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As filed with the Securities and Exchange Commission on April 22, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BURLINGTON NORTHERN SANTA FE CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 41-1804964
(State of incorporation) (I.R.S. Employer Identification Number)
2650 Lou Menk Drive
Fort Worth, Texas 76131-2830
(817) 333-2000
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
Jeffrey R. Moreland
1700 East Golf Road
Schaumburg, Illinois 60173-5860
(847) 995-6805
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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Copies to:
Robert E. Curley
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
(312) 701-7306
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Approximate date of commencement of proposed sale to the public: From
time to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
--------------------------
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.[ ]
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of each class of Amount offering price aggregate registration
securities to be registered to be registered per share (1) offering price (1) fee
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Common Stock ($0.01 par value)........ 3,000,000 shares $71.25 $213,750,000 $64,773
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(1) Estimated pursuant to Rule 457 under the Securities Act of 1933 solely
for purposes of determining the registration fee, based on the average
of the high and low sales prices on the New York Stock Exchange
Composite Tape on April 21, 1997.
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED APRIL 22, 1997
3,000,000 SHARES
BURLINGTON NORTHERN SANTA FE CORPORATION
COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
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The shares (the "Shares") of Common Stock, par value $0.01 (the "Common
Stock"), of Burlington Northern Santa Fe Corporation (the "Company") offered
hereby may be purchased pursuant to the exercise of transferable options and
stock appreciation rights issued by the Company to participants in the
Burlington Northern Santa Fe 1996 Stock Incentive Plan and the Burlington
Northern Santa Fe Non-Employee Directors' Stock Plan and transferred by those
participants and any reload options issued upon exercise of such transferred
options. See "Plan of Distribution."
On April 21, 1997, the last reported sale price of the Common Stock on
the New York Stock Exchange was $70.875 per share.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
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The date of this Prospectus is April 22, 1997
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NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITY OTHER THAN THE COMMON STOCK OFFERED HEREBY, NOR DOES IT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED
HEREBY TO ANY PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH AN
OFFER OR SOLICITATION TO SUCH PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCE CREATE ANY IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO
THE DATE HEREOF.
TABLE OF CONTENTS
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PAGE PAGE
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Available Information.............. 2 Plan of Distribution............... 4
Incorporation by Reference......... 3 Experts............................ 10
The Company........................ 4 Validity of the Shares............. 10
Use of Proceeds.................... 4
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy material and other
information concerning the Company can be inspected and copied at the offices of
the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 or
at its regional offices, Citicorp Center, 500 West Madison Street, Chicago,
Illinois 60661 and Seven World Trade Center, New York, New York 10048. Copies of
such material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates
and from the Commission's worldwide web site at http://www.sec.gov. Such
reports, proxy material and other information concerning the Company also may be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005, the Chicago Stock Exchange Incorporated, One Financial
Place, 440 South LaSalle Street, Chicago, Illinois 60605, and the Pacific Stock
Exchange, 301 Pine Street, San Francisco, California 94104.
The Company has filed with the Commission a registration statement on
Form S-3 (together with all amendments and exhibits, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the shares of Common Stock offered hereby. This prospectus
("Prospectus"), which constitutes a part of the Registration Statement, does not
contain all the information set forth in the Registration Statement, certain
items of which are contained in exhibits to the Registration Statement as
permitted by the rules and regulations of the Commission. Statements made in
this Prospectus as to the content of any contract, agreement or other document
referred to are not necessarily complete. With respect to each such contract,
agreement or other document filed as an exhibit to the Registration Statement,
reference is made to the exhibit for a more complete description of the matter
involved, and each such statement shall be deemed qualified in its entirety by
such reference.
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INCORPORATION BY REFERENCE
The following documents, which have heretofore been filed by the
Company with the Commission, are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996;
(b) The Company's Form 8-K (Date of earliest event reported:
January 21, 1997); and
(c) The description of the common stock, $.01 par value per share,
of the Company (the "Common Stock") contained in the section
entitled "Certain Additional Information Concerning Holdings"
from the Prospectus dated January 13, 1995, included as part
of the Registration Statement on Form S-4 (No. 33-57069) of
the Company.
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, as amended,
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. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein will be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein modifies or supersedes any such statement. Any such statement
so modified or superseded will not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the request of such
person, a copy of any of the foregoing documents incorporated herein by
reference (other than the exhibits to such documents unless such exhibits are
specifically incorporated by reference into such documents). Written or
telephone requests should be directed to Burlington Northern Santa Fe
Corporation, 2650 Lou Menk Drive, Fort Worth, Texas 76131-2830, Attention:
Corporate Secretary (telephone (817) 333-2000).
