dex101.htm


    
      

      

    

    


      Amended
        and Restated Change in Control Agreement as of December 31,
        2007

       

      Mr.
        XXXXXXXXXXXXXX:

       

      Burlington
        Northern Santa Fe Corporation (the “Corporation”) considers it essential to the
        best interests of its stockholders to foster the continuous employment of
        key
        management personnel.  In this connection, the Board of Directors of
        the Corporation (the “Board”) recognizes that, as is the case with many publicly
        held corporations, the possibility of a Change in Control (as defined in
        Section
        2) may exist, and that such possibility, and the uncertainty and questions
        which
        it may raise among management, may result in the departure or distraction
        of
        management personnel to the detriment of the Corporation and its
        stockholders.

       

      The
        Board
        has determined that appropriate steps should be taken to reinforce and encourage
        the continued attention and dedication of members of the Corporation’s
        management, including yourself, to their assigned duties without distraction
        in
        the face of potentially disturbing circumstances arising from the possibility
        of
        a Change in Control.

       

      In
        order
        to induce you to remain in the employ of the Corporation or any entity with
        which the Corporation is considered to be a single employer under Section
        414
        (b) or Section 414(c) of the Internal Revenue Code of 1986, as amended from
        time
        to time (the “Code”) (all such entities, collectively, “Affiliates”), the
        Corporation agrees that you shall receive the severance benefits set forth
        in
        this letter agreement (the “Agreement”) in the event your employment with the
        Corporation is terminated under the circumstances described below subsequent
        to
        a Change in Control, and that you shall be eligible for the parachute tax
        gross-up and certain other benefits described in this Agreement.

       

      1.  TERM.  The
        “Agreement Term” shall begin on December 31, 2007 (the “Effective Date” of this
        Agreement), and shall end on December 31, 2008, subject to the
        following:

       

      (i)  As
        of
        January 1, 2009, and each January 1 thereafter, the Agreement Term shall
        automatically be extended to the next following December 31; provided,
however, that no such extension shall take place if, on or before
        the
        September 30 next preceding the date on which the extension would otherwise
        take
        place, the Corporation has given notice that it does not wish to extend the
        Agreement Term; and further provided that no such extension shall take place
        if
        the effect of the extension would be to extend the Agreement Term beyond
        the
        December 31 coincident with or next following the two-year anniversary of
        the
        date on which you cease to be in a position that is at or above salary band
        36
        (unless, as of such December 31, you are again in a position that is at or
        above
        salary band 36); and further provided that subject to paragraph 1(ii) below
        no
        such extension shall take place if a Change in Control has occurred prior
        to the
        date on which the extension would otherwise take place.  For the
        avoidance of doubt, it is recited here that if a Change in Control described
        in
        paragraph 2(i) or 2(iii) occurs, and your Date of Termination occurs after
        the
        24-month anniversary of the date of the Change in Control but before
        consummation of the transaction approved by the shareholders and before the
        Agreement Term expires by reason of paragraph (iii) below (relating to a
        Board
        determination that consummation will not occur), the Agreement Term shall
        be
        extended to your Date of Termination.

       

      
        
          1

        

        
          
          

          
            

          

        

        
          
          

        

      

      (ii)  Subject
        to paragraph 1(iii) next below, if a Change in Control occurs during the
        Agreement Term (as it may be extended from time to time), the Agreement Term
        shall be extended for a period of twenty-four (24) months beyond the last
        day of
        the calendar month in which the Change in Control occurs, but in no event
        less
        than twelve (12) months beyond the date of the consummation of the Change
        in
        Control.

       

      (iii)  If
        a
        Change in Control described in paragraph 2(iii) or 2(iv) occurs during the
        Agreement Term (as it may be extended from time to time), but the Board
        thereafter determines that it will not consummate the transaction or regulatory
        approval for the transaction is not obtained, then the Board may reduce the
        24-month extension period set forth in paragraph 1(ii) next above;
provided that the Agreement Term may not end earlier than six (6) months
        after such notice of reduction is provided by the Board or, if earlier, the
        date
        such Agreement Term would end in the absence of action under this paragraph
        1(iii).

       

      (iv)  In
        no
        event, however, shall the Agreement Term extend beyond the end of the calendar
        month in which your 65th birthday occurs if you are subject to mandatory
        retirement at such age or to the extent permitted by law.

       

      2.  CHANGE
        IN
        CONTROL.  A “Change in Control” shall be deemed to have occurred
        if:

       

      (i)  Any
        “person” as such term is used in Sections 13(d) and 14(d) of the Securities
        Exchange Act of 1934, as amended (the “Exchange Act”) (other than the
        Corporation, any trustee or other fiduciary holding securities under an employee
        benefit plan of the Corporation, or any company owned, directly or indirectly,
        by the stockholders of the Corporation in substantially the same proportions
        as
        their ownership of stock of the Corporation), is or becomes the “beneficial
        owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
        indirectly, of securities of the Corporation representing 25% or more of
        the
        combined voting power of the Corporation’s then outstanding
        securities.

       

      (ii)  During
        any period of two consecutive years (not including any period prior to the
        Effective Date), individuals who at the beginning of such period constitute
        the
        Board, and any new director (other than a director designated by a person
        who
        has entered into an agreement with the Corporation to effect a transaction
        described in paragraphs (i), (iii) or (iv) of this definition) whose election
        by
        the Board or nomination for election by the Corporation’s stockholders was
        approved by a vote of at least two-thirds (2/3) of the directors then still
        in
        office who either were directors at the beginning of the period or whose
        election or nomination for election was previously so approved, cease for
        any
        reason to constitute at least a majority thereof.

       

      (iii)  The
        stockholders of the Corporation approve a merger or consolidation of the
        Corporation with any other company other than (a) a merger or consolidation
        which would result in the voting securities of the Corporation outstanding
        immediately prior thereto continuing to represent (either by remaining
        outstanding or by being converted into voting securities of the surviving
        entity) more than 80% of the combined voting power of the voting securities
        of
        the Corporation (or such surviving entity) outstanding immediately after
        such
        merger or consolidation, or (b) a merger or consolidation effected to implement
        a recapitalization of the Corporation (or similar transaction) in which no
        “person” (as hereinabove defined) acquires more than 25% of the combined voting
        power of the Corporation’s then outstanding securities.

       

      
        
          2

        

        
          
          

          
            

          

        

        
          
          

        

      

      (iv)  The
        stockholders of the Corporation adopt a plan of complete liquidation of the
        Corporation or approve an agreement for the sale or disposition by the
        Corporation of all or substantially all of the Corporation’s
        assets.  For purposes of this paragraph 2(iv), the term “the sale or
        disposition by the Corporation of all or substantially all of the Corporation’s
        assets” shall mean a sale or other disposition transaction or series of related
        transactions involving assets of the Corporation or of any direct or indirect
        subsidiary of the Corporation (including the stock of any direct or indirect
        subsidiary of the Corporation) in which the value of the assets or stock
        being
        sold or otherwise disposed of (as measured by the purchase price being paid
        therefor or by another objective method in a case where there is no readily
        ascertainable purchase price) constitutes more than two-thirds of the fair
        market value of the Corporation (as hereinafter defined).  For
        purposes of the preceding sentence, the “fair market value of the Corporation”
shall be the aggregate market value of the outstanding shares of common stock
        of
        the Corporation (on a fully diluted basis) plus the aggregate market value
        of
        the Corporation’s other outstanding equity securities (excluding employee stock
        options).  The aggregate market value of the shares of common stock of
        the Corporation (on a fully diluted basis) outstanding on the date of the
        execution and delivery of a definitive agreement with respect to the transaction
        or series of related transactions (the “Transaction Date”) shall be determined
        by the average closing price of the shares of common stock of the Corporation
        for the ten trading days immediately preceding the Transaction
        Date.  The aggregate market value of any other equity securities of
        the Corporation shall be determined in a manner similar to that prescribed
        in
        the immediately preceding sentence for determining the aggregate market value
        of
        the shares of common stock of the Corporation.

       

      A
        Change
        in Control that occurs prior to the beginning of the Agreement Term shall
        be
        disregarded for purposes of this Agreement.

       

      3.  BASIS
        OF
        EMPLOYMENT TERMINATION.  If (x) your Date of Termination (or the date
        of delivery of the applicable Notice of Termination) occurs during the Agreement
        Term and is coincident with or follows the occurrence of a Change in Control
        or
        (y) if you have a disability during the Agreement Term after the occurrence
        of a
        Change in Control, then you shall be eligible for payments and benefits in
        accordance with, and to the extent provided by, Section 4, with such eligibility
        determined on the basis for your termination of employment.  For
        purposes of this Agreement, the basis for your termination of employment
        shall
        be determined in accordance with this Section 3.

       

      (i)  Disability.  If,
        as a result of your incapacity due to physical or mental illness or injury,
        you
        shall have been absent from the full-time performance of your duties with
        the
        Corporation for six (6) consecutive months, and within thirty (30) days after
        written Notice of Termination is given by the Corporation, you shall not
        have
        returned to the full-time performance of your duties, your employment may
        be
        terminated by the Corporation for unavailability due to
“Disability.”  Notwithstanding any other provision of this Agreement,
        a termination of employment under this paragraph 3(i) shall not cause you
        to be
        considered a terminated employee within the meaning of the Corporation’s long
        term disability plan and your rights thereunder shall not be affected by
        this
        Agreement.

