AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 27, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT AND POST-EFFECTIVE AMENDMENT
TO ANOTHER
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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AMERICAN EXPRESS COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW YORK 13-4922250
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
LOUISE M. PARENT, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
AMERICAN EXPRESS COMPANY
200 VESEY STREET 200 VESEY STREET
NEW YORK, NEW YORK 10285 NEW YORK, NEW YORK 10285
(212) 640-2000 (212) 640-2000
(Address, including zip code, (Name, address, including zip code, and
and telephone number, including telephone number, area code, of agent
area code of registrant's for service)
principal executive offices)
Copy to:
DAVID S. CARROLL, ESQ.
AMERICAN EXPRESS COMPANY
200 VESEY STREET
NEW YORK, NEW YORK 10285
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
in light of market conditions.
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IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED PURSUANT
TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX. / /
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST
REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX. /X/
IF THIS FORM IS FILED TO REGISTER ADDITIONAL SECURITIES FOR AN OFFERING PURSUANT
TO RULE 462(b) UNDER THE SECURITIES ACT OF 1933, PLEASE CHECK THE FOLLOWING BOX
AND LIST THE SECURITIES ACT REGISTRATION STATEMENT NUMBER OF THE EARLIER
EFFECTIVE REGISTRATION STATEMENT FOR THE SAME OFFERING. / / _________________
IF THIS FORM IS A POST-EFFECTIVE AMENDMENT FILED PURSUANT TO RULE 462(c) UNDER
THE SECURITIES ACT OF 1933, CHECK THE FOLLOWING BOX AND LIST THE SECURITIES ACT
REGISTRATION STATEMENT NUMBER OF THE EARLIER EFFECTIVE REGISTRATION STATEMENT
FOR THE SAME OFFERING. / / _________________
IF DELIVERY OF THE PROSPECTUS IS EXPECTED TO BE MADE PURSUANT TO RULE 434,
PLEASE CHECK THE FOLLOWING BOX. /X/
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH AMOUNT PROPOSED PROPOSED AMOUNT OF
CLASS OF SECURITIES TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PRICE PER UNIT OFFERING PRICE(2) FEE
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<S> <C> <C> <C> <C>
Debt Securities, Preferred Shares,
Common Shares and Warrants $1,500,000,000 100% $1,500,000,000 $442,500
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<FN>
(1) Or, if any Debt Securities are issued at an original issue discount, such greater amount as may result in the
initial offering prices aggregating $1,500,000,000.
(2) Estimated solely for the purpose of computing registration fee.
</FN>
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included herein is a combined prospectus and also relates to $550,000,000
aggregate principal amount of Debt Securities, Preferred Shares, Common Shares
and Warrants registered pursuant to Registration Statement No. 33-50997
previously filed by the Registrant on Form S-3 and declared effective on
December 6, 1993. In connection with the registration of up to $750,000,000
aggregate principal amount of Debt Securities, Preferred Shares, Common Shares
and Warrants registered pursuant to Registration Statement No. 33-50997, the
Registrant paid a registration fee in the amount of $172,414.
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<PAGE>
PROSPECTUS
[Logo of American
Express Company]
AMERICAN EXPRESS COMPANY
DEBT SECURITIES, PREFERRED SHARES, COMMON SHARES, WARRANTS
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American Express Company (the "Company") may offer from time to time in one
or more series (i) unsecured debt securities, which may be either senior (the
"Senior Securities") or subordinated (the "Subordinated Securities";
collectively, with the Senior Securities, the "Debt Securities"), (ii) preferred
shares, par value $1.66 2/3 per share ("Preferred Shares"), (iii) common
shares, par value $0.60 per share ("Common Shares"), (iv) warrants to purchase
Debt Securities, Preferred Shares, Common Shares or equity securities issued by
an affiliated or unaffiliated corporation or other entity (collectively,
"Securities Warrants"), (v) currency warrants entitling the holder to receive
the cash value in U.S. dollars of the right to purchase or the right to sell
foreign currencies or composite currencies, including European Currency Units
("ECU") ("Currency Warrants") or (vi) warrants relating to other items or
indices ("Other Warrants"; collectively with the Securities Warrants and the
Currency Warrants, "Warrants") (the Debt Securities, Preferred Shares, Common
Shares and Warrants are collectively referred to as "Securities"), or any
combination of the foregoing, at an aggregate initial offering price not to
exceed $2,050,000,000, at prices and on terms to be determined at or prior to
the time of sale.
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Company. The Subordinated Securities will be
subordinate to all existing and future Senior Indebtedness, each as defined
herein. Unless otherwise indicated in the applicable Prospectus Supplement
("Prospectus Supplement"), the maturity of the Subordinated Securities will be
subject to acceleration only in the event of certain events of bankruptcy or
reorganization of the Company. See "Description of Debt Securities".
Specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in an accompanying Prospectus Supplement,
together with the terms of the offering of the Securities and the initial
offering price and the net proceeds to the Company from the sale thereof. The
Prospectus Supplement will set forth with regard to the particular Securities,
without limitation, the following: (i) in the case of Debt Securities, the terms
of the Debt Securities being offered, including the specific designation,
aggregate principal amount, ranking as senior debt or subordinated debt,
authorized denomination, maturity, rate or method of calculation of principal,
premium (if any) and interest and dates for payment thereof (or the method of
calculation thereof), any exchangeability, conversion, redemption, prepayment or
sinking fund provisions and the currency or currencies or currency unit or
currency units in which principal, premium, if any, or interest, if any, is
payable, (ii) in the case of Preferred Shares, the designation, number of
shares, liquidation preference per share, initial public offering price,
dividend rate (or method of calculation thereof), dates on which dividends shall
be payable (or the method of calculation thereof) and dates from which dividends
shall accrue, any redemption or sinking fund provisions, any conversion or
exchange rights, and whether the Company has elected to offer the Preferred
Shares in the form of depositary shares, (iii) in the case of Common Shares, the
number of Common Shares and the terms of the offering and sale thereof, (iv) in
the case of Securities Warrants, the number and terms thereof, the designation
and the number of securities issuable upon their exercise, the exercise price,
the terms of the offering and sale thereof and, where applicable, the duration
and detachability thereof, (v) in the case of Currency Warrants, whether the
Currency Warrants are call warrants or put warrants, the currency to which U.S.
dollars will be compared, the method of determining the cash value payable upon
exercise of such Currency Warrants, the aggregate amount, offering price and
exercise period of such Currency Warrants, (vi) in the case of Other Warrants,
the terms and procedures relating to exercise, expiration date and other terms,
and (vii) in the case of all Securities, whether such Security will be offered
separately or as a unit with other securities. The Prospectus Supplement will
also contain information, where applicable, about certain United States Federal
income tax considerations relating to, and any listing on a securities exchange
of, the Securities covered by the Prospectus Supplement.
The Company may sell Securities through underwriters or dealers, and also
may sell Securities directly to purchasers or through agents. The names of any
underwriters or agents involved in the sale of the Securities in respect of
which this Prospectus is being delivered and their compensation are set forth in
the accompanying Prospectus Supplement.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is February 27, 1998
<PAGE>
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY AGENT OR UNDERWRITER. THIS PROSPECTUS AND THE ACCOMPANYING
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER
THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF.
AVAILABLE INFORMATION
American Express Company (the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934 (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549;
New York Regional Office, Seven World Trade Center, 13th Floor, New York, New
York 10048; and Chicago Regional Office, Northwest Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such materials
can be obtained from the Public Reference Section of the Commission at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Such
reports, proxy statements and other information concerning the Company can also
be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005, at the offices of the Pacific Stock Exchange,
Inc., 301 Pine Street, San Francisco, California 94104, at the offices of the
Chicago Stock Exchange, Inc., 440 South LaSalle Street, Chicago, Illinois 60605,
and at the offices of the Boston Stock Exchange, Inc., One Boston Place, Boston,
Massachusetts 02108. The Commission also maintains a Website on the Internet
(http://www.sec.gov) that contains reports, proxy and registration statements
and other information regarding registrants that file electronically with the
Commission.
The Company has filed with the Commission a registration statement on Form
S-3 (the "Registration Statement") under the Securities Act, with respect to the
Securities offered hereby. This Prospectus does not contain all the information
set forth in the Registration Statement, certain parts of which have been
omitted in accordance with the rules and regulations of the Commission, and the
exhibits relating thereto, which have been filed with the Commission. Copies of
the Registration Statement and the exhibits are on file at the offices of the
Commission and may be obtained upon payment of the fees prescribed by the
Commission, or examined without charge at the public reference facilities of the
Commission described above.
The Company was founded in 1850 as a joint stock association and was
incorporated under the laws of the State of New York in 1965. Its principal
executive offices are located at World Financial Center, 200 Vesey Street, New
York, New York 10285 (telephone (212) 640-2000).
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
There are hereby incorporated by reference herein (i) the Company's Annual
Report on Form 10-K for its fiscal year ended December 31, 1996, as amended on
Form 10-K/A (Amendment No. 1) dated June 26, 1997, (ii) the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended March 31, 1997, (iii) the
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
1997, (iv) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 330, 1997, (v) the Company's Current Reports on Form 8-K dated
January 27, 1997, April 24, 1997 (as amended April 28, 1997), July 28, 1997,
October 27, 1997, January 26, 1998, February 4, 1998 and February 10, 1998 and
(vi) the description of the Company's Common Shares, contained in the Company's
Registration Statement on Form 8-A dated November 13, 1984, including any
amendment or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the offering made hereunder shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other
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<PAGE>
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON TO
WHOM THIS PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF SUCH
PERSON, A COPY OF ANY AND ALL OF THE DOCUMENTS INCORPORATED BY REFERENCE IN THIS
PROSPECTUS (OTHER THAN EXHIBITS TO SUCH DOCUMENTS UNLESS SUCH EXHIBITS ARE
SPECIFICALLY INCORPORATED BY REFERENCE INTO THE DOCUMENTS THAT THIS PROSPECTUS
INCORPORATES). WRITTEN OR ORAL REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO
MR. STEPHEN P. NORMAN, SECRETARY, AMERICAN EXPRESS COMPANY, WORLD FINANCIAL
CENTER, 200 VESEY STREET, NEW YORK, NEW YORK 10285, (212) 640-2000.
THE COMPANY
Through its subsidiaries the Company is primarily engaged in the business
of providing travel related services, financial advisory services and
international banking services throughout the world.
