Exhibit
10.8
THE
BURLINGTON NORTHERN SANTA FE SUPPLEMENTAL RETIREMENT
PLAN
As
Amended and Restated November 4, 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.
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.
Section
2
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
31 st
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
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
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.
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, or if the
Participant files a Distribution Election providing for payment in
the form of an Annuity but does not specify the form of Annuity,
payment will be made in the Life Annuity Form.
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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 have commenced, payment will be made in the Single
Life Annuity Form if the Participant is not married on the Benefit
Commencement Date and in the 50% 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:
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the
calendar month in which occurs the Participant’s Termination
Date; and
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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.
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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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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
Annuity Form, the Participant will receive a reduced monthly amount
commencing on the Benefit Commencement Date and payable for the
life of the Participant and, upon his death, a continuing monthly
payment to the Contingent Annuitant of 25%, 50%, 66-2/3%, or 100%
of the monthly amount the Participant was receiving, with the
payments to the Contingent Annuitant to continue for the Contingent
Annuitant’s life. The Contingent Annuitant under
the Joint and Survivor Annuity Form may be designated by the
Participant (and may be changed by the Participant) at any time
before the Benefit Commencement Date.
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Period
Certain and Life Annuity Form. Under the Period Certain
and Life Annuity Form, the Participant will receive a reduced
monthly amount commencing on the Benefit Commencement Date and
payable to the Participant for life and, upon his death, a
continuing monthly payment to the Contingent Annuitant of the same
amount
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