<PAGE>
As filed with the Securities and Exchange Commission on May 14, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
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 (I.R.S. Employer
jurisdiction Identification No.)
of incorporation or
organization)
200 Vesey Street
New York, New York 10285
(Address of principal
executive offices)
-----------------------------
1998 INCENTIVE COMPENSATION PLAN
(Full title of the plan)
-----------------------------
LOUISE M. PARENT, ESQ.
Executive Vice President
and General Counsel
American Express Company
200 Vesey Street
New York, New York 10285
(Name and address of agent for service)
-------------------------------
(212) 640-2000
(Telephone number, including area code, of agent for service)
-------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================
Proposed Maximum Proposed Maximum
Offering Price Per Aggregate Offering Amount of
Title of Securities Amount to be Share (2) Price (2) Registration
to be Registered Registered (1) Fee (2)
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, par 35,000,000 $100.438 $3,515,330,000 $1,037,022.35
value $.60 per share
===================================================================================================
</TABLE>
(1) This registration statement is also deemed, pursuant to Instruction E to
Form S-8, to relate to 17,970,000 shares previously registered on Form S-8
(Registration No. 333-12683) in connection with a predecessor plan, with respect
to which a registration fee of $276,923.90 has been paid.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based upon the average
of the high and low sales prices of such securities on the New York Stock
Exchange on May 7, 1998. The registration fee is calculated by multiplying the
maximum aggregate offering price by .000295.
<PAGE>
EXPLANATORY STATEMENT
A total of 23,700,000 common shares of American Express Company (the
"Company") were registered by Registration Statement on Form S-8 (Registration
No. 333-12683) for issuance under the Company's 1989 Long-Term Incentive Plan
(the "1989 Plan"). On April 27, 1998, the shareholders of the Company approved
the 1998 Incentive Compensation Plan (the "1998 Plan"), which replaced the 1989
Plan. 17,970,000 common shares of the Company which were registered and
available for issuance in connection with the 1989 Plan have not been issued
under the 1989 Plan. Pursuant to instruction E to Form S-8 and the
interpretation of the Securities and Exchange Commission set forth at page 113
of the Division of Corporation Finance's Manual of Publicly-Available Telephone
Interpretations, dated July 1997, these 17,970,000 shares are carried forward
and deemed covered by this Registration Statement on Form S-8.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
These are hereby incorporated by reference: (i) the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1997; (ii)
the Registrant's Current Reports on Form 8-K dated January 26, 1998, February 4,
1998, February 10, 1998, April 16, 1998, April 24, 1998 and April 29, 1998;
and (iii) the description of the Registrant's Common Shares, par value $.60
per share (the "Common Shares"), contained in the Registrant's Registration
Statement on Form 8-A dated November 13, 1984.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, 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 hereof to the extent that a
statement contained herein or in any other 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
Registration Statement.
ITEM 4 DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5 INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters with respect to the offering of the Common Shares
registered hereby have been passed upon by Douglas H. Daniels, Esq., Group
Counsel of the Registrant. Mr. Daniels is paid a salary by, and is a participant
in various employee benefit plans offered generally to employees of, the
Registrant. Mr. Daniels also owns Common Shares and has options to purchase
Common Shares of the Registrant.
-1-
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's By-laws require the Registrant to indemnify its
directors and officers to the fullest extent permitted by New York law. In
addition, the Registrant has purchased insurance policies which provide coverage
for its directors and officers in certain situations where the Registrant cannot
directly indemnify such directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Registrant's Restated Certificate of Incorporation, dated May 29, 1997
(incorporated by reference to Exhibit 4.1 of the Registrant's
Registration Statement on Form S-3 (File No. 333-32525), filed with the
Commission on July 31, 1997).
4.2 Registrant's By-laws, as amended (incorporated by reference to Exhibit
3.2 of the Registrant's Annual Report on Form 10-K (Commission File No.
1-7657) for the fiscal year ended December 31, 1997, filed with the
Commission on March 31, 1998).
