First Amendment of the Burlington Northern Santa Fe Corporation Amended and Restated Benefits Protection Trust Agreement
First
Amendment of the
Amended
and Restated Benefits Protection Trust Agreement
THIS
AMENDMENT (the "Amendment"), made as of the 4th day of October, 2007, by
and between BURLINGTON NORTHERN SANTA FE CORPORATION, a corporation organized
and existing under the laws of the State of Delaware (the "Company"), and
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association (hereinafter
referred to as the "Trustee");
W
I T N E
S S E T H
WHEREAS,
the Company entered into a trust agreement with the Trustee on March 31, 2004
(the "Trust");
WHEREAS,
amendment of the Trust is now desirable; and
WHEREAS,
the Board has determined, in its reasonable judgment and in accordance with
Section 17.1 of the Trust, that adoption of this amendment will have no material
adverse effect on the amount of benefits payable under the Trust to Participants
or their beneficiaries;
NOW,
THEREFORE, IT IS AGREED, by and between the Company and the Trustee, that the
Trust shall be amended in the following particulars, effective October 4,
2007.
1. By
substituting the following for paragraph 1.3(a) of the Trust:
"(a) any
person (as such
term is used in sections 13(d) and 14(d)(2) of the Securities Exchange Act
of
1934, as amended (the "Exchange Act")) being or becoming the "beneficial owner"
(as defined in Rule 13d-3 of the Exchange Act) directly or indirectly, of
securities of the Company representing twenty five percent (25%) or more of
the
combined voting power of the Company's then outstanding securities, provided
that the determination of whether any person has become the beneficial owner
of
twenty five percent (25%) or more of the combined voting power of the Company's
outstanding securities for purposes of this Section (a) shall be determined
in
accordance with Exhibit C hereto,"
2. By
substituting the phrase "twenty five percent (25%)" for the phrase "twenty
percent (20%)" where the latter phrase appears in paragraph 1.3(b) and paragraph
1.9(a)(1) of the Trust.
3. By
substituting the following for paragraph 4.2 of the Trust:
"4.2 On
and after a Change in Control, the Company shall have the following contribution
obligations:
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(a)
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Within
thirty (30) days following a Change in Control, the Company shall
deliver
to the Trustee an amount, in cash or property, that, when added to
amounts
then held under the Trust allocated to the Equitable Shares of each
of the
Plans, is equal to the present value of benefits accrued under each
Plan,
respectively ("Accrued Benefits") as of the Change in Control Date,
provided that the determination of the Accrued Benefits under this
Section
(a) shall take into account benefits accrued through the time immediately
after the Change in Control.
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(b)
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During
the period beginning on the Change in Control and ending on the two
(2)
year anniversary of the Change in Control, the present value of Accrued
Benefits will be calculated no less frequently than annually by the
Company's vice president - human resources or his delegate or, if
the
calculation is not performed in a timely manner by the vice president
–
human resources or his delegate, the calculation shall be made by
a person
selected by the Trustee. This calculation shall be made as of a
date not earlier than forty five (45) days prior to the date each
determination of Accrued Benefits is finalized, and the person responsible
for the calculation will deliver to the Trustee within fourteen (14)
days
after the calculation is finalized an amount, in cash or property,
that,
when added to the amounts then held by the Trust with respect to
each at
the Plans, is equal to the Accrued Benefits as of such determination
date.
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For
purposes of Sections (a) and (b) above:
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(I)
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Benefits
provided under the Burlington Northern Santa Fe Railway Company Severance
Plan, the Burlington Northern Santa Fe Railway Company Employee Retention
Program, and the change in control agreements between the Company
and the
individual employees of the Company party thereto shall be treated
as
Accrued Benefits only at such time as those benefits have been earned
by
the participant by reason of a termination of employment giving rise
to
severance benefits
eligibility.
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(II)
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The
Accrued Benefits with respect to the BNSF Railway Company Incentive
Compensation Plan for the year in which the Change of Control occurs
shall
be the amount determined by the Company prior to the Change of Control
to
be the aggregate amount that would be payable under such plan based
on the
performance through the period immediately prior to the Change of
Control. Accrued Benefits with respect to the BNSF Railway
Company Incentive Compensation Plan shall not include amounts earned
with
respect to performance periods ending in any calendar year following
the
calendar year in which the Change in Control
occurs.
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If,
after
a Change in Control has occurred, the Trustee determines that the Company has
failed to satisfy its obligations under the provisions of Sections (a) or (b)
above, the Trustee will make a written demand on the Responsible Employer or
Responsible Employers to provide funds in an amount determined by the Trustee
to
be sufficient to pay all Accrued Benefits payable (whether currently or on
a
deferred basis) under such Plan or Plans. If, after a Change of
Control, the Trustee shall determine that Accrued Benefits under one or more
Plans which are not payable from assets of an Equitable Share under the Trust
are not being paid to Participants and beneficiaries in the proper amounts
and
in a timely manner, the Trustee may in its discretion demand in writing that
the
Responsible Employer or Responsible Employers deliver to the Trustee assets
sufficient to pay all Accrued Benefits payable (whether currently or on a
deferred basis) under such Plan or Plans. The Responsible Employer or
Responsible Employers shall transfer such funds or other assets acceptable
to
the Trustee, within 30 days from the time the written demand is
mailed.
4. By
adding the following as new Exhibit C at the end of the Trust:
EXHIBIT
C
Determination
of Beneficial Ownership Of Stock under Section 1.3 of
Burlington
Northern Santa Fe Corporation Benefits Protection Trust
Determination
of beneficial ownership of the Company’s stock for purposes of Section 1.3(a) of
the Trust shall be determined subject to the following:
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•
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In
the event any person owns more than 20%, but less than 25%, of the
Company’s then outstanding stock (any such person, a “Significant
Shareholder”), the Significant Shareholder’s beneficial ownership will be
calculated with the adjustments described below. These
adjustments will be applied during the period beginning on the date
that
such person becomes a Significant Shareholder and ending on the date
that
such person ceases to own at least 20% of the Company’s then outstanding
stock (calculated without the following adjustments), unless the
Board
determines that such period should earlier expire (such period, the
“Adjustment Period”).
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•
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During
the Adjustment Period, the number of outstanding shares of Company
stock
will be deemed to be the actual number of outstanding Company shares
plus
the number of Company shares (if any) that were acquired, repurchased
or
redeemed by the Company during the Adjustment
Period.
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•
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These
adjustments will cease to be made (and such Significant Shareholder’s
beneficial ownership will be calculated based on the actual number
of
outstanding Company shares) in the event that, at any time after
the first
date on which such Significant Shareholder becomes the beneficial
owner at
least 25% of the actual number of outstanding Company shares (calculated
without the foregoing adjustments), such Significant Shareholder
acquires
any additional shares of Company
stock.
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•
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In
the case of all other persons, beneficial ownership will be calculated
based on actual ownership of the Company’s then outstanding
shares.
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IN
WITNESS WHEREOF, the Company has caused this Amendment to be executed in its
name by its duly authorized officers under its corporate seal, and the Trustee
has consented to this Amendment, and caused this Amendment to be executed in
its
name by its duly authorized officers under its corporate seal to reflect such
consent, all as of the day and year first above written.
By:
/s/ Xxxxx Xxxxx-Xxxxxxxx
Its:
Vice President of Human Resources and Medical
ATTEST:
/s/
Xxxxx Xxxxxx
Asst
Secretary
Consented
to by:
WACHOVIA
BANK, NATIONAL ASSOCIATION
By:
/s/ Signature Illegible
Its:
_________________
ATTEST:
/s/
Signature Illegible
FORM 10-Q
