Restated To Incorporate
First Through Seventh
Amendments)
<PAGE>
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY -
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
401(K) RETIREMENT PLAN
CONTENTS
<TABLE>
<CAPTION>
Page
<C> <S> <C>
Preamble ................................................. 1
ARTICLE I. GENERAL PROVISIONS
SECTION 1- 1 Administration Committee......................... 1
SECTION 1- 2 Affiliated Company............................... 1
SECTION 1- 3 Authorized Leave of Absence...................... 1
SECTION 1- 4 Average Contribution Percentage.................. 1
SECTION 1- 5 Beneficiary...................................... 2
SECTION 1- 6 Company.......................................... 2
SECTION 1- 7 Company Contribution Account..................... 2
SECTION 1- 8 Compensation..................................... 2
SECTION 1- 9 Contributions.................................... 3
SECTION 1-10 Deferred Contribution Account.................... 3
SECTION 1-11 Disability....................................... 3
SECTION 1-12 Effective Date................................... 3
SECTION 1-13 Employee......................................... 3
SECTION 1-14 Employee Contribution Account.................... 3
SECTION 1-15 Fiduciaries...................................... 4
SECTION 1-16 Former Participant............................... 4
SECTION 1-17 Highly Compensated Employee...................... 4
SECTION 1-18 Hours of Service................................. 6
SECTION 1-19 Income........................................... 6
SECTION 1-20 Participant...................................... 6
SECTION 1-21 Participation.................................... 7
SECTION 1-22 Plan............................................. 7
SECTION 1-23 Plan Year........................................ 7
SECTION 1-24 Service.......................................... 7
SECTION 1-25 Termination of Employment........................ 7
SECTION 1-26 Trustee.......................................... 7
SECTION 1-27 Gender and Number................................ 7
ARTICLE II. PARTICIPATION
SECTION 2-1 Eligibility...................................... 8
SECTION 2-2 Severance of Employment.......................... 8
SECTION 2-3 Elections by Employees........................... 8
SECTION 2-4 Service.......................................... 8
SECTION 2-5 Participation Upon Reemployment.................. 9
</TABLE>
- i -
<PAGE>
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY -
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
401(K) RETIREMENT PLAN
CONTENTS (CONTINUED)
<TABLE>
<CAPTION>
Page
ARTICLE III. CONTRIBUTIONS TO THE FUND
<C> <S> <C>
SECTION 3-1 Funds............................................ 11
SECTION 3-2 Elective Contributions........................... 11
SECTION 3-3 Company Contributions............................ 13
ARTICLE IV. INVESTMENT OF CONTRIBUTIONS
SECTION 4-1 Contributions.................................... 14
SECTION 4-2 Investment Elections............................. 15
SECTION 4-3 Changes in Investment Elections.................. 15
SECTION 4-4 Valuation........................................ 15
SECTION 4-5 ................................................. 16
SECTION 4-6 Tender Offer..................................... 17
SECTION 4-7 Voting........................................... 17
ARTICLE V. ALLOCATIONS AND ACCOUNTING
SECTION 5-1 Allocation of Contributions...................... 18
SECTION 5-2 Individual Accounts.............................. 18
SECTION 5-3 Disposition and Allocation of Forfeitures........ 18
SECTION 5-4 Maximum Contributions............................ 19
SECTION 5-5 Nonalienation of Benefits........................ 20
SECTION 5-6 Payments Pursuant to a Qualified
Domestic Relations Order........................ 21
ARTICLE VI. DISTRIBUTIONS TO PARTICIPANTS
SECTION 6- 1 Form of Distributions............................ 23
SECTION 6- 2 In the Event of the Death of a Participant....... 23
SECTION 6- 3 Retirement....................................... 23
SECTION 6- 4 Disability....................................... 23
SECTION 6- 5 Distribution Notices............................. 23
SECTION 6- 6 Other Severance of Employment.................... 24
SECTION 6- 7 Vesting Services................................. 25
SECTION 6- 8 Authorized Leaves of Absence..................... 25
SECTION 6- 9 Withdrawals...................................... 25
SECTION 6-10 Rollover......................................... 28
SECTION 6-11 Revision and Cessation of Company Contributions.. 28
SECTION 6-12 Settlement of Disputes........................... 29
SECTION 6-13 Annuity Distributions............................ 29
</TABLE>
- ii -
<PAGE>
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY -
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
401(K) RETIREMENT PLAN
CONTENTS (CONTINUED)
<TABLE>
<CAPTION>
Page
ARTICLE VII. TRUSTEE
<C> <S> <C>
SECTION 7-1 Trustee.......................................... 31
SECTION 7-2 Allocation of Responsibility Among Fiduciaries
for Plan and Trust Administration............... 31
ARTICLE VIII. THE COMPANY
SECTION 8-1 Company's Interest in the Plan................... 33
SECTION 8-2 Examination of Plan Documents.................... 33
SECTION 8-3 Payment with Respect to Incapacitated
Participants or Beneficiaries................... 33
SECTION 8-4 No Employment or Benefit Guaranty................ 33
SECTION 8-5 Litigation....................................... 34
SECTION 8-6 Severability..................................... 34
SECTION 8-7 Amendment of Plan................................ 34
ARTICLE IX. TERMINATION OR MERGER OF THE PLAN
SECTION 9-1 Termination or Merger of the Plan................ 36
ARTICLE X. TOP HEAVY RULES
SECTION 10-1 Top Heavy Rules.................................. 38
ARTICLE XI. THE ADMINISTRATION COMMITTEE
SECTION 11-1 Membership....................................... 42
SECTION 11-2 Plan Administrator............................... 42
SECTION 11-3 Proceedings of the Administration Committee...... 42
SECTION 11-4 Construction of Terms and Provision
of This Plan.................................... 42
ARTICLE XII. ROLLOVERS AND TRANSFERS
SECTION 12-1 Rollovers........................................ 44
SECTION 12-2 Trustee Transfers From Other Qualified Plans..... 44
SECTION 12-3 Trustee Transfer to Other Qualified Plans........ 44
SECTION 12-4 Definitions...................................... 45
</TABLE>
- iii -
<PAGE>
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY -
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
401(K) RETIREMENT PLAN
CONTENTS (CONTINUED)
<TABLE>
<CAPTION>
Page
ARTICLE XIII. LOANS
<S> <C>
SECTION 13-1............................................ 46
SECTION 13-2............................................ 46
SECTION 13-3............................................ 47
SECTION 13-4............................................ 48
SECTION 13-5............................................ 48
SECTION 13-6............................................ 48
SECTION 13-7............................................ 48
SECTION 13-8............................................ 48
SECTION 13-9............................................ 49
SECTION 13-10........................................... 49
SECTION 13-11........................................... 49
SECTION 13-12........................................... 49
</TABLE>
- iv -
<PAGE>
- page 1 -
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
401(k) RETIREMENT PLAN
Establishment. Effective January 1, 1990, The Atchison, Topeka and Santa
Fe Railway Company (the "Company") entered into an agreement with the
Brotherhood of Locomotive Engineers pursuant to which the Company agreed to
establish a plan intended to qualify under Sections 401(a) and 401(k) of the
Internal Revenue Code of 1986 for its membership. Accordingly, The Atchison,
Topeka and Santa Fe Railway Company-Brotherhood of Locomotive Engineers 401(k)
Retirement Plan (the "Plan") is hereby established effective April 1, 1990 (the
"Effective Date") as set forth herein.
Qualification. This Plan is intended to be a profit-sharing plan and to
meet the requirements of Sections 401(a), (k) and (m) and 501(a) of the Internal
Revenue Code (the "Code") and the Employee Retirement Income Security Act of
1974 ("ERISA"), as amended and shall be interpreted in a manner consistent with
it meeting such requirements.
ARTICLE I. GENERAL PROVISIONS
SECTION 1-1. "ADMINISTRATION COMMITTEE" means the committee consisting of
the persons appointed under the provisions of Article XI to administer the Plan.
SECTION 1-2. "AFFILIATED COMPANY" means any corporation which is a member
of a controlled group of corporations (within the meaning of Section 414(b) of
the Code) with the Company. Affiliated Company shall also mean any trade or
business under common control with an Affiliated Company within the meaning of
Section 414(c) of the Code and any other entity required to be aggregated
pursuant to Section 414(o) of the Code.
SECTION 1-3. "AUTHORIZED LEAVE OF ABSENCE" means any absence authorized by
the Company under the Company's standard personnel practices.
SECTION 1-4. "AVERAGE CONTRIBUTION PERCENTAGE" means, for a specified
group of eligible Employees for a year, the average of the ratios for each
Employee of:
<PAGE>
- page 2 -
(a) the amount of Deferred Contributions (or the total of Employee
Contributions plus Company Contributions) actually made to the Plan on
behalf of each such Employee for such year, to
(b) such Employee's Compensation for such year.
SECTION 1-5. "BENEFICIARY" means a person or persons (natural or
otherwise) designated by a Participant to receive any death benefit which shall
be payable under the Plan. Such beneficiary designation shall be made on the
application form provided for in Section 2-3, and each Participant shall have
the right to change his Beneficiary at any time. The Beneficiary of a married
Participant shall be his spouse unless the Participant has submitted to the
Administration Committee the written consent of his spouse, witnessed by a Plan
representative or notary public, to designate a different Beneficiary. In the
event no Beneficiary is designated in the case of an unmarried Participant, or
if no designated Beneficiary shall survive the Participant, Beneficiary shall
mean the Participant's estate.
SECTION 1-6. "COMPANY" means The Atchison, Topeka and Santa Fe Railway
Company and any other corporations affiliated with the Company which, with the
consent of the Company, participate in this Plan.
SECTION 1-7. "COMPANY CONTRIBUTION ACCOUNT" means the account maintained
for a Participant to record his share of the contributions of the Company, other
than Deferred Contributions, and adjustments related thereto.
SECTION 1-8. "COMPENSATION" shall mean a Participant's earned income,
wages, salaries, and other amounts received for personal services actually
rendered for service as a locomotive engineer, including constructive
allowances, (excluding compensation for services on the basis of a percentage of
profits, disciplinary or judicially ordered back pay awards, severance benefits,
relocation expenses, unused vacation pay, bonuses, cost-of-living payments, and
payments in settlement of personal injuries) and also excluding the following:
(a) Employer contributions to a non-qualified plan of deferred
compensation to the extent contributions are not included in the gross
income of the Employee for the taxable year in which contributed, or
on behalf of an Employee to a Simplified Employee Pension Plan to the
<PAGE>
- page 3 -
extent such contributions are deductible under Section 219(b)(7) of
the Code, and any distributions from a plan of deferred compensation
whether or not includable in the gross income of the Employee when
distributed;
(b) Amounts realized from the exercise of a non-qualified stock option, or
when restricted stock (or property) held by an Employee becomes freely
transferable or is no longer subject to a substantial risk of
forfeiture;
(c) Amounts realized from the sale, exchange or other disposition of stock
acquired under a qualified or incentive stock option; and
(d) Other amounts which receive special tax benefits.
Compensation for any limitation year is the compensation actually paid or
includable in gross income during such year. Notwithstanding the foregoing, in
no event shall the annual compensation of any Employee under the Plan for the
Plan Year exceed $150,000 (adjusted at the same time and manner as under Section
415(d) of the Code).
SECTION 1-9. "CONTRIBUTIONS" means those amounts contributed to the
Company Contribution Account, the Deferred Contribution Account and the Employee
Contribution Account.
SECTION 1-10. "DEFERRED CONTRIBUTION ACCOUNT" means the account maintained
for a Participant to record his share of the Deferred Contributions of the
Company and adjustments related thereto.