Travel related services are offered principally through American Express
Travel Related Services Company, Inc. and its subsidiaries ("TRS") and include a
variety of products and services, including the American Express(R) Card, the
Optima(R) Card and other consumer lending products, the American Express(R)
Travelers Cheque (the "Travelers Cheque") and other stored value products,
business expense management products and services, tax preparation and
bookkeeping services, corporate and consumer travel products and services,
magazine publishing, and management and merchant transaction processing, point
of sale and back office products and services. At December 31, 1997, there were
42.7 million Cards in force worldwide, and worldwide Card billed business for
the year ended December 31, 1997 was $209.2 billion. U.S. consumer lending
operations are conducted by American Express Centurion Bank, a wholly-owned
subsidiary of TRS whose deposits are insured by the Federal Deposit Insurance
Corporation. Travelers Cheque sales for the year ended December 31, 1997 were
$25 billion.
American Express Financial Corporation ("AEFC") and its subsidiaries are
engaged in providing a variety of financial products and services to help
individuals, businesses and institutions establish and achieve their financial
goals. AEFC's products and services include financial planning and advice,
insurance and annuities, a variety of investment products, including investment
certificates, mutual funds and limited partnerships, investment advisory
services, trust and employee plan administration services, personal auto and
homeowner's insurance and retail securities brokerage services. At December 31,
1997, American Express Financial Advisors Inc., AEFC's principal marketing
subsidiary, maintained a nationwide financial planning field force of 8,776
persons. At December 31, 1997, AEFC's assets owned and/or managed totaled
approximately $173.4 billion.
American Express Bank Ltd., together with its subsidiaries ("AEBL"), offers
products that meet the financial service needs of three client groups:
corporations, financial institutions and affluent individuals. AEBL's five
business lines are commercial, correspondent, and private banking, personal
financial services and global trading. AEBL does not do business in the United
States except as an incident to its activities outside the United States.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings to fixed
charges of the Company for the periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED DECEMBER 31,
SEPTEMBER ---------------------------------------------------
30, 1997 1996 1995 1994 1993 1992
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<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges ......... 2.24 2.17 1.86 1.90 2.20 1.40
</TABLE>
In computing the ratio of earnings to fixed charges, "earnings" consist of
pretax income from continuing operations, interest expense and other
adjustments. Interest expense includes interest expense related to the
international banking operations of the Company and TRS's Cardmember lending
activities, which is netted against interest and dividends and Cardmember
lending net finance charge revenue, respectively, in the Company's Consolidated
Statement of Income.
For purposes of computing "earnings", other adjustments included adding the
amortization of capitalized interest, the net loss of affiliates accounted for
under the equity method whose debt is not guaranteed by the Company,
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the minority interest in the earnings of majority-owned subsidiaries with fixed
charges, and the interest component of rental expense and subtracting
undistributed net income of affiliates accounted for under the equity method.
"Fixed charges" consist of interest and other adjustments, including
capitalized interest costs and the interest component of rental expense.
On May 31, 1994, the Company completed the spin-off of Lehman Brothers
Holdings Inc. ("Lehman Brothers") through a dividend to American Express common
shareholders. Accordingly, Lehman Brothers' results are reported as a
discontinued operation and are excluded from the above computation for all
periods presented. In March 1993, the Company reduced its ownership in First
Data Corporation ("FDC") to approximately 22 percent through a public offering.
As a result, beginning in 1993, FDC was reported as an equity investment in the
above computation. In the fourth quarter of 1995, the Company's ownership was
further reduced to approximately 10 percent as a result of shares issued by FDC
in connection with a merger transaction. Accordingly, as of December 31, 1995,
the Company's investment in FDC is accounted for as Investments--Available for
sale.
USE OF PROCEEDS
Except as may be otherwise set forth in the Prospectus Supplement
accompanying this Prospectus, the net proceeds to be received by the Company
from sales of the Securities will be used for general corporate purposes.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities being offered and the extent to which
such general provisions may apply will be described in a Prospectus Supplement
relating to such Debt Securities.
The Senior Securities are to be issued under an indenture dated as of May
1, 1997, between the Company and PNC Bank, National Association, as trustee (the
"Senior Securities Trustee") (the "Senior Securities Indenture"). The
Subordinated Securities are to be issued under an Indenture dated as of May 1,
1997 (the "Subordinated Securities Indenture") between the Company and PNC Bank,
National Association, as trustee (the "Subordinated Securities Trustee"). The
Senior Securities Indenture and the Subordinated Securities Indenture are
referred to herein individually as the "Indenture" and collectively as the
"Indentures," and the Senior Securities Trustee and the Subordinated Securities
Trustee are referred to herein individually as the "Trustee" and collectively as
the "Trustees." The following summaries of certain provisions of the Indentures
do not purport to be complete and are qualified in their entirety by reference
to the Indentures, a copy of each of which is filed as an exhibit to the
Registration Statement of which this Prospectus is a part. Where no distinction
is made between the Senior Securities and the Subordinated Securities or between
the Senior Securities Indenture and the Subordinated Securities Indenture, such
summaries refer to any Debt Securities and either Indenture. All article and
section references appearing herein are to articles and sections of the
Indenture, and all capitalized terms have the meanings specified in the
Indenture.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
GENERAL
Neither Indenture limits the amount of Debt Securities which may be issued
thereunder and Debt Securities may be issued under either of the Indentures from
time to time in one or more series up to the aggregate principal amount which
may be authorized from time to time by the Company. Each Indenture permits the
appointment of a different trustee for each series of Debt Securities. (Section
8.09) If there is at any time more than one trustee under the Indenture, the
term "Trustee" as used in this Prospectus will mean each such trustee and will
apply to each such trustee only with respect to those series of Debt Securities
with respect to which it is serving as trustee.
Reference is made to the Prospectus Supplement that accompanies this
Prospectus for the following terms and other information with respect to the
Debt Securities being offered thereby: (i) the designation, aggregate principal
amount and authorized denominations of such Debt Securities; (ii) the percentage
of their principal amount at which such Debt Securities will be issued; (iii)
the date (or the manner of determining or extending the date or dates) on which
the principal of such Debt Securities will be payable; (iv) the terms for
conversion or exchange, if any, of the Debt Securities; (v) the classification
as Senior Securities or Subordinated Securities; (vi) whether such Debt
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Securities will be issued in fully registered form or in bearer form or any
combination thereof; (vii) whether such Debt Securities will be issued in the
form of one or more global securities and whether such global securities are to
be issuable in a temporary global form or permanent global form; (viii) if other
than U.S. dollars, the currency or currencies or currency unit or units for
which Debt Securities may be denominated and purchased and the currency or
currencies or currency unit or units in which principal, premium (if any) and
any interest may be payable; (ix) if the currency for which Debt Securities may
be purchased or in which principal, premium (if any) and any interest may be
payable is at the election of the Company or the purchaser, the manner in which
such an election may be made and the terms of such election; (x) the rate per
annum at which such Debt Securities will bear interest, if any, or the method of
determination of such rate; (xi) the dates on which such interest, if any, will
be payable, or the method of determining such dates; (xii) any mandatory or
optional sinking fund, redemption or other similar terms; (xiii) any index or
other method used to determine the amount of payments of principal, premium (if
any) and interest, if any, on such Debt Securities; (xiv) if a Trustee other
than PNC Bank, National Association is named for such Debt Securities, the name
of such Trustee; and (xv) any other specific terms of the Debt Securities. All
Debt Securities of any one series need not be issued at the same time and all
the Debt Securities of any one series need not bear interest at the same rate or
mature on the same date.
If any of the Debt Securities are sold for foreign currencies or foreign
currency units or if the principal of or interest, if any, on any series of Debt
Securities is payable in foreign currencies or foreign currency units, the
restrictions, elections, tax consequences, specific terms and other information
with respect to such issue of Debt Securities and such currencies or currency
units will be set forth in an applicable Prospectus Supplement relating thereto.
The Debt Securities may be issued in one or more series with the same or
various maturities. (Section 3.02) Debt Securities may be issued solely in fully
registered form without coupons ("Registered Securities"), solely in bearer form
with or without coupons ("Bearer Securities"), or both as Registered Securities
and Bearer Securities. (Section 11.01) Registered Securities may be exchangeable
for other Debt Securities of the same series, registered in the same name, for a
like aggregate principal amount in authorized denominations and will be
transferable at any time or from time to time at the aforementioned office. No
service charge will be made to the Holder for any such exchange or transfer
except for any tax or governmental charge incidental thereto. (Section 3.05) If
Debt Securities of any series are issued as Bearer Securities, the Prospectus
Supplement will contain any restrictions applicable to the offer, sale or
delivery of Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and, if
permitted by applicable laws and regulations, the terms upon which Registered
Securities of the series may be exchanged for Bearer Securities of the series,
whether such Debt Securities are to be issuable in permanent global form with or
without coupons and, if so, whether beneficial owners of interests in any such
permanent global security may exchange such interests for Debt Securities of
such series and the circumstances under which any such exchanges may occur.
Unless otherwise specified in the applicable Prospectus Supplement,
principal and interest, if any, on the Debt Securities offered thereby are to be
payable at the office or agency of the Company maintained for such purposes in
the city where the principal corporate trust office of the Trustee is located,
and will initially be the principal corporate trust office of the Trustee,
provided that payment of interest, if any, may be made (subject to collection)
at the option of the Company by check mailed to the persons in whose names the
Debt Securities are registered at the close of business on the day specified in
the Prospectus Supplement accompanying this Prospectus. (Section 12.02) The
principal corporate trust office of the Trustee at the date hereof is PNC Bank,
National Association, One Oliver Plaza, 210 Sixth Avenue, Pittsburgh,
Pennsylvania 15222.
The Debt Securities may be sold at a substantial discount below their
stated principal amount, bearing no interest or interest at a rate which at the
time of issuance is below market rates. Federal income tax consequences and
special considerations applicable to any such series will be described in the
Prospectus Supplement relating thereto.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with or on behalf
of a depositary (a "Depositary") identified in the Prospectus Supplement
relating to such series. Global Securities will be issued in registered form and
may be in either temporary or permanent form.
The specific terms of the depositary arrangement with respect to any Debt
Securities of a series will be described in the Prospectus Supplement relating
to such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
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<PAGE>
Unless otherwise specified in an applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be registered in the name of such depositary
or its nominee. Upon the issuance of a Global Security, the Depositary for such
Global Security will credit the respective principal amounts of the Debt
Securities represented by such Global Security to the accounts of institutions
that have accounts with such depositary or its nominee ("participants"). The
accounts to be credited shall be designated by the underwriters or agents of
such Debt Securities or by the Company, if such Debt Securities are offered and
sold directly by the Company. Ownership of beneficial interests in such Global
Securities will be limited to participants or persons that may hold interests
through participants. Ownership of beneficial interests by participants in such
Global Securities will be shown on, and the transfer of those ownership
interests will be effected only through, records maintained by the Depositary or
its nominee for such Global Security. Ownership of beneficial interests in
Global Securities by persons that hold through participants will be shown on,
and the transfer of that ownership interest within such participant will be
effected only through, records maintained by such participant. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture governing such Debt Securities. Except as set forth below, owners of
beneficial interests in such Global Securities will not be entitled to have Debt
Securities of the series represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of Debt
Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture.