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THE COMPANY
Through its principal operating subsidiary, The Burlington Northern and
Santa Fe Railway Company ("BNSF Railway"), the Company is engaged primarily in
railroad transportation. BNSF Railway operates one of the largest railroad
networks in the United States, with approximately 35,000 route miles reaching
across 29 states and two Canadian provinces as of December 31, 1996.
Approximately 7,900 route miles of BNSF Railway's system consist of trackage
rights which permit BNSF Railway to operate its trains with its crews over
another railroad's tracks.
BNSF Railway serves all major ports in the western United States,
certain Mexican and Canadian gateways and Gulf ports, important gateways to the
eastern United States and most major cities in the Pacific Northwest and west
and in the midwestern and southwestern United States. The principal cities
served by BNSF Railway include Albuquerque, Billings, Birmingham, Cheyenne,
Chicago, Corpus Christi, Dallas, Denver, Des Moines, Duluth/Superior,
Fargo/Moorhead, Fort Worth, Galveston, Houston, Kansas City, Lincoln, Little
Rock, Los Angeles, Memphis, Mobile, New Orleans, Oklahoma City, Omaha,
Pensacola, Phoenix, Portland, Reno, Salt Lake City, San Antonio, St. Louis, St.
Paul/Minneapolis, the San Francisco Bay area, Seattle, Spokane, Springfield
(Missouri), Tacoma, Tulsa, Wichita, Vancouver (British Columbia), Winnipeg
(Manitoba) and the United States/Mexico crossings of Brownsville, El Paso and
Eagle Pass, Texas and San Diego. Through its connection with the Texas Mexican
Railway Company at Brownsville, Texas, BNSF Railway also reaches the major
border crossing point at Laredo, Texas.
BNSF Railway derives a substantial portion of its revenues from
intermodal transportation and the transportation of coal and agricultural
commodities. Other significant aspects of BNSF Railway's business include the
transportation of chemicals and plastics, forest products, consumer goods,
metals, automotive products, and minerals.
The Company's principal executive offices are located at 2650 Lou Menk
Drive, Fort Worth, Texas 76131- 2830, telephone number (817) 333-2000.
USE OF PROCEEDS
The amount of the proceeds to be received upon exercise of the
transferable options to which this Prospectus relates will depend upon the
exercise prices of the options and the extent to which they are exercised.
Expenses of the offering will be minimal. The proceeds from the sale of the
Common Stock will be used for general corporate purposes.
PLAN OF DISTRIBUTION
The shares of Common Stock of the Company covered by this Prospectus
are being offered by the Company to transferees of transferable options and
stock appreciation rights granted to the officers and certain other key
employees of the Company and certain of its subsidiaries pursuant to the
Burlington Northern Santa Fe 1996 Stock Incentive Plan (the "1996 Plan") and the
Burlington Northern Santa Fe Non-Employee Directors' Stock Plan (the
"Non-Employee Directors' Plan"), collectively the "Plans." Both of the Plans, as
they relate to transferable awards, are described below.
1996 PLAN
The 1996 Plan was approved and adopted by the Company's Board of
Directors on December 14, 1995, subject to stockholder approval. On April 18,
1996, upon the approval of the stockholders of the Company, the 1996 Plan became
effective as of January 1, 1996. The Stock Plan is not qualified under Section
401 of the Internal Revenue Code of 1986, as amended (the "Code"), or subject to
any provisions of the Employee Retirement Income Security Act of 1974 ("ERISA").
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The purpose of the 1996 Plan is to (i) attract and retain executive,
managerial and other salaried employees, (ii) motivate participating employees
by means of appropriate incentives to achieve long-range goals, (iii) provide
incentive compensation opportunities that are competitive with those of other
major corporations, and (iv) further identify a participant's interests with
those of the Company's other stockholders through compensation that is based on
the Common Stock, and thereby promote the long-term financial interest of the
Company and its subsidiaries, including the growth in value of the Company's
equity and enhancement of long-term stockholder return. The 1996 Plan provides
for the grant of stock options, stock appreciation rights, restricted stock,
restricted stock units, performance stock and performance units (the "Awards").
The 1996 Plan provides for administration by the Compensation Committee
of the Board of Directors (the "Committee"); provided, however, each of the
members of the Committee must be both a non-employee and a "disinterested
director" within the meaning of Rule 16b-3 under the Exchange Act. No member of
the Committee is eligible to be selected to participate in the 1996 Plan. Among
the powers granted to the Committee are the authority to interpret the 1996
Plan, establish rules and regulations for its operation, select employees of the
Company and its subsidiaries to receive Awards and determine the form and amount
and other terms and conditions of such Awards. The 1996 Plan authorizes the
Committee to delegate its authority and duties under the 1996 Plan, in certain
circumstances; provided, however, that only the Committee may select and grant
Awards to participants who are subject to Section 16 of the Exchange Act.