SECTION 1-11. "DISABILITY" means a Participant's permanent and total
incapacity for engaging in any employment for the Company for physical or mental
reasons. Disability shall be deemed to exist only when a written application
has been filed with the Company or its designee by or on behalf of a Participant
and when such Participant is on a continuous medical leave of absence for a
period of at least six months and such total disability is certified to the
Company or its designee by a licensed physician approved by the Company or its
designee.
SECTION 1-12. "EFFECTIVE DATE" means April 1, 1990.
<PAGE>
- page 4 -
SECTION 1-13. "EMPLOYEE" means any person establishing seniority with the
Company in the craft of locomotive engineer.
SECTION 1-14. "EMPLOYEE CONTRIBUTION ACCOUNT" means the account maintained
for a Participant to record his contributions and adjustments related thereto.
SECTION 1-15. "FIDUCIARIES" means the Company, the Administration
Committee and the Trustee, but only with respect to the specific
responsibilities of each for the Plan and trust administration, all as described
in Section 7-2.
SECTION 1-16. "FORMER PARTICIPANT" means a Participant whose employment
with the Company has terminated but who has an account balance under the Plan
which has not been paid in full.
SECTION 1-17. "HIGHLY COMPENSATED EMPLOYEE" means a highly compensated
active employee or a highly compensated former employee.
A highly compensated active employee includes any employee who performs
service for an Affiliated Company during the determination year and who, during
the look-back year,
(a) received compensation from an Affiliated Company in excess of $75,000
(as adjusted pursuant to Section 415(d) of the Code);
(b) received compensation from an Affiliated Company in excess of $50,000
(as adjusted pursuant to Section 415(d) of the Code) and was a member
of the top-paid group for such year; or
(c) was an officer of an Affiliated Company and received compensation
during such year that is greater than 50% of the dollar limitation in
effect under Section 415(b)(1)(A) of the Code.
The term Highly Compensated Employee also includes
(a) employee who are both (i) described in the preceding sentence if the
term "determination year" is substituted for the term "look-back year"
and (ii) the employee is one of the 100 employees who received the
most
<PAGE>
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compensation from an Affiliated Company during the determination year;
and
(b) employees who are 5% owners at any time during the look-back year or
the determination year.
If no officer has satisfied the compensation requirement of (c) above
during either a determination year or a look-back year, the highest paid officer
for such year shall be treated as a Highly Compensated Employee.
For purposes of this Section, the determination year shall be the Plan
Year. The look-back year shall be the twelve-month period immediately preceding
the determination 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 an Affiliated Company during the determination year, and
was a highly compensation active employee for either the separation year or any
determination year ending on or after the employee's 55th birthday. An employee
who performs no service for an Affiliated Company during a determination year
(for example, an employee who is on an authorized leave of absence throughout
the year) shall be treated as having terminated employment in the year in which
he last performed services for an Affiliated Company.
If an employee is, during a determination or look-back year, a family
member of either a 5% 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 an Affiliated Company during such
year, then the family member and the 5% owner or top-ten Highly Compensated
Employee shall be aggregated. In such case, the family member and 5% 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 5%
owner or top-ten Highly Compensated Employee. For purposes of this Section,
family member includes the spouse, lineal ascendant 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.
<PAGE>
- page 6 -
For purposes of this definition of Highly Compensated Employee,
"compensation" shall mean compensation within the meaning of Treasury Regulation
(S)1.415-2(d) without regard to Sections 402(a)(8) and 402(h)(1)(B) of the Code.
For purposes of this definition of "Highly Compensated Employee,"
"compensation" shall mean compensation within the meaning of Treasury Regulation
(S)1.415-2(d). The $50,000 and $75,000 amounts are subject to cost-of-living
adjustments made by the Secretary of the Treasury or his delegate.
SECTION 1-18. "HOURS OF SERVICE" means:
(a) Each hour for which an Employee is paid, or entitled to payment, for
the performance of duties for the Company,
(b) Up to 501 hours for any single continuous period during which the
Employee performs no duties but is directly or indirectly paid or
entitled to payment by the Company (regardless of whether employment
has terminated) due to vacation, holiday, illness, incapacity
including disability, lay-off, jury duty, military duty or leave of
absence; excluding, however, any period for which payment is made or
due under this Plan or under a plan maintained solely for the purposes
of complying with workmen's compensation or unemployment compensation
or disability insurance laws, or solely to reimburse the Employee for
medical or medically-related expenses. An Employee shall be deemed to
be directly or indirectly paid, or entitled to payment by the Company
regardless of whether such payment is (i) made by or due from the
Company directly or (ii) made indirectly through a trust fund, insurer
or other entity to which the Company contributes or pays premiums, and
(c) Each hour for which back pay, irrespective of mitigation of damages,
is either awarded or agreed to by the Company, without duplication of
hours provided above, and subject to the 501-hour restriction for
period described in the foregoing subparagraph (b).
For any month in which an Employee has been compensated or on Authorized
Leave of Absence for one hour, he shall be deemed to be compensated for a
minimum of 190 hours.
The foregoing provisions shall be administered in accordance with
Department of Labor Regulation Section 2530.200B-2. In
<PAGE>
- page 7 -
addition to, but not in duplication of, the foregoing provisions, an Employee
shall receive service and credited service for any period of paid leave of
absence.
SECTION 1-19. "INCOME" means the net gain or loss of the Plan from
investments, as reflected by interest payments, dividends, realized and
unrealized gains and losses on securities, other investment transactions and
expenses paid from the Plan.
SECTION 1-20. "PARTICIPANT" means an Employee participating in the Plan in
accordance with the provisions of Section 2-1.
SECTION 1-21. "PARTICIPATION" means the period commencing as of the date
an Employee becomes a Participant and ending on the date his employment with the
Company terminates.
SECTION 1-22. "PLAN" means The Atchison, Topeka and Santa Fe Railway
Company - Brotherhood of Locomotive Engineers 401(k) Retirement Plan, as set
forth herein, as amended from time to time.
SECTION 1-23. "PLAN YEAR" means the 12-month period commencing on January
1 and ending on December 31.
SECTION 1-24. "SERVICE" means a Participant's period of employment with
the Company determined in accordance with Section 2-4.
SECTION 1-25. "TERMINATION OF EMPLOYMENT" occurs on the date the Employee
quits, dies, retires, or is voluntarily or involuntarily discharged without any
rights or claim of reemployment under any collective bargaining agreement.
Transfers of employment by an Employee from the Company to any commonly
controlled entity or from one commonly controlled entity to another commonly
controlled entity or to the Company, shall not constitute a Termination of
Employment of such Employee for purposes of the Plan. A Termination of
Employment shall not occur by absence of any Employee due to his having entered
the Armed Forces or Merchant Marines of the United States, if he has
reemployment rights under the law, complies with requirements of the law as to
reemployment and is reemployed.
<PAGE>
- page 8 -
SECTION 1-26. "TRUSTEE" means the trustee under any trust agreement
established between the Company and a trustee for the purpose of implementing
the Plan or a legal reserve life insurance company organized or incorporated
under the laws of any one of the United States of America and duly licensed in
Illinois, whichever is applicable.
SECTION 1-27. GENDER AND NUMBER. The masculine gender, where appearing in
the Plan shall be deemed to include the feminine gender, unless the context
clearly indicates to the contrary. The words "hereof", "herein", "hereunder"
and other similar compounds of the word "here" shall mean and refer to the
entire Plan and not to any particular provision or section.
<PAGE>
- page 9 -
ARTICLE II. PARTICIPATION
SECTION 2-1. ELIGIBILITY. An Employee shall be eligible to participate in
the Plan upon 1) the earlier of completion of not less than one (1) year of
continuous service with the Company or a 12-month period, computed with
reference to the date on which the Employee's employment commenced, and
anniversaries thereof, during which the Employee has not less than 1,000 Hours
of Service, and 2) performing one hour of service as a locomotive engineer after
January 1, 1990.
Any Employee eligible to become a Participant as a result of promotion to
Locomotive Engineer may commence participation as of the beginning of the first
day of the month following the date he becomes eligible to participate, provided
the Administration Committee or its authorized delegate receives the required
enrollment forms seven (7) business days prior to the end of the preceding
month.
SECTION 2-2. SEVERANCE OF EMPLOYMENT. Any Employee, whose Termination of
Employment from the Company occurs prior to his eligibility to participate in
this Plan, and whose employment is later resumed, shall be deemed a new Employee
as of the date of his reemployment, and shall meet the eligibility requirements
of Section 2-1 as a new Employee to be eligible to participate in this Plan,
except as provided in Section 2-5.
For the purpose of this Section 2-2, employment shall not be deemed to have
been severed nor shall its permanency be affected by the fact that an Employee
has been on an Authorized Leave of Absence for a period not exceeding six months
or has been on sick leave or injured and on leave granted by the Company. The
Company's records as to Termination of Employment, severance, leave of absence,
return, cessation of Compensation, shall be final and conclusive upon all
parties.
SECTION 2-3. ELECTIONS BY EMPLOYEES. Each eligible Employee who wishes to
participate in the Plan shall complete a form or forms furnished by the Company.
Such form shall specify (a) the Beneficiary selected by the Employee to receive
death benefits, (b) the Employee's election to contribute to the Plan, or to
have the Company contribute to the Plan on his behalf a percentage of his
Compensation (as provided for in Section 3-2).
<PAGE>
- page 10 -
SECTION 2-4. SERVICE. Service shall include service with an Affiliated
Company. A transfer of an Employee from the Company to any Affiliated Company
shall not constitute a Termination of Employment. In the event of such a
transfer, the Employee's account shall remain as part of the Plan.
SECTION 2-5. PARTICIPATION UPON REEMPLOYMENT. Participation in the Plan
shall cease upon Termination of Employment with the Company or an Affiliated
Company. Termination of Employment includes retirement, death, voluntary or
involuntary termination of employment, unauthorized absence, and a failure to
return to active employment with the Company by the date on which an Authorized
Leave of Absence expired.
Upon the reemployment of any person after the effective date of this Plan
who had previously been employed by the Company on or after the Effective Date,
the following rules shall apply in determining his participation in the Plan.
(a) If the reemployed Employee participated in the Plan during his prior
period of employment, he shall be entitled to participate in the Plan
as of the beginning of the first pay period of the month following his
date of reemployment, and participation shall be retroactive to the
date of reemployment.
(b) If the reemployed Employee was eligible to participate, but was not a
Participant in the Plan during his prior period of employment, and if
he incurred a one-year break in service, he must meet the requirements
of Section 2-1 for participation in the Plan as if he were a new
Employee.
(c) If the reemployed Employee was not eligible to participate in the Plan
during his prior period of employment, his prior service shall be
taken into account in determining whether he meets the requirements of
Section 2-1 for participation in the Plan unless he incurred a one-
year break in service.
A one-year Break in Service occurs when an employee has not completed more
than 500 Hours of Service in the Plan Year following his termination of
employment.
In the case of an Employee who is absent from work for any period (i) by
reason of pregnancy of the Employee, (ii) by reason of the birth of a child of
the Employee, (iii) by reason of the placement of a child with the Employee in
connection with the
<PAGE>
- page 11 -
adoption of such child by such Employee, or (iv) for purposes of caring for such
child for a period beginning immediately following such birth or placement, for
purposes of determining whether a one-year break in service has occurred, Hours
of Service shall include (a) the Hours of Service which otherwise would normally
have been credited to such Employee but for such absence, or (b) in any case in
which such hours cannot be determined, eight hours of service per day of such
absence, provided however, that the total number of hours treated as Hours of
Service under this sentence by reason of any such pregnancy or placement shall
not exceed 501 hours. The hours described in the preceding sentence shall be
treated as Hours of Service (i) only in the Plan Year in which the absence from
work began if an Employee would be prevented from incurring a one-year break in
service in such Plan Year solely because the period of absence is treated as
Hours of Service as provided in the preceding sentence, or (ii) in any other
case, in the immediately following Plan Year. No credit will be given pursuant
to the preceding two sentences unless the Employee furnishes to the
Administration Committee timely information to establish that the absence from
work is for the reasons referred to in the first sentence of this paragraph and
the number of days for which there was such an absence.