4.3 Form of Certificate for the Registrant's Common Shares (incorporated
by reference to Exhibit 4 of the Registrant's Registration Statement
on Form S-3 (File No. 33-35382), filed with the Commission on June
12, 1990).
4.4* 1998 Incentive Compensation Plan.
5* Opinion and consent of Douglas H. Daniels, Esq.
23* Consent of Ernst & Young LLP.
24* Power of Attorney.
- -------------------------------
* Filed herewith.
ITEM 9. 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;
-2-
<PAGE>
(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;
(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 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 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.
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 foregoing provisions, 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.
-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-8 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 this 14th day of
May, 1998.
AMERICAN EXPRESS COMPANY
(Registrant)
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.
* *
- ------------------------- -------------------------
Harvey Golub Charles W. Duncan, Jr.
Chairman, Chief Executive Director
Officer and Director
* *
- ------------------------- -------------------------
Kenneth I. Chenault Beverly Sills Greenough
President, Chief Operating Director
Officer and Director
* *
- ------------------------- -------------------------
Richard Karl Goeltz F. Ross Johnson
Vice Chairman and Director
Chief Financial Officer
*
- ------------------------- -------------------------
Daniel T. Henry Vernon E. Jordan, Jr.
Senior Vice President and Director
Comptroller
*
- ------------------------- -------------------------
Daniel F. Akerson Jan Leschly
Director Director
*
- ------------------------- -------------------------
Anne L. Armstrong Drew Lewis
Director Director
*
- ------------------------- -------------------------
Edwin L. Artzt Frank P. Popoff
Director Director
*
- -------------------------
William G. Bowen
Director
*By: /s/ Stephen P. Norman
---------------------
Stephen P. Norman
(As Attorney-In-Fact)
May 14, 1998
-4-
<PAGE>
EXHIBIT INDEX
The following exhibits are filed herewith, except as noted below.
Exhibit No. Description
- ----------- -----------
4.1 Registrant's Restated Certificate of Incorporation, dated May 29,
1997 (incorporated by reference to Exhibit 4.1 of the Registrant's
Registration Statement on Form S-3 (File No. 333-32525), filed with the
Commission on July 31, 1997).
4.2 Registrant's By-laws, as amended (incorporated by reference to
Exhibit 3.2 of the Registrant's Annual Report on Form 10-K
(Commission File No. 1-7657) for the fiscal year ended December
31, 1997, filed with the Commission on March 31, 1998).
4.3 Form of Certificate for the Registrant's Common Shares (incorporated
by reference to Exhibit 4 of the Registrant's Registration Statement
on Form S-3 (File No. 33-35382), filed with the Commission on June 12,
1990).
4.4* 1998 Incentive Compensation Plan.
5* Opinion and consent of Douglas H. Daniels, Esq.
23* Consent of Ernst & Young LLP.
24* Power of Attorney.
- -------------------------------
* Filed herewith.
<PAGE>
EXHIBIT 4.4
AMERICAN EXPRESS COMPANY
1998 INCENTIVE COMPENSATION PLAN
1. PURPOSE. The purpose of the 1998 Incentive Compensation Plan (the
"Plan") is to promote shareholder value by providing appropriate incentives to
employees of American Express Company (the "Company") and its affiliates and
certain other individuals who perform services for the Company and its
affiliates.
2. ADMINISTRATION. The Plan shall be administered solely by the
Compensation and Benefits Committee (the "Committee") of the Board of Directors
(the "Board") of the Company, as such Committee is from time to time
constituted, or any successor committee the Board may designate to administer
the Plan. The Committee may delegate any of its powers and duties to appropriate
officer(s) of the Company in accordance with guidelines established by the
Committee from time to time.