Payment of principal of, premium, if any, and any interest on Debt
Securities registered in the name of or held by a Depositary or its nominee will
be made to the Depositary or its nominee, as the case may be, as the registered
owner or the holder of the Global Security. None of the Company, the Trustee,
any Paying Agent or the Securities Registrar for such Debt Securities will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. (Section 3.09)
The Company expects that the Depositary for a permanent Global Security,
upon receipt of any payment of principal, premium or interest in respect of a
permanent Global Security, will credit immediately participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of such
Depositary. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name", and will be the responsibility of such participants.
A Global Security may not be transferred except as a whole by the
Depositary for such Global Security to a nominee or a successor of such
depositary. If a Depositary for a permanent Global Security is at any time
unwilling or unable to continue as depositary and a successor depositary is not
appointed by the Company within ninety days, the Company will issue Debt
Securities in definitive registered form in exchange for the Global Security
representing such Debt Securities. In addition, the Company may at any time and
in its sole discretion determine not to have any Debt Securities represented by
one or more Global Securities and, in such event, will issue Debt Securities in
definitive form in exchange for all of the Global Securities representing such
Debt Securities. (Section 3.05) Further, if the Company so specifies with
respect to the Debt Securities of a series, an owner of a beneficial interest in
a Global Security representing Debt Securities of such series may, on terms
acceptable to the Company and the Depositary for such Global Security, receive
Debt Securities of such series in definitive form. In any such instance, an
owner of a beneficial interest in a Global Security will be entitled to physical
delivery in definitive form of Debt Securities of the series represented by such
Global Security equal in principal amount to such beneficial interest and to
have such Debt Securities registered in its name.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Outstanding
Debt Securities under either Indenture, may consolidate with or merge into, or
convey or transfer its properties and assets substantially as an entirety to,
any corporation organized under the laws of the United States of America or any
State thereof or the District of Columbia, provided, that the successor
corporation assumes the Company's obligations on all the Debt
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Securities and under the Indentures, that after giving effect to the transaction
no Event of Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have occurred and be continuing, and
that certain other conditions are met. Neither Indenture restricts a merger or
consolidation in which the Company is the surviving corporation. (Section 10.01)
MODIFICATION OF THE INDENTURE
Modifications and amendments of each Indenture with respect to one or more
series of Debt Securities may be made by supplemental indenture without the
consent of the Holders of such Debt Securities for certain enumerated purposes
(including the naming, by supplemental indenture, of a Trustee other than PNC
Bank, National Association for a series of Debt Securities) and otherwise with
the consent of the Holders of a majority in aggregate principal amount of the
Debt Securities at the time Outstanding of each series affected thereby,
provided that no such modification or amendment may, without the consent of the
Holder of each Debt Security affected thereby: (i) modify the terms of payment
of principal or interest; (ii) reduce the stated percentage of Holders of Debt
Securities necessary to modify or amend the Indentures or waive compliance by
the Company with certain provisions of the Indentures and certain defaults
thereunder; or (iii) subordinate the indebtedness evidenced by the Debt
Securities to any other indebtedness of the Company. (Sections 11.01 and 11.02)
EVENTS OF DEFAULT, NOTICE AND WAIVER
Except as otherwise set forth in the Prospectus Supplement relating to any
series of the Debt Securities, Events of Default with respect to any series of
Debt Securities under each Indenture will include: (1) default in the payment of
the principal of (or premium, if any, on) any Debt Securities of such series at
its Maturity; (2) default in making a sinking fund payment, if any, when and as
the same shall be due and payable by the terms of the Debt Securities of such
series; (3) default for 30 days in the payment of any installment of interest on
any Debt Security of such series; (4) default for 90 days after written notice
in the performance of any other covenant in respect of the Debt Securities of
such series; (5) certain events of bankruptcy, insolvency or reorganization, or
court appointment of a receiver, liquidator or trustee of the Company or its
property; (6) an Event of Default with respect to any other series of Debt
Securities outstanding under the applicable Indenture or an event of default
under any other indebtedness of the Company for borrowed money in excess of
$50,000,000 which results in an aggregate principal amount of at least
$50,000,000 of such other series of Debt Securities or such other indebtedness
becoming or being declared due and payable prior to the date on which it would
otherwise become due and payable and such acceleration has not been rescinded or
annulled within 10 days after notice of default is given; and (7) any other
Event of Default provided in or pursuant to the applicable resolution of the
Board of Directors or supplemental indenture under which such series of Debt
Securities is issued. (Section 7.01) The Trustee may withhold notice to the
Holders of any series of Debt Securities of any default with respect to such
series (except in the payment of principal, premium or interest) if it considers
such withholding in the interest of such Holders. (Section 8.02)
If an Event of Default with respect to any series of Debt Securities shall
have occurred and be continuing, the Trustee or the Holders of 25% in aggregate
principal amount of the Debt Securities of such series may declare the
principal, or in the case of discounted Debt Securities, such portion thereof as
may be described in the Prospectus Supplement accompanying this Prospectus, of
all the Debt Securities of such series to be due and payable immediately.
(Section 7.02)
Each Indenture contains a provision entitling the Trustee to be indemnified
by the Holders before proceeding to exercise any right or power under the
Indenture at the request of any of the Holders. (Section 8.03) Each Indenture
provides that the Holders of a majority in principal amount of the Outstanding
Debt Securities of any series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred upon the Trustee, with respect to the Debt
Securities of such series. (Section 7.12) The right of a Holder to institute a
proceeding with respect to the applicable Indenture is subject to certain
conditions precedent including notice and indemnity to the Trustee, but the
Holder has an absolute right to receipt of principal of (and premium, if any)
and interest, if any, on the Debt Securities of any series on the respective
Stated Maturities expressed therein and to institute suit for the enforcement
thereof. (Sections 7.07 and 7.08)
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series under the applicable Indenture may on
behalf of the Holders of all the Debt Securities of such series waive any past
defaults except (a) a default in payment of the principal of (or premium, if
any) or interest, if any, on any Debt Security of such series or in the payment
of any sinking fund installment or analogous obligation with respect to the Debt
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Securities of such series and (b) a default in respect of a covenant or
provision of the applicable Indenture which cannot be amended or modified
without the consent of the Holder of each Outstanding Debt Security affected.
(Section 7.13)
Each Indenture requires the Company to furnish to the Trustee annual
statements as to the fulfillment by the Company of its obligations under such
Indenture. (Sections 9.04 and 12.05).
CONCERNING THE TRUSTEE
The Trustee provides banking and corporate trust services to the Company
and extends credit to the Company and many of its subsidiaries worldwide. The
Trustee is a depository of the funds of the Company and holds common shares of
the Company for various of its customers, including customers over whose
accounts it has discretionary authority. If a bank or trust company other than
PNC Bank, National Association is to act as trustee for a series of Debt
Securities, information concerning such other trustee may be set forth in the
Prospectus Supplement relating to such Debt Securities.
DEFEASANCE OF THE INDENTURE AND DEBT SECURITIES
Except as otherwise set forth in the applicable Prospectus Supplement
relating to any series of the Debt Securities, the Company will be deemed to
have paid and discharged the entire indebtedness on the Debt Securities of any
series, and the Company's obligations under each Indenture with respect to the
Debt Securities of such series (other than certain specified obligations of the
Company such as the obligations to maintain a security register pertaining to
transfer of the Debt Securities, to maintain a paying agency office, and to
replace stolen, lost or destroyed Debt Securities) will cease to be in effect,
from and after the ninety-first day following the deposit with the Trustee, in
trust, of (i) money in an amount in the currency in which the Debt Securities of
such series are denominated or (ii) U.S. Government Obligations in the case of
Debt Securities denominated in Dollars or obligations issued or guaranteed by
the government which issued the currency in which the Debt Securities of such
series are denominated in the case of Debt Securities denominated in Foreign
Currencies, which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount in the
currency in which the Debt Securities of such series are denominated, or (iii) a
combination thereof, sufficient to pay and discharge the principal (and premium,
if any) and interest, if any, to the date of maturity on, such series of Debt
Securities. (Section 6.02) In the event of any such defeasance, Holders of such
Debt Securities would be able to look only to such trust fund for payment of
principal and premium, if any, and interest, if any, on their Debt Securities
thereafter.
Such defeasance may be treated as a taxable exchange of the related Debt
Securities for an issue of obligations of the trust or a direct interest in the
money, U.S. Government Obligations or other obligations held in the trust. In
that case Holders of such Debt Securities would recognize gain or loss as if the
trust obligations or the money, U.S. Government Obligations or other obligations
deposited, as the case may be, had actually been received by them in exchange
for their Debt Securities. Such Holders thereafter might be required to include
in income a different amount than would be includable in the absence of
defeasance. Prospective investors are urged to consult their own tax advisors as
to the specific consequences of defeasance.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED SECURITIES
GENERAL
Subordinated Securities will be issued under the Subordinated Indenture and
will rank pari passu with certain other subordinated debt of the Company that
may be outstanding from time to time and will rank junior to all Senior
Indebtedness of the Company (including any Senior Securities) that may be
outstanding from time to time.
SUBORDINATION
The payment of the principal of (and premium, if any) and interest on the
Subordinated Securities is expressly subordinated, to the extent and in the
manner set forth in the Subordinated Indenture, in right of payment to the prior
payment in full of all Senior Indebtedness of the Company. (Section 13.01) (a)
Upon (i) any acceleration of the principal amount due on the Subordinated
Securities or (ii) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any dissolution or winding-up or total
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or partial liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings, all
principal and premium, if any, and interest due upon all Senior Indebtedness
shall first be paid in full, or payment thereof provided for in money or money's
worth in accordance with its terms, before any payment is made on account of the
principal of, premium, if any, or interest on the indebtedness evidenced by the
Subordinated Securities, and upon any such dissolution or winding-up or
liquidation or reorganization any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders of the Subordinated Securities would be entitled, except for
the provisions of the Subordinated Indenture, shall (subject to the power of a
court of competent jurisdiction to make other equitable provision reflecting the
rights conferred by the provisions of the Subordinated Securities upon the
Senior Indebtedness and the holders thereof with respect to the Subordinated
Securities and the Holders thereof by a lawful plan of reorganization under
applicable bankruptcy law), be paid by the Company or any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, or by the Holders of the Subordinated Securities if received by
them, directly to the holders of Senior Indebtedness (pro rata to each such
holder on the basis of the respective amounts of Senior Indebtedness held by
such holder) or their representatives, to the extent necessary to pay all Senior
Indebtedness (including interest thereon) in full, in money or money's worth,
after giving effect to any concurrent payments or distribution to or for the
holders of Senior Indebtedness, before any payment or distribution is made to
the Holders of the indebtedness evidenced by the Subordinated Securities. The
consolidation of the Company with or the merger of the Company into another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of its property as an entirety, or substantially as an entirety, to
another Person upon the terms and conditions provided in the Subordinated
Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for these purposes.