<PAGE>
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ARTICLE III. CONTRIBUTIONS TO THE FUND
SECTION 3-1. FUNDS. "Funds" shall mean all monies, securities, retirement
income, annuity contracts, and all other property held by the Trustee under the
terms of this Plan, and shall consist of the contributions and investments and
reinvestments thereof, and accruals thereto, and shall be held and administered
by the Trustee as a single trust, without distinction between principal and
income. The Company shall have the responsibility for selecting the Trustees
hereunder and may select the investment Funds to be offered or may establish
additional or substitute other funds for the investment of Participant
contributions and other assets held in the Plan.
SECTION 3-2. ELECTIVE CONTRIBUTIONS. A Participant may elect to
(1) have his Compensation reduced by a whole percentage and to have the
amount of such reduction contributed to the Plan by the Company on his
behalf as Deferred Contributions, and
(2) contribute a whole percentage of his Compensation to the Plan as
Employee Contributions, provided that the total amount of Deferred
Contributions plus Employee Contributions may not exceed twelve
percent (12%) of a Participant's Compensation.
Election forms shall be distributed by the Administration Committee to all
eligible Employees. All elections shall apply to Compensation received after
the election becomes effective. Any eligible Employee who fails to return a
properly completed election form in a timely manner to the Administration
Committee shall be deemed to have elected to have all of his Compensation
included in his regular paycheck.
Any other provisions of the Plan to the contrary notwithstanding, the
Deferred Contributions to the Plan on behalf of eligible Highly Compensated
Employees shall be limited to the extent necessary to ensure that the Average
Contribution Percentage for eligible Highly Compensated Employees for any Plan
Year bears such a relationship to the Average Contribution Percentage for all
other eligible Employees for such Plan Year that either of the following tests
is satisfied.
Similarly the total of Employee Contributions plus Company Contributions to
the Plan on behalf of each eligible Highly
<PAGE>
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Compensated Employees shall be limited to the extent necessary to ensure that
the Average Contribution Percentage for eligible Highly Compensated Employees
for any Plan Year bears such a relationship to the Average Contribution
Percentage for all other eligible Employees for such Plan Year that either of
the following tests is satisfied.
(1) the Average Contribution Percentage for the group of eligible Highly
Compensated Employees is not more than the Average Contribution
Percentage of all other eligible Employees multiplied by 1.25; or
(2) the excess of the Average Contribution Percentage for the group of
eligible Highly Compensated Employees over that of all other eligible
Employees is not more than two percentage points, and the Average
Contribution Percentage for the group of eligible Highly Compensated
is not more than the Average Contribution Percentage of all other
eligible Employees multiplied by 2.
The greater of (1) or (2) is illustrated in the table below:
<TABLE>
<CAPTION>
If the Average Contribution Then the Maximum Average
Percentage of Employees Contribution Percentage of Eligi-
other than Eligible Highly ble Highly Compensated Employees
Compensated Employees is (the Limitation Percentage) is
- - -------------------------- ----------------------------------
<S> <C>
1% 2 %
2 4.0
3 5.0
4 6.0
5 7.0
6 8.0 (Section 3-2 limit)
7 8.0 (Section 3-2 limit)
8 8.0 (Section 3-2 limit)
</TABLE>
If the Administration Committee determines that the limitations set forth
in this Section would be exceeded for the Plan Year, then the Administration
Committee shall reduce to the Limitation Percentage described in the foregoing
table the percentage amount of Deferred Contributions (or the total percentage
amount of Employee Contributions plus Company Contributions) of each eligible
Highly Compensated Employee whose Deferred Contribution percentage is more than
the Limitation Percentage (or whose Employee Contribution plus Company
Contribution percentage gives rise to a percentage in excess of the Limitation
Percentage). The Administration Committee shall have the authority to establish
a lower Limitation Percentage if, in the discretion of the Administration
Committee, this would be
<PAGE>
- page 14 -
beneficial to the Plan by ensuring compliance with the safe-harbor provisions of
Sections 401(k)(3)(A) and 401(m)(2) of the Code. The reduced percentage of each
eligible Highly Compensated Employee shall be substituted for his actual elected
percentages and shall represent the percentage of his Compensation that shall be
paid into the Plan on his behalf. The amount of any reduction which is necessary
shall be included in the Participant's regular paycheck or, in the case of
Deferred Contributions and at the election of the Participant, contributed to
the Plan as Employee Contributions. Notwithstanding the preceding provisions of
this Section, multiple use may not be made of alternative test (2) above in
violation of Section 401(m)(9)(A) of the Code or the Treasury Regulations
promulgated thereunder.
Employee Contributions shall be made by means of payroll deductions.
Deferred Contributions and Employee Contributions shall be paid to the Trustee
at such time or times as may be convenient to the Company, but not less
frequently than once every sixty days and shall be credited to the Participant's
Deferred Contributions Account and Employee Contributions Account, respectively,
as soon as practicable and without interest.
The Participant may elect to suspend his Employee Contributions and/or his
Deferred Contributions or change his rate or rates of Employee Contributions
and/or Deferred Contributions on any business day of the month, but not more
frequently than once in a month. The Participant's election to suspend or
change his rate of such Contributions must be made in accordance with procedures
established by the Plan Administrator. Such election shall be processed as soon
as reasonably practicable after its receipt. The election to resume
contributions must be made in accordance with procedures established by the Plan
Administrator and shall be processed as soon as reasonably practical.
SECTION 3-3. COMPANY CONTRIBUTIONS. The Company shall make Company
Contributions to the Plan in regard to Participants which shall be credited to
the Participants' Company Contributions Accounts. The amount of the Company
Contribution to be made with respect to any particular Participant shall be
equal to 25% of the Deferred Contributions up to four percent (4%) of
Compensation actually made on behalf of such Participant for any month.
<PAGE>
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ARTICLE IV. INVESTMENT OF CONTRIBUTIONS
SECTION 4-1. CONTRIBUTIONS. Each Participant shall direct the investment
of his contributions or interest in the Fund by written direction or other means
established by the Plan Administrator, within the investment options and
administrative policies made available by the Plan Administrator and in
accordance with Section 4-2. The continued availability of the investment funds
offered cannot be assumed on the same terms as may apply from time to time.
Each such investment shall be made by the Trustee subject to the following
restrictions and provisions:
(a) Any portion of an investment fund may be maintained in cash at the
discretion of the Trustee pending its permanent investment or
distribution.
(b) The Plan Administrator shall obtain descriptions of the investment
choices available for the purpose of informing Participants with
respect thereto. The selection of investment choices is the sole
responsibility of each Participant and no employee or representative
of the Company or any Participating Company is authorized to make any
recommendation on investment choices.
(c) Dividends and other distributions received in respect to an investment
choice, shall be reinvested in such investment choice and each such
Participant's account shall be credited with a proportionate number of
shares as determined by the Trustee.
(d) Any such segregated account shall share only in the investment income,
gains, and losses generated by the investments directed for such
account.
(e) The Trustee shall not be obligated to make a directed investment which
would, in the sole discretion of the Trustee, require an investment by
the Trustee of more than the amount which is credited, or to be
credited to the account of the Participant.
(f) This Plan is intended to comply with the requirements of Section
404(c) or ERISA. Pursuant to Section 404(c), (i) the account for the
Participant directing investments shall bear all losses from such an
investment and the Trustee, Plan Administrator, and Company shall be
free of any liability arising from such investments, and (ii) the
Trustee shall comply with and carry out such directions
<PAGE>
- page 16 -
without being liable or responsible in any way for any losses or
unfavorable results arising therefrom.
(g) With respect to any investment fund other than the Company Common
Stock fund, the Trustee will exercise voting, tendering, and
appurtenant to a Participant or beneficiary's investment in such
investment fund in its discretion.
(h) With respect to the fund invested exclusively in Santa Fe Pacific
Corporation Common Stock ("Company Stock Account") (other than cash
awaiting investment), the Trustee will vote (and exercise similar
rights, other than the right to tender) shares of Company Common Stock
attributable to each Participant's Account in accordance with the
directions of each Participant or beneficiary as set forth in Section
4-6 and Section 4-7.
(i) The Plan Administrator shall have the discretion to administer Company
Stock funds in conjunction with Company Stock funds maintained in
other employee benefit plans sponsored by Santa Fe Pacific Corporation
and affiliates.
SECTION 4-2. INVESTMENT ELECTIONS. Prior to the date the Employee becomes
a Participant hereunder, he must make an investment election which will apply to
the investment of all contributions made with respect to him. Separate
investment elections with respect to Deferred Contributions, Employer
Contributions, and Participant Contributions may not be made. If a Participant
wishes to utilize more than one Fund, he shall notify the Trustee in accordance
with procedures established by the Plan Administrator as to the percentage of
the contributions to be invested in each Fund. Such percentage must either be
10% or an exact multiple of 10%.
SECTION 4-3. CHANGES IN INVESTMENT ELECTIONS. A Participant may, but not
more frequently than once in any month period, elect to change his investment
election with respect to contributions to be made hereunder. Such election must
be made in accordance with procedures established by the Plan Administrator and
shall be processed as soon as reasonably practicable after receipt. Separate
changes of investment elections with respect to Deferred Contributions, Company
Contributions, and Employee Contributions may not be made.
<PAGE>
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SECTION 4-4. VALUATION. The Valuation Date under this Plan shall mean
each business day on which the New York Stock Exchange is open for business,
which shall be used hereunder for purposes of determining account values.
The value of a Participant's Accounts in a Fund will be accounted for using
the unit method of accounting. When a Participant elects to invest contributions
into one of the investment Funds, the number of shares credited to the
Participant's Account as of the applicable Valuation Date will be equal to the
Participant's contributions or any amount to be invested whether by intra-plan
transfer, direct Rollover or Trustee Transfer to be invested in the investment
fund divided by the price per share of the shares purchased plus fees and
expenses per share for that Valuation Date by the investment fund. If a
Participant elects to transfer the investment of a Participant's Accounts out of
one of the investment Funds, the amount transferred out of the respective
investment Fund will be equal to the number of shares in the Participant's
Account that are to be transferred, distributed or to be withdrawn, as of the
Valuation Date that the authorized directions are received by the Trustee from
the Plan Administrator, multiplied by the closing price per share of the shares
sold for that Valuation Date by the investment Fund. Dividends paid on any
shares in one of the investment Funds are allocated on an accrual basis based
upon the dividend's record date and are reinvested in the Fund.
Notwithstanding the foregoing, in the event of an extraordinary level of
Participant transaction activity or to satisfy Plan administrative requirements
as may be determined in the discretion of the Administration Committee, the unit
value for Participant transactions may be determined by the sale or purchase
prices of transactions executed on one or more days following receipt of a
Participant's direction and based upon the execution prices realized by the
fund.
From the aggregate value so obtained, there shall be deducted all charges
and expenses and other liabilities due or accrued. The net amount shall be the
value of the Fund on the valuation date.
All determinations of income or loss made by the Trustee shall be made in
accordance with sound accounting principles and such determinations, when made
by the Trustee, shall be conclusive and binding upon Participants and all other
persons having an interest in the Fund.