The Committee has all the powers vested in it by the terms of the Plan set forth
herein, such powers to include exclusive authority (except as may be delegated
as permitted herein) to select the employees and other individuals to be granted
awards under the Plan ("Awards"), to determine the type, size and terms of the
Award to be made to each individual selected, to modify the terms of any Award
that has been granted, to determine the time when Awards will be granted, to
establish performance objectives, to make any adjustments necessary or desirable
as a result of the granting of Awards to eligible individuals located outside
the United States and to prescribe the form of the instruments embodying Awards
made under the Plan. The Committee is authorized to interpret the Plan and the
Awards granted under the Plan, to establish, amend and rescind any rules and
regulations relating to the Plan, and to make any other determinations which it
deems necessary or desirable for the administration of the Plan. The Committee
(or its delegate as permitted herein) may correct any defect or supply any
omission or reconcile any inconsistency in the Plan or in any Award in the
manner and to the extent the Committee deems necessary or desirable to carry it
into effect. Any decision of the Committee (or its delegate as permitted herein)
in the interpretation and administration of the Plan, as described herein, shall
lie within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned. The Committee may act only by a majority of
its members in office, except that the members thereof may authorize any one or
more of their members or any officer of the Company to execute and deliver
documents or to take any other action on behalf of the Committee with respect to
Awards made or to be made to Plan participants. No member of the Committee and
no officer of the Company shall be liable for anything done or omitted to be
done by him, by any other member of the Committee or by any officer of the
Company in connection with the performance of duties under the Plan, except for
his own willful misconduct or as expressly provided by statute.
3. PARTICIPATION. (a) AFFILIATES. If an Affiliate (as hereinafter defined)
of the Company wishes to participate in the Plan and its participation shall
have been approved by the Committee, the board of directors or other governing
body of the Affiliate shall adopt a resolution in form and substance
satisfactory to the Committee authorizing participation by the Affiliate in the
Plan with respect to its employees or other individuals performing services for
it. As used herein, the term "Affiliate" means any entity in which the Company
1
<PAGE>
has a substantial direct or indirect equity interest, as determined by the
Committee in its discretion.
An Affiliate participating in the Plan may cease to be a participating company
at any time by action of the Board or by action of the board of directors or
other governing body of such Affiliate, which latter action shall be effective
not earlier than the date of delivery to the Secretary of the Company of a
certified copy of a resolution of the Affiliate's board of directors or other
governing body taking such action. If the participation in the Plan of an
Affiliate shall terminate, such termination shall not relieve it of any
obligations theretofore incurred by it under the Plan, except as may be approved
by the Committee.
(b) PARTICIPANTS. Consistent with the purposes of the Plan, the Committee
shall have exclusive power (except as may be delegated as permitted herein) to
select the employees and other individuals performing services for the Company
and its Affiliates who may participate in the Plan and be granted Awards under
the Plan. Eligible individuals may be selected individually or by groups or
categories, as determined by the Committee in its discretion. No non-employee
director of the Company or any of its Affiliates shall be eligible to receive an
Award under the Plan.
4. AWARDS UNDER THE PLAN. (a) TYPES OF AWARDS. Awards under the Plan may
include one or more of the following types, either alone or in any combination
thereof: (i) "Stock Options," (ii) "Stock Appreciation Rights," (iii)
"Restricted Stock," (iv) "Performance Grants" and (v) any Award providing
benefits similar to (i) through (iv) designed to meet the requirements of non-US
jurisdictions. Stock Options, which include "Nonqualified Stock Options" and
"Incentive Stock Options" or combinations thereof, are rights to purchase common
shares of the Company having a par value of $.60 per share and stock of any
other class into which such shares may thereafter be changed (the "Common
Shares"). Nonqualified Stock Options and Incentive Stock Options are subject to
the terms, conditions and restrictions specified in Paragraph 5. Stock
Appreciation Rights are rights to receive (without payment to the Company) cash,
Common Shares, other Company securities (which may include, but need not be
limited to, any equity or debt security of the Company or an Affiliate, or any
combination thereof ("Other Company Securities")) or property, or other forms of
payment, or any combination thereof, as determined by the Committee, based on
the increase in the value of the number of Common Shares specified in the Stock
Appreciation Right. Stock Appreciation Rights are subject to the terms,
conditions and restrictions specified in Paragraph 6. Shares of Restricted Stock
are Common Shares which are issued subject to certain restrictions pursuant to
Paragraph 7.
