dex10301.htm


    First
      Amendment of the

    Burlington
      Northern Santa Fe Corporation

    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:

     

    
      	
              (a)

            	
              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.

            


    

     

    
      	
              (b)

            	
              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.

            


    

     

    For
      purposes of Sections (a) and (b) above:

     

    
      	
              (I)

            	
              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.  

            


    

     

    
      	
              (II)

            	
              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.

            


    

     

    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:

    


    
      	
                            
                •

            	
              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”).  

            


    

    


    
      	
               

            	
              •

            	
              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.

            


    

    


    
      	
               

            	
              •

            	
              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.

            


    

    


    
      	
               

            	
              •

            	
              In
                the case of all other persons, beneficial ownership will be calculated
                based on actual ownership of the Company’s then outstanding
                shares.

            


    

    


    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.

    


    BURLINGTON
      NORTHERN SANTA FE CORPORATION

    


    By:
      /s/  Linda Longo-Kazanova

    Its:
      Vice President of Human Resources and Medical

    


    ATTEST:

    /s/
      Craig Smetko

    Asst
      Secretary

    


    


    Consented
      to by:

    WACHOVIA
      BANK, NATIONAL ASSOCIATION

    


    By:
      /s/  Signature Illegible

    Its:
      _________________


    ATTEST:

    


    /s/ 
      Signature Illegible

FORM
    10-Q