SECTION 4-5. A Participant may elect at any time to transfer 10%, (or a
multiple thereof) or a specified whole dollar amount of
<PAGE>
- page 18 -
the value of his Accounts from one Fund to another. Separate elections to
transfer the Participant's separate Accounts may not be made. The Participant's
election to transfer must be made in accordance with procedures established by
the Plan Administrator. Such election shall be processed as soon as reasonably
practicable after its receipt.
SECTION 4-6. TENDER OFFER. Each present or former Participant (or, in the
event of his death, his Beneficiary) shall have the right, to the extent of the
number of shares of SFP Common Stock allocated to his Company Stock Account, to
instruct the Trustee in writing as to the manner in which to respond to a tender
offer or exchange offer with respect to shares of SFP Common Stock. The
Administration Committee shall use its best efforts to distribute or cause to be
distributed timely to each present or former Participant (or Beneficiary
thereof) such information as will be distributed to stockholders of the Company
in connection with any such tender offer or exchange offer. Upon timely receipt
of such instructions, the Trustee shall respond as instructed with respect to
shares of such stock. The instructions received by the Trustee from Participants
shall be held by the Trustee in confidence and shall not be divulged or released
to any person, including officers or employees of the Company or any Affiliated
Company. If the Trustee shall not receive timely instructions from a Participant
(or Beneficiary thereof) as to the manner in which to respond to such tender
offer or exchange offer, such Participant (or Beneficiary) shall be deemed to
have instructed the Trustee not to tender or exchange of the SFP Common Stock
allocated to his Company Stock Account, and the Trustee shall not tender or
exchange any such SFP Common Stock. Unallocated shares of SFP Common Stock shall
be tendered or exchanged in the same proportion as are shares with respect to
which Participants (or Beneficiaries thereof) have the right of direction.
SECTION 4-7. VOTING. The Trustee shall furnish to each Participant who
has Company Stock credited to his individual account notice of the date and
purpose of each meeting of the stockholders of Santa Fe Pacific Corporation at
which SFP Common Stock is entitled to vote. The Trustee shall request from each
such Participant instructions as to the voting at that meeting of SFP Common
Stock credited to the Participant's account. If the Participant furnishes such
instructions to the Trustee within the time specified in the notice, the Trustee
shall vote such SFP Common Stock in accordance with the Participant's
instructions. All SFP Common Stock credited to a Participant's accounts as to
which the Trustee does not receive voting instructions, and all unallocated SFP
Common Stock held by the Trustee, shall be voted by the Trustee proportionately
in the same manner as it votes SFP
<PAGE>
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Common Stock for which the Trustee received voting instructions as specified
above.
<PAGE>
- page 20 -
ARTICLE V. ALLOCATIONS AND ACCOUNTING
SECTION 5-1. ALLOCATION OF CONTRIBUTIONS. All Deferred and Employee
Contributions made during the Plan Year shall be credited to Participants'
accounts upon remittance to the Trustee.
The Company Contributions for each month of the Plan Year shall be credited
to the Company Contribution Accounts of the Participants upon remittance to the
Trustee.
SECTION 5-2. INDIVIDUAL ACCOUNTS. The Administration Committee shall
create and maintain adequate records to disclose the interest in the trust of
each Participant, former Participant and Beneficiary. Such records shall be in
the form of individual accounts, and credits and charges shall be made to such
accounts in the manner herein described. A Participant may have five separate
accounts: a Company Contribution Account, an Employee Contribution Account, a
Deferred Contribution Account, a Rollover Account, and a Trustee Transfer
Account. The maintenance of individual accounts is only for accounting
purposes, and a segregation of the assets of the trust to each account shall not
be required. Distributions and withdrawals made from an account shall be
charged to the account as of the valuation date on which the payment is based.
For purposes of this Section, "Rollover Account" shall mean a Participant's
interest in the Plan's assets composed of Rollover contributions on or after
January 1, 1993 allocated to the Participant under the Plan, plus all income and
gains credited to, and minus all losses, expenses, withdrawals, and
distributions charged to, such Account; and
"Trustee Transfer Account," shall mean a Participant's interest in the
Plan's assets composed of a Trustee Transfer (other than Rollover contributions)
on or after January 1, 1993 allocated to the Participant under the Plan, plus
all income and gains credited to, and minus all losses, expenses, withdrawals,
and distributions charged to, such Account.
SECTION 5-3. DISPOSITION AND ALLOCATION OF FORFEITURES. If a Participant
terminates his employment prior to his attainment of age 65, any non-vested
portion of his Company Contribution Account shall be forfeited immediately and
used first to restore previously forfeited amounts of other Participants as
provided for below. Any forfeited amounts not required for this purpose shall
be used to offset future Company contributions or costs under the Plan.
<PAGE>
- page 21 -
If the Participant resumes employment with the Company before he has five
consecutive one-year breaks in service, the non-vested benefit shall be restored
to the Participant's accounts in the Fund. The preceding sentence shall not
apply to a Participant unless such Participant repays to the trust any amount
previously distributed to him in a single sum on or before the earlier of five
years after the first date on which the Participant was re-employed or the close
of the first period of five consecutive one-year breaks in service commencing
after the distribution. The Company shall restore previously forfeited amounts
under this paragraph first by applying current forfeitures as provided in the
preceding paragraph, and if such amounts are insufficient, by contributing the
necessary additional amounts.
SECTION 5-4. MAXIMUM CONTRIBUTIONS. Notwithstanding anything contained
herein to the contrary, the Deferred Contributions made to a Participant's
Deferred Contribution Account plus any amount that a Participant elects to defer
under any other qualified cash or deferred arrangement for any Plan Year shall
not exceed $7,000, and the total contributions made to the Company, Employee and
Deferred Contribution Account of a Participant plus any forfeitures allocated to
such Participant's accounts plus any other amounts which constitute annual
additions to such Participant's accounts pursuant to the Code shall not exceed
the lesser of $30,000 or 25% of the Participant's Compensation for such year.
The $7,000 and $30,000 limitations are subject to cost-of-living
adjustments made by the Secretary of the Treasury or his delegate.
Notwithstanding any other provision of the Plan, contributions in excess of
the limits of Section 401(k)(3) or Section 401(m)(2) of the Code, plus any
income and minus any loss allocable thereto, shall be distributed no later than
the last day of each Plan Year to Participants to whose accounts such excess
contributions (including excess aggregate Company and Employee Contributions)
were allocated for the preceding Plan Year. Such distributions shall be made to
Highly Compensated Employees on the basis of the respective portions of the
excess contributions attributable to each of such Highly Compensated Employees,
determined in accordance with Treasury Regulations. Excess contributions
(including excess aggregate Company and Employee Contributions) shall be
allocated to Participants who are subject to the family member aggregation rules
of Section 414(q)(6) of the Code in the manner prescribed by Treasury
Regulations.
No Company contributions shall be made with respect to an excess
contribution (including an excess aggregate Company and
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Employee Contribution) or excess deferral distributed to a Participant. Earnings
attributable to excess deferrals shall be calculated in accordance with IRS safe
harbor provisions. Company Contributions (and any earnings thereon) attributable
to excess deferrals shall, if not distributed in satisfying Code Section 401(m)
nondiscrimination limitations, be forfeited.
Excess contributions may be treated as an amount distributed to the
Participant and then contributed by the Participant to the Plan as Employee
Contributions. Such recharacterized amounts will remain nonforfeitable and
subject to the same distribution requirements as Deferred Contributions. Amounts
may not be recharacterized to the extent that such amount in combination with
other contributions made by or on behalf of that Participant would exceed any
stated limit under the Plan. Recharacterization must occur no later than two and
one-half (2-1/2) months after the last day of the Plan Year in which such excess
contributions occurred.
Notwithstanding the foregoing, contributions with respect to any
Participant may be further reduced to the extent necessary, as determined by the
Administration Committee, to prevent disqualification of the Plan under Section
415 of the Code, which imposes additional limitations on the benefits payable to
Participants who also may be participating in another tax-qualified pension,
profit-sharing, savings or stock bonus plan maintained by the Company or an
Affiliated Company. For purposes of this Section 5-4, the modification of
Sections 414(b) and (c) of the Code by Section 415(b) of the Code is
incorporated.
For purposes of this limitation, all defined benefit plans of the Company
and all Affiliated Companies, whether or not terminated, are to be treated as
one defined benefit plan, and all defined contribution plans of the Company and
all Affiliated Companies, whether or not terminated, are to be treated as one
defined contribution plan. Benefits under defined benefit plans shall be
limited before contributions to defined contribution plans, such as this Plan,
are limited. For purposes of computing the limitations described or referred to
in this section, the relevant limitation year shall be the Plan Year which is
the calendar year. For purposes of applying the above limitations in the case
of the initial limitation year, the amount of Compensation taken into account
shall only include Compensation for the period subsequent to the Effective Date,
and the dollar limitation for the initial limitation year shall be the otherwise
applicable dollar limitation multiplied by 9/12.
SECTION 5-5. NONALIENATION OF BENEFITS. The interest of any Participant
and Beneficiary of any Participant in the Fund and
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trust shall in no event be subject to sale, assignment, hypothecation or
transfer by such Participant or Beneficiary, and each Participant or Beneficiary
is hereby prohibited from anticipating, encumbering, assigning or in any manner
alienating his interest in this Plan and its assets, and is and shall be without
power to do so. Nor shall the interest of any Participant or Beneficiary be
liable or subject to debts, liabilities or obligations of the Participant or
Beneficiary, nor shall the same, or any part thereof, be subject to any
judgment, execution, attachment, garnishment, or other legal processes against
such Participant or Beneficiary. Nor shall any Participant have any right of any
kind whatsoever with respect to the trust Fund, or any estate or interest
therein or with respect to any other property or rights, other than the right to
receive such distributions as are lawfully made out of the Fund, as and when the
same respectively are due and payable under the terms of this Plan.
SECTION 5-6. PAYMENTS PURSUANT TO A QUALIFIED DOMESTIC RELATIONS ORDER.
In the event an Alternate Payee receives an interest in a Participant's Accounts
pursuant to ERISA (S)206, the payment of such benefits shall be made or shall
commence to be made as established by court order or if not so specified, as of
the valuation date coincident with or next following the Participant's 65th
birthday. Notwithstanding any other provisions of this Plan, an Alternate Payee
under a qualified domestic relations order ("QDRO") as determined in accordance
with Section 206 of ERISA shall be entitled, within 180 days from the date the
Alternate Payee receives written notification that the Company has made such a
determination, to elect to receive any benefits to which the Alternate Payee is
entitled payable in accordance with the distribution provisions set forth in
Article VI of this Plan in full satisfaction of any liability of the Plan to
such person. In the event an Alternate Payee receives an interest in a
Participant's Accounts pursuant to Section 206 of ERISA, and does not, within
180 days of notification of this interest, elect to receive a distribution, the
benefits awarded the Alternate Payee, valued as of the Valuation Date coincident
with or next following the date specified in the court order for division of the
Participant's account, and the Alternate Payee may direct the investment of such
account in the same manner as any participant, but may not borrow from the
account. Earnings on the benefits awarded the Alternate Payee by the court
order shall accrue between the date specified for division of the Participant's
account and the date the Alternate Payee's account is opened, only to the extent
provided in the court order. An Alternate Payee may make withdrawals pursuant
to Section 6-8 of the Plan. The Plan may retain the Participant's Accounts in
full upon receipt of notice of
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a pending QDRO until the final order is submitted or eighteen (18) months has
elapsed, whichever is earlier.