All salaried, full-time officers and employees of the Company or its
subsidiaries (the "Employees") are eligible to be selected to participate in the
1996 Plan. The selection of participants from among the Employees is within the
discretion of the Committee.
The Board may suspend, terminate, modify or amend the 1996 Plan,
provided that any amendments that would (i) increase the aggregate number of
shares which may be issued under the 1996 Plan, (ii) materially increase the
benefits accruing to participants under the 1996 Plan, or (iii) materially
modify the requirements as to eligibility for participation in the 1996 Plan,
shall be subject to the approval of the Company's stockholders. No suspension,
termination, modification or amendment to the 1996 Plan may terminate a
participant's existing Award or materially and adversely affect a participant's
rights under such Award without such participant's consent.
In the event of a change in control (as defined in the 1996 Plan), (i)
all of the terms, conditions, restrictions and limitations in effect on any of
an Employee's outstanding Awards will immediately lapse, and (ii) all of the
Employee's outstanding Awards will automatically become one hundred percent
vested. Generally, the 1996 Plan defines a change in control as occurring if:
(a) any "person" becomes the beneficial owner of securities representing 25% or
more of the voting power of the Company's outstanding securities; or (b) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Company and new directors whose
nomination was approved by at least 2/3 of such directors cease to constitute at
least a majority of the Board; or (c) the Company's stockholders approve a
merger or consolidation of the Company with another company; or (d) the
Company's stockholders approve a plan of complete liquidation or an agreement
for the sale or disposition by the Company of all or substantially all of its
assets; except that a merger or business combination with a Class I railroad or
holding company of a Class I railroad shall not constitute a change in control
unless the Board so determines.
The Committee may establish one or more programs under which eligible
participants will be permitted to purchase shares of Common Stock. The Committee
will establish the terms and conditions of such program; provided, however, the
purchase price of the shares may not be less than the fair market value
of the shares at the time of grant (or, in the Committee's discretion, the
average value of the Common Stock over a specified period). The Committee may
impose such restrictions on the shares purchased as it determines to be
appropriate.
Ten million shares of Common Stock are available for grant under the
1996 Plan, which shares may be currently authorized but unissued shares or
treasury shares, including shares purchased in the open market or in private
transactions. Shares of Common Stock subject to an Award which terminates or
expires without the issuance
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of shares (whether or not cash or other consideration is paid with respect to
such Awards) and shares used to pay an option exercise price will again be
available for grant under the 1996 Plan.
No participant shall receive any Award of stock options or stock
appreciation rights to the extent that the sum of the number of shares subject
to such Award and the number of shares subject to prior awards of options and
stock appreciation rights (both under the 1996 Plan and under other plans of the
Company and its subsidiaries) during a one year period ending on the date of
grant exceeds 1,000,000 shares.
STOCK OPTIONS
Under the 1996 Plan, the Committee may grant incentive stock options
which are intended to satisfy the requirements of Section 422 of the Code and
non-qualified stock options to purchase shares of the Common Stock. This may
include option grants to certain senior executives or their transferees in an
amount equal to the number of shares tendered to pay an option exercise price.
The Committee will determine the number of shares subject to each option, the
manner and time of the option's exercise and the exercise price per share of
stock subject to the option. In no event, however, may the exercise price of a
stock option be less than the fair market value of the Common Stock on the date
of grant. Upon exercise, the option price may, at the discretion of the
Committee, be paid by a participant in cash, shares of Common Stock, a
combination thereof, or through a cashless exercise program established by the
Company.
STOCK APPRECIATION RIGHTS
The 1996 Plan authorizes the Committee to grant Stock Appreciation
Rights ("SARs") either in tandem with a stock option or independent of a stock
option. An SAR is a right to receive a payment equal to the appreciation in
market value of a stated number of shares of Common Stock from the SAR's
exercise price to the market value on the date of its exercise. The Committee
will determine the number of shares subject to the award, the manner and time of
an SAR exercise and the exercise price, which shall not be less than the fair
market value of a share of Common Stock on the date of grant.
A tandem SAR may be granted either at the time of the grant of the
related stock option or at any time thereafter during the term of the stock
option. A tandem SAR shall be exercisable to the extent its related stock option
is exercisable, and the exercise price of such an SAR shall be the same as the
option price under its related stock option. Upon the exercise of a stock option
as to some or all of the shares covered by the Award, the related tandem SAR
shall be cancelled automatically to the extent of the number of shares covered
by the stock option exercise.
