Exhibit 10.1
THE BURLINGTON NORTHERN SANTA FE
SUPPLEMENTAL RETIREMENT PLAN
Amended and Restated April 24, 2008,
effective as of January 1, 2005
Section 1
General
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Establishment
of Supplemental Plan and Purpose.
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Burlington Northern Santa Fe
Corporation, a Delaware corporation (hereinafter the "Company"),
has established the Burlington Northern Santa Fe Supplemental
Retirement Plan (hereinafter the "Supplemental Plan"), effective
October 1, 1996. The Supplemental Plan is subject to the
following:
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The purpose of
the Supplemental Plan is to enable eligible employees of the
Employers to receive retirement income and other benefits in
addition to the retirement income and other benefits payable under
the qualified plans of the Company. The Company and each
Affiliated Company which, with the consent of the Chief Executive
Officer or Board of Directors of the Company, adopts the
Supplemental Plan are referred to herein collectively as the
"Employers" and individually as an "Employer". The term
"Affiliated Company" shall mean all persons with whom the Company
is considered to be a single employer under section 414(b) of the
Internal Revenue Code of 1986, as amended (hereinafter, the
“Code”) and all persons with whom the Company would be
considered a single employer under section 414(c) of the
Code.
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The
Supplemental Plan as set forth herein shall apply to distributions
under the Supplemental Plan commencing on or after January 1, 2005
(the “Effective Date” of the Supplemental Plan as set
forth herein), excluding payments made before or made after the
Effective Date that are part of a series of installment or annuity
payments that commenced prior to the Effective Date; provided that
payments that commenced prior to the Effective Date will be subject
to the applicable provisions of the Supplemental Plan as in effect
prior to the Effective Date.
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Notwithstanding
the foregoing, if a Participant’s Termination Date occurred
before January 1, 2009, and payment of his Supplemental Plan
benefits did not commence before the Effective Date,
then:
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(i) If payment of the
Participant’s Supplemental Plan benefits has commenced before
January 1, 2009, the time and form of payments will be as elected
by the Participant in accordance with the terms of the Supplemental
Plan as in effect prior to the Effective Date.
(ii) If payment of the
Participant’s Supplemental Plan benefits has not commenced
before January 1, 2009, payment of the Participant’s
Supplemental Plan benefits will be made in accordance with the
terms of the Supplemental Plan as set forth herein, provided
that:
(A) The Participant’s Benefit
Commencement Date will be the later of (I) January 1, 2009 or (II)
the Benefit Commencement Date determined under subsection 4.3
determined without regard to clause (I) of this paragraph
(A).
(B) The Participant may file a
Distribution Election no later than November 30, 2008 in accordance
with paragraph 4.2(a), and if the Participant fails to file a
timely Distribution Election, paragraph 4.2(b) will
apply. If the Participant has elected in accordance with
subsection 4.2 to have benefits paid as an Annuity (or amounts are
otherwise to be paid as an Annuity), the form of Annuity will be
determined in accordance with paragraph 4.2(c).
For purposes of applying Title I of the Employee
Retirement Income Security Act of 1974, as amended
(“ERISA”), the Supplemental Plan consists of two
components: (a) an "excess benefit" plan, within the meaning of
section 3(36) of ERISA (the "Excess Plan") and (b) a plan
maintained primarily for the purpose of providing supplemental
retirement benefits for a select group of management or highly
compensated employees within the meaning of section 301 (a)(3) of
ERISA (the "Management Plan"). All benefits provided
under the Supplemental Plan will be provided under the Excess Plan
component, except to the extent that such benefits may not be
provided under an excess plan as defined under section 3(36) of
ERISA. Any benefits that may not be provided under the Excess Plan
component will be provided under the Management Plan
component.
The Supplemental Plan shall be administered by
the Vice President – Human Resources and Medical of the
Company (the “Administrator”) as more fully described
in Section 5 hereof.
1.4.
Source
of Benefits
The amount of any benefit payable under the
Supplemental Plan will be paid in cash from the general assets of
the Employers or from one or more trusts, the assets of which are
subject to the claims of the Employers' general creditors in the
event of bankruptcy or insolvency. Such amounts payable
shall be reflected on the accounting records of the Employers but
shall not be construed to create, or require the creation of, a
trust, custodial or escrow account. Nothing contained in
this Supplemental Plan and no action taken pursuant to its
provisions, shall create a trust or fiduciary relationship of any
kind between an Employer and an employee or any other
person. Neither an employee nor beneficiary of an
employee shall acquire any interest greater than that of an
unsecured creditor, subject to any preferences
provided by federal bankruptcy laws.
The Supplemental Plan shall be construed and
administered in accordance with the internal laws of the State of
Texas to the extent that such laws are not preempted by the laws of
the United States.