Notwithstanding any provisions of this Plan to the contrary, the Plan will
recognize a "qualified domestic relations order" which shall be a judgment,
decree or order (including approval of a property settlement agreement) that
meets the requirements of (a), (b) and (c) below:
(a) the order relates to child support, alimony, property rights to a
spouse, former spouse, child or dependent of a Participant and is
issued pursuant to a state domestic relations law;
(b) the order includes (1) the name and address of the Participant and
alternate payee, (2) the amount or percentage of benefits payable to
the alternate payee (or the manner in which the amount or percentage
is to be determined), (3) the period or number of payments involved,
and (4) the exact name of the plan to which the order applies; and
(c) the order does not require a type or form of benefit or option not
otherwise offered under the Plan, does not require the Plan to provide
increased benefits (determined on an actuarial basis) and does not
affect benefits already the subject of a previous qualified domestic
relations order.
Subsection (c) above shall be interpreted to mean that an order can require
a distribution of the portion of a Participant's Accrued Benefit that could be
immediately withdrawn upon proper application.
Notwithstanding Subsection (c) above, an alternate payee may elect any form
of payment to which the Participant would be entitled at the time of the
alternate payee's benefit commencement.
The Administration Committee shall notify any Participant and alternate
payee of the receipt of any order by the Plan and shall inform such Participant
and alternate payee of the Plan's procedures for determining whether the order
meets the requirements described above in this Section. Such procedures shall
comply with the requirements set forth in Section 414(p) of the Code and Section
206(d) of ERISA.
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ARTICLE VI. DISTRIBUTIONS TO PARTICIPANTS
SECTION 6-1. FORM OF DISTRIBUTIONS. All Distributions pursuant to this
Article VI shall be in the form of cash or shares, or combination thereof as may
be permitted by the Funds.
SECTION 6-2. IN THE EVENT OF THE DEATH OF A PARTICIPANT. Upon the death
of a Participant while in the employment of the Company, the full value of his
interest in the Fund as of the Valuation Date as of receipt of distribution
instructions by the Trustee from the Plan Administrator following his death
shall be paid his Beneficiary in a single sum as soon as practicable without
interest after the Participant's death, but not later than five (5) years after
the date of the death.
SECTION 6-3. RETIREMENT. A Participant's normal retirement date shall be
his 65th birthday. Upon termination of a Participant's employment with all
affiliated companies of Company, after attaining age 65, a Participant shall be
entitled at his election to receive the full value of his interest in the Fund
as of (i) the Valuation Date as of receipt of distribution instructions by the
Trustee from the Plan Administrator following his Termination of Employment, or
(ii) the Valuation Date as of receipt of distribution instructions by the
Trustee from the Plan Administrator following the year in which Termination of
Employment occurs, but in no event later than April 1 of the calendar year in
which the Participant attains age 70-1/2. Such payments shall be paid in a
single sum as soon as practicable without interest.
SECTION 6-4. DISABILITY. In the case of a Participant who incurs
Disability, the full value of his interest in the Fund as of the Valuation Date
as of receipt of distribution instructions by the Trustee from the Plan
Administrator immediately following his Disability shall be paid to the
Participant in a single sum on or before 90 days without interest after the
later of his attainment of age 65 or the termination of his employment, but in
no event later than April 1 of the calendar year following the calendar year in
which the Participant attains age 70-1/2. Notwithstanding the foregoing, such a
Participant may elect to receive an immediate distribution of the full value of
his interest in the Fund as if he had retired.
SECTION 6-5. DISTRIBUTION NOTICES. If a distribution is one to which
Sections 401(a)(11) and 417 of the Code do not apply, and
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distribution may commence less than 30 days after the notice required under
Section 1.411(a)-11(c) of the Income Tax Regulations is given, provided that:
(1) the Plan Administrator clearly informs the Participant that the
Participant has a right to a period of at least 30 days after receiving
the notice to consider the decision of whether or not to elect a
distribution (and, if applicable a particular distribution option), and
(2) the Participant, after receiving the notice, affirmatively elects a
distribution.
SECTION 6-6. OTHER SEVERANCE OF EMPLOYMENT. In the event that a
Participant, prior to attaining age 65, and for reasons other than Disability,
ceases to be employed by the Company or an Affiliated Company, he shall be
entitled to elect to receive the full value of his Deferred Contribution and
Employee Contribution Accounts plus the vested percentage of his Company
Contribution Account as of (i) the Valuation Date as of receipt of distribution
instructions by the Trustee from the Plan Administrator following the
termination of his employment or (ii) the Valuation Date as of receipt of
distribution instructions by the Trustee from the Plan Administrator following
the year in which Termination of Employment occurs.
If a Participant becomes entitled to receive a distribution under this
Section, the amount to which he is entitled shall be paid to the Participant in
a single sum on or before 90 days after his attainment of age 65, but in no
event later than the 60th day after the close of the Year in which he attains
age 65. If a Participant dies prior to age 65, his vested interest in the Fund
as of the Valuation Date as of receipt of distribution instructions by the
Trustee from the Plan Administrator following his death shall be paid his
Beneficiary in a single sum as soon as practicable without interest after the
Participant's death, but not later than five (5) years after the date of the
death.
A Participant may elect within 90 days from the date of his termination to
receive any amounts which he becomes entitled to be paid in a single sum as soon
as practicable without interest following the valuation date elected under this
Section.
If a Participant's employment is terminated, but he is reemployed prior to
the time when he would be entitled to a distribution of his interest in the Fund
pursuant to this election, he shall not receive a distribution, and shall be
entitled to participate in the Plan.
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Notwithstanding the preceding provisions of this Section, if the present
value of the amount to which a Participant is entitled upon the termination of
his employment (determined in accordance with Section 411(a)(11) of the Code)
does not exceed $3,500, such amount shall be paid to him in a single sum as soon
as practicable without interest following the termination of his employment.
SECTION 6-7. VESTING SERVICE. A Participant's vested percentage in his
Company Contribution Account shall be determined in accordance with the
following schedule.
Number of Years of Service Vested Percentage
----------------------------- -----------------
Less than one year 0%
1 year but less than 2 years 20%
2 years but less than 3 years 40%
3 years but less than 4 years 60%
4 years but less than 5 years 80%
5 years or more 100%
Years of Service shall mean the number of 12 consecutive month periods
commencing from date of hire in which an Employee is compensated for at least
1,000 Hours of Service by the Company or an Affiliated Company in any capacity.
SECTION 6-8. AUTHORIZED LEAVES OF ABSENCE. During an Authorized Leave of
Absence, a Participant shall continue to be a Participant in the Plan, shall
retain his interest in the Fund and shall be entitled to Company Contributions
for any Plan Year during which he takes an Authorized Leave of Absence to the
extent of the Compensation paid to him by the Company during such Plan Year, but
no Employee Contributions or Deferred Contribution shall be made to his accounts
during such Authorized Leave of Absence.
SECTION 6-9. WITHDRAWALS. A Participant may at any time, but not more
frequently than once a month and only if he has not taken a loan under Article
XIII in the same month, elect to withdraw all or a specified portion of the
value of his Employee Contributions Account, less the amount subject to an
outstanding loan. Such election must be made in accordance with procedures
established by the Plan Administrator and shall be processed as soon as
reasonably practicable and based upon the Valuation Date as of which authorized
directions are received by the Trustee from the Plan Administrator. The amount
shall be withdrawn on a pro rata basis from all Funds.
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A Participant may at any time, but not more frequently than once a month
and only if he has not taken a loan under Article XIII in the same month,
request to withdraw an amount equal to his vested Employer Contributions
Account, his Trustee Transfer Account, his Rollover Account, and his Deferred
Contributions Account, less the amount subject to an outstanding loan, provided,
however that no such withdrawal shall be permitted unless the Participant has
taken all available loans, and the Employee's Contribution Account is then or
has been previously completely withdrawn by the Participant. The withdrawals
shall come from each of the Accounts in the order stated above until each
account is completely withdrawn before proceeding to the next account. Amounts
representing income which are credited to a Participant's Deferred Contributions
Account after December 31, 1988, may not be withdrawn.
Each such withdrawal shall be processed as soon as reasonably practicably
and will be given effect as of the Valuation Date that authorized directions are
received by the Trustee from the Plan Administrator. Such withdrawal shall be
made from the investment Funds on a pro rata basis.
The Participant's request to withdraw must be made in writing to the
Administration Committee and must specify the total amount requested to be
withdrawn. Requests for withdrawals from the Employee Contribution Account
shall not require the consent of the Administration Committee. Requests for
withdrawals from the Participant's Company Contribution Account and Deferred
Contribution Account shall be subject to the consent of the Committee and the
basis for the Administration Committee consenting to or refusing to consent to
the Participant's request shall be that of demonstrated hardship. For purposes
of this section a hardship exists only if there is an immediate and heavy
financial need of the Participant and a withdrawal under this section is
necessary to satisfy such financial need.
The determination of whether a Participant has an immediate and heavy
financial need is to be made on the basis of all relevant facts and
circumstances. A financial need shall not fail to qualify as immediate and
heavy merely because such need was reasonably foreseeable or voluntarily
incurred by the Participant.
A withdrawal request will be deemed to be made on account of an immediate
and heavy financial need of the Participant if the request is on account of:
(1) Expenses for medical care described in Section 213(d) of the Code
previously incurred by the Participant, the Participant's spouse, or
any dependents of the
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Participant (as defined in Section 152 of the Code) or necessary for
these persons to obtain medical care described in Section 213(d);
(2) Costs directly related to the purchase of a principal residence of a
Participant;
(3) Payment of tuition and related educational fees for the next 12 months
of post-secondary education for the Participant, or Participant's
spouse, children, or dependents (as defined in Section 152 of the
Code); or
(4) The need to prevent the eviction of the Participant from his principal
residence or foreclosure on the mortgage of the Participant's
principal residence.
In addition, the amount of the immediate and heavy financial need may
include an amount needed to pay state or local income taxes or penalties
reasonably anticipated to result from a distribution for any of the foregoing
reasons utilizing such tax rates and procedures as established by the
Administration Committee.
A withdrawal will not be treated as necessary to satisfy an immediate and
heavy financial need of a Participant unless all of the following requirements
are satisfied:
(1) The Participant states in writing that the withdrawal is not in excess
of the amount of the immediate and heavy financial need of the
Participant,
(2) The Participant has obtained all distributions, other than hardship
distributions, and all nontaxable loans currently available under all
plans maintained by the Company,
(3) The Participant's Deferred Contribution and Employee Contributions
will be suspended for 12 months after receipt of the hardship
withdrawal, and
(4) The Participant may not make Deferred Contributions for the
Participant taxable year immediately following the taxable year of the
hardship withdrawal in excess of the applicable limit under Section
402(g) of the Code for such next taxable year less the amount of such
Participant's Deferred Contributions for the taxable year of the
hardship withdrawal.
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The Administration Committee may accept the written statement of the
Participant as to his financial resources unless it has reason to believe the
statement is in error. The Administration Committee shall have the right to
request any additional information or documentation which it deems necessary or
desirable to assist it in its determination as to whether a hardship exists, or
as may be required to maintain the qualified status of the Plan. No withdrawal
from a Participant's Deferred Contribution Account shall be permitted unless a
complete withdrawal of the Participant's Employee Contribution Account is
insufficient to defray the hardship.
Amounts withdrawn by a Participant may not be returned to the Plan.
SECTION 6-10. ROLLOVER. The Administration Committee may in its
discretion, at the request of a Participant, who becomes a participant in the
Santa Fe Pacific Retirement and Savings Plan, direct the Trustee to transfer the
Participant's Accounts to the trustee of the Santa Fe Pacific Retirement and
Savings Plan provided that such transfer is permitted by the Santa Fe Pacific
Retirement and Savings Plan and is in accord with Section 401(a) and 403(a) of
the Internal Revenue Code of 1986.
