dex101.htm


    
      

      

    

    Exhibit
10.1


       

      SPECIAL
RETENTION

      CASH AWARD
AGREEMENT

      


      


      This Agreement (this "Agreement") is
made and entered into this 9th day of October, 2008 by and between BNSF Railway
Company (“Railway”) and Peter J. Rickershauser, an employee of Railway
(hereinafter "Employee").

      


      


      W I T N E S S E T H

      


      


      WHEREAS, Railway desires to grant the
Employee the right to receive $150,000 (such right, the “Cash Award”) subject to
the terms contained in this Agreement.

      


      NOW THEREFORE, Railway and Employee
hereby agree that the Employee is granted the Cash Award, subject to the
following terms, conditions and restrictions:

      


      1.           Grant of Cash
Award.  Effective as of September 24, 2008 (the “Grant Date”)
and provided that the Employee remains employed in a salaried position through
the Grant Date, the Employee is hereby granted the Cash Award.  The
Cash Award represents an unfunded, unsecured promise by Railway to deliver to
the Employee, subject to the terms and conditions herein, an amount in cash
equal to $150,000.  The granting of the Cash Award does not involve an
actual transfer of property on the date of this Agreement, the Grant Date or at
any time prior to the payment of cash to the Employee in accordance with this
Agreement.

      


      2.           Vesting.  If
the Employee's Date of Termination (which, for purposes of this Agreement, shall
be the earlier of (a) the "Date of Termination" as defined in the 1999 Stock
Incentive Plan (the “Plan”) and (b) the date on which the Employee ceases to be
in salaried employment of Railway) does not occur prior to December 31, 2009
(the “Vesting Date”), then the Employee shall become vested in the Cash Award on
the Vesting Date.  Within 30 days following the Vesting Date, the
Employee shall receive a lump sum cash payment of $150,000, less any taxes
required to be withheld pursuant to paragraph 4, in respect of the Cash
Award.  As of the Vesting Date, the Cash Award shall no longer be
outstanding and Railway shall have no further obligation to the Employee with
respect to the Cash Award other than to make such cash payment.

      


      3.           Termination of
Employment.  Following the Grant Date, the Cash Award shall be
forfeited if the Employee's Date of Termination occurs prior to the Vesting
Date, unless such termination of employment constitutes a termination by Railway
for reasons other than Cause (as defined in the Plan) in connection with and
after a Change in Control (as defined in the Plan), as addressed in paragraph
5.

      


      4.           Taxes.  Railway
may withhold from any cash payment due to the Employee with respect to the Cash
Award all applicable federal, state, railroad retirement or local withholding
taxes, and may take any other action as may be necessary in the discretion of
Railway to satisfy all obligations for the payment of such taxes.

      


      5.           Change in
Control.  After the Grant Date, in the event of termination of
the Employee’s employment by Railway for reasons other than Cause (including any
termination treated as a termination for reasons other than Cause pursuant to
section 12.6 of the Plan) in connection with and after a Change in Control, the
Employee shall become vested in the Cash Award.  Within 30 days
following such termination, the Employee shall receive a lump sum cash payment
of $150,000, less any taxes required to be withheld pursuant to paragraph 4, in
respect of the Cash Award.  As of such termination, the Cash Award
shall no longer be outstanding and Railway shall have no further obligation to
the Employee with respect to the Cash Award other than to make such cash
payment.  Notwithstanding any provision in any other Change in Control
arrangement, program or contract, the Cash Award shall be solely subject to the
terms and conditions of this Agreement.

      


      6.           IRC Section
409A.  Notwithstanding any other provisions of this Agreement
to the contrary, Railway shall not make any payments provided for hereunder
until such time as it may reasonably believe that such delivery would not result
in acceleration of tax or imposition of penalties under section 409A of the
Internal Revenue Code of 1986, as amended.

      


      7.           No Contract of
Employment.  Nothing in this Agreement shall confer any right
to continued employment with Railway nor restrict Railway from termination of
the employment relationship of Employee at any time.

      


      8.           Heirs and
Successors.  This Agreement shall be binding upon, and inure to
the benefit of, Railway and its successors and assigns, and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of Railway’s assets and business.  If any
rights exercisable by the Employee or benefits deliverable to the Employee under
this Agreement have not been exercised or delivered, respectively, at the time
of the Employee’s death, such rights shall be exercisable by the Designated
Beneficiary, and such benefits shall be delivered to the Designated Beneficiary,
in accordance with the provisions of this Agreement.  The “Designated
Beneficiary” shall be the beneficiary or beneficiaries designated by the
Employee in a writing filed with Railway in such form and at such time as
Railway shall require.  If a deceased Employee fails to designate a
beneficiary, or if the Designated Beneficiary does not survive the Employee, any
rights that would have been exercisable by the Employee and any benefits
distributable to the Employee shall be exercised by or distributed to the legal
representative of the estate of the Employee.  If a deceased Employee
designates a beneficiary and the Designated Beneficiary survives the Employee
but dies before the Designated Beneficiary’s exercise of all rights under this
Agreement or before the complete distribution of benefits to the Designated
Beneficiary under this Agreement, then any rights that would have been
exercisable by the Designated Beneficiary shall be exercised by the legal
representative of the estate of the Designated Beneficiary, and any benefits
distributable to the Designated Beneficiary shall be distributed to the legal
representative of the estate of the Designated Beneficiary.

      


      9.           No Violation of
Law.  Notwithstanding any other provision of this Agreement,
Employee agrees that Railway shall not be obligated to make any cash payment if
counsel to Railway determines such payment would violate any law or regulation
of any governmental authority.

      


      10.           No
Transfers.  Subject to paragraph 8, the Employee may not
anticipate, alienate, attach, sell, assign, pledge, encumber, charge or
otherwise transfer the Cash Award.

      


      11.           Relation to
Plan.  The Cash Award is not granted under the Plan and, except
as otherwise specifically provided herein, the provisions of the Plan do not
apply to the Cash Award.

      


      12.           Amendment.  This
Agreement may be amended by written agreement of Railway and the Employee
without the consent of any other person.

      


      Anything herein contained to the
contrary notwithstanding, this Agreement shall cease to be of any force or
effect unless executed by the Employee and delivered to the Vice President Human
Resources & Medical of Railway by October 15, 2008.

      


      IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the day and year first above
written.

      


      


      BNSF RAILWAY COMPANY

      


      


      By:           _/s/ Linda
Longo-Kazanova                                                                

      Linda Longo-Kazanova

      
                                        Vice President Human
Resources & Medical

      

       

      


      


      


        /s/ Peter J.
Rickershause

                     
Peter J. Rickershauser

                                                              

      Form 10-Q