       

      
        
          3

        

        
          
          

          
            

          

        

        
          
          

        

      

      (ii)  Cause.  Your
        Date of Termination shall be deemed to have occurred for “Cause,” if your Date
        of Termination occurs because of circumstances described in paragraph 3(ii)(a)
        or paragraph 3(ii)(b) next below, as determined in accordance with the
        procedures set forth in paragraphs 3(ii)(A), (B) and (C) next
        below:

       

                 (a)  the
        willful and continued failure by you to substantially perform your duties
        with
        the Corporation (other than any such failure resulting from your incapacity
        due
        to physical or mental illness or injury, or any such actual or anticipated
        failure after the issuance of a Notice of Termination by you for Good Reason);
        or

       

                                
        (b)  the
        willful engaging by you in conduct which is demonstrably and materially
        injurious to the Corporation, monetarily or otherwise.

       

      For
        purposes of this paragraph 3(ii), no act, or failure to act, on your part
        shall
        be deemed “willful” unless done, or omitted to be done, by you not in good faith
        and without a reasonable belief that your action or omission was in the best
        interest of the Corporation.  Your Date of Termination shall not be
        deemed to have occurred for “Cause” unless the procedures described in
        paragraphs 3(ii)(A), (B) and (C), next below, have been satisfied:

       

                               
        (A)  A
        written
        notice of alleged Cause is delivered to you by the Board or a member of the
        Board.  In the case of “Cause” described in paragraph 3(ii)(a)
        (relating to a failure to perform your duties), the written notice shall
        consist
        of specific identification of the manner in which the Board or such Board
        member
        believes that you have not substantially performed your duties, and shall
        include a demand for such performance.  In the case of “Cause”
described in paragraph 3(ii)(b) (relating to conduct injurious to the
        Corporation), the written notice shall consist of specific identification
        of the
        manner in which the Board or such Board member believes that you have engaged
        in
        conduct which is demonstrably and materially injurious to the
        Corporation.

       

                               
        (B)  You
        have
        received an opportunity to be heard by the Board or a member of the Board,
        which
        will consist of delivery to you of reasonable advance written notice of a
        Board
        meeting (to be delivered at or after the time you receive the notice of alleged
        Cause, described in paragraph 3(ii)(A) next above), at which you, together
        with
        your counsel, may be heard by the Board, concerning the contents of the notice
        of alleged Cause and, in the case of “Cause” described in paragraph 3(ii)(a),
        the manner in which you intend to achieve substantial performance.

       

                                (C)  You
        have
        received a copy of your Notice of Termination, which will include a copy
        of a
        resolution duly adopted by the affirmative vote of not less than three-quarters
        (3/4) of the entire membership of the Board at a meeting of the Board, which
        occurs after your opportunity to be heard by the Board (at that meeting or
        a
        subsequent meeting), and which finds that in the good faith opinion of the
        Board
        you were guilty of conduct set forth in the notice of alleged Cause and which
        specifies the particulars thereof in detail.  The Date of Termination
        set forth in the Notice of Termination shall be not earlier than thirty (30)
        days after the notice of alleged Cause has been delivered to you in accordance
        with paragraph 3(ii)(A).

       

      
        
          4

        

        
          
          

          
            

          

        

        
          
          

        

      

      (iii)  Good
        Reason.  Subject to the procedures set forth in paragraphs 3(iii)(A),
        (B) and (C) next below, you shall be entitled to terminate your employment
        for
        Good Reason.  For purposes of this Agreement, “Good Reason” shall
        mean, without your express written consent, the occurrence, after a Change
        in
        Control, of any of the circumstances described in paragraphs 3(iii)(a) through
        (h) next below.  However, “Good Reason” shall not exist if such
        circumstances are fully corrected (or in the case of a relocation described
        in
        paragraph 3(iii)(c) next below, if the request to relocate your base of
        operations is withdrawn) prior to the Date of Termination specified in the
        Notice of Termination given in respect thereof.

       

                                 
        (a)  The
        assignment to you of any duties with a level of responsibility materially
        inconsistent with the position in the Corporation that you held immediately
        prior to the Change in Control, or a significant adverse alteration in the
        status of your responsibilities from those in effect immediately prior to
        such
        Change in Control.

       

                                 
        (b)  A
        material reduction by the Corporation in your annual base salary as in effect
        on
        the Effective Date, and adjusted to reflect such increases as may be made
        after
        the Effective Date and prior to the occurrence of a Change in Control, and
        also
        adjusted to reflect such decreases as may be made after the Effective Date,
        but
        taking decreases into account only to the extent that they are part of
        across-the-board salary reductions similarly affecting all management personnel
        of the Corporation and all management personnel of any person in control
        of the
        Corporation.

       

                                  
        (c)  The
        relocation of your base of operations for the Corporation or any of its
        Affiliates to a place that is fifty (50) miles farther from your residence
        immediately prior to the Change in Control than the distance from such residence
        to your former base of operations for the Corporation or such
        Affiliate.  The determination of whether the distance exceeds 50 miles
        shall be performed in a manner that is consistent with Internal Revenue Service
        rules applicable to the determination of deductibility of moving
        expenses.

       

                                  
        (d)  The
        failure by the Corporation to pay to you any material portion of your current
        compensation or to pay to you any portion of an installment of deferred
        compensation under any deferred compensation program of the Corporation when
        such compensation is due.

       

                                   
        (e)  The
        failure by the Corporation to continue in effect any compensation plan in
        which
        you participate immediately prior to the Change in Control that is material
        to
        your total compensation, including but not limited to a material reduction
        in
        the benefits (or, in the case of incentive- or performance-based compensation,
        opportunities) provided to you under the Corporation’s Retirement Plan,
        Supplemental Retirement Plan, Investment and Retirement Plan, Supplemental
        Investment and Retirement Plan, Incentive Compensation Plan, Stock Incentive
        Plan, or any substitute plans adopted prior to the Change in Control, unless
        an
        equitable arrangement (embodied in an ongoing substitute or alternative plan)
        has been made with respect to such plan, or the failure by the Corporation
        to
        continue your participation therein (or in such substitute or alternative
        plan)
        on a basis not materially less favorable, both in terms of the amount of
        benefits provided and the level of your participation relative to other
        participants, as existed at the time of the Change in Control.

       

      
        
          5

        

        
          
          

          
            

          

        

        
          
          

        

         

                                      
          (f)  The
          failure by the Corporation to continue to provide you with benefits
          substantially similar to those enjoyed by you under any of the Corporation’s
          life insurance, medical, health and accident, or disability plans in which
          you
          were participating at the time of the Change in Control, the taking of
          any
          action by the Corporation which would directly or indirectly materially
          reduce
          any of such benefits or deprive you of any material fringe benefit enjoyed
          by
          you at the time of the Change in Control, or the provision by the Corporation
          to
          you of a number of paid vacation days that is materially less than the
          number of
          vacation days to which you were entitled on the basis of years of service
          with
          the Corporation in accordance with the Corporation’s normal vacation policy in
          effect at the time of the Change in Control.

      

       

                                    
        (g)  The
        failure of the Corporation to obtain an agreement from any successor to assume
        and agree to perform this Agreement, as contemplated in Section 7.

       

                                    
        (h)  Any
        purported termination of your employment that is not effected pursuant to
        a
        Notice of Termination in material compliance with the requirements of paragraph
        3(vi) (and, if applicable, the requirements of paragraph 3(ii)), which purported
        termination shall not be effective for purposes of this Agreement.

       

      You
        shall
        not be deemed to have terminated employment for Good Reason unless, within
        a
        reasonable time (not more than six (6) months) after the initial existence
        of
        the circumstances constituting Good Reason, you have delivered a written
        Notice
        of Termination, which:

       

                                      
        (A)  identifies
        the circumstances, and the provisions of this paragraph 3(iii), which form
        the
        basis for your termination for Good Reason;

       

                                       (B)  demands
        correction; and

       

                                      
        (C)  specifies
        a Date of Termination which is not less than fifteen (15) days nor more than
        sixty (60) days after the Notice of Termination has been provided to the
        Corporation;

       

      provided
        that if the Corporation is reasonably unable to correct the circumstances
        described in your Notice of Termination within the time period prior to your
        scheduled Date of Termination, and responds to you in writing within seven
        (7)
        days of the receipt of your Notice of Termination notifying you of the time
        reasonably required to correct the circumstances (which may not be more than
        thirty (30) days after receipt of your Notice of Termination), your scheduled
        Date of Termination in your Notice of Termination will be deemed to be postponed
        until the end of such correction period, and Good Reason will not exist if
        the
        circumstances are fully corrected (or, if applicable, the request for relocation
        is withdrawn) within that correction period.  Your continued
        employment shall not constitute consent to, or a waiver of rights with respect
        to, any circumstance constituting Good Reason hereunder, and your failure
        to
        relocate after filing the Notice of Termination will not adversely affect
        the
        characterization of the Corporation’s relocation request as Good Reason under
        paragraph 3(iii)(c) above.