The Administration Committee may in its discretion, at the request of an
employee who was formerly a Participant but who has since become a participant
in The Santa Fe Pacific Retirement and Savings Plan for Salaried Employees,
direct the Trustee to accept the transfer of that employee's account in The
Santa Fe Pacific Retirement and Savings Plan for Salaried Employees provided
that such transfer is permitted by The Santa Fe Pacific Retirement and Savings
Plan for Salaried Employees and is in accord with Sections 401 and 414 of the
Code.
SECTION 6-11. Revision and Cessation of Company Contributions. Company
Contributions are conditional upon qualification of the Plan under Section
401(a) of the Code and are conditional upon the deductibility of such
contributions under Section 404 of the Code; however, the Company has no
beneficial interest in the trust, and no part of the trust shall ever revert or
be repaid to the Company, directly or indirectly, except that the Company shall
upon written request to the Administration Committee have a right to recover:
(a) within one year of the date of payment of a contribution by the
Company, any amount (less any losses attributable thereto) contributed
through a mistake of fact; and
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(b) within one year of the date on which any deduction for a contribution
by the Company under Section 404 of the Code is disallowed, an amount
equal to the amount disallowed (less any losses attributable thereto);
and
(c) within one year of the date the Internal Revenue Service initially
determines that the Plan does not meet the requirements of a qualified
plan under Section 401(a) of the Code, an amount equal to the assets
of the Plan attributable to contributions made by the Company.
The Company reserves the right to amend the Plan so as to discontinue
Company Contributions (but not Deferred Contributions), in whole or in part,
without discontinuing the trust or incurring any liability to make up
contributions at a later date. Any such change in the Company's contributions
to the fund shall not in any way deprive the Participants of their rights in
said Fund. All Deferred and Employee Contributions to the Fund shall be fully
vested at all times.
SECTION 6-12. SETTLEMENT OF DISPUTES. In the event a dispute arises
regarding the rights of an Employee, Participant or Beneficiary under the terms
of this Plan, the decision of the Administration Committee shall be final and
binding, subject to review as provided below.
The Administration Committee shall within ninety (90) days provide a notice
in writing to any person whose claim for benefits under this Plan has been
denied, setting forth the specific reasons for such denial, specific references
to the Plan provisions on which the denial was based, and an explanation of the
procedure for review of the denial. Such person, or his duly authorized
representative, may appeal to the Administration Committee for a review of the
denial by sending to the Administration Committee a written request for review
within sixty (60) days after receiving notice of the denial. The request for
review shall set forth all grounds on which it is based, together with
supporting facts and evidence which the claimant deems pertinent, and the
Administration Committee shall give the claimant the opportunity to review
pertinent documents in preparing the request.
The Administration Committee may require the claimant to submit such
additional facts, documents or other material as it deems necessary or advisable
in making the review.
Within sixty (60) days or such additional period as may be required after
the receipt of the request for review, the Administration Committee shall
communicate to the claimant in
<PAGE>
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writing its decision, and if the Administration Committee confirms the denial,
in whole or in part, the communication shall set forth the reasons for the
decision and specific references to the Plan provisions on which the decision is
based. In the event any dispute arises as to persons to whom payments of the
funds should be made under the Plan, all decisions of the Administration
Committee shall be final and binding upon the parties for all purposes,
including arbitration of any dispute. The Administration Committee may withhold
any such payment until such dispute has been determined by a court of competent
jurisdiction or shall have been settled by the parties concerned.
SECTION 6-13. ANNUITY DISTRIBUTIONS. Notwithstanding any other provisions
of this Article VI, a Participant who is entitled to a distribution from the
Plan pursuant to SECTION 6-3 on account of retirement, pursuant to SECTION 6-4
on account of Disability, or pursuant to SECTION 6-5 on account of other
severance of employment shall be entitled to elect pursuant to such sections to
receive such distribution in the form of a Joint and Survivor Annuity. A Joint
and Survivor Annuity shall consist of nontransferable monthly payments to the
Participant for life, commencing on the Participant's Normal Retirement Date,
the last monthly payment of which shall be for the calendar month in which the
participant dies, and if the participant's spouse survives the Participant,
monthly payments to the participant's spouse for life commencing in the calendar
month following the calendar month in which the Participant dies, with the last
monthly payment for the calendar month in which the spouse dies, equal to fifty
percent (50%) of the payments previously payable to the Participant. In the case
of a Participant who is not married on his Normal Retirement Date, a Joint and
Survivor Annuity shall consist of nontransferable monthly payments to the
Participant for life commencing on the Participant's Normal Retirement Date, the
last monthly payment of which shall be for the calendar month in which the
participant dies.
A Joint and Survivor Annuity shall be the actuarial equivalent of the
amount to which a Participant would otherwise be entitled to under the Plan at
the time of the commencement of the Joint and Survivor Annuity. Actuarial
equivalent means a benefit having the same value as the benefit which it
replaces using generally acceptable actuarial methods and the following
assumptions. The interest rate to be used shall be the interest rate or rates
that would be used (as of the first day of the Plan Year in which the
distribution is made or commences) by the Pension Benefit Guaranty Corporation
for purposes of determining the present value of a lump sum distribution on
termination of an insufficient trusteed single-employer plan. Mortality shall be
based on the Pension Benefit
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Guaranty Corporation Mortality tables for healthy male participants. The amount
of the monthly payment under the Joint and Survivor Annuity for a married
Participant shall equal the monthly amount which would be payable to an
unmarried Participant multiplied by ninety percent (90%).
Notwithstanding the foregoing provisions of this section, if, upon the
occurrence of a distribution event the amount to which a Participant is entitled
does not exceed $3,500, the payment of the participant's benefits shall be in
the form of a single sum as soon as practicable following the occurrence of the
distribution event.
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ARTICLE VII. TRUSTEE
SECTION 7-1. TRUSTEE. For purposes of investing contributions under this
Plan, the Company shall establish one or more trusts or enter into one or more
investment contracts with one or more insurers, or may establish a combination
of one or more trusts or insurance contracts. The Company shall have the
responsibility for selecting the Trustee(s) and/or investment manager(s)
hereunder and may establish alternative funds for the purpose of investing
amounts derived from contributions hereunder pursuant to Participants'
elections.
SECTION 7-2. ALLOCATION OF RESPONSIBILITY AMONG FIDUCIARIES FOR PLAN AND
TRUST ADMINISTRATION. The Fiduciaries shall have only those specific powers,
duties, responsibilities and obligations as are specifically given them under
this Plan or any trust agreement with respect to this Plan. In general, the
Company shall have the sole responsibility for making the contributions provided
for under Section 3-3, and the Company shall have the sole authority to appoint
and remove the Trustee, members of the Administration Committee, and to amend or
terminate, in whole or in part, this Plan or the trust. The Company shall
receive reports annually from the Administration Committee and Trustee regarding
the administration and operation of the Plan and provide recommendations for any
changes in the membership of the Administration Committee. The Administration
Committee shall have the sole responsibility for the administration of this Plan
and investment responsibility. 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.
Each fiduciary warrants that any directions given, information furnished,
or action taken by it shall be in accordance with the provisions of the Plan or
the trust, as the case may be, authorizing or providing for such direction,
information or action. Furthermore, each fiduciary may rely upon such
direction, information or action of another fiduciary as being proper under this
Plan or the trust, and is not required under this Plan or the trust 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 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.
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The Company shall indemnify and hold harmless each member of its Board of
Directors, the Administration Committee and each of its officers and employees
from and against any and all liability, loss, costs, charges, expenses, claims
and demands of every kind and character arising out of, or in any way resulting
from, the acts, omissions or conduct of any such persons in the management,
operation and administration of the Plan and the trust which any of them may
suffer, incur or sustain, except that the Company shall not indemnify and hold
harmless any such person who, with respect to such acts, omissions or conduct,
is guilty of willful misconduct or lack of good faith. In addition, the Plan or
the Company may purchase fiduciary liability insurance for any Board of
Directors of the Company, for the Administration Committee, and their members
and for the officers and employees of the Company.
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ARTICLE VIII. THE COMPANY
SECTION 8-1. COMPANY'S INTEREST IN THE PLAN. This Plan is created and
shall be maintained for the exclusive benefit of participating Employees and is
intended to qualify as an employees' profit-sharing trust under the provisions
of Section 401 of the Code. Nothing contained herein, however, shall be
construed so as to impair the right of the Company to see to the proper
administration of the Plan according to its terms.
SECTION 8-2. EXAMINATION OF PLAN DOCUMENTS. Copies of the Plan and any
amendments thereto will be on file at the principal office of the Company where
they may be examined by any Participant or any other person entitled to benefits
under the Plan.
SECTION 8-3. PAYMENT WITH RESPECT TO INCAPACITATED PARTICIPANTS OR
BENEFICIARIES. If any person entitled to benefits under the Plan is under a
legal disability or, in the opinion of the Administration Committee, is
incapacitated in any way so as to be unable to manage his financial affairs, the
Administration Committee may direct the payment of such benefits to such
person's legal representative or to a relative or friend of such person for such
person's benefit, or the Administration Committee may direct the application of
such benefits for the benefit of such person in any manner which the
Administration Committee may select that is permitted by federal law and is
consistent with the Plan. Any payments made in accordance with the foregoing
provisions of this Section shall be a full and complete discharge of any
liability for such payments.
SECTION 8-4. NO EMPLOYMENT OR BENEFIT GUARANTY. None of the establishment
of the Plan, any modification thereof, the creation of any fund or account, or
the payment of any benefits shall be construed as giving to any Participant or
other person any legal or equitable right against the Company, the
Administration Committee or any Trustee except as provided herein. Under no
circumstances shall the maintenance of this Plan constitute a contract of
employment or shall the terms of employment of any participant be modified or in
any way affected hereby. Accordingly, participation in the Plan will not give
any Participant a right to be retained in the employ of the Company or any
Affiliated Company. Neither the Administration Committee nor the Company in any
way guarantees any assets of the Plan from loss or depreciation or any payment
to any person. The liability of the Administration Committee or the
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Company as to any payment or distribution of benefits under the Plan is limited
to the available assets of the trust fund.
SECTION 8-5. LITIGATION. In any action or proceeding regarding any Plan
assets, any Plan benefits or the administration of the Plan, employees or former
employees of the Company, their beneficiaries and any other persons claiming to
have an interest in the Plan shall not be necessary parties and shall not be
entitled to any notice of process. Any final judgment which is not appealed or
appealable and which may be entered in any such action or proceeding shall be
binding and conclusive on the parties hereto and on all persons having or
claiming to have any interest in the Plan. To the extent permitted by law, if a
legal action is begun against the Administration Committee, the Company, or any
Trustee by or on behalf of any person and such action results adversely to such
persons, or if a legal action arises because of conflicting claims to the
Participant's or other person's benefit, the cost of the Company, the
Administration Committee, or the Trustee of defending the action will be charged
to the sums, if any, which were involved in the action or were payable to the
Participant or the other person concerned. Acceptance of participation in the
Plan shall constitute a release of the Company, the Administration Committee,
any Trustee and their agents from any and all liability and obligation not
involving willful misconduct or gross neglect of the extent permitted by
applicable law. Notwithstanding any other provisions of the Plan, if the
Administration Committee is required by a final court order to distribute the
benefits of a Participant other than in a manner required under the Plan, then
the Administration Committee shall cause the Participant's benefits to be
distributed in a manner consistent with such final court order. The
Administration Committee shall not be required to comply with the requirements
of a final court order in any action in which the Administration Committee, a
Trustee, the Plan or the trust was not a party.