Performance Grants are contingent awards subject to the terms, conditions and
restrictions described in Paragraph 8, pursuant to which the participant may
become entitled to receive cash, Common Shares, Other Company Securities or
property, or other forms of payment, or any combination thereof, as determined
by the Committee.
(b) MAXIMUM NUMBER OF SHARES THAT MAY BE ISSUED. The maximum number of
Common Shares and other equity securities of the Company that may be issued
under the Plan is 35,000,000, plus the number of shares remaining available for
new awards under the 1989 Plan on April 27, 1998, which number will not exceed
17,970,000. In addition, commencing April 27, 1998, Common Shares or other
equity securities of the Company subject to awards outstanding under the 1989
Plan or granted under the 1998 Plan which are recovered or not issued by the
2
<PAGE>
Company will be available for issuance under the 1998 Plan, as follows: (i)
shares related to Awards issued under the 1998 Plan or the 1989 Plan that are
forfeited, terminated, canceled, acquired by the Company or expire unexercised;
(ii) shares surrendered or withheld to pay the exercise price of Awards issued
under the 1998 Plan or the 1989 Plan or to satisfy the tax withholding
obligations under these Awards; and (iii) shares originally linked to Awards
that are actually settled in cash or consideration other than Common Shares or
other equity securities. Limits on the number of Restricted Stock Award grants
are described in Paragraph 7(d).
For purposes of counting shares against the share reserve under the 1998
Plan on the date of grant, Awards denominated solely in common shares (such as
Stock Options and Restricted Stock) and other Awards or securities that may be
exercised for or convertible into common shares will be counted against the 1998
Plan reserve on the date of grant of the Award based on the maximum number of
shares underlying the Award, as determined by the Committee. Equity securities
other than Common Shares issued pursuant to the 1998 Plan which are not
exercisable for or convertible into Common Shares will be counted based on the
number of shares issued. Common Shares and other equity securities of the
Company issued pursuant to the Plan may be either authorized but unissued
shares, treasury shares, reacquired shares or any combination thereof.
(c) RIGHTS WITH RESPECT TO COMMON SHARES AND OTHER SECURITIES.
(i) Unless otherwise determined by the Committee in its discretion,
a participant to whom an Award of Restricted Stock has been made (and
any person succeeding to such a participant's rights pursuant to the
Plan) shall have, after issuance of a certificate or the entry on
behalf of a participant of an uncertificated book position on the
records of the Company's transfer agent and registrar for the number
of Common Shares awarded and prior to the expiration of the Restricted
Period or the earlier cancellation or repurchase of such Common Shares
as herein provided, ownership of such Common Shares, including the
right to vote the same and to receive dividends or other distributions
made or paid with respect to such Common Shares (provided that such
Common Shares, and any new, additional or different shares, or Other
Company Securities or property, or other forms of consideration which
the participant may be entitled to receive with respect to such Common
Shares as a result of a stock split, stock dividend or any other
change in the corporate or capital structure of the Company, shall be
subject to the restrictions hereinafter described as determined by the
Committee in its discretion), subject, however, to the options,
restrictions and limitations imposed thereon pursuant to the Plan.
Notwithstanding the foregoing, a participant with whom an Award
agreement is made to issue Common Shares in the future shall have no
rights as a shareholder with respect to Common Shares related to such
agreement until the book entry is made, or the certificate is issued
on his behalf.
(ii) Unless otherwise determined by the Committee in its
discretion, a participant to whom a grant of Stock Options, Stock
Appreciation Rights, Performance Grants or any other Award is made
(and any person succeeding to such a participant's rights pursuant to
the Plan) shall have no rights as a shareholder with respect to any
Common Shares or as a holder with respect to other securities, if any,
issuable pursuant to any such Award until the date of the issuance of
a stock certificate to him or the entry on his behalf of an
3
<PAGE>
uncertificated book position on the records of the Company's transfer
agent and registrar for such Common Shares or other instrument of
ownership, if any. Except as provided in Paragraph 16, no adjustment
shall be made for dividends, distributions or other rights (whether
ordinary or extraordinary, and whether in cash, securities, other
property or other forms of consideration, or any combination thereof)
for which the record date is prior to the date such book entry is made
or a stock certificate or other instrument of ownership, if any, is
issued.