The 1996 Plan authorizes the Committee to grant Limited Stock
Appreciation Rights ("LSARs") either in tandem or independent of a stock option.
An LSAR is a right to receive a cash payment in connection with a change in
control as defined in the 1996 Plan.
OTHER TERMS OF AWARDS
Awards may be paid in cash, Common Stock, a combination of cash and
Common Stock, or any other form of property, as the Committee shall determine.
If an Award is granted in the form of a stock award, stock option, or
performance share, or in the form of any other stock-based grant, the Committee
may include as part of such Award an entitlement to receive dividends or
dividend equivalents. At the discretion of the Committee, payment of a stock
award, performance share, performance unit, dividend, or dividend equivalent may
be deferred by a Participant.
The 1996 Plan provides for the forfeiture of Awards in the event of
termination of employment for a reason other than death, disability, retirement,
or termination by the Company other than for cause.
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In the event that termination occurs by reason of death, all Awards
shall vest. In the event that termination occurs by reason of disability or
retirement, a pro rata portion of all Awards shall vest, except that the
proportion of such Awards subject to performance criteria shall remain subject
to the same terms and conditions for vesting as were in effect prior to
termination. In the event of termination by the Company other than for Cause, a
pro rata portion of Awards shall vest, except that all performance-based awards
shall be forfeited. In the event of death, disability, or retirement, options
and SARs shall be exercisable for three years (other than incentive stock
options which shall be exercisable for three months) and in the event of
termination by the Company other than for Cause, options and SARs are
exercisable for three months thereafter, but in no event later than the
scheduled expiration date.
Awards under the 1996 Plan are not transferable except as designated by
the participant by will or by the laws of descent and distribution. However, the
Committee may permit Awards (other than incentive stock options) to be
transferred for no consideration to or for the benefit of the participant's
immediate family.
Upon the grant of any Award, the Committee may, by way of an Award
Notice or otherwise, establish such other terms, conditions, restrictions and
limitations governing the grant of such Award as are not inconsistent with the
1996 Plan.
NON-EMPLOYEE DIRECTORS' PLAN
The Non-Employees Directors' Plan was approved and adopted by the
Company's Board of Directors on January 18, 1996, subject to stockholder
approval. On April 18, 1996, the Non-Employee Directors' Plan became effective
upon the approval of the stockholders of the Company. The Plan is not qualified
under Section 401 of the Code or subject to any provisions of ERISA.
The purpose of the Non-Employee Directors' Plan is to promote the
interests of the Company and its stockholders by enhancing the Company's ability
to attract and retain the services of experienced and knowledgeable directors
and by encouraging such directors to acquire an increased proprietary interest
in the Company.
The Non-Employee Directors' Plan provides for automatic annual grants
of options to purchase the Common Stock on the date of the Company's annual
meeting commencing in 1996 to each individual who was elected to the Board of
Directors at such meeting and who was not an employee of the Company. A total of
300,000 shares of Common Stock will be made available for grants under the
Non-Employee Directors' Plan, which shares may be currently authorized but
unissued shares or treasury shares, including shares purchased in the open
market or in private transactions. Any shares subject to an Award that expires
or terminates without issuance of shares will again be available for grant under
the Non-Employees Directors' Plan. Each annual grant will permit the holder, for
a period of up to ten years from the date of grant, to purchase from the Company
1,000 shares of the Common Stock (subject to adjustment as provided in the
Non-Employee Directors' Plan) at 100% of the fair market value of such shares on
the date the option is granted.
Each option shall become exercisable commencing on the first
anniversary date of grant. In the event of the retirement, death, disability or
upon a change in control (as defined in the Non-Employee Directors' Plan), all
options granted shall become immediately exercisable and shall be available for
exercise until the later of (1) one year from the date service on the Board
ceases, or (2) as long as service on the Board continues, but not later than ten
years from date of grant. Except as provided in the preceding sentence, all
options will be forfeited on the date the director's service on the Board
ceases. Each option and all rights shall be nonassignable and non-transferrable
other than by will or the laws of descent and distribution unless, and to the
extent legally permitted, an election is made prior to the date of grant to
receive an option transferrable to an immediate family member or trust for the
benefit of a family member.
To the extent exercisable, an option may be exercised in whole or in
part by filing a written notice with the Secretary of the Company which
specifies the number of shares to be purchased and is accompanied by the
exercise price for such shares. Payment may be made in cash, by check payable to
the Company or by delivery
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of shares of Company stock having an aggregate fair market value as of the date
of exercise equal to the amount of cash otherwise required.