SECTION 8-6. SEVERABILITY. If any provisions of the Plan shall be held
illegal or invalid for any reason, such illegality or invalidity shall not
affect the remaining provisions of the Plan, and the Plan shall be construed and
enforced as if such illegal and invalid provisions had never been set forth in
the Plan.
SECTION 8-7. AMENDMENT OF PLAN. This Plan may be amended at any time and
from time to time by resolution of the Board of Directors or Chairman and CEO of
the Company. The Plan, as amended, shall apply to the Participants and the
Company, unless a participating company elects to withdraw from the Plan. Such
power of amendment shall under no circumstances include the right to
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reinvest or otherwise transfer any interest in or to the accounts, or any income
therefrom, to the Company; nor shall the power of amendment include the right,
in any way or to any extent, to divest any Participant of the interest in his
accounts to which he would be entitled if he had terminated his service
immediately before such amendment; provided further that the rights, duties or
responsibilities of the Trustee shall not be substantially changed without its
written consent. Neither shall such power of amendment be executed in any way
which would or could give to any Participant or Beneficiary any right or thing
of exchangeable value in advance of the receipt of distributions hereunder.
Notwithstanding the foregoing provisions of this section, this Plan may be
amended in any manner whatsoever, with prospective or retroactive effect, for
the purpose of qualifying it under, or complying with, any provision of the Code
or ERISA.
The Company intends that this Plan, as amended from time to time, shall
constitute a qualified Plan under Sections 401(a), (k) and (m) of the Code as
amended. The Company intends that this Plan shall continue to be maintained for
the above purposes indefinitely, subject, however, to the rights reserved in the
Company to amend and terminate the Plan as set forth herein. Nothing contained
in this Plan shall be construed as disqualifying any Employee of the Company
from any benefits under any other plan or program to which such Employee would
be entitled in the absence of this Plan.
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ARTICLE IX. TERMINATION OR MERGER OF THE PLAN
SECTION 9-1. TERMINATION OR MERGER OF THE PLAN. The Company may terminate
this Plan at any time, such termination to become effective at the time
specified in a written notice to the Trustee. Notice of such termination shall
be given to the Participants as soon as practicable after notice is give to the
Trustee.
In the event of the dissolution, merger, consolidation or reorganization of
the Company, provision may be made by which the Plan and trust will be continued
by the successor; and, in that event, such successor shall be substituted for
the Company under the Plan. The substitution of the successor shall constitute
an assumption of Plan liabilities by the successor and the successor shall have
all of the powers, duties and responsibilities of the Company under the Plan.
In the event of any merger or consolidation of the Plan with, or transfer
in whole or in part of the assets and liabilities of the trust fund to another
trust fund held under any other plan of deferred compensation maintained or to
be established for the benefit of all or some of the Participants of this plan,
the assets of the Trust applicable to such Participants shall be transferred to
the other trust fund only if:
(a) each Participant would (if either this Plan or the other plan then
terminated) receive a benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the
benefit he would have been entitled to receive immediately before the
merger, consolidation or transfer (if this Plan had then terminated);
(b) resolutions of the Board of Directors of the Company under this Plan,
or of any new or successor employer of the affected Participants,
shall authorize such transfer of assets; and, in the case of the new
or successor employer of the affected Participants, its resolutions
shall include an assumption of liabilities with respect to such
Participants' inclusion in the new employer's plan; and
(c) such other plan and trust are qualified under Sections 401(a) and
501(a) of the Code.
Upon a termination of the Plan, the Company shall make no further
contributions to the trust, the Trustee shall effect such liquidation of the
assets of the trust as may be necessary or desirable to make a distribution
thereof and distribute to each
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Participant or Beneficiary within a reasonable time after such termination
(subject to delay in the event of administrative difficulties) the interest in
the Fund to which he is entitled. In the event that this Plan is terminated or
partially terminated, under the provisions of this Section 9-1, or upon complete
discontinuance of contributions under the Plan, each of the then Participants
shall have a 100% vested interest in his share of the fund.
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ARTICLE X. TOP HEAVY RULES
SECTION 10-1. TOP HEAVY RULES.
(a) If the Plan is or ever becomes "top-heavy" as determined under
subsection (b), the following special rules shall apply:
(1) If the Plan is top-heavy for a year, each Participant who is an
Employee on the last day of the Plan Year shall receive an
allocation of Company Contributions equal to the product of:
a) the Participant's compensation while an active Participant
during the Plan Year, and
b) the lesser of 3% or the ratio of Company Contributions plus
Deferred Contributions to compensation with respect to the
key Employee (as defined in subsection (c)) whose ratio is
highest for the year.
For purposes of this Section and for purposes of determining a
Participant's allocation of Company Contributions under Section
3-3 if this section applies, compensation shall mean the total
amount of wages, tips and other compensation shown on an
employee's Form W-2 for the Plan Year, provided, however, that
compensation in excess of $200,000 (or such other amount
prescribed in Section 416(d) of the Internal Revenue Code) shall
be disregarded.
All non-key employees who are Participants in the Plan and who
have not separated from service by the end of the Plan Year shall
receive an allocation pursuant to this subsection.
A non-key Employee shall not fail to receive an allocation
pursuant to this subsection because he fails to elect Deferred
Contributions or Employee Contributions for the Plan Year.
Notwithstanding any other provisions of the Plan, a non-key
Employee shall not forfeit any allocations made pursuant to this
subsection because of a withdrawal of Deferred Contributions or
Employee Contributions.
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If a Participant also participates in a defined benefit plan
maintained by the Company or any Affiliated Company which is top-
heavy, the minimum allocation percentage specified in this
subsection shall be increased to 5% of compensation. This
sentence shall not apply to the extent that the Participant
participates in any other plan or plans of the Company or an
Affiliated Company which provide that the defined benefit minimum
allocation or benefit applicable to top-heavy plans will be
provided by such other plan or plans.
(2) All Company-provided benefits shall become fully vested upon
completion of three years of service.
(3) Notwithstanding any provision in the Plan to the contrary,
distributions to a five percent (5%) owner of the Company must
commence no later than April 1 of the Plan Year following the
Plan Year in which he attains age 70 1/2.
(b) This Plan is "top heavy" for a Plan Year if, as of the last day of the
preceding Plan Year or, in the case of the first Plan Year of the
Plan, the last day of such Plan Year (the "determination date"), the
amount credited to the accounts of Key Employees (as defined in
subsection (c)) exceeds 60% of the amount credited to the accounts of
all Participants (except former Key Employees). Notwithstanding the
foregoing, the Plan shall be top heavy if, as of the determination
date described above, it is included in an "aggregation group" which
is a "top heavy group."
"Aggregation group" means the group of plans, if any, that includes
both the group of plans that are aggregated on a required basis or a
permissive basis (in the sole discretion of the Administration
Committee) in accordance with the following:
(1) Required Aggregation Group. The Aggregation Group shall include:
a) each employee benefit plan of the Company or an Affiliated
Company qualified under Section 401(a) for the Internal Code
in which a key Employee is a participant, and
b) each other qualified plan which enables any plan described
in (A) to met the
<PAGE>
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nondiscrimination and participation requirement of Section
401(a)(4) and Section 410 of the Code.
(2) Permissive Aggregation Group. The Aggregation Group may include
any one or more other such plans of the Company or an Affiliated
Company, provided that after the inclusion of such other plan or
plans the Aggregation Group would continue to meet the
nondiscrimination and participation requirements of Section
401(a)(5) and Section 410 of the Code with such other plan or
plans taken into account.
The term "top-heavy group" means any aggregation group if
(1) the sum (as of the determination date described above) of
a) the present value of the cumulative accrued benefits for key
Employee under all defined benefit plans included in such
group, and
b) the aggregate of the accounts of key Employees under all
defined contribution plans included in such group,
(2) exceed 60 percent of a similar sum determined for all Employees.
For purposes of determining whether this Plan is top heavy, the
aggregate distributions (without interest thereon) made under the Plan
to a Participant during the 5-year period ending on the determination
date shall be taken into account if the Participant's account or
benefit is otherwise taken in account in determining whether the Plan
is top heavy. If any individual has not performed services for the
Company at any time during the five-year period ending on the
determination date, the account of such individual shall not be taken
into account for purposes of determining whether this plan is top-
heavy.
(c) A Participant shall be a "key Employee" if, during the Plan Year in
question or any of the four preceding Plan Years, he is:
(1) an officer of the Company (but no more than fifty Employees or,
if less, the greater of three
<PAGE>
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Employees or ten percent of all employees) shall be taken into
account, as specified by the Administration Committee;
(2) one of the ten Employees owning (or considered as owning within
the meaning of Section 318 of the Code) the largest interest in
the Company;
(3) a five percent (5%) owner of the Company; or
(4) a one percent (1%) or more owner of the Company having an annual
compensation from the Company of more than $150,000.
(d) If, the Plan is top-heavy for a Plan Year, then for purposes of
computing the maximum additions under the Plan and Section 415 of the
Code, the defined benefit plan fraction and the defined contribution
plan fraction, shall be computed by substituting the number 1.0 for
the number 1.25. The Company may elect to disregard the preceding
sentence if, as of the last day of the preceding Plan Year, the amount
credited to the accounts of key Employees does not exceed 90% of the
amount credited to the accounts of all Participants (except former key
Employees). If the Company makes the election described in the
preceding sentence, the minimum allocation percentage specified in
subsection (a) shall be increased to 4% of compensation for all
Participants and 7 1/2% for Participants who also participate in a
defined benefit plan maintained by the Company or an Affiliated
Company which is top-heavy.
<PAGE>
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ARTICLE XI. THE ADMINISTRATION COMMITTEE
SECTION 11-1. MEMBERSHIP. The Administration Committee shall consist of
three or more members, who shall be selected by the Board of Directors of the
Company. The Board of Directors shall designate one member of the
Administration Committee who shall be chairman.
The Board of Directors of the Company may at any time remove any of the
members of the Administration Committee and may appoint other members to serve.
Likewise, in the event of the death, resignation or incapacity of a member of
the Administration Committee, a successor shall be selected by the Board of
Directors to serve in his place.
Each member of the Administration Committee shall serve on the
Administration Committee until such time as he shall resign, die, become
incapacitated, or be removed by the Board of Directors of the Company.
The members of the Administration Committee shall not receive any
compensation for their services as members of the Administration Committee.
The Administration Committee shall be bonded in accordance with the
requirements of ERISA.
SECTION 11-2. PLAN ADMINISTRATOR. The Administration Committee shall be
the Plan Administrator and shall supervise and direct the Trustee in the
management and administration of the Fund in accordance with the terms and
provisions of the Plan.
SECTION 11-3. PROCEEDINGS OF THE ADMINISTRATION COMMITTEE. The
Administration Committee shall meet and act as a body and the individual members
of the Administration Committee shall have no powers and duties as such, except
that the Administration Committee may appoint a member or members or other
parties to keep the records and file such reports and notices as required. On
all matters the decision of the majority of the members of the Administration
Committee shall control; provided, however, if the members of the Administration
Committee are equally divided upon any matter or question requiring their joint
action then the decision of the chairman with respect thereto shall control.
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SECTION 11-4. CONSTRUCTION OF TERMS AND PROVISIONS OF THIS PLAN. The
members of the Administration Committee shall be vested with full power and
authority to construe the terms and provisions of this Plan. The construction
and interpretation of this Plan by the Administration Committee shall be
binding and conclusive on all parties.
