dex1027.htm


    
      

      

    

     

    Exhibit 10.27


     

     

    As
Amended and Restated December 11, 2008,

    effective
January 1, 2009


    


    BURLINGTON
NORTHERN SANTA FE

    2005 DEFERRED COMPENSATION
PLAN FOR NON-EMPLOYEE DIRECTORS

    


    Article
I

    Purpose and Effective
Date

    


    
      	
              1.01

            	
              The
      purpose of this 2005 Deferred Compensation Plan for Non-Employee
      Directors (the “Plan”) is to attract and retain highly qualified
      individuals to serve as members of the Board of Directors (the “Board”) of
      Burlington Northern Santa Fe Corporation (the “Company”).  The
      Effective Date of the Plan is April 21,
  2005.

            


    

    


    Article
II

    Administration

    


    
      	
              2.01

            	
              The
      Plan shall be administered by the Directors and Corporate Governance
      Committee of the Board (the
      “Committee”).  The Committee shall interpret the Plan,
      prescribe, amend and rescind the rules relating to it from time to time as
      it deems proper and in the best interests of the Company, and
      take any other action necessary for the administration of the
      Plan.  Any decision or interpretation adopted by the Committee
      shall be final and conclusive and shall be binding upon all Participants
      (as defined below).

            


    

    


    Article
III

    Participation

    


    
      	
              3.01

            	
              Participation
      in the Plan is voluntary. Any member of the Board who is not an employee
      of the Company or any of its subsidiaries (a “non-employee director”)
      shall be eligible to participate in the Plan beginning 30 days after
      becoming a non-employee director, subject to the terms of the
      Plan.

            


    

    


    
      	
              3.02

            	
              A
      non-employee director shall become a “Participant” in the Plan by electing
      to defer payment of all or a portion of his Compensation (as defined
      below) pursuant to the terms of a “Deferral Election.”  A
      director’s Deferral Election shall be subject to the
      following:

            


    

    


    
      	
               
      

            	
              (a)

            	
              An
      individual who, prior to the beginning of any calendar year, is a
      non-employee director shall be eligible to file a Deferral Election with
      respect to his Compensation earned in such calendar
      year.  Except as otherwise provided in this Section 3.02, a
      Deferral Election with respect to Compensation earned in a calendar year
      shall be filed during such period before the first day of such year as may
      be established by the Committee.

            


    

    


    
      	
               
      

            	
              (b)

            	
              Notwithstanding
      the provisions of paragraph (a) above, for the first calendar year in
      which an individual is a non-employee director, the director may file a
      Deferral Election not later than 60 days after the individual becomes a
      non-employee director. A Deferral Election made under this paragraph (b)
      shall not apply to amounts earned for services rendered prior to the
      30th
      day after the individual becomes a non-employee director, and shall not
      apply to amounts earned for services rendered prior to the date the
      election has become irrevocable in accordance with Section
      3.04.

            


    

    


    
      	
               
      

            	
              (c)

            	
              A
      Participant shall be fully vested in the Participant’s deferral amounts
      and earnings at all times, subject to investment gains and
      losses.

            


    

    


    
      	
              3.03

            	
              For
      calendar year 2005, an individual who is a non-employee director on the
      Effective Date may file a Deferral Election not later than 30 days after
      the Effective Date, and such election shall not apply to amounts earned
      for services rendered prior to the date the election is
    filed.

            


    

    


    
      	
              3.04

            	
              A
      non-employee director’s Deferral Election applicable to Compensation
      amounts earned in any calendar year shall also apply to Compensation
      earned in each subsequent calendar year while the individual is a
      non-employee director.  However, a non-employee director, in
      accordance with paragraph 3.02(a), may modify or cancel a Deferral
      Election, or file a new Deferral Election, provided that no Deferral
      Election with respect to Compensation earned in any year may be changed on
      or after, and all such Deferral Elections shall be irrevocable as of the
      day immediately preceding, the date the year has begun, except that a
      Deferral Election made in accordance with Section 3.02(b) shall be
      irrevocable when filed.

            


    

    


    
      	
              3.05

            	
              Subject
      to the terms of the Plan, the Participant shall specify, as part of his
      initial Deferral Election, and in accordance with Article IV, the time and
      form of distribution of the amounts deferred under the Plan (“Distribution
      Election”), including amounts deferred with respect to Compensation earned
      in the first year to which the Deferral Election applies and all future
      years.  Except as otherwise permitted under §409A of the
      Internal Revenue Code (the “Code”), and notwithstanding the provisions of
      Section 3.04, the Distribution Election shall be
    irrevocable.

            


    

    


    Article
IV

    Compensation

    


    
      	
              4.01

            	
              Each
      Participant may elect to have all or a specified percentage of his
      Compensation deferred pursuant to Article III until he ceases to be a
      director.

            


    

    


    
      	
              4.02

            	
              “Compensation”
      shall mean the annual retainer and meeting fees for Board and
      Board  committee meetings.  Annual retainer fees which
      are paid in quarterly installments shall be treated as earned on a pro
      rata basis over the course of the calendar quarter for which they are
      paid.

            


    

    


    
      	
              4.03

            	
              The
      Company shall establish a memorandum account for each Participant who has
      elected to defer a portion of his Compensation for any year and shall
      credit such account for Compensation on the date payment would otherwise
      have been made.