       

      
        
          6

        

        
          
          

          
            

          

        

        
          
          

        

      

      (iv)  Discharge
        Absent Cause or Disability.  You shall be deemed to have been
        discharged by the Corporation absent Cause or Disability if your employment
        is
        terminated by the Corporation other than in accordance with paragraph 3(i)
        (relating to Disability) or paragraph 3(ii) (relating to Cause).  Your
        Date of Termination under this paragraph 3(iv) may not be earlier than sixty
        (60) days after the written Notice of Termination is delivered to you, except
        that the sixty (60) day notice requirement shall not apply to the extent
        the
        Date of Termination occurs prior to the date of a Change in
        Control.  If your employment is terminated in accordance with this
        paragraph 3(iv) and the Notice of Termination is delivered to you within
        sixty
        (60) days prior to the occurrence of a Change in Control, your Date of
        Termination shall be deemed to be, for purposes of Section 4(iii), the day
        after
        such Change in Control; provided that, for purposes of the
        timing of any payments or benefits owed to you under Section 4, the Date
        of
        Termination shall be the date specified in the Notice of
        Termination.

       

      (v)  Payment
        in Lieu of Notice.  The Corporation shall be deemed to have complied
        with the requirement of this Section 3 relating to advance Notice of Termination
        notwithstanding that the Corporation may have provided you with fewer days’
notice than otherwise required pursuant to this Section 3, and in the event
        of a
        termination of employment by you for Good Reason, the Corporation may waive
        your
        obligation to provide the number of days of notice otherwise required pursuant
        to this Section 3 (and thereby cause your Date of Termination to occur earlier
        than the Date of Termination specified in your Notice of Termination for
        Good
        Reason) (the days of notice otherwise required to be given by the Corporation
        or
        you, as applicable, the “Required Notice Days” and the number of Required Notice
        Days less the number of days of notice actually provided by the Corporation
        or
        you, as applicable, the “Waived Notice Days”); provided that the
        Corporation shall pay you a cash amount equal to the base salary that you
        would
        have earned during the Waived Notice Days had the Corporation provided you
        with,
        or you provided the Corporation with, as applicable, the number of Required
        Notice Days.  Such payment shall be made in a lump sum no later than
        the fifth day following your Date of Termination.

       

      (vi)  Notice
        of
        Termination.  “Notice of Termination” shall mean a notice that shall
        indicate the specific termination provision in this Agreement relied upon,
        shall
        set forth in reasonable detail the facts and circumstances claimed to provide
        a
        basis for termination of your employment under the provision so indicated
        and
        shall specify a Date of Termination in accordance with this Section
        3.

       

      (vii)  Date
        of
        Termination.  “Date of Termination” shall mean your ceasing to be
        employed by the Corporation and the Affiliates; provided that the
        employment relationship will be deemed to have ended at the time you and
        your
        employer reasonably anticipate that the level of bona fide services you would
        perform for the Corporation and the Affiliates 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 Corporation and the Affiliates if you have performed services
        for
        the Corporation and the Affiliates for less than 36 months).  In the
        absence of an expectation that you will perform at the above-described level,
        the Date of Termination of employment will not be delayed solely by reason
        of
        your continuing to be on the Corporation’s and the Affiliates’ payroll after
        such date.  The employment relationship will be treated as continuing
        intact while you are on a bona fide leave of absence (determined in accordance
        with Treas. Reg. §1.409A-1(h)).

       

      
        
          7

        

        
          
          

          
            

          

        

        
          
          

        

      

      4.  COMPENSATION
        UPON TERMINATION OR DURING DISABILITY.  If (x) your Date of
        Termination (or the date of delivery of the applicable Notice of Termination)
        occurs during the Agreement Term and is coincident with or follows the
        occurrence of a Change in Control or (y) if you have a disability during
        the
        Agreement Term and after the occurrence of a Change in Control, then you
        shall
        be entitled to payments and benefits in accordance with, and to the extent
        provided by, this Section 4.

       

      (i)  Discharge
        for Cause and Voluntary Resignation.  If your employment is terminated
        by the Corporation for Cause, or is terminated by you other than for Good
        Reason, the Corporation shall pay you your full base salary through the Date
        of
        Termination at the rate in effect at the time Notice of Termination is given,
        with payment to be made no later than the fifth day following your Date of
        Termination, plus all other amounts to which you are entitled under any
        compensation plan of the Corporation or any Affiliate at the time such payments
        are due, and the Corporation shall have no further obligations to you under
        this
        Agreement.

       

      (ii)  Disability.  During
        any period that you fail to perform your full-time duties with the Corporation
        as a result of incapacity due to physical or mental illness or injury, you
        shall
        continue to receive your base salary at the rate in effect at the commencement
        of any such period, together with all compensation payable to you under any
        long
        term disability plan or other similar plan during such period, until your
        employment is terminated pursuant to paragraph 3(i).  Thereafter, or
        in the event your employment shall be terminated by reason of your death,
        your
        benefits shall be determined under the Corporation’s retirement, insurance and
        other compensation programs then in effect in accordance with the terms of
        such
        program; however, your receipt of benefits under the long term disability
        plan
        will not be affected by your termination under this Agreement.

       

      (iii)  Termination
        for Good Reason and Discharge Absent Cause or Disability.  If your
        employment is terminated by you for Good Reason, or by the Corporation absent
        Cause or Disability (as described in paragraph 3(iv)), then you shall be
        entitled to the payments and benefits described below, subject to
        Section 14:

       

                                  (a)  Prior
        Salary and Deferrals.  The Corporation shall pay to you (1) your full
        base salary through your Date of Termination at the rate in effect at the
        time
        the Notice of Termination is given, with payment to be made no later than
        the
        fifth day following your Date of Termination; (2) a lump sum cash payment
        equal
        to your Bonus Rate (defined below) for the year in which your Date of
        Termination occurs, subject to a pro rata reduction for the portion of the
        year
        after your Date of Termination, with payment to be made at the time specified
        in
        paragraph 4(iv)(a); and (3) all other amounts to which you are entitled under
        any compensation plan of the Corporation, at the time such payments are due
        under the terms of such plans.

       

                                
        (b)  Additional
        Salary and Severance.  In lieu of any further salary or bonus payments
        to you for periods subsequent to your Date of Termination, and except as
        provided in paragraph 4(iv)(b), the Corporation will pay to you, at the time
        specified in paragraph 4(iv)(a), a lump sum salary and bonus distribution,
        in an
        amount equal to the sum of: (I)  a severance payment of  (1)
        2.0 times your Salary Rate plus (2) 2.0 times your Bonus Rate plus (II) a
        payment in return for the imposition of the requirements of paragraph 4(iv)(b)
        (relating to competition) equal to (1) 0.5 times your Salary Rate plus (2)
        0.5
        times your Bonus Rate.

       

      
        
          8

        

        
          
          

          
            

          

        

        
          
          

        

      

      For
        purposes of this paragraph 4(iii)(b):

       

                                      (A)  Your
        “Salary Rate” shall be equal to the greatest of:  (1) your annual
        salary as in effect as of the Date of Termination, inclusive of amounts that
        would have been included in annual salary if such amounts had not been deferred
        under the Burlington Northern Santa Fe Corporation Supplemental Investment
        and
        Retirement Plan or foregone under any other arrangement of the Corporation
        or
        its Affiliates providing for the elective deferral of salary, (2) your highest
        consecutive twelve (12) months’ salary over the twenty-four (24) month period
        preceding the Date of Termination, or (3) your annual salary as in effect
        immediately prior to the Change in Control.

       

                                      (B)  Your
        “Bonus Rate” shall be the amount which you would have received under the
        Corporation’s Incentive Compensation Plan (or other successor annual bonus plan)
        for the calendar year in which your Date of Termination occurs, if you had
        remained employed by the Corporation for that entire year, and the target
        level
        of performance established annually by the Corporation had been achieved
        for the
        year.  For the avoidance of doubt, it is recited here that achievement
        of target level of performance shall mean the achievement of a performance
        level
        whereby all of the performance objectives for the year are at planned and
        budgeted levels of performance (as provided in the bonus plan); and such
        level
        of performance shall be greater than threshold level of performance (which
        is
        the minimum level of performance that will result in payment of any bonus),
        and
        shall be less than the maximum level of performance, which is a level of
        performance above the performance level planned and budgeted for the year,
        which
        would result in maximum bonus.

       

                                 (c)  Outstanding
        Stock Awards.  The following provisions of this paragraph 4(iii)(c)
        shall apply to stock awards granted under the Corporation’s 1996 Stock Incentive
        Plan, 1999 Stock Incentive Plan, or any similar successor plan:

       

                                
        (A)  Except
        as
        provided in paragraph 4(iii)(d) below, the restrictions shall lapse (to the
        extent that they have not previously lapsed) on any stock option award or
        stock
        appreciation right award outstanding on the Date of Termination, such stock
        options and stock appreciation rights shall become fully exercisable beginning
        as of the Date of Termination, and such exercisability shall continue until
        it
        would otherwise terminate in accordance with the terms of the applicable
        award
        agreement.