The options under the Plan shall be non-qualified stock options. The
exercise of an option will result in taxable ordinary income to the non-employee
director and a corresponding deduction to the Company on the date of exercise,
equal to the difference between the option price and the fair market value on
the date the option was exercised.
The Non-Employee Directors' Plan will be administered by the Directors
and Corporate Governance Committee which will be authorized to interpret the
Non-Employee Directors' Plan but have no discretionary authority with respect to
the selection of directors to receive stock awards, the number of shares subject
to the plan or each grant thereunder, or the option price for shares subject to
options. The Board may amend or terminate the Non-Employee Directors' Plan as it
shall deem advisable but no amendment or termination may adversely affect the
rights of any participant or beneficiary under any award made under the
Non-Employee Directors' Plan prior to the date such amendment is adopted by the
Board, and may not amend the provisions relating to the amount, price, and
timing of awards more than once every six months other than to comport with
changes in the Code, ERISA, or the rules thereunder. Adjustments shall be made
in the number and kind of shares subject to the Non-Employee Directors' Plan and
the number and kind of shares subject to outstanding and subsequent option
grants and in the purchase price of outstanding options, in such case to reflect
changes in the Common Stock through changes in the Company's corporate structure
or capitalization, such as through a merger or stock split.
FEDERAL INCOME TAX EFFECTS
GENERAL DESCRIPTION OF FEDERAL INCOME TAX EFFECTS
This section is not intended to be a complete statement of the Federal
income tax aspects of the 1996 Plan or the Non-Employee Directors' Plan and does
not describe the possible effects of state and other income taxes or of gift,
estate and inheritance taxes. Due to the complexity of various tax laws and
their application to particular circumstances, participants are advised to
consult a qualified tax adviser before taking any action permitted by the Plans.
An employee will not realize taxable income at the time of the grant of
a non-qualified option. Upon exercise, however, the employee will realize
ordinary income equal to the excess, if any, of the fair market value of the
shares on the date of exercise over the option price, and the Company will be
entitled to a corresponding deduction. Upon subsequent disposition of such
shares, the employee will realize short-term or long-term capital gain or loss,
with the basis for computing such gain or loss equal to the option price plus
the amount of ordinary income realized upon exercise.
An employee will not realize taxable income at the time of the grant of
an SAR. Upon exercise, however, such employee will realize ordinary income
measured by the difference between the fair market value of the Common Stock of
the Company on the applicable date of grant and the fair market value of such
stock on the date of exercise. The Company will be entitled to a corresponding
deduction in the year of exercise.
Any acceleration of the payment of grants and awards under the Plans,
in the event of a change in control in the Company, may cause part or all of the
consideration involved to be treated as an "excess parachute payment" under the
Code, which may subject the participant to a 20% excise tax and which may not be
deductible by the Company. A deduction otherwise available to the Company for
any year with respect to compensation payable to a named executive officer may
be denied to the extent that it exceeds $1 million. For these purposes,
restricted stock grants and performance awards under the Plans may under certain
circumstances qualify for, and it is anticipated that grants of options and SARs
will generally qualify for, an exception to that limitation for eligible
performance-based compensation.
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PAYMENT OF OPTION PRICE WITH SHARES OF COMPANY COMMON STOCK
Under proposed regulations, the exercise of an incentive stock option
through the exchange of previously acquired stock will generally be treated as a
non-taxable like-kind exchange as to the number of shares given up and the
identical number of shares received under the option. That number of shares will
take the same basis and, for capital gains purposes, the same holding period as
the shares which are given up. However, such holding period will not be credited
for purposes of the one-year holding period required for the new shares to
receive incentive stock option treatment. Shares received upon such an exchange
which are in excess of the number of shares given up will have a new holding
period and, if cash was paid in addition to the shares exchanged, a basis equal
to the amount of such cash. If a disqualifying disposition (a disposition before
the end of the applicable holding period) occurs with respect to any of the
shares received from the exchange, it will be treated as a disqualifying
disposition of the shares with the lowest basis.
If the exercise price of an incentive stock option is paid with shares
of stock of the Company acquired through a prior exercise of an incentive stock
option, gain will be realized on the shares given up (and will be taxed as
ordinary income) if those shares have not been held for the minimum holding
period (two years from the date of grant and one year from the date of
transfer), but the exchange will not affect the tax treatment, as described in
the immediately preceding paragraph, of the shares received.