(b) In the event that any payment or distribution of assets of the Company
of any kind or character not permitted by the foregoing provisions, whether in
cash, property or securities, shall be received by the Holders of Subordinated
Securities before all Senior Indebtedness is paid in full, or provision made for
such payment, in accordance with its terms, such payment or distribution shall
be held in trust for the benefit of, and shall be paid over or delivered to, the
holders of such Senior Indebtedness or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness may have been issued, as
their respective interests may appear, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all such
Senior Indebtedness in full in accordance with its terms, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness.
(c) No payment on account of principal of, premium, if any, sinking funds
or interest on the Subordinated Securities shall be made unless full payment of
amounts then due for principal, premium, if any, sinking funds and interest on
any Senior Indebtedness has been made or duly provided for in money or money's
worth in accordance with the terms of such Senior Indebtedness. No payment on
account of principal, premium, if any, sinking funds or interest on the
Subordinated Securities shall be made if, at the time of such payment or
immediately after giving effect thereto, (i) there shall exist a default in the
payment of principal, premium, if any, sinking fund or interest with respect to
any Senior Indebtedness, or (ii) there shall have occurred an event or default
(other than a default in the payment of principal, premium, if any, sinking
funds or interest) with respect to any Senior Indebtedness, as defined therein
or in the instrument under which the same is outstanding, permitting the holders
thereof to accelerate the maturity thereof, and such event of default shall not
have been cured or waived or shall not have ceased to exist; provided however,
that if the holders of the Senior Indebtedness to which the default relates have
not declared such Senior Indebtedness to be immediately due and payable within
180 days after the occurrence of such default (or have declared such Senior
Indebtedness to be immediately due and payable and within such period have
rescinded such declaration of acceleration), then the Company shall resume
making any and all required payments in respect of the Securities (including any
missed payments). Only one payment blockage period under the immediately
preceding sentence may be commenced within any consecutive 365-day period with
respect to the Securities of any series. No event of default which existed or
was continuing on the date of the commencement of any 180-day payment blockage
period with respect to the Senior Indebtedness initiating such payment blockage
period shall be, or be made, the basis for the commencement of a second payment
blockage period by a Holder or representative of such Senior Indebtedness
whether or not within a period of 365 consecutive days unless such event of
default shall have been cured or waived for a period of not less than 90
consecutive days (and, in the case of any such waiver, no payment shall be made
by the Company to the holders of Senior Indebtedness in connection with such
waiver other than amounts due pursuant to the terms of the Senior Indebtedness
as in effect at the time of such default).
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SUBROGATION
From and after the payment in full of all Senior Indebtedness, the Holders
of the Subordinated Securities (together with the holders of any other
indebtedness of the Company which is subordinate in right of payment to the
payment in full of all Senior Indebtedness, which is not subordinate in right of
payment to the Subordinated Securities and which by its terms grants such right
of subrogation to the holder thereof) shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of assets or
securities of the Company applicable to the Senior Indebtedness until the
Subordinated Securities shall be paid in full, and, for the purposes of such
subrogation, no such payments or distributions to the holders of Senior
Indebtedness of assets or securities, which otherwise would have been payable or
distributable to Holders of the Subordinated Securities, shall, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Subordinated Securities, be deemed to be a payment by the Company
to or on account of the Senior Indebtedness, it being understood that these
provisions of the Indenture are and are intended solely for the purpose of
defining the relative rights of the Holders of the Subordinated Securities, on
the one hand, and the holders of the Senior Indebtedness, on the other hand, and
nothing contained in the Subordinated Indenture is intended to or shall impair
as between the Company, its creditors other than the holders of Senior
Indebtedness, and the holders of the Subordinated Securities, the obligation of
the Company, which is unconditional and absolute, to pay to the Holders of the
Subordinated Securities the principal of and interest on the Subordinated
Securities as and when the same shall become due and payable in accordance with
their terms, or to affect the relative rights of the Holders of the Subordinated
Securities and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything therein prevent the Holder of any Subordinated
Security from exercising all remedies otherwise permitted by applicable law upon
default under such Security subject to the rights of the holders of Senior
Indebtedness to receive cash, property or securities of the Company otherwise
payable or deliverable to the Holders of the Subordinated Securities or to a
representative of such Holders, on their behalf.
The term "Senior Indebtedness" is defined in the Subordinated Indenture as
indebtedness incurred by the Company for money borrowed whether outstanding on
the date hereof or incurred in the future, all deferrals, renewals or extensions
of any such indebtedness and all evidences of indebtedness issued in exchange
for any such indebtedness and guarantees by the Company of the foregoing items
of indebtedness for money borrowed by persons other than the Company, unless, in
any such case, such indebtedness or guarantee provides by its terms that it
shall not constitute Senior Indebtedness.
If Subordinated Securities are issued under the Subordinated Indenture, the
aggregate principal amount of Senior Indebtedness outstanding as of a recent
date will be set forth in the Prospectus Supplement. The Subordinated Indenture
does not restrict the amount of Senior Indebtedness that the Company may incur.
PROVISIONS APPLICABLE SOLELY TO SENIOR SECURITIES
RESTRICTIONS AS TO LIENS
Each Indenture contains a covenant providing that the Company will not at
any time directly or indirectly create, assume, incur, or suffer to be created,
assumed, or incurred or to exist any mortgage, pledge, encumbrance or lien of
any kind (except for any bona fide option or agreement to sell) (a "Lien") upon
(1) any shares of capital stock owned by the Company of any of American Express
Travel Related Services Company, Inc., American Express Bank Ltd. or American
Express Financial Corporation, so long as they continue to be Subsidiaries of
the Company (the "Principal Subsidiaries") (other than directors' qualifying
shares) or (2) any shares of capital stock owned by the Company of a Subsidiary
of the Company that owns, directly or indirectly, capital stock of any of the
Principal Subsidiaries (other than directors' qualifying shares) without making
effective provision whereby the Securities (and any other indebtedness of the
Company or such Subsidiary entitled to the benefit of a covenant similar to this
covenant, subject to applicable priorities of payment) will be secured by such
Lien equally and ratably with any and all other obligations thereby secured, so
long as any of such other obligations and indebtedness shall be so secured.
However, the Company may incur or suffer to be incurred or to exist upon such
capital stock (a) Liens for taxes, assessments or other governmental charges or
levies which are not yet due or are payable without penalty or of which the
amount, applicability or validity is being contested by the Company in good
faith by appropriate proceedings, or (b) the Liens of any judgment, if such
judgment shall not have remained undischarged, or unstayed on appeal or
otherwise, for more than 60 days. (Section 12.07(a))
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The foregoing covenant will cease to be binding on the Company with respect
to any series of the Debt Securities to which such covenant applies from and
after the ninety-first day following the deposit with the Trustee, in trust, of
(i) money in an amount in the currency in which the Debt Securities of such
series are denominated or (ii) U.S. Government Obligations in the case of Debt
Securities denominated in Dollars or obligations issued or guaranteed by the
government which issued the currency in which the Debt Securities of such series
are denominated in the case of Debt Securities denominated in Foreign
Currencies, which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount in the
currency in which the Debt Securities of such series are denominated, or (iii) a
combination thereof, sufficient to pay and discharge the principal (and premium,
if any) and interest, if any, to the date of maturity on, such series of Debt
Securities. (Section 12.07(b))
DESCRIPTION OF PREFERRED SHARES
GENERAL
Under the Company's Restated Certificate of Incorporation, the Company is
authorized to issue 20,000,000 Preferred Shares, par value $1.66-2/3 per share
(the "Preferred Shares"), all of which shares are available for issuance at the
date of this Prospectus. The Company's Preferred Shares may be issued from time
to time in one or more series with such designations, voting powers, dividend
rates, rights of redemption, conversion rights or other special rights,
preferences and limitations as may be stated in the resolutions providing for
the issue of such Preferred Shares adopted by the Board of Directors.
The Preferred Shares shall have the dividend, liquidation and voting rights
set forth below unless otherwise provided in the Prospectus Supplement relating
to a particular series of the Preferred Shares. Reference is made to the
Prospectus Supplement relating to the particular series of the Preferred Shares
offered thereby for specific terms, including: (i) the title and liquidation
preference per share of such Preferred Shares and the number of shares offered;
(ii) the price at which such Preferred Shares will be issued; (iii) the dividend
rate (or method of calculation), the dates on which and the conditions under
which dividends shall be payable (or method of calculation), whether such
dividends shall be cumulative or noncumulative and, if cumulative, the dates
from which dividends shall commence to accumulate, and the status of such
dividends as participating or non-participating; (iv) any redemption, sinking
fund or analogous provisions of such Preferred Shares; (v) any conversion or
exchange provisions of such Preferred Shares; (vi) whether the Company has
elected to offer Depositary Shares with respect to such Preferred Shares as
described below under "Depositary Shares"; (vii) whether such Preferred Shares
shall have voting rights, in addition to the voting rights described below, and,
if so, the terms of such voting rights; (viii) the procedures for any auction
and remarketing of the Preferred Shares; and (ix) any additional dividend,
liquidation, redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions of such Preferred Shares.
The Preferred Shares will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of the Preferred Shares, each series of the Preferred Shares will rank on
a parity as to dividends and distributions in the event of a liquidation with
the outstanding Preferred Shares of the Company and each other series of the
Preferred Shares. See "Outstanding Preferred Shares" below.
DIVIDEND RIGHTS
All Preferred Shares shall be of equal rank with each other regardless of
series. In case the stated dividends and the amounts payable on liquidation are
not paid in full, the Preferred Shares of all series shall share ratably in the
payment of dividends including accumulations, if any, in accordance with the
sums which would be payable on such shares if all dividends were declared and
paid in full, and in any distribution of assets other than by way of dividends
in accordance with the sums which would be payable in such distribution if all
sums payable were discharged in full.
RIGHTS UPON LIQUIDATION
Upon any liquidation, dissolution or winding up of the affairs of the
Company (which shall not be deemed to include a consolidation or merger of the
Company, or the sale of all or substantially all of the assets of the Company,
into, with or to any other corporation or corporations), whether voluntary or
involuntary, the holders of the Preferred Shares are to be paid in full the
amounts, if any, to which they are respectively entitled or provision for such
payment shall have been made before any distribution is made to the holders of
the Common Shares.