       

                                 (B)  Except
        as
        provided in paragraph 4(iii)(c)(C) below and paragraph 4(iii)(d) below, the
        restricted period (or other vesting or similar period) with respect to any
        restricted stock, restricted stock units and, except for stock options and
        stock
        appreciation rights, all other stock-based awards granted to you as of a
        date
        prior to the date of the Change in Control shall lapse on your Date of
        Termination, and such shares shall be distributed to you at the same time
        as the
        cash payments described in paragraph 4(iv) are paid.  However, any
        change in the time or form of distribution otherwise provided under this
        paragraph (B) shall be disregarded to the extent that such change would
        otherwise result in the application of penalties under Section
        409A.

       

      
        
          9

        

        
          
          

          
            

          

        

        
          
          
                          
          (C)  The
          foregoing provisions of this paragraph 4(iii)(c) shall not apply to the
          vesting
          of Performance Stock Awards, and the vesting of Performance Stock Awards
          shall
          be governed by the applicable award agreements for such awards, without
          regard
          to the terms of this Agreement.  For purposes of this Agreement, the
          term “Performance Stock Awards” shall have the meaning set forth in Section 9 of
          the 1999 Stock Incentive Plan (and shall include any awards expressly designated
          as “Performance Stock Awards” under any successor to the 1999 Stock Incentive
          Plan), but shall not include performance-based Restricted Stock,
          performance-based Restricted Stock Units, or any other
          awards.

      

       

                                (d)  Awards
        Granted after Change in Control.  For any stock option, stock
        appreciation right, restricted stock, restricted stock unit, or other
        stock-based award granted after a transaction that constitutes a Change in
        Control, such preceding transaction will not be treated as a Change in Control
        for purposes of paragraph 4(iii)(c) above.

       

                                
        (e)  Legal
        Fees.  The Corporation shall pay to you all legal fees and expenses
        incurred by you at any time during your lifetime as a result of such termination
        including all such fees and expenses, if any, incurred in contesting or
        disputing any such termination or in seeking to obtain or enforce any right
        or
        benefit provided by this Agreement; provided, however, that
        payment with respect to any legal action other than in connection with a
        tax
        dispute (which is addressed in Section 5) shall be made only if you are
        successful in the action.  With respect to any such fees or expenses
        paid with respect to any legal action other than a tax dispute, any such
        payment
        to you shall be made no later than the end of the calendar year next following
        the year in which such legal fees or expenses are incurred by you; the amount
        of
        fees and expenses reimbursed in any calendar year shall not affect the amount
        reimbursed in any other year; and such right to reimbursement may not be
        liquidated or exchanged for any other benefit.

       

                                
        (f)  Group
        Health Coverage.  You and your eligible family members shall be
        entitled to group health coverage to the extent that such coverage is required
        to be provided in accordance with the provisions of Section 4980B of the
        Code
        and Section 601 of the Employee Retirement Income Security Act (sometimes
        referred to as “COBRA coverage”); provided that your eligibility for such
        coverage shall be determined as though such coverage was required for the
        greater of twenty-four (24) months after your Date of Termination or the
        period
        otherwise required under the applicable COBRA coverage
        provisions.  For the twenty-four (24) month period during which you
        are entitled to such medical benefit coverage under this paragraph 4(iii)(f),
        the premiums for such coverage shall be paid by the Corporation (either by
        direct payment of such premiums, or by reimbursing you for the premiums,
        at the
        election of the Corporation), and the period of such coverage provided under
        this paragraph 4(iii)(f) shall be counted toward the Corporation’s obligation to
        provide COBRA coverage.  (For the avoidance of doubt, it is recited
        that the value of all or a portion of such coverage may be included in your
        taxable gross income as reported by the Corporation.)  Except as
        specifically permitted by Section 409A of the Code and the regulations
        thereunder as in effect from time to time (collectively, “Section 409A”), the
        amount of coverage provided pursuant to this paragraph 4(iii)(f) to you and
        your
        eligible family members during any calendar year will not affect the amount
        of
        such coverage to be provided to you and your eligible family members in any
        other calendar year, and any reimbursement for any premiums pursuant to this
        paragraph 4(iii)(f) shall be paid to you no later than the end of the calendar
        year next following the year in which you pay such
        premiums.   

       

      
        
          10

        

        
          
          

          
            

          

        

        
          
          

        

                                (g)  Welfare
          Benefits.  For the twenty-four (24) month period after your Date of
          Termination, the Corporation shall arrange to provide you with life and
          disability insurance benefits substantially similar to those which you
          were
          receiving immediately prior to the Notice of Termination.  Benefits
          otherwise receivable by you pursuant to this paragraph 4(iii)(g) shall
          be
          reduced to the extent comparable benefits are actually received by you
          from
          another employer or otherwise during the twenty-four (24) month period
          following
          your termination, and any such benefits actually received by you shall
          be
          reported to the Corporation.  Except as specifically permitted by
          Section 409A, the amount of  coverage provided to you pursuant to this
          paragraph 4(iii)(g) during any calendar year will not affect the amount
          of such
          coverage to be provided to you in any other calendar year.

      

       

                            
        (h)  Retiree
        Coverage.  You and your eligible family members shall be eligible for
        (I) retiree medical benefits under the Corporation’s applicable plan, and (II)
        retiree life insurance coverage under the Corporation’s applicable plan to the
        extent that if, on your Date of Termination, you had terminated employment
        with
        the Corporation and its Affiliates and you would have become eligible for
        severance benefits under the BNSF Railway Company Severance Plan (the “Severance
        Plan”) if you had not been covered by this Agreement, and by reason of the terms
        of the Severance Plan, you would otherwise have qualified for medical or
        life
        coverage or benefits, respectively, either upon your Date of Termination
        or at
        such later date as provided in the Severance Plan.  In determining
        whether you would have become eligible for severance benefits under the
        Severance Plan for purposes of the foregoing provisions of this paragraph
        4(iv)(h), you will be treated as having been involuntarily terminated by
        the
        Corporation for reasons other than Cause under the Severance Plan, and thereby
        became an “Eligible Employee” under the Severance Plan, if your employment is
        terminated by you for Good Reason (as defined in this
        Agreement).  Notwithstanding the foregoing, nothing in this paragraph
        4(iv)(h) shall be construed to require your being provided with the benefits
        described in clause (I) or clause (II) above to the extent that:

       

                             
        (A)  you
        would
        not have been covered by the Severance Plan as of your Date of Termination,
        or

       

                             
        (B)  you
        would
        not have been eligible for such benefits under the Severance Plan as of your
        Date of Termination,

       

      
        
          11

        

        
          
          

          
            

          

        

        
          
          
with
          such
          eligibility for coverage or benefits under paragraph (A) or (B) above determined
          as though you were not covered by this Agreement, and regardless of whether
          such
          reduction or elimination of eligibility for coverage or benefits occurs
          by
          reason of amendment or termination of the Severance Plan or for any other
          reason.  For purposes of this paragraph (h), the term “Severance Plan”
shall include any successor to the Severance Plan to the extent that it
          provides
          for post-termination health or life insurance benefits.  Except as
          specifically permitted by Section 409A, the amount of coverage provided
          pursuant
          to this paragraph 4(iii)(h) to you and your eligible family members during
          any
          calendar year will not affect the amount of such coverage to be provided
          to you
          and your eligible family members in any other calendar year.

      

       

                             
        (i)  Outplacement
        and Financial Assistance.  The Corporation shall pay you a lump sum
        cash payment equal to $20,000 to be used for outplacement and financial
        assistance following your Date of Termination (provided that the financial
        assistance will not be available to you if, during the year in which your
        Date
        of Termination occurs, you are expected by the Corporation to be a named
        executive officer for that year for proxy reporting purposes), with payment
        to
        be made at the time specified in paragraph 4(iv)(A); provided that you
        must submit documentation of any such expenses to the
        Corporation.  If, as of the date that is 12 months following your Date
        of Termination, you have not provided the Corporation with documentation
        showing
        that you have spent $20,000 on outplacement and financial assistance, you
        shall
        repay to the Corporation in cash within five (5) business days after written
        demand made therefor by the Corporation an amount equal to $20,000 less the
        amount you have spent on outplacement and financial assistance within the
        12-month period following your Date of Termination.

       

      (iv)  Form
        of
        and Restrictions on Payment.  The payments provided for in paragraph
        4(iii)(a)(2), paragraph 4(iii)(b) and paragraph 4(iii)(i) (the “Severance
        Payments”) shall be paid in accordance with the following:

       

                                 
        (a)  The
        Severance Payments shall be made not later than the 60th day following your
        Date
        of Termination or, if earlier, the fifth day after the General Release and
        Covenant Not to Sue (as defined below) becomes irrevocable in accordance
        with
        its terms.