Where the context admits, words in any gender
shall include any other gender words, and the singular shall
include the plural, and the plural shall include the
singular.
Capitalized terms shall have the meaning as
defined herein. If not separately defined herein, they
shall have the meaning as defined in the Burlington Northern Santa
Fe Retirement Plan ("Retirement Plan").
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Severability of
Supplemental Plan Provisions
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In the event any provision of the Supplemental
Plan shall be held invalid or illegal for any reason, any
invalidity or illegality shall not affect the remaining parts of
the Supplemental Plan, but the Supplemental Plan shall be construed
and enforced as if the invalid or illegal provision had never been
inserted, and the Company shall have the right to correct and
remedy such questions of invalidity or illegality by amendment as
provided in the Supplemental Plan.
Any notice or document required to be filed with
the Administrator under the Supplemental Plan will be properly
filed if delivered or mailed by certified mail to the Administrator
or the Administrator’s delegate, in care of the Company, at
its principal executive offices or such other address as may be
specified by the Administrator. Any notice required
under the Supplemental Plan may be waived by the party entitled to
notice.
Participation
2.1 Participation
Subject to any conditions or limitations of the
Supplemental Plan, each individual who was a Participant in the
Supplemental Plan immediately prior to the Effective Date will
continue to be a Participant under this Section 2 on and after that
date, and each other employee of an Employer who was not a
Participant immediately prior to the Effective Date will
automatically be enrolled in and become a Participant in the
Supplemental Plan under this section on the first day upon which he
satisfies the following requirements:
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he is a
participant in the Retirement Plan; and
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his benefits
under the Retirement Plan are limited or affected by any of the
provisions set forth in subparagraphs (i), (ii) or (iii)
below:
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(i) the compensation limitations of
section 401(a)(17) of the Code or the benefit limitation of
sections 415(b) or 415(e) of the Code;
(ii) the Retirement Plan does not
take into account as compensation any non- qualified deferred
compensation, or compensation foregone in exchange for a Company
stock award as set forth in Schedule A(1) to this Supplemental
Plan, or
(iii) any other such compensatory
arrangement as may be established by the Company as set forth in
Schedule A(2).
Schedule A is hereby attached
hereto and incorporated by reference. Notwithstanding
the foregoing, an individual shall not be eligible to become a
Participant in the Supplemental Plan earlier than the 31st day
following the date on which he first is in Salary Band 34 or
higher.
2.2 Plan Not Contract of Employment
The Supplemental Plan does not constitute a
contract of employment, and participation in the Supplemental Plan
will not give any employee the right to be retained in the employ
of any Employer nor any right or claim to any benefit under the
Supplemental Plan, unless such right or claim has specifically
accrued under the terms of the Supplemental Plan.
Section 3
Amount of Supplemental
Retirement Benefits
3.1 Amount of Benefits
A Participant under this Section 3 shall be
eligible for a Supplemental Retirement Benefit under this
Supplemental Plan in an amount equal to:
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the amount of
the monthly benefit to which the Participant, surviving spouse, or
other Contingent Annuitant as defined in the Retirement Plan would
be entitled under the Retirement Plan, if (i) such benefit were
determined without regard to the compensation limitations of
section 401(a)(17) of the Code and without regard to the
limitations imposed by section 415 of the Code, and (ii) the
Retirement Plan included as compensation any Participant
contributions under a non-qualified deferred compensation
arrangement, or compensation foregone in exchange for a Company
stock award as set forth in Schedule A(1) to this Supplemental
Plan, or (iii) any other such compensatory arrangement as may be
established by the Company as set forth in Schedule A(2), if not
otherwise credited under the Retirement Plan. To the
extent that any compensation is taken into account under the Excess
Plan, such compensation shall not be taken into account under the
Management Plan.
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REDUCED BY
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the value of
the benefits under the Retirement Plan that are payable to or on
account of the Participant, surviving spouse, and other Contingent
Annuitants; provided that if benefit payments under the Retirement
Plan to or on account of the Participant, surviving spouse, or
other Contingent Annuitants have not commenced on or before the
Benefit Commencement Date, the amount determined under this
paragraph (b) shall equal the value of the benefits that would be
payable under the Retirement Plan to or on account of the
Participant, surviving spouse, and other Contingent Annuitants if
such benefit payments under the Retirement Plan had commenced on
the Benefit Commencement Date.
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Section 4
Vesting and Payment of Supplemental
Retirement Benefits
4.1 Vesting
Subject to subsection 7.2, a Participant shall
have become vested and have a nonforfeitable interest in his
benefits determined under Section 3 when and to the extent that his
accrued benefit under the Retirement Plan becomes vested and
nonforfeitable, provided, however, that if a Participant has
entered into an agreement set forth in Schedule A(2) and such
agreement contains provisions related to vesting under the
Supplemental Plan, such provisions shall control for purposes of
this Supplemental Plan. Notwithstanding the foregoing
provisions of this subsection 4.1, a Participant’s right to
any benefits shall be subject to the provisions of the Recoupment
Policy adopted by the Board of Directors on February 13, 2008, as
may be amended from time to time.
