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As filed with the Securities and Exchange Commission on February 2, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN EXPRESS COMPANY
(Exact name of registrant as specified in its charter)
New York 13-4922250
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
World Financial Center
200 Vesey Street
New York, New York 10285
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Louise M. Parent
Executive Vice President and General Counsel
American Express Company
World Financial Center
New York, New York 10285
(212) 640-2000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: From time to
time after the effectiveness of the Registration Statement.
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, 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, please check the following
box and list the Securities Act registration statement under 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, 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: [ ]
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed maximum Amount of
Title of each class of Amount to maximum aggregate registration
securities to be registered be registered offering price offering fee
per share(1) price(1)
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- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, par value $.60 4,398,568 $79.69 $350,521,883.92 $103,403.96
per Share
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(1)Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933. The maximum price
per share information is based on the average of the high and the low sales
price of the Common Shares on the New York Stock Exchange on January 26, 1998.
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 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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PROSPECTUS Subject to Completion
February 2, 1998
American Express Company
Common Shares, $0.60 Par Value
4,398,568 Shares
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
All of the Common Shares, par value $0.60 per share, of American
Express Company (the "Company"), offered hereby (the "Common Shares") are being
sold by Nippon Life Insurance Company (the "Selling Shareholder"). The
outstanding Common Shares of the Company are listed on the New York Stock
Exchange (the "NYSE") under the symbol "AXP". On January 30, 1998, the last
reported sale price of the Common Shares on the NYSE was $83.69 per share.
The Company will not receive any of the proceeds from the sale of the
Common Shares. Any or all of such Common Shares covered by this Prospectus may
be sold, from time to time, by means of ordinary brokerage transactions or
otherwise. See "Plan of Distribution."
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.
The Selling Shareholder named herein, directly, through agents to be
designated from time to time, or through dealers or underwriters also to be
designated, may sell the Common Shares from time to time in one or more
transactions on the New York Stock Exchange or in the over-the-counter market
and in negotiated transactions, on terms to be determined at the time of sale.
To the extent required, the specific Common Shares to be sold, the respective
purchase prices and public offering prices, the names of any such agent, dealer
or underwriter, and any applicable commissions or discounts with respect to a
particular offer will be set forth in any accompanying Prospectus Supplement
or, if appropriate, a post-effective amendment to the Registration Statement of
which this Prospectus is a part. See "Plan of Distribution." By agreement, the
Company will pay all the expenses of the registration of the Common Stock by
the Selling Shareholder other than underwriting discounts and commissions and
transfer taxes, if any. Such expenses to be borne by the Company are estimated
at $138,903.96.
The Selling Shareholder and any broker-dealers, agents or underwriters
that participate with the Selling Shareholder in the distribution of the Common
Shares may be deemed to be "underwriters" within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"), and any commissions received by
them and any profit on the resale of the Common Stock purchased by them may be
deemed underwriting commissions or discounts under the 1933 Act.
The date of this Prospectus is , 1998.
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No person is authorized in connection with the offering made hereby to
give any information or to make any representation not contained or
incorporated by reference in this Prospectus, and any information or
representation not contained or incorporated herein must not be relied upon as
having been authorized by the Company, the Selling Shareholder or any
underwriter. This Prospectus relates solely to the Common Shares and it may not
be used or relied on in connection with any other offer or sale of securities
of the Company. This Prospectus does not constitute an offer to sell or a
solicitation of any offer to buy by any person in any jurisdiction in which it
is unlawful for such person to make such an offer or solicitation. Neither the
delivery of this Prospectus at any time nor any sale made hereunder shall under
any circumstance imply that the information herein is correct as of any date
subsequent to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (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 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 and at its regional offices at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and at Seven World Trade
Center, 13th Floor, New York, New York 10048. Copies of such materials can be
obtained from the Public Reference Section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, on payment of prescribed charges. Such reports,
proxy statements and other information concerning the Company can also be
inspected at the offices of the New York Stock Exchange, 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 information 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 Common Shares 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 DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company are
incorporated herein by reference and made a part hereof:
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(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, as amended on Form 10-K/A (Amendment No. 1) dated
June 26, 1997.
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997.
(c) 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 and January 26, 1998.
(d) 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 subsequently filed by the Company pursuant to Section
13(a), Section 13(c), Section 14 and Section 15(d) of the Exchange Act after
the date of this Prospectus prior to the termination of the offering shall be
deemed incorporated herein by reference from the date of filing of such
documents. Any statement contained in a document 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
subsequently filed document that also is 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 will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents that have been incorporated by reference in
this Prospectus, other than exhibits to such documents. 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.