       

                                  
        (b)  If
        you
        are treated as terminating your employment for Good Reason, or if your
        employment is terminated by the Corporation without Cause, then, for the
        12-month period immediately following your Date of Termination, you agree
        that:

       

                  (I)  You
        will
        not, without the express written consent of the Chief Executive Officer of
        the
        Corporation, be in Competition.  For purposes of this
        paragraph 4(iv)(b)(I), you shall be considered to be in “Competition”
during any period in which you are employed by, perform any material services
        for, or own any interest in (except for an interest of not more than 1% in
        any
        publicly traded business) any “Competitor.”  The term “Competitor”
shall mean:

       

                                             
        (A)  any
        Class
        I railroad;

       

      
        
          12

        

        
          
          

          
            

          

        

         

                                           
            (B)  any
          company or other enterprise that offers shipping services to the public
          (including, without limitation, trucking services, rail services, air-freight
          services, and water-going freight services);

      

       

                                           
        (C)  any
        shipper for or customer of the Corporation; and

       

                                         
         (D)  any
        Affiliate or agent of any entity described in paragraphs (A), (B) or (C)
        above,
        if the provision of services to or ownership of the interest in such Affiliate
        or agent could conflict with or impair the interests of the Corporation,
        in the
        reasonable judgment of its chief legal officer.

       

                                         
         (II)  You
        will
        not, without the express written consent of the Chief Executive Officer of
        the
        Corporation, solicit or attempt to solicit any party who is then or, during
        the
        12-month period prior to such solicitation or attempt by you was (or was
        solicited to become), a customer or supplier of the Corporation or Affiliate;
        provided that the restriction in this paragraph 4(iv)(b)(II) shall
        not apply to any activity on behalf of a business that is not a
        Competitor.

       

                                         
         (III)  You
        will
        not, without the express written consent of the Chief Executive Officer of
        the
        Corporation, solicit, entice, persuade or induce any individual who is employed
        by the Corporation or any Affiliate of the Corporation (or was so employed
        within 90 days prior to your action) to terminate or refrain from renewing
        or
        extending such employment or to become employed by or enter into contractual
        relations with any other individual or entity other than the Corporation
        or its
        Affiliates, and you will not approach any such employee for any such purpose
        or
        authorize or knowingly cooperate with the taking of any such actions by any
        other individual or entity.

       

      If,
        during the 12-month period after your Date of Termination, you violate any
        of
        the foregoing provisions of this paragraph (b), you shall not be paid any
        of the
        Severance Payments if you have not yet been paid them as of the date of such
        violation, and the Corporation may, in its discretion, require you to
        immediately (or at such other time determined by the Corporation) repay to
        the
        Corporation all (or, in the discretion of the Corporation, less than all)
        Severance Payments previously paid to you.  You agree that the
        Corporation, in addition to any other remedies available to it for such breach
        or threatened breach, shall be entitled to a preliminary injunction, temporary
        restraining order, or other equivalent relief, restraining you from any actual
        or threatened breach of the foregoing provisions of this paragraph
        4(iv)(b).

       

      (v)  Mitigation
        and Set-Off.  Except as provided in paragraph 4(iii)(f), paragraph
        4(iii)(g) and paragraph 4(iv)(b), you shall not be required to mitigate the
        amount of any payment provided for in this Section 4 by seeking other employment
        or otherwise, nor shall the amount of any payment or benefit provided for
        in
        this Section 4 be reduced by any compensation earned by you as the result
        of
        employment by another employer or by retirement benefits, or be offset against
        any amount claimed to be owed by you to the Corporation, or
        otherwise.

       

      
        
          13

        

        
          
          

          
            

          

        

        
          
          

        

      

      (vi)  Section
        409A.  It is intended that the provisions of this Agreement comply
        with Section 409A, and all provisions of this Agreement shall be construed
        and
        interpreted in a manner consistent with the requirements for avoiding taxes
        or
        penalties under Section 409A.

       

                                 
        (a)  Neither
        you nor any of your creditors or beneficiaries shall have the right to subject
        any deferred compensation (within the meaning of Section 409A) payable under
        this Agreement or under any other plan, policy, arrangement or agreement
        of or
        with the Corporation or any of its Affiliates (this Agreement and such other
        plans, policies, arrangements and agreements, the “Corporation Plans”) to any
        anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
        attachment or garnishment.  Except as permitted under Section 409A,
        any deferred compensation (within the meaning of Section 409A) payable to
        you or
        for your benefit under the Corporation Plans may not be reduced by, or offset
        against, any amount owing by you to the Corporation or any of its
        Affiliates.

       

                                  
        (b)  If,
        at
        your separation from service (as defined under Treas. Reg. §1.409A-1(h)), (I)
        you are a Specified Employee and (II) the Corporation makes a good faith
        determination that an amount payable under a Corporation Plan constitutes
        deferred compensation (within the meaning of Section 409A) the payment of
        which
        is required to be delayed pursuant to the six-month delay rule set forth
        in
        Section 409A in order to avoid taxes or penalties under Section 409A, then
        the
        Corporation (or its Affiliate, as applicable) shall not pay such amount on
        the
        otherwise scheduled payment date but shall instead accumulate such amount
        and
        pay it, without interest, on the first day of the seventh month following
        such
        separation from service.  “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 Corporation or his or her delegate from
        time
        to time.

       

                                 
        (c)  Notwithstanding
        any provision of any Corporation Plan to the contrary, in light of the
        uncertainty with respect to the proper application of Section 409A, the
        Corporation reserves the right to make amendments to this Agreement and any
        Corporation Plan as the Corporation deems necessary or desirable to avoid
        the
        imposition of taxes or penalties under Section 409A.  In any case,
        except as specifically provided in Section 5, you are solely responsible
        and
        liable for the satisfaction of all taxes (together with interest and penalties
        thereon) that may be imposed on you or for your account in connection with
        any
        Corporation Plan (including any taxes and penalties under Section 409A),
        and
        neither the Corporation nor any Affiliate shall have any obligation to indemnify
        or otherwise hold you harmless from any or all of such taxes or
        penalties.

       

      (vii)  Vesting
        Of Stock Awards.  Notwithstanding the foregoing provisions of this
        Section 4, the following provisions of this paragraph (vii) shall apply to
        awards described in this paragraph (vii) that were granted on or before
        September 21, 2006:

       

                                
        (a)  If
        the
        consummation of a Change in Control occurs before your Date of Termination,
        the
        restrictions shall lapse (to the extent that they have not previously lapsed)
        on
        any stock option award or stock appreciation right award outstanding on such
        consummation, such stock options and stock appreciation rights shall become
        fully exercisable upon such consummation, and such exercisability shall continue
        until it would otherwise terminate in accordance with the terms of the
        applicable award agreement.

       

      
        
          14

        

        
          
          

          
            

          

        

        
          
          

        

         

                               
          (b)  If
          the
          consummation of a Change in Control occurs before your Date of Termination,
          the
          restricted period (or other vesting or similar period) with respect to
          any
          restricted stock, restricted stock units and, except for stock options
          and stock
          appreciation rights, all other stock based awards granted to you shall
          lapse on
          such consummation, and such shares shall be distributed to you at the same
          time
          as the cash payments described in paragraph 4(iv) are paid.  However,
          any change in the time or form of distribution otherwise provided under
          this
          paragraph (b) shall be disregarded to the extent that such change would
          otherwise result in the application of penalties under Code Section
          409A.  

      

       

                             
        (c)  If
        your
        Date of Termination occurs prior to the consummation of a Change in Control,
        the
        vesting in the awards described in this paragraph (vii) shall be determined
        in
        accordance with paragraphs 4(i), (ii), (iii), and (iv), to the extent
        applicable, without regard to this paragraph (vii).

       

      5.  PARACHUTE
        TAX.

       

      (i)  In
        the
        event it shall be determined that any payment, benefit or distribution (or
        combination thereof) by the Corporation, any affiliate (as that term is used
        in
        Treas. Reg. §1.280G-1, Q/A-46) or associated company or any trust established by
        the Corporation, any such affiliate or associated company for the benefit
        of its
        employees, to or for your benefit (whether paid or payable or distributed
        or
        distributable pursuant to the terms of this Agreement, or otherwise) (a
“Payment”) would be subject to the excise tax imposed by Section 4999 of the
        Code, or any interest or penalties are incurred by you with respect to such
        excise tax (such excise tax, together with any such interest and penalties,
        hereinafter collectively referred to as the “Excise Tax”), you shall be entitled
        to receive an additional payment (a “Gross-Up Payment”) in an amount such that
        after payment by you of all taxes (including any interest or penalties imposed
        with respect to such taxes), including, without limitation, any income taxes
        (and any interest and penalties imposed with respect thereto) and the Excise
        Tax
        imposed upon the Gross-Up Payment, you retain an amount of the Gross-Up Payment
        equal to the Excise Tax imposed upon the Payments.  For purposes of
        this Section 5, “Payments” will include any payments, benefits or distributions
        to other persons with respect to awards granted to you and transferred by
        you to
        such other person in accordance with the terms of the awards, to the extent
        that
        such awards result in taxable income being attributable to you.