            


    

    


    
      	
              4.04

            	
              Investment
      gains and losses shall be credited to each member’s memorandum account no
      less frequently than at the end of each quarter and at such other periods
      as may be determined by the Committee.  Such gains and losses
      shall be based on the investment option or options selected and the
      returns on such investment option or options.  The available
      investment options shall be established by the Board with such terms and
      conditions as it may deem
appropriate.

            


    

    


    
      	
              4.05

            	
              Distribution
      of a Participant’s memorandum account shall be as
  follows:

            


    

    


    
      	
               
      

            	
              (a)

            	
              in
      a lump sum in cash in January of the year following the year in which the
      Participant ceases to be a director;
or

            


    

    


    
      	
               
      

            	
              (b)

            	
              if
      irrevocably elected by the Participant at the time of the initial Deferral
      Election described in Section 3.02 or 3.03, in a number of equal annual
      installments, not to exceed ten, commencing in January of the year
      following the year in which the Participant ceases to be a
      director.

            


    

    


    A
Participant shall be treated as ceasing to be a director at the time the
Participant incurs a separation from service under §409A of the
Code.  Notwithstanding Section 4.05(a), any Participant who is a
Specified Employee (as defined below) at the time he ceases to be a director and
whose memorandum account is otherwise scheduled to be distributed in accordance
with Section 4.05(a) shall receive such distribution, without interest, on the
later of (i) the otherwise scheduled payment date and (ii) the first day of the
seventh month following the Participant's cessation of
directorship.  Notwithstanding Section 4.05(b), with respect to any
Participant who is a Specified Employee at the time he ceases to be a director
and whose memorandum account is otherwise scheduled to be distributed in
accordance with Section 4.05(b), any installment of such Participant's
memorandum account otherwise scheduled to be paid in the first six months
following his cessation of directorship shall be paid, without interest, on the
first day of the seventh month following his cessation of directorship. All
other installments for any such Participants shall be paid as provided in
Section 4.05(b). For purposes of the Plan, the term "Specified Employee" shall
be defined in accordance with Treas. Reg. §1.409A-1(i) and such rules as may be
established by the Chief Executive Officer of the Company or his delegate from
time to time.

    


    
      	
              4.06

            	
              Investment
      returns shall continue to accrue on the balance of any memorandum account
      until the date of its distribution.

            


    

    


    
      	
              4.07

            	
              Notwithstanding
      Section 4.05, if a Participant dies prior to payment of all amounts due
      under the Plan, any unpaid balance of the Participant's memorandum account
      shall be payable to the Participant's Beneficiary (as defined below) in a
      lump sum as soon as practicable in January of the year following the year
      in which the Participant died.  "Beneficiary" shall mean any
      individual, trust or other recipient named by a Participant to receive
      amounts due hereunder upon his death.  Subject to the discretion
      of the Committee, a Participant may at any time designate the Beneficiary
      to receive any amounts due hereunder in the event of the Participant's
      death, and may change any such designation.  Each such
      designation of a Beneficiary shall be evidenced by a written instrument
      filed with the Committee and signed by the Participant.  A
      Beneficiary designation may be revoked or amended at any time but only by
      the completion and filing with the Committee of a new Beneficiary
      designation instrument, provided, however, that if a Participant's spouse
      is named as such Participant's Beneficiary, and the Participant and such
      spouse are subsequently divorced, then the designation of the spouse made
      prior to the divorce shall be null and void.  In order to designate
      a former spouse as a Beneficiary, a new Beneficiary designation instrument
      must be completed.  If no Beneficiary designation is on file
      with the Committee at the time of the death of a Participant, or if for
      any reason such designation is defective, then the Participant's estate
      shall be deemed to be the
Beneficiary.

            


    

    


    
      	
              4.08

            	
              The
      Committee shall distribute periodic earnings reports to the Participants
      under the Plan.

            


    

    


    Article
V

    General
Provisions

    


    
      	
              5.01

            	
              The
      deferred compensation to be paid to the Participants pursuant to the Plan
      is an unfunded obligation of the Company.  Nothing herein
      contained shall require the Company to segregate any monies from its
      general funds, or to create any trusts, or to make any special deposits
      with respect to this obligation.  Title to and beneficial
      ownership of any funds invested or reinvested, including the income or
      profits therefrom, which the Company may make to fulfill its obligations
      under the Plan shall at all times remain in the Company.  A
      Participant's right to receive the payment of any deferred compensation
      may not be assigned, transferred, pledged or encumbered except by will or
      by the laws of descent or
distribution.

            


    

    


    
      	
              5.02

            	
              The
      Board may from time to time amend, suspend or terminate the Plan, in whole
      or in part, and if the Plan is suspended or terminated, the Board may
      reinstate any or all of its provisions.  Notwithstanding the
      preceding sentence, an amendment or termination of the Plan may accelerate
      payment of Plan benefits only to the extent permitted under Code
      §409A.

            


    

    


    
      	
              5.03

            	
              It
      is intended that the provisions of the Plan comply with Code §409A, and
      all provisions of the Plan shall be construed and interpreted in a manner
      consistent with the requirements for avoiding taxes or penalties under
      Code §409A.  Each Participant is solely responsible and liable
      for the satisfaction of all taxes and penalties that may be imposed on or
      for the account of such Participant in connection with the Plan (including
      any taxes and penalties under Code §409A), and the Company shall not have
      any obligation to indemnify or otherwise hold any Participants harmless
      from any or all of such taxes or penalties.  If a director has a
      taxable year that is other than the calendar year, then, to the extent
      required by Code § 409A, the term “calendar year” (when used in the Plan)
      shall instead mean the Participant’s taxable
  year.