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VOTING RIGHTS
Except as described below, the holders of Preferred Shares have no voting
rights, other than as may be required by law. Whenever dividends payable on the
Preferred Shares of any series shall be in arrears in an aggregate amount at
least equal to six full quarterly dividends (which need not be consecutive) on
such series, the holders of the outstanding Preferred Shares of all series shall
have the special right, voting separately as a single class, to elect two
directors of the Company at the next succeeding annual meeting of shareholders
(and at each succeeding annual meeting of shareholders thereafter until such
right shall terminate as hereinafter provided), and subject to the terms of any
outstanding series of Preferred Shares, the holders of the Common Shares and the
holders of one or more series of Preferred Shares then entitled to vote shall
have the right, voting as a single class, to elect the remaining authorized
number of directors. At each meeting of shareholders at which the holders of the
Preferred Shares of all series shall have the special right, voting separately
as a single class, to elect directors as provided above, the presence in person
or by proxy of the holders of record of one-third of the total number of the
Preferred Shares of all series then issued and outstanding shall be necessary
and sufficient to constitute a quorum of such class for such election by such
shareholders. Each director elected by the holders of the Preferred Shares of
all series shall hold office until the annual meeting of shareholders next
succeeding his election and until his successor, if any, is elected by such
holders and qualified or until his death, resignation or removal in the manner
provided in the By-laws of the Company; provided, however, that notwithstanding
any provision in the By-laws, a director elected by the holders of the Preferred
Shares of all series may be removed only by such holders if such removal is
without cause. In case any vacancy shall occur among the directors elected by
the holders of the Preferred Shares of all series such vacancy may be filled for
the unexpired portion of the term by vote of the single remaining director
theretofore elected by such shareholders, or his successor in office, or, if
such vacancy shall occur more than 90 days prior to the first anniversary of the
next preceding annual meeting of shareholders, by the vote of such shareholders
given at a special meeting of such shareholders called for the purpose. Whenever
all arrears of dividends on the Preferred Shares of all series shall have been
paid and dividends thereon for the current quarterly period shall have been paid
or declared and provided for, the right of the holders of the Preferred Shares
of all series to elect two directors as provided in this paragraph shall
terminate at the next succeeding annual meeting of shareholders, but subject
always to the same provisions for the vesting of such special right, voting
separately as a single class, to elect two directors in the case of any future
arrearages of the kind and amount described above.
The consent of the holders of at least two-thirds of the outstanding
Preferred Shares, given in person or by proxy, at a special or annual meeting of
shareholders called for the purpose, at which the holders of the Preferred
Shares of all series shall vote separately as a single class, shall be necessary
for effecting the authorization of any class of shares ranking prior to the
Preferred Shares as to dividends or upon liquidation, dissolution or winding up,
or an increase in the authorized amount of any class of shares so ranking prior
to the Preferred Shares, or the authorization of any amendment of the Restated
Certificate of Incorporation or the By-laws of the Company as to affect
adversely the relative rights, preferences or limitations of the Preferred
Shares; provided, however, that, if any such amendment shall affect adversely
the relative rights, preferences or limitations of one or more, but not all, of
the series of Preferred Shares then outstanding, the consent of the holders of
at least two-thirds of the outstanding Preferred Shares of the several series so
affected shall be required in lieu of the consent of the holders of at least
two-thirds of the outstanding Preferred Shares of all series.
In any case in which the holders of the Preferred Shares shall be entitled
to vote separately as a single class, each holder of Preferred Shares of any
series shall be entitled to one vote for each such share held.
OUTSTANDING PREFERRED SHARES
The Company has no Preferred Shares issued and outstanding at the date of
this Prospectus.
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DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares (as defined below) and Depositary Receipts (as defined below) does not
purport to be complete and is subject to and qualified in its entirety by
reference to the forms of Deposit Agreement and Depositary Receipts relating to
each series of Preferred Shares which have been or will be filed with the
Commission in connection with the offering of such series of Preferred Shares.
GENERAL
The Company may, at its option, elect to offer fractional interests in
Preferred Shares, rather than Preferred Shares. In the event such option is
exercised, the Company will provide for the issuance by a Depositary to the
public of receipts for depositary shares ("Depositary Shares"), each of which
will represent fractional interests of a particular series of Preferred Shares
(which will be set forth in the Prospectus Supplement relating to a particular
series of Preferred Shares).
The shares of any series of Preferred Shares underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between the Company and a bank or trust company selected by the
Company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000 (the "Depositary"). The Prospectus
Supplement relating to a series of Depositary Shares will set forth the name and
address of the Depositary. Subject to the terms of the Deposit Agreement, each
owner of Depositary Shares will be entitled, in proportion to the applicable
fractional interests in Preferred Shares underlying such Depositary Shares, to
all the rights and preferences of the Preferred Shares underlying such
Depositary Shares (including dividend, voting, redemption, conversion and
liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement (the "Depositary Receipts"). Depositary
Receipts will be distributed to those persons purchasing the fractional
interests in shares of the related series of Preferred Shares in accordance with
the terms of the offering described in the related Prospectus Supplement.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of Preferred Shares to the record holders of
Depositary Shares relating to such Preferred Shares in proportion to the numbers
of such Depositary Shares owned by such holders on the relevant record date. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any holder of Depositary Shares a fraction of one cent,
and any balance not so distributed shall be added to and treated as part of the
next sum received by the Depositary for distribution to record holders of
Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
The Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by the Company to holders of
the Preferred Shares shall be made available to the holders of Depositary
Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Shares underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Shares held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 60 days prior
to the date fixed for redemption to the record holders of the Depositary Shares
to be so redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to
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such series of the Preferred Shares. Whenever the Company redeems Preferred
Shares held by the Depositary, the Depositary will redeem as of the same
redemption date the number of Depositary Shares relating to shares of Preferred
Shares so redeemed.
If less than all of the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or pro rata as may be
determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys, securities or other property payable upon such redemption and any money,
securities, or other property to which the holders of such Depositary Shares
were entitled upon such redemption upon surrender to the Depositary of the
Depositary Receipts evidencing such Depositary Shares.
VOTING THE PREFERRED SHARES
Upon the receipt of notice of any meeting at which the holders of the
Preferred Shares are entitled to vote, the Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Shares relating to such Preferred Shares. Each record holder of such Depositary
Shares on the record date (which will be the same date as the record date for
the Preferred Shares) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of Preferred
Shares underlying such Depositary Shares in accordance with such instructions,
and the Company will agree to take all action which may be deemed necessary by
the Depositary in order to enable the Depositary to do so.
AMENDMENT AND TERMINATION OF DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which materially
and adversely alters the rights of the existing holders of Depositary Shares
will not be effective unless such amendment has been approved by the record
holders of at least a majority of the Depositary Shares then outstanding. A
Deposit Agreement may be terminated by the Company or the Depositary only if (i)
all outstanding Depositary Shares relating thereto have been redeemed or (ii)
there has been a final distribution in respect of the Preferred Shares of the
relevant series in connection with any liquidation, dissolution or winding up of
the Company and such distribution has been distributed to the holders of the
related Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection with the initial deposit of the
Preferred Shares and any redemption of the Preferred Shares. Holders of the
Depositary Shares will pay transfer and other taxes and governmental charges and
such other charges as are expressly provided in the Deposit Agreement to be for
their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from the Company which are delivered to the Depositary and
which the Company is required to furnish to the holders of the Preferred Shares.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder
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and they will not be obligated to prosecute or defend any legal proceeding in
respect of any Depositary Shares or Preferred Shares unless satisfactory
indemnity is furnished. They may rely upon written advice of counsel or
accountants, or information provided by persons presenting Preferred Shares for
deposit, holders of Depositary Shares or other persons believed to be competent
and on documents believed to be genuine.
DESCRIPTION OF COMMON SHARES
The following summary does not purport to be complete and is subject in all
respects to the applicable provisions of the New York Business Corporation Law,
the Company's Restated Certificate of Incorporation and By-Laws.
GENERAL
The Company is authorized to issue up to 1,200,000,000 common shares, par
value $.60 each (the "Common Shares"). At December 31, 1997, the Company had
outstanding 466,417,097 Common Shares. In December 1997, Nippon Life Insurance
Company ("Nippon Life") exchanged 9,163,683 shares of Cumulative Convertible
Voting Preferred Stock, Series B of Lehman Brothers Holdings Inc. (the "Series B
Shares") for 4,398,568 Common Shares pursuant to an exchange right granted by
the Company to Nippon Life in 1990. In January 1998, the Company and Nippon Life
entered into an agreement to terminate Nippon Life's exchange rights applicable
to the remaining 3,836,317 Series B Shares in consideration for the payment by
the Company to Nippon Life of $15,050,000. As of December 31, 1996,
approximately 81,600,000 Common Shares were reserved for issuance with respect
to various employee stock plans, employee benefit plans, convertible preferred
shares and debentures, and the dividend reinvestment plan.
Subject to the prior dividend rights of the holders of any Preferred
Shares, holders of Common Shares are entitled to receive dividends when, as and
if declared by the Board of Directors out of funds legally available therefor.
Each Common Share is entitled to one vote on all matters submitted to a
vote of shareholders. Holders of the Common Shares do not have cumulative voting
rights. After the satisfaction in full of the liquidation preferences of holders
of any Preferred Shares, holders of Common Shares are entitled to ratable
distribution of the remaining assets available for distribution to shareholders
in the event of any liquidation, dissolution or winding up of the Company. The
Common Shares are not subject to redemption by operation of a sinking fund or
otherwise. Holders of Common Shares are not entitled to pre-emptive rights. The
issued and outstanding Common Shares are fully paid and nonassessable.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities, Preferred Shares, Depositary Shares, Common Shares or equity
securities issued by an affiliated or unaffiliated corporation or other entity.
Securities Warrants may be issued independently or together with any Securities
offered by any Prospectus Supplement and may be attached to or separate from
such Securities. Each series of Securities Warrants will be issued under a
separate warrant agreement (each a "Securities Warrant Agreement") to be entered
into between the Company and a warrant agent ("Warrant Agent"). The Warrant
Agent will act solely as an agent of the Company in connection with the
Securities Warrants of such series and will not assume any obligation or
relationship of agency or trust for or with any holders or beneficial owners of
Securities Warrants. The following sets forth certain general terms and
provisions of the Securities Warrants offered hereby. Further terms of the
Securities Warrants and the applicable Securities Warrant Agreement will be set
forth in the applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the following terms,
where applicable, of the Securities Warrants in respect of which this Prospectus
is being delivered: (1) the title of such Securities Warrants; (2) the aggregate
number of such Securities Warrants; (3) the price or prices at which such
Securities Warrants will be issued; (4) the currencies in which the price of
such Securities Warrants may be payable; (5) the designation, aggregate
principal amount and terms of the securities purchasable upon exercise of such
Securities Warrants; (6) the designation and terms of the Securities with which
such Securities Warrants are issued and the number of such Securities Warrants
issued with each such security; (7) the currency or currencies, including
composite
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currencies, in which the principal of or any premium or interest on the
securities purchasable upon exercise of such Securities Warrant will be payable;
(8) if applicable, the date on and after which such Securities Warrants and the
related securities will be separately transferable; (9) the price at which and
currency or currencies, including composite currencies, in which the securities
purchasable upon exercise of such Securities Warrants may be purchased; (10) the
date on which the right to exercise such Securities Warrants shall commence and
the date on which such right shall expire; (11) the minimum or maximum amount of
such Securities Warrants which may be exercised at any one time; (12)
information with respect to book-entry procedures, if any; (13) a discussion of
certain Federal income tax considerations; and (14) any other terms of such
Securities Warrants, including terms, procedures and limitations relating to the
exchange and exercise of such Securities Warrants.