       

      Notwithstanding
        the foregoing provisions of this paragraph (5)(i), if it is determined that
        you are entitled to a Gross-Up Payment, but that the value of the Parachute
        Payments (as defined below) does not exceed 110% (105% if you are Recently
        Hired
        (as defined below) by the Corporation) of the Safe Harbor Amount (as defined
        below), then no Gross-Up Payment will be made to you and the Payments, in
        the
        aggregate, will be reduced to the Safe Harbor Amount.  The reduction
        of the Payments to the Safe Harbor Amount will be made in the following
        order:

      


      
        	
                 

              	
                (a)

              	
                First,
                  by reducing the cash amounts of Parachute Payments (including welfare
                  benefits described in paragraph 4(iii)(g)) that would not constitute
                  deferred compensation (within the meaning of Section 409A) subject
                  to
                  Section 409A (with the Payments subject to such reduction to be
                  determined
                  by you), to the extent necessary to decrease the Payments that
                  would
                  otherwise constitute Parachute Payments to the Safe Harbor
                  Amount.

              


      

      


      
        
          15

        

        
          
          

          
            

          

        

        
          
          

        

      

      
        	
                 

              	
                (b)

              	
                Next,
                  if after the reduction to zero of the amounts described in paragraph
                  (a)
                  above, the remaining scheduled Parachute Payments are greater than
                  the
                  Safe Harbor Amount, then by reducing the cash amounts of Payments
                  (excluding welfare benefits described in paragraph 4(iii)(g)) that
                  constitute deferred compensation (within the meaning of Section
                  409A)
                  subject to Section 409A, with the reductions to be applied first
                  to the
                  Payments scheduled for the latest distribution date, and then applied
                  to
                  distributions scheduled for progressively earlier distribution
                  dates, to
                  the extent necessary to decrease the Payments that would otherwise
                  constitute Parachute Payments to the Safe Harbor
                  Amount.

              


      

      


      
        	
                 

              	
                (c)

              	
                Next,
                  if after the reduction to zero of the amounts described in paragraphs
                  (a)
                  and (b) above, the remaining scheduled Parachute Payments are greater
                  than
                  the Safe Harbor Amount, then, by reducing any of the remaining
                  scheduled
                  Payments, in an order to be determined by the Corporation, to the
                  extent
                  necessary to decrease the Payments that would otherwise constitute
                  Parachute Payments to the Safe Harbor
                  Amount.

              


      

      


      The
        term
“Parachute Payment” is the portion of the Payments that would be treated as
        parachute payments under Code Section 280G.  The “Safe Harbor Amount”
is the maximum amount of Payments that could be made to you without giving
        rise
        to any Excise Tax.  You will be treated as “Recently Hired” by the
        Corporation if you were first employed by the Corporation or any of its
        Affiliates in a calendar year that is less than three years prior to the
        calendar year in which the change in control occurs for purposes of Code
        Section
        280G.

      


      (ii)  Subject
        to the provisions of paragraph 5(iii), all determinations required to be
        made
        under this Section 5, including whether and when a Gross-Up Payment is required
        and the amount of such Gross-Up Payment, whether a reduction to the Safe
        Harbor
        amount is required and, if so, the amount of the reduction, and the assumptions
        to be utilized in arriving at such determination, shall be made by such
        nationally recognized certified public accounting firm as may be designated
        by
        the Corporation (the “Accounting Firm”), which shall provide detailed supporting
        calculations both to the Corporation and you within fifteen (15) business
        days
        of the receipt of notice from you that there has been a Payment, or such
        earlier
        time as is requested by the Corporation.  All fees and expenses of the
        Accounting Firm shall be borne solely by the Corporation.  Any
        Gross-Up Payment, as determined pursuant to this Section 5, shall be paid
        by the
        Corporation to you within five (5) days after the receipt of the Accounting
        Firm’s determination.  If the Accounting Firm determines that no
        Excise Tax is payable by you, it shall so indicate to you in
        writing.  Any determination by the Accounting Firm shall be binding
        upon the Corporation and you.  As a result of the uncertainty in the
        application of Section 4999 of the Code at the time of the initial determination
        by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
        will not have been made by the Corporation should have been made
        (“Underpayment”), consistent with the calculations required to be made
        hereunder.  In the event that the Corporation exhausts its remedies
        pursuant to paragraph 5(iii) and you thereafter are required to make a payment
        of any Excise Tax, the Accounting Firm shall determine the amount of the
        Underpayment that has occurred and any such Underpayment shall be promptly
        paid
        by the Corporation to you or for your benefit.

       

      
        
          16

        

        
          
          

          
            

          

        

        
          
          

        

      

      (iii)  You
        shall
        notify the Corporation in writing of any claim by the Internal Revenue Service
        that, if successful, would require the payment by the Corporation of the
        Gross-Up Payment.  Such notification shall be given as soon as
        practicable but no later than ten (10) business days after you are informed
        in
        writing of such claim and shall apprise the Corporation of the nature of
        such
        claim and the date on which such claim is requested to be paid.  You
        shall not pay such claim prior to the expiration of the thirty (30) day period
        following the date on which you give such notice to the Corporation (or such
        shorter period ending on the date that any payment of taxes with respect
        to such
        claim is due).  If the Corporation notifies you in writing prior to
        the expiration of such period that it desires to contest such claim, you
        shall:

       

      
        	
                (a)  

              	
                give
                  the Corporation any information requested by the Corporation relating
                  to
                  such claim;

              


      

       

      
        	
                (b)  

              	
                take
                  such action in connection with contesting such claim as the Corporation
                  shall reasonably request in writing from time to time, including,
                  without
                  limitation, accepting legal representation with respect to such
                  claim by
                  an attorney reasonably selected by the
                  Corporation;

              


      

       

      
        	
                (c)  

              	
                cooperate
                  with the Corporation in good faith in order to effectively contest
                  such
                  claim; and

              


      

       

      
        	
                (d)  

              	
                permit
                  the Corporation to participate in any proceedings relating to such
                  claim;

              


      

       

      provided,
        however, that the Corporation shall bear and pay directly all costs and
        expenses (including additional interest and penalties) incurred in connection
        with such contest and shall indemnify and hold you harmless, on an after-tax
        basis, for any Excise Tax or income tax (including interest and penalties
        with
        respect thereto) imposed as a result of such representation and payment of
        costs
        and expenses.  Without limitation on the foregoing provisions of this
        paragraph 5(iii), the Corporation shall control all proceedings taken in
        connection with such contest and, at its sole option, may pursue or forego
        any
        and all administrative appeals, proceedings, hearings and conferences with
        the
        taxing authority in respect of such claim and may pay the tax claimed on
        your
        behalf and direct you to sue for a refund or contest the claim in any
        permissible manner, and you agree to prosecute such contest to a determination
        before any administrative tribunal, in a court of initial jurisdiction and
        in
        one or more appellate courts, as the Corporation shall determine;
provided, however, that if the Corporation pays the tax claimed on
        your behalf and directs you to sue for a refund, the Corporation shall indemnify
        and hold you harmless, on an after-tax basis, from any Excise Tax or income
        tax
        (including interest or penalties with respect thereto) imposed with respect
        to
        such payment; and provided, further, that if you are required to
        extend the statute of limitations to enable the Corporation to contest such
        claim, you may limit this extension solely to such contested
        amount.  The Corporation’s control of the contest shall be limited to
        issues with respect to which a Gross-Up Payment would be payable hereunder
        and
        you shall be entitled to settle or contest, as the case may be, any other
        issue
        raised by the Internal Revenue Service or any other taxing
        authority.

       

      
        
          17

        

        
          
          

          
            

          

        

        
          
          

        

      

      (iv)  If,
        after
        the payment by the Corporation of any tax claim pursuant to paragraph 5(iii),
        you become entitled to receive any refund with respect to such claim, you
        shall
        (subject to the Corporation’s complying with the requirements of paragraph
        5(iii)) promptly pay to the Corporation the amount of such refund (together
        with
        any interest paid or credited thereon after taxes applicable
        thereto).  If, after the payment by the Corporation of any tax claim
        pursuant to paragraph 5(iii), a determination is made that you shall not
        be
        entitled to any refund with respect to such claim and the Corporation does
        not
        notify you in writing of its intent to contest such denial of refund prior
        to
        the expiration of thirty (30) days after such determination, then the amount
        the
        Corporation paid in respect of such claim shall offset, to the extent thereof,
        the amount of Gross-Up Payment required to be paid.

       

      (v)  You
        shall
        be eligible for benefits under this Section 5, and shall be subject to the
        terms
        of this Section 5, regardless of whether the Change in Control occurs or
        the
        payments are made during the Agreement Term, regardless of whether you are
        employed by the Corporation on or after the occurrence of a Change in Control
        and, if your Date of Termination shall have occurred, regardless of the reason
        for such termination.

       

      (vi)  Any
        amounts that you become entitled to receive in respect of taxes, interest
        and
        penalties pursuant to this Section 5 shall be paid to you (or to the applicable
        taxing authority on your behalf) not later than the last day of the calendar
        year after the calendar year in which you remit the underlying taxes to the
        applicable taxing authority, and any amounts that you become entitled to
        receive
        in respect of costs and expenses incurred in connection with a contest pursuant
        to this Section 5 shall be paid not later than the later of (a) the last
        day of
        the calendar year after the calendar year in which you remit the underlying
        taxes to the applicable taxing authority and (b) the last day of the calendar
        year after the calendar year in which the applicable contest is
        concluded.  The foregoing provisions of this paragraph (vi) are
        intended to conform the payments under this paragraph 5 and reimbursements
        under
        this Agreement to the requirements of Section 409A, and shall not be construed
        to permit delay by the Corporation of payment of amounts due earlier in
        accordance with this Agreement.