4.2 Distribution Election
Subject to the terms of the Supplemental Plan, a
Participant may elect the form in which such Participant’s
benefits will be distributed, subject to the following:
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A
Participant’s election as to whether his benefits are to be
distributed as an Annuity, in a Lump Sum Form, or in an Installment
Form shall be made by the Participant by filing a Distribution
Election with the Administrator no later than the 30
th day following the date on which the Participant
first becomes eligible to participate in the Supplemental Plan in
accordance with subsection 2.1, or is deemed to participate in the
Supplemental Plan in accordance with Treasury Regulation Section
1.409A-2(a). However, individuals who are Participants
in the Supplemental Plan on or prior to January 1, 2009 may file a
Distribution Election with the Administrator no later than November
30, 2008, subject to the provisions of section 409A of the Code and
applicable guidance issued thereunder (“Section
409A”).
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If a Participant fails to file a Distribution
Election in a timely manner in accordance with this subsection 4.2,
then the Participant will be deemed to have elected to have his
benefits paid in the form of an Annuity.
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If the
Participant has elected in accordance with the foregoing provisions
of this Section 4 to have benefits paid as an Annuity (or amounts
are otherwise to be paid as an Annuity), he may at any time before
the date any Annuity payments have commenced, modify his election
by choosing that payments will be made in a different form of
Annuity, and/or choosing a different Contingent Annuitant of the
Annuity; provided that such change may not modify the Benefit
Commencement Date; and further provided that this paragraph (c) is
subject to subsection 4.8, if that subsection is otherwise
applicable. If the Participant has elected in accordance
with the foregoing provisions of this Section 4 to have benefits
paid as an Annuity (or amounts are otherwise to be paid as an
Annuity), and fails to elect the form of Annuity prior to the date
Annuity payments are to commence, payment will be made in the
Single Life Annuity Form if the Participant is not married on the
Benefit Commencement Date and in the 100% Joint and Survivor
Annuity Form with the Participant’s spouse as the Contingent
Annuitant if the Participant is married on the Benefit Commencement
Date.
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4.3 Commencement of Benefits
Subject to the terms and conditions
of the Supplemental Plan (including, without limitation, subsection
4.7, relating to Specified Employees), a Participant’s
Supplemental Retirement Benefit will commence on the
Participant’s Benefit Commencement Date. The
Benefit Commencement Date is the first day of the calendar month
following the later of:
(a) the calendar month
in which occurs the Participant’s Termination Date;
and
(b) if the Participant
has completed 10 Years of Vesting Service on or before his
Termination Date, the calendar month in which the Participant
attains age 55, or if the Participant has not completed at least 10
Years of Vesting Service on his Termination Date, the calendar
month in which the Participant attains age 65.
4.4 Termination Date
A Participant’s “Termination
Date” (including references to a Participant’s
employment termination and terminating employment, as well as
references to a Participant’s separation from service) shall
mean the Participant ceasing to be employed by the Company and the
Affiliated Companies, subject to the following:
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The employment
relationship will be deemed to have ended at the time the employee
and his employer reasonably anticipate that a level of bona fide
services the employee would perform for the Company and the
Affiliated Companies after such date (whether as an employee or
independent contractor, but not as a director) would permanently
decrease to no more than 20% of the average level of bona fide
services performed over the immediately preceding 36 month period
(or the full period of service to the Company and the Affiliated
Companies if the employee has performed services for the Company
and the Affiliated Companies for less than 36
months). In the absence of an expectation that the
employee will perform at the above-described level, the date of
termination of employment will not be delayed solely by reason of
the employee continuing to be on the Company's and the Affiliated
Companies' payroll after such date.
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The employment
relationship will be treated as continuing intact while the
employee is on a bona fide leave of absence (determined in
accordance with Treasury Regulation Section
1.409A-1(h)).
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4.5 Forms of Payment
If a Participant survives to his Benefit
Commencement Date (determined without regard to the provisions of
subsection 4.7, relating to Specified Employees), the
Participant’s Supplemental Retirement Benefit will be
distributed in one of the forms set forth in this subsection 4.5,
as determined in accordance with subsection 4.2:
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Single Life
Annuity Form. Under the Single Life Annuity Form, a
Participant’s Supplemental Retirement Benefit will be paid to
him monthly, commencing on his Benefit Commencement Date, and
ending with the payment for the month during which his death
occurs.
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Joint and
Survivor Annuity Form. Under the Joint and Survivor
A
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