(iii) The Committee may, in its discretion, subject any Award and
the economic value derived by a participant therefrom, to forfeiture
by the participant upon the occurrence of certain events as determined
by the Committee.
5. STOCK OPTIONS. The Committee may grant Stock Options either alone, or
in conjunction with Stock Appreciation Rights, Performance Grants or other
Awards, either at the time of grant or by amendment thereafter. The Committee
may grant Incentive Stock Options to any employee provided the terms of such
grants comply with the provisions of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), or any successor provision, and the regulations
thereunder, and that any ambiguities in construction shall be interpreted in
order to effectuate that intent. Each Stock Option (referred to herein as an
"Option") granted under the Plan shall be evidenced by an instrument in such
form as the Committee shall prescribe from time to time in accordance with the
Plan and shall comply with the following terms and conditions, and with such
other terms and conditions, including, but not limited to, restrictions upon the
Option or the Common Shares issuable upon exercise thereof, as the Committee, in
its discretion, shall establish:
(a) The option price shall be equal to or greater than the fair
market value of the Common Shares subject to such Option at the time
the Option is granted, as determined by the Committee; but in no event
will such option price be less than the par value of such Common
Shares. The Committee in its discretion shall establish the expiration
date of an Option provided that, except as provided in Subparagraph
(c)(iii)(B) below, in no event shall the expiration date be later than
ten years from the date of grant of the Option.
(b) The Committee shall determine the number of Common Shares to be
subject to each Option. The number of Common Shares subject to an
outstanding Option may be reduced on a share-for-share or other
appropriate basis, as determined by the Committee, to the extent that
Common Shares under such Option are used to calculate the cash, Common
Shares, Other Company Securities or property, or other forms of
payment, or any combination thereof, received pursuant to exercise of
a Stock Appreciation Right attached to such Option, or to the extent
that any other Award granted in conjunction with such Option is paid.
(c) The Option shall not be exercisable:
(i) for at least six months after the date of grant, except as
the Committee may otherwise determine in the event of death,
disability, retirement or in connection with a corporate
transaction, which includes but is not limited to a change in
control of the Company, a divestiture, spin-off, split-off, asset
transfer, outsourcing or joint venture formation, (each, a "Defined
4
<PAGE>
Event"), and only at such times and in such installments as the
Committee may establish;
(ii) unless payment in full for the shares being acquired
thereunder at the time of exercise is made in such form as the
Committee may determine in its discretion, including, but not
limited to (A) cash, (B) Common Shares, (C) if permitted by the
Committee, by authorizing a third party to sell, on behalf of the
participant, the appropriate number of Common Shares otherwise
issuable to the participant upon the exercise of the Option and to
remit to the Company a sufficient portion of the sale proceeds to
pay the entire exercise price and any tax withholding resulting
from such exercise, or (D) any combination thereof; and
(iii) unless the participant has been, at all times during the
period beginning with the date of the grant of the Option and
ending on the date of such exercise, employed by (in the case of an
Incentive Stock Option) or otherwise performing services for the
Company or an Affiliate, or a corporation, or a parent or
subsidiary of a corporation, substituting or assuming the Option in
a transaction to which Section 424(a) of the Code or any successor
statutory provision thereto, is applicable, except that
(A) in the case of any Nonqualified Stock Option, if such
person shall cease to be employed by or otherwise performing
services for the Company or an Affiliate solely by reason of a
period of Related Employment, he may, during such period of
Related Employment, exercise the Nonqualified Stock Option as
if he continued such employment or performance of service; or
(B) the Committee may establish, in its discretion, the
extent to which a person may continue to exercise an Option,
which has not expired and has not been fully exercised, in the
event he terminates employment or the performance of services
by reason of a Defined Event; and in the event of death, the
Committee may provide a decedent's executors, heirs or
distributors a minimum period to exercise an Option with
respect to any shares as to which the decedent could have
exercised the Option at the time of his death, or such greater
amount as the Committee may determine, which period may extend
beyond the original expiration date of the Option.