       

      6.  RIGHTS
        OF
        EMPLOYMENT, CONTINUATION OF EQUITY AWARDS.  Except as otherwise
        expressly provided in this Agreement:

       

      (i)  Nothing
        in this Agreement shall be construed as limiting your right to resign prior
        to
        the beginning or after the end of the Agreement Term.

       

      (ii)  Nothing
        in this Agreement shall be construed as limiting the Corporation’s right to
        discharge you at any time prior to the beginning or after the end of the
        Agreement Term, or to renegotiate the terms of your employment for any period
        prior to the beginning or after the end of the Agreement Term.

       

      (iii)  Except
        as
        otherwise provided in paragraph 3(iv) (relating to discharge absent Cause
        or
        Disability), or as otherwise expressly provided in this Agreement, this
        Agreement shall be inapplicable to the determination of your rights to payments
        and benefits, if your Date of Termination occurs prior to the occurrence
        of a
        Change in Control, or if your Date of Termination occurs after the end of
        the
        Agreement Term and you are not subject to a disability after a Change in
        Control.

       

      
        
          18

        

        
          
          

          
            

          

        

        
          
          

        

      

      (iv)  This
        paragraph 6(iv) will apply to any stock awards granted to you under the
        Corporation’s 1996 Stock Incentive Plan, 1999 Stock Incentive Plan, or any
        similar successor Plan that you hold immediately before a Change in Control
        (“Equity Awards”).

       

                                
        (a)  The
        Board
        (as constituted immediately prior to the Change in Control) shall determine,
        not
        later than immediately before the Change in Control date, whether immediately
        after the Change in Control, the Equity Awards in each Award Category (as
        defined below) will be Comparable (as defined below) to the Equity Awards
        in
        that Award Category that you held immediately before the Change in
        Control.  The three “Award Categories” are:  (1)
        Appreciation Awards, which includes stock options, stock appreciation rights,
        and other similar awards based on appreciation in the price of the Corporation’s
        stock after the grant date; (2) Non-Performance Based Full Value Awards,
        which
        includes restricted stock, restricted stock units, and other awards the value
        of
        which is based on the full value of the Corporation’s stock (rather than being
        based on appreciation), and no portion of the value of which is based on
        performance measures other than stock value; and (3) Performance Based Full
        Value Awards, which includes restricted stock, restricted stock units and
        other
        awards (but not Performance Stock), the value of which is based in part on
        the
        full value of the Corporation’s stock, where vesting or other aspects of the
        value of the awards is based on performance measures other than the value
        of the
        Corporation’s stock.  The following shall apply to that
        determination:

       

                                            
        (I)  The
        category of Appreciation Awards will not be treated as Comparable if, for
        any of
        the awards in that category, the intrinsic value of such award (that is,
        the
        excess of the fair market value of the shares covered by such award over
        the
        exercise price) immediately after the Change in Control is less than the
        intrinsic value of such award immediately before the Change in
        Control.

       

                                           
        (II)  The
        category of Performance Based Full Value Awards and the category of
        Non-Performance Based Full Value Awards, respectively, will not be treated
        as
        Comparable for any of the awards in that category unless the fair market
        value
        of the stock covered by the award immediately after the Change in Control
        is at
        least equal to the fair market value of the stock subject to the award prior
        to
        the Change in Control.

       

                                           
        (III)  In
        determining whether awards are Comparable, the Board shall take into account
        such factors as it determines to be relevant, including the credit quality
        of
        the acquiring or remaining entity, the business fundamentals of the entity
        whose
        shares are covered by the awards, and whether the shares subject to the awards
        will be readily tradable or saleable to the Corporation or its successor
        at fair
        market value after the Change in Control.

       

                                          
         (IV)  In
        determining whether awards are Comparable, the Board shall disregard reductions
        in value that are not material.

       

      
        
          19

        

        
          
          

          
            

          

        

        
          
          

        

         

                              
          (b)  If
          the
          Board determines in accordance with paragraph 6(iv)(a) that awards in any
          Award
          Category will not be Comparable after the Change in Control, the following
          will
          apply:

      

                                        
        

                                       
        (I)  If
        Appreciation Awards are determined not to be Comparable after a Change in
        Control, the restrictions on exercise (or any similar limitations) shall
        lapse
        (to the extent that they have not previously lapsed) for all awards in that
        category outstanding immediately prior to the Change in Control, all awards
        in
        that category shall become fully exercisable beginning immediately prior
        to the
        Change in Control, and to the extent such awards would otherwise remain
        outstanding, such exercisability shall continue until they would otherwise
        terminate in accordance with the terms of the applicable award
        agreement.

       

                                       
        (II)  If
        Non-Performance Based Full Value Awards, or Performance Based Full Value
        Awards,
        respectively, are determined not to be Comparable after a Change in Control,
        the
        restricted period (or other vesting or similar period) for all awards in
        the
        applicable category or categories shall lapse immediately before the Change
        in
        Control, and shares covered by the awards in the applicable category or
        categories shall be distributed to you immediately before the Change in
        Control.  However, any change in the time or form of distribution
        otherwise provided under this paragraph 6(iv)(b)(II) shall be disregarded
        to the
        extent that such change would otherwise result in the application of penalties
        under Section 409A, and such shares shall instead be delivered at the earliest
        time that would not result in such penalties.

       

                                      
        (III)  If
        such
        determination applies to Performance Based Full Value Awards, the performance
        objectives for all awards in that category will be deemed to have been achieved
        at the target level of performance (without reduction to reflect that the
        Change
        in Control occurred prior to the end of the performance
        period).  However, the foregoing provisions of this paragraph
        6(iv)(b)(III) shall not be applicable to Performance Stock, and the effect
        of a
        Change in Control with respect to such stock shall be determined in accordance
        with the provisions of the agreement governing the terms of such
        award.

       

                           
        (c)  Nothing
        in this paragraph 6(iv) shall be construed to authorize the cancellation
        of
        Equity Awards without the grant of replacement awards in the absence of such
        authorization under the applicable Equity Award and/or stock plan or payment
        of
        cash or other property therefor.

       

      7.  SUCCESSORS;
        BINDING AGREEMENT.

       

      (i)  The
        Corporation will require (a) any successor (whether direct or indirect, by
        purchase, merger, consolidation or otherwise) to all or substantially all
        of the
        business and/or assets of the Corporation or (b) in the event of a transaction
        described in paragraph 2(iii) or (iv), the acquiring or surviving entity
        in such
        transaction, in each case, to expressly assume and agree to perform this
        Agreement in the same manner and to the same extent that the Corporation
        would
        be required to perform it if no such succession had taken
        place.  Failure of the Corporation to obtain such assumption and
        agreement prior to the effectiveness of any such succession shall be a breach
        of
        this Agreement.  As used in this Agreement, “Corporation” shall mean
        the Corporation as hereinbefore defined and any successor to its business
        and/or
        assets or acquiring or surviving entity as aforesaid which assumes and agrees
        to
        perform this Agreement by operation of law, or otherwise, and “Board” shall mean
        the Board as hereinbefore defined or equivalent governing body of such successor
        or other entity, as applicable.

       

      
        
          20

        

        
          
          

          
            

          

        

        
          
          

        

      

      (ii)  This
        Agreement shall inure to the benefit of and be enforceable by you and your
        personal or legal representatives, executors, administrators, successors,
        heirs,
        distributees, devisees and legatees.  If you should die while any
        amount would still be payable to you hereunder had you continued to live,
        all
        such amounts, unless otherwise provided herein, shall be paid in accordance
        with
        the terms of this Agreement to your devisee, legatee or other designee or,
        if
        there is no such designee, to your estate.

       

      8.  NOTICE.  For
        the purpose of this Agreement, notices and all other communications provided
        for
        in this Agreement shall be in writing and shall be deemed to have been duly
        given when delivered or mailed by United States certified or registered mail,
        return receipt requested, postage prepaid, addressed to the respective addresses
        set forth on the first page of this Agreement, provided that all notices
        to the
        Corporation shall be directed to the attention of the Board with a copy to
        the
        Secretary of the Corporation, or to such other address as either party may
        have
        furnished to the other in writing in accordance herewith, except that notice
        of
        change of address shall be effective only upon receipt.