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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. ("AEFA"), AEFC's principal
marketing subsidiary, maintained a nationwide financial planning field force
of 8,776 persons. At December 31, 1997, AEFA'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.
USE OF PROCEEDS
The Company will not receive any of the proceeds of the Common Shares
offered hereunder by the Selling Shareholder.
SELLING SHAREHOLDER
The following table sets forth certain information regarding ownership
of the Company's Common Shares by the Nippon Life Insurance Company, the
Selling Shareholder. The Selling Shareholder beneficially owns in the aggregate
4,403,540 Common Shares, representing approximately 1% of the outstanding
Common Shares. Because the Selling Shareholder may offer all or part of the
Common Shares which it holds pursuant to the offering contemplated by this
Prospectus and because its offering is not being underwritten on a firm
commitment basis, no estimate can be given as to the amount of the Common
Shares that will be held by the Selling Shareholder upon termination of this
offering.
Number of Common Shares Number of Common
Selling Shareholder Beneficially Owned Shares Offered Hereby
- ------------------- ------------------ ---------------------
Nippon Life Insurance Company 4,403,540 4,398,568
In 1987, the Selling Shareholder purchased 13,000,000 shares of
Cumulative Convertible Voting Preferred Stock, Series A (the "Series A Shares")
from Lehman Brothers Holdings Inc. ("Lehman"), formerly a subsidiary of the
Company. In 1990, when the Company repurchased the outstanding shares of common
stock of Lehman it did not already own, it granted the Selling Shareholder the
right to exchange each Series A Share for 0.48 of a Common Share (or an
aggregate of 6,240,000 Common Shares at an initial exchange price of $81.46 per
share). In January 1997 the Company and the Selling Shareholder agreed that the
exchange right would apply to Lehman's Cumulative Convertible Voting Preferred
Stock, Series B ("Series B Shares"), a series of preferred stock which was
issued by Lehman in exchange for the Series A Shares and which is substantially
identical to the Series A Shares. In December 1997, the Selling Shareholder
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exchanged 9,163,683 Series B Shares for 4,398,568 Common Shares. In January
1998, the Company and the Selling Shareholder entered into an agreement to
terminate the exchange rights applicable to the remaining Series B Shares and
certain other rights and obligations of the parties under the agreements
entered into in 1987 and 1990 in consideration for the payment by the Company
to the Selling Shareholder of $15,050,000. These other rights and obligations
included the Company's agreement to vote in favor of two nominees to Lehman's
Board of Directors selected by the Selling Shareholder and the right of the
Selling Shareholder to designate a representative to serve as an advisor to the
Company's Board of Directors.
The Selling Shareholder has certain registration rights with respect to
the Common Shares of the Company received in the exchange, and exercised these
rights with respect to the offering contemplated by this Prospectus. Under
these registration rights, the Company is required to use its best efforts to
keep the registration statement effective for 12 months or until all the
registered Common Shares are sold, whichever comes first.
In 1993, in connection with the sale of substantially all of the
domestic retail brokerage business of Lehman (then known as Shearson Lehman
Brothers Holdings Inc.) to Smith Barney, Harris Upham & Co. Incorporated
("Smith Barney"), Lehman received the right to future contingent payments
based on the combined performance of the retail brokerage business sold and
Smith Barney. In 1994, in connection with the Company's spin-off of Lehman,
Lehman assigned portions of these participation rights to the Company and the
Selling Shareholder. In connection with such assignment, the Company assumed
the associated tax liability, and the Selling Shareholder agreed to reimburse
the Company for the tax liability relating to the portion of the participation
rights assigned to the Selling Shareholder. The total amount of such
reimbursement (which is being paid in installments) for federal taxes is
approximately $5,800,000. The amount of reimbursement, if any, that may be due
for state taxes cannot be determined at this time.
In 1990 the Company sold to the Selling Shareholder for $200,000,000
shares of the Company's $3.875 Convertible Exchangeable Preferred Shares. In
May 1996, after receiving a redemption notice from the Company, the Selling
Shareholder converted all of the preferred shares into 4,705,882 of the
Company's Common Shares.
American Express Asset Management Group Inc. ("AEAMG"), a subsidiary
of the Company, is sub-advisor to an investment fund substantially all of the
units of which are owned by the Selling Shareholder. AEAMG received
approximately $1,200,000 in fees in connection with this fund in 1997. AEAMG
may enter into similar relationships with the Selling Shareholder and its
affiliates in the future.
The Company may from time to time supplement or amend this Prospectus,
as required, to provide other information with respect to the Selling
Shareholder.