The exercise of a stock option which is not an incentive stock option
through the delivery of previously acquired stock will generally be treated as a
non-taxable like-kind exchange as to the number of shares surrendered and the
identical number of shares received under the option. That number of shares will
take the same basis and, for capital gains purposes, the same holding period as
the shares which are given up. The value of the shares received upon such an
exchange which are in excess of the number given up will be taxed to the
employee at the time of the exercise as ordinary income. The excess shares will
have a new holding period for capital gains purposes and a basis equal to the
value of such shares determined at the time of exercise.
WITHHOLDING OF TAXES
The Company is entitled to deduct from any payment under each of the
Plans the amount of any tax required by law to be withheld with respect to such
payment or may require any participant to pay such amount to the Company prior
to and as a condition of making such payment. The Committee, in its discretion
and subject to such rules as it may adopt from time to time, has adopted rules
to permit each participant to elect to have the Company withhold from any
payment under the Plans (or to have the Company accept from the participant) for
tax withholding purposes shares of Common Stock of the Company valued at their
fair market value, but in no event shall the fair market value of the number of
shares so withheld (or accepted) exceed the amount necessary to meet the maximum
Federal, state and local marginal tax rates then in effect that are applicable
to the participant and to the particular transaction. Any election must be made
in writing on or before the date when the amount of taxes to be withheld is
determined (with additional restrictions as to the manner and timing of such
elections applying to participants subject to Section 16(b) of the Exchange
Act). If shares of Company Common Stock are withheld or delivered to satisfy all
or a portion of the withholding obligation (or a withholding election of any
participant), the portion of the withholding obligation (or election) that is so
satisfied will be equal to the fair market value of the shares withheld or
delivered, using the fair market value of the Company Common Stock on the date
when the amount of taxes to be withheld is determined, or, if the stock is not
traded on the New York Stock Exchange Composite Transactions on such date, then
on the next preceding date on which such stock was so traded.
The Code treats the use of shares of Company Common Stock to satisfy
any withholding requirement (or election) as a sale of such shares for an amount
equal to the fair market value of the stock on the date when the amount of taxes
to be withheld is determined. The disposition of such shares may result in the
recognition of gain or loss by the participant for tax purposes. If Company
Common Stock acquired pursuant to the Plans is used to satisfy any withholding
requirement (or election), such use will be subject to the Federal income tax
consequences
-9-
<PAGE> 11
described under "--General Description of Federal Income Tax Effects" and
"--Payment of Option Price with Shares of Company Common Stock," above.
TRANSFERRED OPTIONS
Neither the employee nor the transferee will realize taxable income at
the time of a non-arm's length transfer of a non-qualified stock option. Upon
the subsequent exercise of the option by the transferee, the employee will
realize ordinary income in an amount measured by the difference between the fair
market value of the shares on the date of exercise and the option price, and the
Company will generally be entitled to a corresponding deduction. Upon a
subsequent disposition of the shares by the transferee, the transferee will
generally realize short-term or long-term capital gain or loss, with the basis
for computing such gain or loss equal to the fair market value of the stock at
the time of exercise.
The tax rules governing the Federal income tax effects of the non-arm's
length transfer of an SAR are unclear. Based on the tax treatment of
transferable options, however, it appears that the employee may be required to
realize ordinary income when the transferee exercises the SAR in an amount
measured by the difference between the fair market value of the stock on the
date grant and the fair market value on the date of exercise and that the
Company would generally be entitled to a corresponding deduction at that time.
If an employee makes a gift of an option, the gift should be complete
for Federal gift tax purposes at the time of transfer and should be valued at
that time. For estate tax purposes, the gift of an option would generally cause
the option (and the stock acquired by exercise) to be excluded from the
employee's estate. Special rules may apply if the employee makes a gift of an
award to a charity or to a "living trust" under which the employee retained the
right to revoke the trust or substantially alter its terms.
ADDITIONAL INFORMATION REGARDING THE PLANS
This document summarizes and explains the 1996 Plan and the
Non-Employee Directors' Plan, but does not contain the text of the Plans. In the
event of any conflict between this or any other summary of the Plans, the text
of the applicable Plan will control. A full copy of both of the Plans and
additional information about those Plans and their administration may be
requested from Burlington Northern Santa Fe Corporation, 1700 East Golf Road,
Schaumburg, Illinois 60173-5860, Attention: Dennis J. Cech (telephone: (847)
995-6000). Additional information with respect to the Plans and the shares of
Common Stock covered hereby may be provided from time to time to Participants
and their transferees by means of appendices to this Prospectus or by an amended
Prospectus.
EXPERTS
The consolidated financial statements as of December 31, 1996 and for
the year ended December 31, 1996, and the financial statement schedule
incorporated in this Prospectus by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1996 have been so incorporated in
reliance on the reports of Price Waterhouse LLP, independent accountants, given
on the authority of said firm as experts in auditing and accounting.