       

      9.  MISCELLANEOUS.

       

      (i)  Subject
        to paragraph 4(vi), no provision of this Agreement may be modified, waived
        or discharged unless such waiver, modification or discharge is agreed to
        in
        writing and signed by you and such officer as may be specifically designated
        by
        the Board.  No amendment, modification, or termination of this
        Agreement shall be adopted or effective if it would result in accelerated
        recognition of income or imposition of additional tax under Section
        409A.  No waiver by either party hereto at any time of any breach by
        the other party hereto of, or compliance with, any condition or provision
        of
        this Agreement to be performed by such other party shall be deemed a waiver
        of
        similar or dissimilar provisions or conditions at the same or at any prior
        or
        subsequent time.  No agreements or representations, oral or otherwise,
        express or implied, with respect to the subject matter hereof have been made
        by
        either party which are not expressly set forth in this Agreement.  The
        validity, interpretation, construction and performance of this Agreement
        shall
        be governed by the laws of the State of Texas without regard to its conflicts
        of
        law principles.  All references to sections of the Exchange Act or the
        Code shall be deemed also to refer to any successor provisions to such
        sections.  Any payments provided for hereunder shall be paid net of
        any applicable withholding required under federal, state or local
        law.  Except as otherwise specifically provided in this Agreement, to
        the extent that the provision of payments or benefits to you results in your
        being liable for taxes, you shall not be entitled to any make-whole, gross-up,
        or other indemnification with respect to such taxes.  The obligations
        of the parties to this Agreement shall survive the expiration of the Agreement
        Term.  Capitalized terms used in this Agreement shall be defined as
        set forth in this Agreement.

       

      
        
          21

        

        
          
          

          
            

          

        

        
          
          

        

      

      (ii)  If
        any
        amount owed to you hereunder is not paid on the applicable due date, then,
        upon
        the actual payment of such amount to you, you shall also receive interest
        thereon from the original due date until the date of actual payment at an
        annual
        rate of interest equal to the Prime Rate reported in The Wall Street Journal,
        Northeast Edition, on the last business day of the month preceding the Payment
        Date, compounded annually.

       

      10.  VALIDITY.  The
        invalidity or unenforceability of any provision of this Agreement shall not
        affect the validity or enforceability of any other provision of this Agreement,
        which shall remain in full force and effect.

       

      11.  COUNTERPARTS.  This
        Agreement may be executed in several counterparts, each of which shall be
        deemed
        to be an original but all of which together will constitute one and the same
        instrument.

       

      12.  ARBITRATION.  Any
        dispute or controversy arising under or in connection with this Agreement
        shall
        be settled exclusively by arbitration, conducted before a panel of three
        arbitrators in Ft. Worth, Texas, in accordance with the rules of the American
        Arbitration Association then in effect.  Judgment may be entered on
        the arbitrator’s award in any court having jurisdiction; provided,
however, that you shall be entitled to seek specific performance
        of your
        right to be paid until the Date of Termination during the pendency of any
        dispute or controversy arising under or in connection with this
        Agreement.

       

      13.  AMENDMENT.  This
        Agreement may be amended or canceled only by mutual agreement of the parties
        in
        writing without the consent of any other person.  So long as you shall
        live, no person, other than the parties hereto, shall have any rights under
        or
        interest in this Agreement or the subject matter hereof.

       

      14.  GENERAL
        RELEASE AND COVENANT NOT TO SUE.  You agree that as a condition of
        receiving the Severance Payments and other benefits under paragraph 4(iii)
        of
        this Agreement in connection with your termination of employment, you shall
        execute the attached General Release and Covenant Not to Sue within thirty
        (30)
        days following your Date of Termination.  You will be deemed to have
        executed a general release as described in the preceding sentence only if
        such
        release is properly executed by you and returned to the Corporation within
        such
        thirty (30) day period.  Notwithstanding any other provision herein,
        unless the executed General Release and Covenant Not to Sue has been received
        by
        the Corporation within such thirty (30) day period and a seven (7) day
        revocation period from the date of execution has expired without your revoking
        such release, (i) no Severance Payments shall be provided and all
        entitlements to Severance Payments shall expire and be forfeited, (ii) the
        Corporation shall be relieved of all obligations to make any further payments,
        or provide or make available any further benefits, to you pursuant to paragraphs
        4(iii)(e), 4(iii)(f), 4(iii)(g) and 4(iii)(h), (iii) you shall be required
        to repay the Corporation, in cash within five (5) business days after written
        demand is made therefor by the Corporation, an amount equal to the value
        of any
        benefits received by your pursuant to paragraph 4(iii)(e), 4(iii)(f), 4(iii)(g)
        or 4(iii)(h) and (iv) you shall forfeit any stock awards that vested or became
        exercisable pursuant to paragraph 4(iii)(c)(A) or 4(iii)(B) and any other
        stock-based or other awards that otherwise vested (without regard to this
        Agreement) under the terms of the applicable plan or award agreements by
        reason
        of your termination of employment following a change in control, as defined
        in
        this Agreement or any applicable plan or award agreement, and you shall not
        receive any shares with respect thereto.

       

      
        
          22

        

        
          
          

          
            

          

        

        
          
          

        

      

      15.  ENTIRE
        AGREEMENT.  This Agreement sets forth the entire agreement of the
        parties hereto in respect of the subject matter contained herein and supersedes
        all prior agreements, promises, covenants, arrangements, communications,
        representations or warranties, whether oral or written, by any officer, employee
        or representative of any party hereto; and any prior agreement of the parties
        hereto in respect of the subject matter contained herein is hereby terminated
        and canceled.  This Agreement constitutes an amendment, restatement,
        and continuation of your Change in Control Agreement.  The terms of
        this Agreement, as set forth herein, shall apply with respect to any Change
        in
        Control that occurs on or after December 31, 2007, and the terms of your
        Agreement in effect prior to this amendment and restatement shall be deemed
        to
        be completely replaced by the terms set forth herein.  For the
        avoidance of doubt, it is recited here that this Agreement shall not apply
        to
        any award (regardless of when granted) if the document(s) applicable to such
        award provide that the terms of the award will be determined based solely
        on the
        provisions of such award document(s), or determined without regard to the
        terms
        of any other change in control arrangement.

       

      If
        this
        letter sets forth our agreement on the subject matter hereof, kindly sign
        and
        return to the Corporation the enclosed copy of this letter, which will then
        constitute our agreement on this subject.

       

      Sincerely,

      


      Burlington
        Northern

      Santa
        Fe
        Corporation

      


      


      By:                                                                           

      James
        H.
        Gallegos

      Vice
        President & Corporate General Counsel

      


       

      Agreed
        to
        this _________ day of ________________, 20__.

       

      


       

      _____________________________________

       

      Person’s
        Name

       


      
        
                   

          23

        

        
          
          

          
            

          

        

        
          
          

        

      


      Attachment

       

      GENERAL
        RELEASE AND COVENANT NOT TO SUE

       

      For
        and
        in consideration of the terms of the Agreement between Burlington Northern
        Santa
        Fe Corporation and its Affiliates and _____________dated _____________, _____,
        (“Agreement”), the undersigned (i) does hereby agree to comply with the
        restrictions applicable to me under the change in control agreement dated
        ________ between Burlington Northern Santa Fe Corporation and me (as well
        as any
        other restrictions applicable to me) after my termination of employment,
        and
        (ii) does hereby fully waive, release, acquit, and forever discharge Burlington
        Northern Santa Fe Corporation and any and all of its Affiliates, divisions,
        subsidiaries, benefit plans, officers, directors, stockholders, agents,
        advisors, fiduciaries, administrators, and employees, or any of their successors
        or assigns, from any and all claims, demands or causes of action, including
        but
        not limited to any claims for merger protection benefits pursuant to the
        Interstate Commerce Commission decision in the Northern Lines,
BNSF, or Frisco merger proceedings, claims arising under Title VII
        of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e), et
        seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Age Discrimination
        in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq., the
        Federal Employers’ Liability Act, and any other federal, state or local law,
        order, regulation, common law, contract or collective bargaining agreement,
        which relates to my employment or cessation of employment by Burlington Northern
        Santa Fe Corporation and its Affiliates; provided however that the undersigned
        does not waive enforcement of rights to any benefits provided or extended
        pursuant to the terms of the Agreement or to assert any counterclaims in
        response to any litigation initiated by Burlington Northern Santa Fe Corporation
        against me.  The undersigned specifically waives all claims, whether
        past or present, known or unknown, and whether or not in litigation, which
        I, or
        acting on my behalf, my heirs, successors, executors, administrators or assigns,
        may have based on any action, omission or event occurring prior to this
        date.  Included in this Release are any and all claims for future
        damages allegedly arising from the alleged continuation of the effects of
        any
        past action, omission or event.

       

      I
        acknowledge that (i) I have read the Agreement including this General Release
        and Covenant Not to Sue (“Release”); (ii) I am advised by the Corporation to
        consult, and have had the opportunity to consult, an attorney about the meaning
        and effect of this Agreement and Release; (iii) I have had sufficient time,
        and
        at least 45 days, to consider and fully understand the meaning and effect
        of
        signing this Agreement and Release; (iv) I have 7 days after signing to change
        my mind and revoke my acceptance by so notifying __________________________;
        (v)
        this Agreement and Release will not become effective and enforceable until
        that
        7-day period has passed; (vi) I am not otherwise entitled to the benefits
        of the
        Agreement; (vii) I am not relying on any written or oral statement or promise
        other than as set out in the Agreement and Release; and (viii) this Agreement
        and Release shall be governed by and construed in accordance with the laws
        of
        the State of Texas.

       

      This
        General Release and Covenant Not to Sue is executed knowingly and voluntarily,
        for adequate consideration, and is irrevocable and binding upon the
        undersigned.

       

      ACCEPTED
        AND AGREED TO this _____ day of _______, 20___:

       

      Person’s
        Name: _________________________
        Signature:_______________________________

       


24