PLAN OF DISTRIBUTION
The Company will not receive any of the proceeds from the sale by the
Selling Shareholder of the Common Shares offered hereby. Any or all of the
Common Shares may be sold from time to time (i) to or through underwriters or
dealers, (ii) directly to one or more other purchasers, (iii) through agents on
a best-efforts basis, or (iv) through a combination of any such methods of sale.
The Common Shares offered hereby may be sold from time to time by the
Selling Shareholder, or by pledgees, donees, transferees or other successors in
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interest. Such sales may be made on one or more exchanges or in the
over-the-counter market, or otherwise at prices and at terms then prevailing or
at prices related to the then current market price, or in negotiated
transactions. The Common Shares may be sold by one or more of the following: (a)
a block trade in which the broker or dealer so engaged will attempt to sell the
Common Shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction; (b) purchases by a broker or dealer as
principal and resale by such broker or dealer for its account pursuant to this
Prospectus; (c) an exchange distribution in accordance with the rules of such
exchange; and (d) ordinary brokerage transactions and transactions in which the
broker solicits purchasers. In effecting sales, brokers or dealers engaged by
the Selling Shareholder may arrange for other brokers or dealers to participate.
Brokers or dealers will receive commissions or discounts from the Selling
Shareholder in amounts to be negotiated prior to the sale. In addition, any
securities covered by this Prospectus which qualify for sale pursuant to Rule
144 may be sold under Rule 144 rather than pursuant to this Prospectus.
The Selling Shareholder and any such underwriters, dealers or agents
that participate in the distribution of the Common Shares may be deemed to be
underwriters within the meaning of the Securities Act, and any profit on the
sale of the Common Shares by them and any discounts, commissions or concessions
received by them may be deemed to be underwriting discounts and commissions
under the Securities Act. The Common Shares may be sold from time to time in one
or more transactions at a fixed offering price, which may be changed, or at
varying prices determined at the time of sale or at negotiated prices. Such
prices will be determined by the Selling Shareholder or by an agreement between
the Selling Shareholder and underwriters or dealers. Brokers or dealers acting
in connection with the sale of Common Shares contemplated by this Prospectus may
receive fees or commissions in connection therewith.
At the time a particular offer of Common Shares is made, to the extent
required, a supplement to this Prospectus will be distributed which will
identify and set forth the aggregate number of Common Shares being offered and
the terms of the offering, including the name or names of any underwriters,
dealers or agents, the purchase price paid by any underwriter for Common Shares
purchased from the Selling Shareholder, any discounts, commissions and other
items constituting compensation from the Selling Shareholder and/or the Company
and any discounts, commissions or concessions allowed or reallowed or paid to
dealers, including the proposed selling price to the public. Such supplement to
this Prospectus and, if necessary, a post-effective amendment to the
Registration Statement of which this Prospectus is a part, will be filed with
the Commission to reflect the disclosure of additional information with respect
to the distribution of the Common Stock.
Under applicable rules and regulations under the Exchange Act, in
connection with any distribution of the Common Shares, the Selling Shareholder
may not, subject to certain exceptions, directly or indirectly, bid for,
purchase or attempt to induce any other person to bid for or purchase the Common
Shares during a period beginning one day prior to the determination of the
offering price in connection with such distribution and ending when the
distribution is completed.
The Company has agreed to indemnify the Selling Shareholder and certain
other persons against certain liabilities, including liabilities arising under
the Securities Act.
LEGAL OPINIONS
The validity of the Common Shares will be passed upon by Douglas H.
Daniels, Esq., Group Counsel of the Company. Mr. Daniels owns Common Shares,
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options on Common Shares and participates in various employee benefit plans and
programs of the Company.
EXPERT
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 in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
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 Section 7 and 11 of the Securities Act of 1933.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Distribution
The expenses in connection with this Registration Statement are,
subject to further contingencies, estimated to be as follows:
SEC registration fee ........................... $103,403.96
Exchange listing fees........................... $1,500
Legal fees and expenses (1)(2).................. $6,000
Accounting fees and expenses (1)................ $30,000
Miscellaneous (1)............................... $3,000
Total Expenses.............................. $143,903.96
-------------------
(1) Estimated
(2) Of the total shown, $5,000 is being paid by the Selling Shareholder.
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 judgment 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 that (i) 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.
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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 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
4.1 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).
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4.2 Registrant's By-laws, as amended to date (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).
5* Opinion of Douglas H. Daniels, Esq. re legality.
15* Letter re unaudited financial information.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of Douglas H.Daniels, Esq. (included in the
opinion filed as Exhibit 5).
24* Power of Attorney.
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*Filed herewith
Item 17. Undertakings
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 set forth in 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 the 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 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.
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:
a. To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
II-3
<PAGE>
b. 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;
c. 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)(a) and (1)(b) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 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.