DESCRIPTION OF CURRENCY WARRANTS
The following description of the terms of the Currency Warrants sets forth
certain general terms and provisions of the Currency Warrants to which any
Prospectus Supplement may relate. The particular terms of the Currency Warrants
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may not apply to the Currency Warrants so offered will be
described in the Prospectus Supplement relating to such Currency Warrants.
Each issue of Currency Warrants will be issued under a warrant agreement (a
"Currency Warrant Agreement") to be entered into between the Company and a
warrant agent (the "Currency Warrant Agent"). The Currency Warrant Agent will
act solely as the agent of the Company under the applicable Currency Warrant
Agreement and will not assume any obligation or relationship of agency or trust
for or with any holders of such Currency Warrants.
The applicable Prospectus Supplement will describe the following terms,
where applicable, of the Currency Warrants in respect of which this Prospectus
is being delivered: (i) the aggregate amount and number of such Currency
Warrants; (ii) the offering price of such Currency Warrants; (iii) the
designated currency, which currency may be foreign currency or a composite
currency, including ECU, and information regarding such currency or composite
currency; (iv) the date on which the right to exercise such Currency Warrants
commences and the date on which such right expires; (v) the manner in which such
Currency Warrants may be exercised; (vi) the circumstances which will cause the
Currency Warrants to be deemed automatically exercised; (vii) the minimum
number, if any, of such Currency Warrants exercisable at any one time and any
other restrictions on exercise; (viii) the method of determining the amount
payable in connection with the exercise of such Currency Warrants, including the
strike price or range of strike prices of such Currency Warrants, the method of
determining the spot exchange rate and the U.S. Dollar Constant for such
Currency Warrants; (ix) the national securities exchange on which such currency
warrants will be listed; (x) whether such Currency Warrants will, from the
perspective of holders, be represented by certificates or issued in book-entry
form; (xi) the place or places at which payment of the cash settlement value of
such Currency Warrants is to be made by the Corporation, if applicable; (xii)
information with respect to book-entry procedures, if any; (xiii) the plan of
distribution of the Currency Warrants, and (xiv) any other terms of such
Currency Warrants.
Prospective purchasers of Currency Warrants should be aware of special
Federal income tax considerations applicable to instruments such as the Currency
Warrants. The Prospectus Supplement relating to each issue of Currency Warrants
will describe such tax considerations.
DESCRIPTION OF OTHER WARRANTS
The Company may issue Other Warrants to buy or sell debt securities of or
guaranteed by the United States, to buy or sell currencies, to buy or sell units
of a stock index or stock basket, to buy or sell a commodity or a unit of a
commodity index or to buy or sell some other item or unit of an index
(collectively, "Exercise Items"). Other Warrants will be settled either through
physical delivery or through payment of a cash settlement value as set forth in
the applicable Prospectus Supplement. Other Warrants will be issued under a
warrant agreement (an "Other Warrant Agreement") to be entered into between the
Company and a warrant agent (the "Other Warrant Agent"). The Other Warrant Agent
will act solely as the agent of the Company under the applicable Other Warrant
Agreement and will not assume any obligation or relationship of agency or trust
for or with any holders of such Other Warrants.
The applicable Prospectus Supplement will describe the following terms,
where applicable, of the Other Warrants in respect of which this Prospectus is
being delivered: (i) the title and aggregate number of such Other Warrants; (ii)
the offering price of such Other Warrants; (iii) the material risk factors
relating to such Other Warrants; (iv) the Exercise Items that such Other
Warrants represent the right to buy or sell; (v) the procedures and conditions
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relating to the exercise of such Other Warrants; (vi) the date on which the
right to exercise such Other Warrants shall commence and the date on which such
right shall expire; (vii) the identity of the Other Warrant Agent for such Other
Warrants; (viii) whether the certificates evidencing such Other Warrants will be
issuable in definitive registered form or global form or both; (ix) a discussion
of federal income tax considerations applicable to such Other Warrants; and (x)
any other terms of such Other Warrants, including any terms that may be required
or advisable under applicable law.
The Other Warrants may entail significant risks, including, without
limitation, the possibility of significant fluctuations in the market for the
applicable Exercise Item, potential illiquidity in the secondary market and the
risk that they will expire worthless. These risks will vary depending on the
particular terms of the Other Warrants and will be more fully described in the
applicable Prospectus Supplement.
PLAN OF DISTRIBUTION
The Company may sell the Securities (i) through underwriters or dealers;
(ii) directly to one or more purchasers; (iii) through agents; or (iv) through a
combination of any of such methods of sale. The Prospectus Supplement with
respect to the Securities being offered thereby sets forth the terms of the
offering of such Securities, including the name or names of any agents or
underwriters, the purchase price of such Securities and the proceeds to the
Company from such sale, any underwriting discounts and other items constituting
underwriters' or agents' compensation, any initial public offering price, any
discounts or concessions allowed or reallowed or paid to dealers and any
securities exchanges on which such Securities may be listed. Only agents or
underwriters so named in the Prospectus Supplement are deemed to be agents or
underwriters in connection with the Securities offered thereby.
If underwriters are used in the sale, the Securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase such Securities will be subject to
certain conditions precedent, and the underwriters will be obligated to purchase
all the Securities of the series offered by the Prospectus Supplement relating
to such series if any of such Securities are purchased. Any initial public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
Securities may also be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offering
and sale of the Securities of the series in respect of which this Prospectus is
delivered is named and any commissions payable by the Company to such agent are
set forth in the Prospectus Supplement relating to such series. Unless otherwise
indicated in such Prospectus Supplement, any such agent is acting on a best
efforts basis for the period of its appointment.
If so indicated in a Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain institutional
investors to purchase Securities of the series to which such Prospectus
Supplement relates providing for payment and delivery on a future date specified
in such Prospectus Supplement. There may be limitations on the minimum amount
which may be purchased by any such institutional investor or on the portion of
the aggregate principal amount of the particular Securities which may be sold
pursuant to such arrangements. Institutional investors to which such offers may
be made, when authorized, include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and such other institutions as may be approved by the Company. The
obligations of any such purchasers pursuant to such delayed delivery and payment
arrangements will not be subject to any conditions except that (i) the purchase
by an institution of the particular Securities shall not at the time of delivery
be prohibited under the laws of any jurisdiction in the United States to which
such institution is subject, and (ii) if the particular Securities are being
sold to underwriters, the Company shall have sold to such underwriters the total
principal amount of such Securities or number of Warrants less the principal
amount or number thereof, as the case may be, covered by such arrangements.
Underwriters will not have any responsibility in respect of the validity of such
arrangements or the performance of the Company or such institutional investors
thereunder.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act of 1933, as amended, or to
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contribution with respect to payments which the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may be customers
of, may engage in transactions with, or perform services for, the Company in the
ordinary course of business.
LEGAL MATTERS
The validity of the Securities will be passed upon for the Company by
Louise M. Parent, Esq., Executive Vice President and General Counsel of the
Company. Unless provided otherwise in the applicable Prospectus Supplement,
certain legal matters will be passed upon for any underwriters or agents by
Simpson Thacher & Bartlett (a partnership which includes professional
corporations), 425 Lexington Avenue, New York, New York.
EXPERTS
The consolidated financial statements and schedules to financial statements
of the Company included or incorporated by reference in the Company's Annual
Report on Form 10-K for the year ended December 31, 1996 have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report included
therein and incorporated herein by reference. Such consolidated financial
statements and schedules to financial statements have been incorporated herein
by reference in reliance upon such report given upon the authority of such firm
as experts in auditing and accounting.
With respect to the unaudited consolidated interim financial information
for the nine month periods ended September 30, 1997 and 1996, incorporated by
reference in the Prospectus and Registration Statement, Ernst & Young LLP have
reported that they have applied limited procedures in accordance with
professional standards for a review of such information. However, their separate
report, included in the Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997, and incorporated herein by reference, states that they
did not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their report on such
information should be restricted considering the limited nature of the review
procedures applied. The independent auditors are not subject to the liability
provisions of Section 11 of the Securities Act of 1933 for their report on the
unaudited interim financial information because that report is not a "report" or
a "part" of the Registration Statement prepared or certified by the auditors
within the meaning of Sections 7 and 11 of the Securities Act of 1933.
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PART II--INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with this Registration Statement are, subject to
further contingencies, estimated to be as follows:
Registration Statement Filing Fee ....... $ 442,500
NASD Filing Fee ......................... 30,500
Printing and Engraving .................. 150,000
Legal fees and expenses ................. 50,000
Blue Sky fees and expenses .............. 25,000
Accounting Fees ......................... 125,000
Fees of Trustees ........................ 150,000
Fees of Rating Agencies ................. 400,000
Miscellaneous ........................... 10,000
----------
Total ................................ $1,383,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VI of the Company's By-laws, as amended, provides as follows:
Section 6.1--The corporation shall, to the fullest extent permitted by
applicable law as the same exists or may hereafter be in effect, indemnify any
person who is or was or has agreed to become a director or officer of the
corporation and who is or was made or threatened to be made a party to, and may,
in its discretion, indemnify, any person who is or was or has agreed to become a
director or officer and is otherwise involved in, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
legislative or investigative, including an action by or in the right of the
corporation to procure a judgement in its favor and an action by or in the right
of any other corporation of any type of kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
which such person is serving or has served or has agreed to serve in any
capacity at the request of the corporation, by reason of the fact that he is or
was or has agreed to become a director or officer of the corporation, or is or
was serving or has agreed to serve such other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any capacity,
against judgments, fines, amounts paid or to be paid in settlement, penalties,
costs, charges and expenses, including attorneys' fees, incurred in connection
with such action or proceeding or any appeal thereof; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes (i) that his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled. The benefits of this Section 6.1
shall extend to the heirs, executors, administrators and legal representatives
of any person entitled to indemnification under this Section.