(d) The Committee has the discretion to grant Options at any time
it deems appropriate including, the discretion to grant or provide for
the automatic grant of an Option to restore the number of Common
Shares a participant tendered or had withheld to pay, or the share
equivalency of the cash tendered to pay, the exercise price or tax
withholding obligation upon the exercise of an outstanding Option.
6. STOCK APPRECIATION RIGHTS. The Committee may grant Stock Appreciation
Rights either alone, or in conjunction with Stock Options, Performance Grants or
other Awards, either at the time of grant or by amendment thereafter. Each Award
of Stock Appreciation Rights granted under the Plan shall be evidenced by an
instrument in such form as the Committee shall prescribe from time to time in
accordance with the Plan and shall comply with the following terms and
conditions, and with such other terms and conditions, including, but not limited
to, restrictions upon the Award of Stock Appreciation Rights or the Common
5
<PAGE>
Shares issuable upon exercise thereof, as the Committee, in its discretion,
shall establish:
(a) The Committee shall determine the number of Common Shares to be
subject to each Award of Stock Appreciation Rights. The number of
Common Shares subject to an outstanding Award of Stock Appreciation
Rights may be reduced on a share-for-share or other appropriate basis,
as determined by the Committee, to the extent that Common Shares under
such Award of Stock Appreciation Rights are used to calculate the
cash, Common Shares, Other Company Securities or property or other
forms of payment, or any combination thereof, received pursuant to
exercise of an Option attached to such Award of Stock Appreciation
Rights, or to the extent that any other Award granted in conjunction
with such Award of Stock Appreciation Rights is paid.
(b) The Award of Stock Appreciation Rights shall not be exercisable
for at least six months after the date of grant except as the
Committee may otherwise determine in the event of a Defined Event.
(c) The Award of Stock Appreciation Rights shall not be
exercisable:
(i) unless the Option or other Award to which the Award of
Stock Appreciation Rights is attached is at the time exercisable;
and
(ii) unless the person exercising the Award of Stock
Appreciation Rights has been at all times during the period
beginning with the date of the grant thereof and ending on the date
of such exercise, employed by or otherwise performing services for
the Company or an Affiliate, except that
(A) in the case of any Award of Stock Appreciation Rights (other
than those attached to an Incentive Stock Option), if such person
shall cease to be employed by or otherwise performing services for the
Company or an Affiliate solely by reason of a period of Related
Employment as defined in Paragraph 14, he may, during such period of
Related Employment, exercise the Award of Stock Appreciation Rights as
if he continued such employment or performance of services; or
(B) the Committee shall establish, in its discretion, the extent to
which a person may continue to exercise an Award of Stock Appreciation
Rights, which has not expired and has not been fully exercised, in the
event he terminates employment or the performance of services by
reason of a Defined Event; provided, that in the event of death, the
Committee may provide his executors, heirs or distributors a minimum
period to exercise an Award of Stock Appreciation Rights with respect
to any shares as to which the decedent could have exercised the Award
of Stock Appreciation Rights, or such greater amount as the Committee
may determine, which period may extent beyond the original expiration
date of the underlying Option.
(d) An Award of Stock Appreciation Rights shall entitle the holder
(or any person entitled to act under the provisions of subparagraph
6(c)(ii)(B) hereof) to exercise such Award or to surrender unexercised
the Option (or other Award) to which the Stock Appreciation Right is
attached (or any portion of such Option or other Award) to the Company
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and to receive from the Company in exchange therefor, without payment
to the Company, that number of Common Shares having an aggregate value
equal to (or, in the discretion of the Committee, less than) the
excess of the fair market value of one share, at the time of such
exercise, over the exercise price (or Option Price, as the case may
be) per share, times the number of shares subject to the Award or the
Option (or other Award), or portion thereof, which is so exercised or
surrendered, as the case may be. The Committee shall be entitled in
its discretion to elect to settle the obligation arising out of the
exercise of a Stock Appreciation Right by the payment of cash or Other
Company Securities or property, or other forms of payment, or any
combination thereof, as determined by the Committee, equal to the
aggregate value of the Common Shares it would otherwise be obligated
to deliver. Any such election by the Committee shall be made as soon
as practicable after the receipt by the Committee of written notice of
the exercise of the Stock Appreciation Right. The value of a Common
Share, Other Company Securities or property, or other forms of payment
determined by the Committee for this purpose shall be the fair market
value thereof on the last business day next preceding the date of the
election to exercise the Stock Appreciation Right, unless the
Committee, in its discretion, determines otherwise.