II-4
<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 on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on the 2nd day of
February, 1998.
AMERICAN EXPRESS COMPANY
By: /s/ Stephen P. Norman
---------------------
Name: Stephen P. Norman
Title: 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.
II-5
<PAGE>
Signature Title
Chairman of the Board, Chief
* Executive Officer and Director
----------------------
Harvey Golub
President, Chief Operating
* Officer and Director
----------------------
Kenneth I. Chenault
Vice Chairman and Chief
* Financial Officer
----------------------
Richard K. Goeltz
Senior Vice President and
* Comptroller
----------------------
Daniel T. Henry
* Director
----------------------
Daniel F. Akerson
* Director
----------------------
Anne L. Armstrong
* Director
----------------------
Edwin L. Artzt
* Director
----------------------
William G. Bowen
* Director
----------------------
Charles W. Duncan Jr.
* Director
----------------------
Beverly Sills Greenough
* Director
----------------------
F. Ross Johnson
---------------------- Director
Vernon E. Jordan Jr.
II-6
<PAGE>
* Director
----------------------
Jan Leschly
* Director
----------------------
Drew Lewis
* Director
----------------------
Aldo Papone
---------------------- Director
Frank P. Popoff
*By: /s/ Stephen P. Norman
----------------------
Stephen P. Norman
(as attorney-in-fact)
(February 2, 1998)
II-7
<PAGE>
EXHIBIT INDEX
4.1 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).
4.2 Registrant's By-laws, as amended to date (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).
5* Opinion of Douglas H. Daniels, Esq. re legality.
15* Letter re unaudited financial information.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of Douglas H. Daniels, Esq. (included in the opinion
filed as Exhibit 5).
24* Power of Attorney.
- ------------
*Filed herewith.
<PAGE>
Exhibit 5
[Letterhead of American Express Company]
February 2, 1998
American Express Company
World Financial Center
New York, New York 10285-4900
Re:American Express Company
Registration Statement on Form S-3
Registration of 4,398,568 Common Shares
Ladies and Gentlemen:
I am Group Counsel of American Express Company, a New York corporation
(the "Company"). I have represented the Company in connection with the
registration of 4,398,568 Common Shares, $.60 par value, of the Company (the
"Common Shares") on Form S-3 at the request of Nippon Life Insurance Company
("Nippon") pursuant to certain registration rights exercised by Nippon.
In so acting, I or members of the staff of the General Counsel's Office
have examined and relied upon the originals, or copies certified or otherwise
identified to my or our satisfaction, of such records, documents, certificates
and other instruments as in my judgment are necessary or appropriate to enable
me to render the opinion expressed below. I am a member of the Bar of the State
of New York and, accordingly, I express no opinion as to any question of law
other than with respect to New York law.
Upon the basis of and subject to the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of New York.
2. The Common Shares have been duly authorized by the Company and are
validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Company's Registration Statement on Form S-3 relating to the Common Shares and
to the use of my name therein.
Very truly yours,
/s/ Douglas H. Daniels
Douglas H. Daniels
Group Counsel
<PAGE>
Exhibit 15
February 2, 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 4,398,568 shares of its common stock, 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
<PAGE>
Exhibit 23.1
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 4,398,568 shares of its common
stock 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 on 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 2, 1998
<PAGE>
Exhibit 24
POWER OF ATTORNEY
American Express Company, a New York corporation (the "Company"), and
each of the undersigned officers and directors of the Company, hereby constitute
and appoint Richard K. Goeltz, Louise M. Parent and Stephen P. Norman, jointly
and severally, with full power of substitution and revocation, their true and
lawful attorneys-in-fact and agents, for them and on their behalf and in their
respective names, places and steads, in any and all capacities, to sign, execute
and affix their respective seals thereto and file any of the documents referred
to below relating to the proposed registration of up to 4,398,568 Common Shares,
par value $.60 per share of the Company that may be sold by certain selling
shareholders: a registration statement under the Securities Act of 1933, as
amended, including any amendments thereto on behalf of the Company, with all
exhibits and any and all documents required to be filed with respect thereto
with any regulatory authority, granting unto said attorneys, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same as fully to all intents and purposes as they might or could
do if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
This Power of Attorney may be executed in counterparts.
IN WITNESS WHEREOF, American Express Company has caused this Power of
Attorney to be executed in its name by its Vice Chairman and Chief Financial
Officer and its corporate seal to be affixed and attested by its Secretary, and
the undersigned officers and directors have hereunto set their hand as of the
23rd day of December 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
------------------------- -------------------------
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
------------------------- -------------------------
William G. Bowen Frank P. Popoff
Director Director