Section 6.2--The Board in its discretion may authorize the corporation to
indemnify any person, other than a director or officer, for expenses incurred or
other amounts paid in any civil or criminal action, suit or proceeding, to which
such person was, or was threatened to be made a party by reason of the fact that
he, his testator or intestate is or was an employee of the corporation.
Section 6.3--The corporation may indemnify any person to whom the
corporation is permitted by applicable law or these by-laws to provide
indemnification or the advancement of expenses, whether pursuant to rights
granted pursuant to, or provided by, the New York Business Corporation Law or
any other law or these by-laws or other rights created by (i) a resolution of
shareholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these by-laws
authorize the creation of other rights in any such manner. The right to be
indemnified and to the reimbursement or advancement of expenses incurred in
defending a proceeding in advance of its final disposition authorized by the
Section 6.3, shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the certificate of
incorporation, by-laws, agreement, vote of shareholders or disinterested
directors or otherwise.
Section 6.4--The right to indemnification conferred by Section 6.1, and any
indemnification extended under Section 6.3, (i) is a contract right pursuant to
which the person entitled thereto may bring suit as if the provisions
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thereof were set forth in a separate written contract between the corporation
and such person, (ii) is intended to be retroactive to events occurring prior to
the adoption of this Article VI, to the fullest extent permitted by applicable
law, and (iii) shall continue to exist after the rescission or restrictive
modification thereof with respect to events occurring prior thereto.
With certain limitations, a director or officer of a corporation organized
under the New York Business Corporation Law is entitled to indemnification by
the corporation against reasonable expenses, including attorneys fees, incurred
by him in connection with the defense of a civil or criminal proceeding to which
he has been made, or has threatened to be made, a party by reason of the fact
that he was such director or officer. In certain circumstances, indemnity is
provided against judgments, fines and amounts paid in settlement. Specific court
approval is required in some cases. The foregoing is subject to the detailed
provisions of the New York Business Corporation Law.
In addition, the Company has purchased insurance policies which provide
coverage for its directors and officers in certain situations where the Company
cannot directly indemnify such directors or officers.
For the undertaking with respect to indemnification, see Item 17 below.
ITEM 16. EXHIBITS.
The "Exhibit Index" on page II-5 is hereby incorporated by reference.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of a registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
497(h) under the Securities Act of 1933 shall be deemed to be part of the
registration statement as of the time it was declared effective.
(5) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the
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securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in such Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of such Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on the 27th day of
February, 1998.
AMERICAN EXPRESS COMPANY
By: /s/ STEPHEN P. NORMAN
-----------------------
Stephen P. Norman
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman, Chief Executive July 28, 1997
- -------------------------------------- Officer and Director
Harvey Golub
* President, Chief Operating July 28, 1997
- -------------------------------------- Officer and Director
Kenneth I. Chenault
* Vice Chairman July 28, 1997
- -------------------------------------- and Chief Financial Officer
Richard K. Goeltz
* Senior Vice President and July 28, 1997
- -------------------------------------- Comptroller
Daniel T. Henry
* Director July 28, 1997
- --------------------------------------
Daniel F. Akerson
* Director July 28, 1997
- --------------------------------------
Anne L. Armstrong
* Director July 28, 1997
- --------------------------------------
Edwin L. Artzt
* Director July 28, 1997
- --------------------------------------
William G. Bowen
* Director July 28, 1997
- --------------------------------------
Charles W. Duncan Jr.
* Director July 28, 1997
- --------------------------------------
Beverly Sills Greenough
* Director July 28, 1997
- --------------------------------------
F. Ross Johnson
* Director July 28, 1997
- --------------------------------------
Vernon E. Jordan Jr.
* Director July 28, 1997
- --------------------------------------
Jan Leschly
II-4
<PAGE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Director July 28, 1997
- --------------------------------------
Drew Lewis
* Director July 28, 1997
- --------------------------------------
Aldo Papone
* Director July 28, 1997
- --------------------------------------
Frank P. Popoff
*By: /s/ STEPHEN P. NORMAN
---------------------------------
Stephen P. Norman
(as Attorney-in-Fact)
February 27, 1998
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
SEQUENTIALLY
NUMBERED
EXHIBIT DESCRIPTION PAGES
------- ----------- ------------
1(a) -- Registrant's Restated Certificate of
Incorporation, dated May 29, 1997, as amended to
date (incorporated by reference to Exhibit 4.1 of
the Registrant's Registration Statement on Form
S-3 (File No. 333-325251), filed with the
Commission on July 31, 1997).
1(b) -- Registrant's By-laws, as amended (incorporated by
reference to Exhibit 3.2 of the Registrant's
Quarterly Report on Form 10-Q (Commission File
No. 1-7657) for the quarter ended September 30,
1996).
1(c) -- Form of Underwriting Agreement for Debt
Securities (incorporated by reference to Exhibit
1(a) to the Company's Registration Statement on
Form S-3 (No. 33-43268)).
1(d) -- Form of Underwriting Agreement for Debt
Securities and Warrants to Purchase Debt
Securities (incorporated by reference to Exhibit
1(b) to the Company's Registration Statement on
Form S-3 (No. 33-43268)).
1(e) -- Form of Underwriting Agreement for Convertible
Debt Securities, Exchangeable Debt Securities and
Warrants to Purchase Equity Securities
(incorporated by reference to Exhibit 1(e) to the
Company's Registration Statement on Form S-3 (No.
33-50997)).
1(f) -- Form of Underwriting Agreement for Equity
Securities and Warrants to Purchase Equity
Securities (incorporated by reference to Exhibit
1(f) to the Company's Registration Statement on
Form S-3 (No. 33-50997)).
1(g) -- Form of Agency Agreement (incorporated by
reference to Exhibit 1(c) to the Company's
Registration Statement on Form S-3 (No.
33-17706)).
4(a) -- Form of Note with optional redemption provisions
(incorporated by reference to Exhibit 4(b) to the
Company's Registration Statement on Form S-3 (No.
33-17706)).
4(b) -- Form of Debenture with optional redemption and
sinking fund provisions (incorporated by
reference to Exhibit 4(c) to the Company's
Registration Statement on Form S-3
(No.33-17706)).
4(c) -- Form of Original Issue Discount Note with
optional redemption provisions (incorporated by
reference to Exhibit 4(d) to the Company's
Registration Statement on Form S-3 (No.
33-17706)).
4(d) -- Form of Zero Coupon Note with optional redemption
provision (incorporated by reference to Exhibit
4(e) to the Company's Registration Statement on
Form S-3 (No. 33-17706)).
4(e) -- Form of Variable Rate Note with optional
redemption and repayment provisions (incorporated
by reference to Exhibit 4(f) to the Company's
Registration Statement on Form S-3 (No.
33-17706)).
4(f) -- Form of Extendible Note with optional redemption
and repayment provisions (incorporated by
reference to Exhibit 4(g) to the Company's
Registration Statement on Form S-3 (No.
33-17706)).
4(g) -- Form of Fixed Rate Medium-Term Note (incorporated
by reference to Exhibit 4(h) to the Company's
Registration Statement on Form S-3 (No.
33-17706)).
4(h) -- Form of Floating Rate Medium-Term Note
(incorporated by reference to Exhibit 4(i) to the
Company's Registration Statement on Form S-3 (No.
33-17706)).
4(i) -- Form of Supplemental Indenture providing for an
additional trustee (incorporated by reference to
Exhibit 4(k) to the Company's Registration
Statement on Form S-3 (No. 33-17706)).
4(j) -- Form of Fourth Supplemental Indenture dated as of
October 1, 1991, between the Company and Morgan
Guaranty Trust Company of New York, as trustee
(incorporated by reference to Exhibit 4(l) to the
Company's Registration Statement on Form S-3 (No.
33-43268)).
E-1
<PAGE>
SEQUENTIALLY
NUMBERED
EXHIBIT DESCRIPTION PAGES
------- ----------- ------------
4(k) -- Form of Subordinated Securities Indenture
(incorporated by reference to Exhibit 4(m) to the
Company's Registration Statement on Form S-3 (No.
33-50997)).
4(l) -- Form of Senior Securities Indenture (incorporated
by reference to Exhibit 4(n) to the Company's
Registration Statement on Form S-3
(No.33-50997)).
4(m) -- Form of Deposit Agreement, including form of
Depositary Receipt (incorporated by reference to
Exhibit 4(o) to the Company's Registration
Statement on Form S-3 (No. 33-50997)).
4(n) -- Form of Warrant Agreement for Common Shares and
Preferred Shares (including form of Warrant
Certificates) (incorporated by reference to
Exhibit 4(p) to the Company's Registration
Statement on Form S-3 (No. 33-50997)).
4(o) -- Form of Warrant Agreement for Debt Securities
(including form of Warrant Certificates)
(incorporated by reference to Exhibit 4(q) to the
Company's Registration Statement on Form S-3 (No.
33-50997)).
4(p) -- Form of Currency Warrant Agreement (including
form of Currency Warrant) (incorporated by
reference to Exhibit 4(r) to the Company's
Registration Statement on Form S-3 (No.
33-50997)).
4(q) -- Form of Stock-Index Warrant Agreement (including
form of Other Warrant) (incorporated by reference
to Exhibit 4(s) to the Company's Registration
Statement on Form S-3 (No. 33-50997)).
4(r) -- Form of Warrant Agreement for Other Stock
(including form of Warrant Certificate)
(incorporated by reference to Exhibit 4(t) to the
Company's Registration Statement on Form S-3 (No.
33-50997)).
4(s) -- Form of Common Share Certificate (incorporated by
reference to Exhibit 4.2 to the Company's
Registration Statement on Form S-3 (Reg. No.
33-35382)).
5 -- Opinion and consent of Louise M. Parent, Esq.
12 -- Computation in support of ratios of earnings to
fixed charges with respect to the nine months
ended September 30, 1997 and the years ended
December 31, 1992 through 1996 (incorporated by
reference to Exhibit 12 to the Company's
quarterly report on Form 10-Q for the fiscal
quarter ended September 30, 1997).
15 -- Letter re: unaudited financial information.
23(a) -- Consent of Ernst & Young, LLP
23(b) -- Consent of Counsel (included in Exhibit 5 above).
24 -- Power of Attorney.
25 -- Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture Act of
1939 of PNC Bank, National Association
(incorporated by reference to the Company's Form
305B2 (No. 33-50997).