The consolidated financial statements as of December 31, 1995 and for
each of the two years in the period ended December 31, 1995 incorporated by
reference in this Prospectus to the Company's Annual Report on Form 10-K for the
year ended December 31, 1995 have been so incorporated in reliance on the
reports of Price Waterhouse LLP and Coopers & Lybrand L.L.P., independent
accountants, given on the authority of said firms as experts in auditing and
accounting.
VALIDITY OF SHARES
The validity of the Common Stock offered hereby will be passed upon for
the Company by Mayer, Brown & Platt, Chicago, Illinois.
-10-
<PAGE> 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the issuance and distribution of the securities registered hereby:
<TABLE>
<S> <C>
SEC registration fee .................................................. $65,398
Legal fees ............................................................ 5,000
Accounting fees and expenses .......................................... 8,500
Miscellaneous ......................................................... 6,102
Total ........................................................ $85,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Company is incorporated under the laws of the State of Delaware.
The General Corporation Law of the State of Delaware (the "Delaware Statute")
provides for indemnification of directors, officers, and employees in certain
situations. The Delaware Statute, by its terms, expressly permits
indemnification where such a person acted in good faith and in a manner such
person reasonably believed to be in, or not opposed to, the corporation's best
interests, and, in a criminal action, if such person had no reasonable cause to
believe that his or her conduct was unlawful. In the case of a claim by a third
party (i.e., a party other than the corporation), the Delaware Statute expressly
permits indemnification for expenses, judgments, settlement payments, and other
costs. In the case of a claim by or in the right of the corporation (including
stockholder derivative suits), the Delaware Statute expressly provides for
indemnification for expenses only, and not for amounts paid in judgment or
settlement of such actions. Moreover, a corporation cannot, under the Delaware
Statute, provide for indemnification against expenses in the case of an action
by or in the right of the corporation if the person seeking indemnification is
adjudged liable to the corporation, unless the indemnification is ordered by a
court. The Delaware Statute also permits advancement of expenses to directors
and officers upon receipt of an undertaking by such director or officer to repay
all amounts advanced if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation. In addition, the Delaware Statute
specifically provides that its terms shall not be deemed exclusive of any other
right to indemnification to which a director, officer, or employee may be
entitled under any by-law, agreement, or vote of stockholders or disinterested
directors.
The By-Laws of the Company provide that the Company shall indemnify and
hold harmless, to the full extent permitted by law, any person made, or
threatened to be made, a party to an action, suit, or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was a director or officer of the Company, or served or serves as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan, at the request of the Company.
The Company also maintains directors' and officers' liability insurance
which purports to insure the Company against certain costs of indemnification
which may be incurred by the Company pursuant to the foregoing provisions, and
to insure directors and officers of the Company against certain liabilities
incurred by them in the discharge of their function as such officers and
directors, except for liabilities resulting from their own malfeasance.
II-1
<PAGE> 13
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
See Index to Exhibits included herewith which is incorporated by reference
herein.
ITEM 17. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high end of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than a 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement.
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement;
Provided, however, that paragraphs (a)(i) and (a)(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.
(b) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(c) 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.
(2) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this 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.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions set forth or described in Item 15
of this Registration Statement, or otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is,
II-2
<PAGE> 14
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, or claims to the extent
covered by contracts of insurance) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-3
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Schaumburg, State of Illinois, on April 21, 1997.
BURLINGTON NORTHERN SANTA FE CORPORATION
By /s/ Jeffrey R. Moreland
---------------------------------------------
Jeffrey R. Moreland
Senior Vice President-Law and General Counsel
<PAGE> 16
POWER OF ATTORNEY
Each person whose signature appears below hereby 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 this 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 Registrant's Chairman,
President, or Senior Vice President-Law and General Counsel at the time such
action shall be taken and (ii) any other officer of the Registrant or of a
wholly-owned subsidiary of the Registrant who shall be authorized by any 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 by the following persons in the
capacities indicated and on the 19th day of March, 1997.
<TABLE>
<S> <C>
/s/ Robert D. Krebs /s/ Denis E. Springer
- -------------------------------------------------- --------------------------------------------------
Robert D. Krebs, President and Chief Executive Denis E. Springer, Senior Vice President and Chief
Officer (Principal Executive Officer) and Director Financial Officer (Principal Financial Officer)
/s/ Thomas N. Hund /s/ Joseph F. Alibrandi
- -------------------------------------------------- --------------------------------------------------
Thomas N. Hund, Vice President and Controller Joseph F. Alibrandi, Director
(Principal Accounting Officer)
/s/ Jack S. Blanton /s/ John J. Burns, Jr.