<PAGE>
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ARTICLE XII. ROLLOVERS AND TRANSFERS
SECTION 12-1. ROLLOVERS. The Plan is authorized to accept a Rollover
Contribution that is Two Hundred Dollars ($200.00) or over from an Employee in
cash, even if he or she is not yet a Participant. The Employee shall furnish
satisfactory evidence that the amount is eligible for rollover treatment. A
Rollover Contribution must be paid to the Plan in cash within sixty (60) days
after the date received by the Employee from a qualified plan. Such amounts
shall be posted to the Employee's Rollover Account by the Plan as of the date
received by the Administration Committee or its delegate.
If it is later determined that an amount transferred pursuant to the above
paragraph did not in fact qualify as a Rollover Contribution, the balance
credited to the Employee's Rollover Account shall immediately be (1) segregated
from all other Plan assets, (2) treated as a non-qualified trust established by
and for the benefit of the Employee, and (3) distributed to the Employee. Any
such nonqualifying rollover shall be deemed never to have been a part of the
Plan.
SECTION 12-2. TRUSTEE TRANSFERS FROM OTHER QUALIFIED PLANS. The Plan may
receive assets in cash or in kind that is Two Hundred Dollars ($200.00) or over
from another qualified plan. The Trustee may refuse the receipt of any transfer
if;
1. the Administrator Committee finds the in-kind assets unacceptable,
2. instructions for posting amounts to Participants' Accounts are
incomplete,
3. any amounts are not exempted by Section 401(a)(11)(B) of the Code from
the annuity requirements of Section 417 of the Code, or
4. any amounts include benefits protected by Section 411(d)(6) of the
Code which would not be preserved under applicable Plan provisions.
Such amounts shall be posted to the appropriate Accounts of Participants as
of the date received by the Plan Administrator.
SECTION 12-3. TRUSTEE TRANSFER TO OTHER QUALIFIED PLANS. With respect to
any payment hereunder which constitutes an eligible
<PAGE>
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rollover distribution that is of Two Hundred Dollars ($200.00) or over (within
the meaning of Section 402(c)(4) of the Code), a Participant (or beneficiary)
may direct the Plan Administrator to have such payment paid in the form of a
single Trustee Transfer, provided the Administration Committee receives written
notice of such direction with specific instructions as to the eligible
retirement plan as defined in Section 401(a)(31)(D) to which the Trustee
Transfer is to be made on or prior to the applicable notice date for payment.
SECTION 12-4. DEFINITIONS. For purposes of this Article, the following
terms shall apply:
"Rollover Contributions" means a rollover contribution as described in
Section 402(c) of the Code (or its predecessor).
"Trustee Transfer" means (a) a transfer to the Trustee of an amount by the
trustee of a retirement plan qualified for tax-favored treatment under Section
401(a) of the Code or by the trustee(s) of a trust forming part of such a plan,
which plan provides for such transfer; or (b) a transfer from the Administration
Committee of an amount for the benefit of a Participant to the custodian of an
eligible retirement plan within the meaning of Section 402(c)(8)(B) of the code,
provided such plan provides for the receipt of such transfers.
<PAGE>
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ARTICLE XIII. LOANS
SECTION 13-1 A Participant may borrow from the Plan, subject to the
following provisions of this Article XIII and to such additional standards as
the Plan Administrator may adopt, by making prior written application to the
Plan Administrator. A Participant seeking a loan hereunder must submit an
application (hereinafter referred to as the "completed application") which shall
(i) specify the terms pursuant to which the loan is requested to be made,
including the requested effective date, (ii) authorize the repayment of the loan
through payroll deductions, (iii) provide such information and documentation as
the Plan Administrator shall require, (iv) include a promissory note, duly
executed by the Participant, granting a security interest in his or her entire
interest in the Plan to secure the loan.
SECTION 13-2 Any loan to a Participant under this Article XIII shall be
subject to the following requirements effective April 1, 1993:
(a) The loan may not exceed the lesser of (i) $50,000 or (ii) 50 percent
of the value of the Participant's vested interest in his Accounts,
including the vested portion of the Employer Contributions Account.
For purposes of this Section 13.2, the value of a Participant's vested
interest shall be determined as of the last Valuation Date with
respect to which such interest or balance has been calculated at the
time that the loan application is submitted. The maximum loan amount
of $50,000 otherwise available to a Participant is reduced by the
excess, if any, of the highest outstanding balance of Plan loans to
the Participant during the one-year period ending on the day before
the loan is made over the outstanding balance of loans from the Plan
on the date when the loan is made.
(b) The loan must be at least $1,000.
(c) The loan shall provide for a fixed rate of interest for the entire
term of the loan. The applicable interest rate for Plan loans shall
be the current estimated blended fixed interest rate for the fixed
investment fund or the Prime Rate published in the Wall Street Journal
at the beginning of the current calendar quarter plus 1%, whichever is
higher, provided that the Plan Administrator may in its discretion
establish a different method of establishing the interest rate
consistent with the
<PAGE>
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provisions of Section 4975(d)(1) of the Code and other applicable
legal requirements.
(d) The loan shall be for a term of one, two, three, four, or five years.
(e) Notwithstanding the five year limit in Section 13.2(d), any loan used
to acquire or construct any dwelling unit which, within a reasonable
time, is to be used as the principal residence of the Participant may
be for a term of 5, 10, or 15 years.
(f) The term of any loan shall not extend beyond the date on which the
Participant attains age 70.
(g) The Plan Administrator shall establish standards in accordance with
ERISA and the Code and such rules as it deems necessary which shall be
uniformly applicable to all Participants similarly situated and shall
govern the Plan Administrator's approval or disapproval of completed
applications. The terms for each loan shall be set solely in
accordance with this Section and such standards adopted by the Plan
Administrator in accordance with Section 13.4. Such standards may
prescribe minimum repayment periods, a maximum and minimum loan amount
(within the limitations specified above), and shall require spousal
consent for loans to married Participants and other relevant factors.
(h) Each time a Participant takes a loan, he shall not be permitted to
take a subsequent loan under the Plan until after the prior loan has
been repaid in full.
(i) Except as otherwise provided by the Plan Administrator, a Participant
may not take a loan in the same month, or period subsequent to the
month in which a withdrawal request was submitted or a distribution
made.
SECTION 13-3 The following provisions shall apply:
(a) Each loan shall be evidenced by a promissory note executed by the
Participant and payable to the Trustee, due and payable in full not
later than the earliest of: (i) a fixed maturity date meeting the
requirements of Section 13.2(d) or (e) above; (ii) the Participant's
death; or (iii) the time which the Participant ceases to be an
Employee.
<PAGE>
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(b) The promissory note shall provide for the payment of equal monthly
installments of principal and interest on the unpaid balance of
principal at the fixed annual rate set forth in Section 13.2(c) on the
date the note is executed. The note shall further provide that the
monthly payments shall be through semi-monthly payroll deductions.
(c) The promissory note shall evidence such additional terms as are
required by this Section 13.2 or by the Plan Administrator.
SECTION 13-4 The Plan Administrator shall, in accordance with its
established standards, review, and approve or disapprove a completed application
as soon as practicable after its receipt thereof, and shall promptly notify the
applying Participant of such approval or disapproval.
SECTION 13-5 A Participant shall first borrow from his available Employee
Contributions Account. If the Participant's Employee Contributions Account is
not sufficient to fund the loan, the Participant shall next borrow from the
Vested Employer Contribution Account, the Trustee Transfer Account, the Rollover
Account, and the Deferred Contributions Account and the loans shall come from
each of the Accounts in the order stated above until each account is withdrawn
before proceeding to the next account. A Participant may borrow from any Fund
or pro rata across all Funds.
SECTION 13-6 Each loan shall be made only from the Accounts of the
borrowing Participant and shall be treated as an investment of the Participant's
Accounts from which the Participant's loan was funded.
SECTION 13-7 Each loan to a Participant under this Article XIII shall be
repaid in level monthly amounts over a period meeting the requirements of
Section 13.2 hereof. The monthly installments must be paid through automatic
semi-monthly payroll deductions, except as provided by the Plan Administrator.
A Participant may request a subsequent loan after full repayment of a prior
loan, subject to the maximum loan amount set forth in Section 13.2(a) hereof.
No partial prepayments will be permitted except with the written consent of the
Plan Administrator. All loan repayments made through payroll deductions shall
be transmitted by the Participating Company to the Trustee as soon as
practicable after such amounts are withheld.
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SECTION 13-8 Each loan repayment of principal and interest will be
allocated to the Participant's Accounts based upon elections made pursuant to
Article IV.
SECTION 13-9 Repayment of any loan under the Plan shall be secured by 50%
of the Participant's entire interest in the Plan.
SECTION 13-10 If a Participant with an outstanding loan takes an
authorized leave of absence or incurs a temporary disability so the regular
monthly installment payments cannot be made on a semi-monthly payroll deduction
basis, the Participant will be required to make the regular monthly payments of
principal and interest at the time and place established by the Plan
Administrator.
SECTION 13-11 If any time prior to full repayment of a loan to a
Participant under the Plan, the Participant should cease to be a Participant by
reason of his or her retirement, death, severance from employment, change to
hourly status, or otherwise, or the Plan should terminate, or any event of
default otherwise occurs under the documents evidencing the loan; the unpaid
balance owed by the Participant on the loan shall be due and payable in full
immediately without notice or demand. If the Participant does not repay the
full amount of the unpaid balance within the time established by the Plan
Administrator, no Employee Contributions or Deferred Contributions shall be made
to the Participant's Accounts and the Plan Administrator may take whatever steps
it deems necessary to collect the unpaid balance of the loan plus any accrued
interest. The amount of the distribution otherwise payable to the Participant
or the amount of the Participant's vested interest in his Accounts, (or, in the
case of his death, to his Beneficiary) shall be reduced by the amount of
outstanding principal and interest on the loan at the time of such distribution
and applied in satisfaction of the Participant's loan obligations. To the
extent that the reduction in the amount of the distribution or the reduction in
the Participant's vested interest is sufficient to discharge the Participant's
total outstanding liability under the loan, such reduction shall constitute a
complete discharge of all liability of the Participant to the Plan for the loan.
In the event that the reduction in this Section 13-11 is not sufficient to fully
discharge the Participant's obligation under the loan, the Participant, his
heirs, successors, and assigns shall be liable for the payment of the remaining
amounts due under the loan and such Participant, his heirs, successors, or
assigns shall make payment upon notice by the Plan Administrator.
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SECTION 13-12 Notwithstanding anything to the contrary contained herein,
each loan shall be made only in accordance with the regulations and rulings of
the Internal Revenue Service and other applicable state or federal laws. The
Plan Administrator shall act in its sole discretion to ascertain whether the
requirement of such laws, regulations, and rulings have been met.
<PAGE>
EXHIBIT 23.2
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.
COOPERS & LYBRAND L.L.P.
Fort Worth, Texas
September 21, 1995
<PAGE>
EXHIBIT 23.3
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 financial
statement schedule of Burlington Northern Inc. and Subsidiaries as of December
31, 1994 and 1993, and for the years ended December 31, 1994, 1993 and 1992.
COOPERS & LYBRAND L.L.P.
Fort Worth, Texas
September 21, 1995
<PAGE>
EXHIBIT 23.4
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 (a) 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; and (b) our report dated June 23, 1995, included in Exhibit
99(b) of Santa Fe Pacific Corporation's Annual Report on Form 10-K/A relating to
The Atchison, Topeka and Santa Fe Railway Company - Brotherhood of Locomotive
Engineers 401(K) Retirement Plan.
Price Waterhouse LLP
Kansas City, Missouri
September 22, 1995