EXHIBIT 5
[Letterhead of American Express Company]
February 25, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: American Express Company
Registration Statement on Form S-3
Dear Sirs:
I am Executive Vice President and General Counsel of American Express
Company, a New York corporation, and I have represented the company in
connection with the Registration Statement on Form S-3 (the "Registration
Statement") filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, relating to the offering from time
to time, as set forth in the prospectus contained in the Registration Statement
(the "Prospectus"), and as to be set forth in one or more supplements to the
Prospectus (each such supplement, a "Prospectus Supplement"), of the Company's
(i) debt securities (the "Debt Securities"), (ii) preferred shares, par value
$1.66-2/3 per share (the "Preferred Shares"), (iii) Preferred Shares represented
by depositary shares (the "Depositary Shares"), (iv) common shares, par value
$0.60 per share (the "Common Shares"), (v) warrants to purchase Debt Securities,
Preferred Shares, Common Shares or equity securities issued by another entity
(the "Securities Warrants"), (vi) warrants the value of which is related to the
value of various currencies (the "Currency Warrants") and (vii) other warrants
the value of which is related to various indices or other items (the "Other
Warrants"), with an aggregate initial offering price of up to $1,500,000,000 or
the equivalent thereof in one or more foreign currencies or composite
currencies. The Securities Warrants, Currency Warrants and Other Warrants are
herein collectively referred to as the "Warrants", and the Warrants, together
with the Debt Securities, the Preferred Shares, the Depositary Shares and the
Common Shares are collectively referred to as the "Securities". Any Preferred
Shares may be convertible into Common Shares, and any Debt Securities may be
convertible into other Debt Securities, Common Shares or Preferred Shares.
The Debt Securities will be issued in one or more series and may be
either senior debt securities (the "Senior Securities") issued pursuant to an
Indenture dated as of May 1, 1997 (the "Senior Indenture") between the Company
and PNC Bank, National Association, as Trustee (the "Senior Indenture") or
subordinated debt securities (the "Subordinated Securities") issued pursuant to
an Indenture dated as of May 1, 1997 between the Company and PNC Bank, National
Association, as Trustee (the
<PAGE>
"Subordinated Indenture"). The Senior Indenture and the Subordinated Indenture
are herein each referred to as an "Indenture" and collectively referred to as
the "Indentures". The Securities Warrants will be issued under one or more
securities warrant agreements (each, a "Securities Warrant Agreement"), the
Currency Warrants will be issued under one or more currency warrant agreements
(each, a "Currency Warrant Agreement") and the Other Warrants will be issued
under one or more warrant agreements (each, an "Other Warrant Agreement" and,
together with the Securities Warrant Agreements and the Currency Warrant
Agreements, the "Warrant Agreements") each to be between the Company and a
financial institution identified therein as warrant agent (each, a "Warrant
Agent"). The Depositary Shares will be issued under one or more Deposit
Agreements (the "Deposit Agreements"), each to be between the Company and a
financial institution identified therein as the depositary (the "Depositary").
The forms of the Indentures, the Warrant Agreements and the Deposit Agreement
are included as exhibits to the Registration Statement.
I or members of my staff have examined the originals, or copies
certified or otherwise identified to our satisfaction, of such corporate records
and documents relating to the Company, including resolutions of the Board of
Directors of the Company (the "Resolutions") authorizing the Indentures, the
Warrant Agreements, the Deposit Agreements and the issuance, offering and sale
of the Securities, and have made such other inquiries of law and fact as we have
deemed necessary or relevant as the basis of my opinions hereinafter expressed.
Based on the foregoing, and subject to the qualifications and
limitations stated herein, I am of the opinion that:
1. The Debt Securities have been duly authorized and, (i) when the
final terms thereof have been duly established and approved and when duly
executed by the Company, in each case pursuant to the authority granted in the
Resolutions, (ii) upon the execution and delivery by the Company and the Trustee
of the applicable Indentures or, if required by the Indentures, an applicable
supplement to the applicable Indenture, and (iii) when the Debt Securities have
been authenticated by the Trustee and issued in accordance with the terms of the
applicable Indenture or Warrant Agreement, as the case may be, and delivered to
and paid for by the purchasers thereof, the Debt Securities will constitute
valid and legally binding obligations of the Company entitled to the benefits of
the applicable Indenture.
2. The warrants have been duly authorized and, (i) upon execution and
delivery of a Warrant Agreement relating to the Warrants and (ii) when the final
terms thereof have been duly established and approved and when duly executed by
the Company, in each case pursuant to the authority granted in the Resolutions,
and countersigned by the applicable Warrant Agent in accordance with the
applicable Warrant Agreement and delivered to and paid for by the purchasers
thereof, the Warrants will constitute valid and legally binding obligations of
the Company.
<PAGE>
3. The Preferred Shares have been duly authorized and, (i) when the
final terms thereof have been duly established and approved by the Board of
Directors of the Company and certificates representing such shares have been
duly executed by the Company, in each case pursuant to the authority granted in
the Resolutions, and delivered against payment therefor, upon exercise of any
series of Securities Warrants or upon conversion of any series of convertible
Debt Securities, in accordance with the terms of the applicable Debt Securities,
Indenture or Warrant Agreement, as the case may be, and (ii) when all corporate
action necessary for issuance of such shares has been taken, including the
filing with the Secretary of State of the State of New York of the applicable
Certificate of Amendment of the Certificate of Incorporation of the Company,
such Preferred Shares will be validly issued, fully paid and non-assessable.
4. The Depositary Shares have been duly authorized and, (i) upon
execution and delivery of a Deposit Agreement, (ii) when the final terms of the
Depositary Shares have been duly established and approved, in each case pursuant
to the authority granted in the Resolutions, (iii) when the depositary receipts
representing the Depositary Shares (the "Depositary Receipts") have been duly
executed by the Depositary and delivered to and paid for by the purchasers
thereof, and (iv) when all corporate action necessary for issuance of such
Depositary Shares and the underlying Preferred Shares has been taken, including
the filing with the Secretary of State of the State of New York of the
applicable Certificate of Amendment of the Certificate of Incorporation of the
Company, such Depositary Shares will be validly issued and will entitle the
holders thereof to the rights specified in the Depositary Receipts and the
Deposit Agreement.
5. The Common Shares have been duly authorized and, when issued
pursuant to the authority granted in the Resolutions and delivered against
payment therefor or upon conversion of any series of convertible Debt Securities
or Preferred Shares in accordance with the terms of the applicable Debt
Securities, Indenture, Preferred Shares or Warrant Agreement, as the case may
be, such Common Shares will be validly issued, fully paid and non-assessable.
The opinions set forth in paragraphs 1, 2, and 4 above are subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the enforcement of
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law), an implied covenant of good faith and fair
dealing and provisions of law that require that a judgment for money damages
rendered by a court in the United States be expressed only in United States
dollars.
My opinion assumes that any Warrant Securities will be issued in
compliance with the provisions of the Commodity Futures Trading Act, as amended,
and any similar applicable state laws, or the rules, regulations, or
interpretations of the Commodity Futures Trading Commission, or similar state
authorities, as may be applicable to any Warrant Securities whose principal
and/or interest payments will be determined by
<PAGE>
reference to one or more currency exchange rates, commodity prices, equity
indices, or other variable factors.
I am admitted to the practice of law only in the State of New York and
do not purport to be expert in the laws of any jurisdiction other than the state
of New York and United States federal law.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of my name under the heading "Legal
Matters" in the Prospectus.
Very truly yours,
/s/ Louise M. Parent
---------------------------
Louise M. Parent
Executive Vice President
and General Counsel
Exhibit 15
February 27, 1998
The Shareholders and Board of Directors
American Express Company
We are aware of the incorporation by reference in the Registration Statement on
Form S-3 and related Prospectus of American Express Company (the "Company"), for
the registration of $1.5 billion of its Debt Securities, Preferred Shares,
Common Shares and Warrants, of our reports dated May 15, 1997, August 13, 1997
and November 14, 1997 relating to the unaudited consolidated interim financial
statements of the Company which are included in its Forms 10-Q for the quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997, respectively.
Pursuant to Rule 436(c) of the Securities Act of 1933, our report is not a part
of the Registration Statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ Ernst & Young LLP
- ----------------------------
Ernst & Young LLP
New York, New York
Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of American Express
Company (the "Company") for the registration of $1.5 billion of its Debt
Securities, Preferred Shares, Common Shares and Warrants and to the
incorporation by reference therein of our report dated February 7, 1997, with
respect to the consolidated financial statements and schedules of the Company
incorporated by reference in the Company's Annual Report on Form 10-K for the
year ended December 31, 1996, as amended by the Company's Form 10-K/A
(Amendment No. 1) dated June 26, 1997, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
- -----------------------------
Ernst & Young LLP
New York, New York
February 27, 1998
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard K. Goeltz, Stephen P. Norman and
Louise M. Parent and each of them severally, his or her true and lawful
attorney-in-fact, with power to act with or without each other and with power of
substitution and resubstitution, to execute in his or her name, place and stead
in capacity as a director or officer of American Express Company, a Registration
Statement covering debt securities preferred shares, common shares and warrants
of American Express Company in such amounts as may result in proceeds to
American Express Company of up to an aggregate of $1,500,000,000, any and all
amendments to such Registration Statement, with exhibits thereto and all
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or their substitutes, may do
or cause to be done by virtue hereof.
This Power of Attorney may be executed in counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Power of
Attorney as of the 28th day of July, 1997.
AMERICAN EXPRESS COMPANY
By: /s/ Richard K. Goeltz
-------------------------------
Richard K. Goeltz
Vice Chairman and
Chief Financial Officer
[CORPORATE SEAL]
Attest
/s/ Stephen P. Norman
- ----------------------------
Stephen P. Norman
Secretary
<PAGE>
By /s/ Harvey Golub By /s/ Charles W. Duncan Jr.
- ----------------------------- ------------------------------
Harvey Golub Charles W. Duncan Jr.
Chairman, Chief Executive Director
Officer and Director
By /s/ Kenneth I. Chenault By /s/ Beverly Sills Greenough
- ----------------------------- ------------------------------
Kenneth I. Chenault Beverly Sills Greenough
President, Chief Operating Director
Officer and Director
By /s/ Richard K. Goeltz By /s/ F. Ross Johnson
- ----------------------------- ------------------------------
Richard K. Goeltz F. Ross Johnson
Vice Chairman and Director
Chief Financial Officer
By /s/ Daniel T. Henry By /s/ Vernon E. Jordan Jr.
- ----------------------------- ------------------------------
Daniel T. Henry Vernon E. Jordan Jr.
Senior Vice President and Director
Comptroller
By /s/ Daniel F. Akerson By /s/ Jan Leschly
- ----------------------------- ------------------------------
Daniel F. Akerson Jan Leschly
Director Director
By /s/ Anne L. Armstrong By /s/ Drew Lewis
- ----------------------------- ------------------------------
Anne L. Armstrong Drew Lewis
Director Director
By /s/ Edwin L. Artzt By /s/ Aldo Papone
- ----------------------------- ------------------------------
Edwin L. Artzt Aldo Papone
Director Director
By /s/ William G. Bowen By /s/ Frank P. Popoff
- ----------------------------- ------------------------------
William G. Bowen Frank P. Popoff
Director Director