- -------------------------------------------------- --------------------------------------------------
Jack S. Blanton, Director John J. Burns, Jr., Director
/s/ Daniel J. Evans /s/ George Deukmejian
- -------------------------------------------------- --------------------------------------------------
Daniel J. Evans, Director George Deukmejian, Director
/s/ Marc J. Shapiro /s/ Bill M. Lindig
- -------------------------------------------------- --------------------------------------------------
Marc J. Shapiro, Director Bill M. Lindig, Director
/s/ Robert H. West /s/ Roy S. Roberts
- -------------------------------------------------- --------------------------------------------------
Robert H. West, Director Roy S. Roberts, Director
/s/ Edward E. Whitacre, Jr. /s/ Arnold R. Weber
- -------------------------------------------------- --------------------------------------------------
Edward E. Whitacre, Jr., Director Arnold R. Weber, Director
/s/ Ronald B. Woodard /s/ J. Steven Whisler
- -------------------------------------------------- --------------------------------------------------
Ronald B. Woodard, Director J. Steven Whisler, Director
/s/ Michael B. Yanney
- --------------------------------------------------
Michael B. Yanney, Director
</TABLE>
<PAGE> 17
INDEX TO EXHIBITS
Exhibit
Number Description of Document
- ------- -----------------------
4.1 Amended and Restated Certificate of Incorporation of the
Registrant. Incorporated by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1995.
4.2 By-Laws of the Registrant. Incorporated by reference to Exhibit
3.2 to the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1995.
4.3 Burlington Northern Santa Fe 1996 Stock Option Plan.
Incorporated by reference to Appendix B to the Registrant's
Annual Meeting Proxy Statement dated March 5, 1996.
4.4 Burlington Northern Santa Fe Non-Employee Directors' Plan.
Incorporated by reference to Appendix A to the Registrant's
Annual Meeting Proxy Statement dated March 5, 1996.
5 Opinion of Mayer, Brown & Platt.
23.1 Consent of Mayer, Brown & Platt (included in Exhibit 5).
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included with signature page to the
registration statement).
<PAGE> 1
EXHIBIT 5.1
MAYER, BROWN & PLATT
April 22, 1997
Burlington Northern Santa Fe Corporation
2650 Lou Menk Drive
Fort Worth, Texas 76131
Ladies and Gentlemen:
We have acted as counsel to Burlington Northern Santa Fe
Corporation, a Delaware corporation (the "Company"), in connection with the
preparation and filing with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, of a Registration Statement on Form S-3 (the
"Registration Statement") relating to the shares of Common Stock, par value
$0.01 per share (the "Common Stock"), of the Company issuable pursuant to the
exercise of transferable options and stock appreciation rights issued by the
Company to participants in the Burlington Northern Santa Fe 1996 Stock Incentive
Plan and the Burlington Northern Santa Fe Non-Employee Directors' Stock Plan and
transferred by those participants (the "Plans"). In this connection, we have
examined such corporate and other records, instruments, certificates and
documents as we considered necessary to enable us to express this opinion.
Based on the foregoing, it is our opinion that the shares of
Common Stock issuable pursuant to the Plans have been duly authorized for
issuance and, when sold pursuant to the Plans, will be validly issued, fully
paid, and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
MAYER, BROWN & PLATT
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Burlington
Northern Santa Fe Corporation of our report dated February 7, 1997, related to
the consolidated financial statements of Burlington Northern Santa Fe
Corporation as of and for the year ended December 31, 1996, which appears on
page 19 of the 1996 Annual Report to Shareholders which is incorporated by
reference in Burlington Northern Santa Fe Corporation's Annual Report on Form
10-K for the year ended December 31, 1996. We also consent to the incorporation
by reference of our report on the Financial Statement Schedule, which appears on
page F-1 of such Annual Report on Form 10-K. We also consent to the reference to
us under the heading "Experts" in such Prospectus.
Price Waterhouse LLP
Kansas City, Missouri
April 22, 1997
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Prospectus constituting part
of the Registration Statement on Form S-3 of Burlington Northern Santa Fe
Corporation of our report dated February 15, 1996 on our audits of the
consolidated financial statements and the financial statement schedule of
Burlington Northern Santa Fe Corporation and Subsidiaries as of December 31,
1995 and for each of the two years in the period ended December 31, 1995,
incorporated by reference in the Burlington Northern Santa Fe Corporation Annual
Report on Form 10-K for the year ended December 31, 1996. We also consent to the
reference to our firm under the caption "Experts" in the aforementioned
Registration Statement.
COOPERS & LYBRAND L.L.P.
Fort Worth, Texas
April 22, 1997