(e) A Stock Appreciation Right may provide that it shall be deemed
to have been exercised at the close of business on the business day
preceding the expiration date of the Stock Appreciation Right or of
the related Option (or other Award), or such other date as specified
by the Committee, if at such time such Stock Appreciation Right has a
positive value. Such deemed exercise shall be settled or paid in the
same manner as a regular exercise thereof as provided in subparagraph
6(d) hereof.
(f) No fractional shares may be delivered under this Paragraph 6,
but in lieu thereof a cash or other adjustment shall be made as
determined by the Committee in its discretion.
7. RESTRICTED STOCK. Each Award of Restricted Stock under the Plan shall
be evidenced by an instrument in such form as the Committee shall prescribe from
time to time in accordance with the Plan and shall comply with the following
terms and conditions, and with such other terms and conditions as the Committee,
in its discretion, shall establish:
(a) The Committee shall determine the number of Common Shares to be
issued to a participant pursuant to the Award, and the extent, if any,
to which they shall be issued in exchange for cash, other
consideration, or both.
(b) Common Shares issued to a participant in accordance with the
Award may not be sold, assigned, transferred, pledged, hypothecated or
otherwise disposed of, except by will or the laws of descent and
distribution, or as otherwise determined by the Committee, for such
period as the Committee shall determine, from the date on which the
Award is granted (the "Restricted Period"). The Company will have the
option to cancel or repurchase the shares subject to the Award at such
price, if any, as the Committee shall have fixed, in its discretion,
when the Award was made or amended thereafter, which option will be
exercisable on such terms, in such manner and during such period as
shall be determined by the Committee when the Award is made or as
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amended thereafter. Common Shares may be issued in certificate form or
through the entry of an uncertificated book position on the records of
the Company's transfer agent and registrar. The Company may impose
appropriate restrictions on the transfer of such Common Shares which
shall be evidenced in the manner permitted by law as determined by the
Committee in its discretion. Any attempt to dispose of any such Common
Shares in contravention of the foregoing repurchase or cancellation
option and other restrictions shall be null and void and without
effect. If Common Shares issued pursuant to a Restricted Stock Award
shall be repurchased or canceled pursuant to the option described
above, the participant, or in the event of his death, his personal
representative, shall forthwith deliver to the Secretary of the
Company any certificates for the Common Shares awarded to the
participant, accompanied by such instrument of transfer, if any, as
may reasonably be required by the Secretary of the Company. If the
option described above is not exercised by the Company, either by the
terms of the Award or action by the Company, such option and the
restrictions imposed pursuant to the first sentence of this
subparagraph 7(b) shall terminate and be of no further force and
effect.
(c) The vesting of a Restricted Stock Award may be conditioned upon
the attainment of specific performance objectives as the Committee may
determine, including but not limited to such performance objectives
described in subparagraph 8 (b). The Restricted Period shall be for a
minimum of three years except as the Committee may determine in the
event of a Defined Event, a participant's promotion, or Restricted
Stock Awards issued to any employee newly employed by the Company or
issued subject to performance objectives, or as payment pursuant to a
Performance Grant or Qualifying Award.
(d) No more than 10,594,000 of the Common Shares that may be issued
under the Plan may be granted as Restricted Stock Awards, and no more
than an additional 5,297,000 may be granted as Restricted Stock Awards
subject to performance objectives as described above. Restricted Stock
Awards repurchased or canceled by the Company pursuant to subparagraph
7(b) shall again become available for issuance pursuant to these
limitations.
8. PERFORMANCE GRANTS. The Award of a Performance Grant ("Performance
Grant") to a participant will entitle the participant to receive a specified
amount determined by the Committee (the "Actual Value"), if the terms and
conditions specified herein and in the Awards are satisfied. Each Award of a
Performance Grant shall be subject to the following terms and conditions, and to
such other terms and conditions, including but not limited to, restrictions upon
any cash, Common Shares, Other Company Securities or property, or other forms of
payment, or any combination thereof, issued in respect of the Performance Grant,
as the Committee, in its discretion, shall establish, and shall be embodied in
an instrument in such form and substance as is determined by the Committee:
(a) The Committee shall determine the value or range of values of a
Performance Grant to be awarded to each participant selected for an
Award and whether or not such a Performance Grant is granted in
conjunction with an Award of Options, Stock Appreciation Rights,
Restricted Stock or other Award, or any combination thereof, under the
Plan (which may include, but need not be limited to, deferred Awards)
concurrently or subsequently granted to the participant (the
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"Associated Award"). As determined by the Committee, the maximum value
of each Performance Grant (the "Maximum Value") shall be: (i) an
amount fixed by the Committee at the time the Award is made or amended
thereafter, (ii) an amount which varies from time to time based in
whole or in part on the then current value of a Common Share, Other
Company Securities or property, or other securities or property, or
any combination thereof or (iii) an amount that is determinable from
criteria specified by the Committee. Performance Grants may be issued
in different classes or series having different names, terms and
conditions. In the case of a Performance Grant awarded in conjunction
with an Associated Award, the Performance Grant may be reduced on an
appropriate basis to the extent that the Associated Award has been
exercised, paid to or otherwise received by the participant, as
determined by the Committee.
(b) The award period ("Award Period") in respect of any Performance
Grant shall be a period determined by the Committee. At the time each
Award is made, the Committee shall establish performance objectives to
be attained within the Award Period as the means of determining the
Actual Value of such a Performance Grant. The performance objectives
shall be based on such measure or measures of performance, which may
include, but need not be limited to, the performance of the
participant, the Company, one or more of its subsidiaries or one or
more of their divisions or units, or any combination of the foregoing,
as the Committee shall determine, and may be applied on an absolute
basis or be relative to industry or other indices, or any combination
thereof. The Actual Value of a Performance Grant shall be equal to its
Maximum Value only if the performance objectives are attained in full,
but the Committee shall specify the manner in which the Actual Value
of Performance Grants shall be determined if the performance
objectives are met in part. Such performance measures, the Actual
Value or the Maximum Value, or any combination thereof, may be
adjusted in any manner by the Committee in its discretion at any time
and from time to time during or as soon as practicable after the Award
Period, if it determines that such performance measures the Actual
Value or the Maximum Value, or any combination thereof, are not
appropriate under the circumstances.
(c) The rights of a participant in Performance Grants awarded to
him shall be provisional and may be canceled or paid in whole or in
part, all as determined by the Committee.
(d) The Committee shall determine whether the conditions of
subparagraph 8(b) or 8(c) hereof have been met and, if so, shall
ascertain the Actual Value of the Performance Grants. If the
Performance Grants have no Actual Value, the Award and such
Performance Grants shall be deemed to have been canceled and the
Associated Award, if any, may be canceled or permitted to continue in
effect in accordance with its terms. If the Performance Grants have an
Actual Value and:
(i) were not awarded in conjunction with an Associated Award,
the Committee shall cause an amount equal to the Actual Value of
the Performance Grants earned by the participant to be paid to him
or his beneficiary as provided below; or
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(ii) were awarded in conjunction with an Associated Award, the
Committee shall determine, in accordance with criteria specified by
the Committee (A) to cancel the Performance Grants, in which event
no amount in respect thereof shall be paid to the participant or
his beneficiary, and the Associated Award may be permitted to
continue in effect in accordance with its terms, (B) to pay the
Actual Value of the Performance Grants to the participant or his
beneficiary as provided below, in which event the Associated Award
may be canceled or (C) to pay to the participant or his beneficiary
as provided below, the Actual Value of only a portion of the
Performance Grants, in which event all or a portion of the
Associated Award may be permitted to continue in effect in
accordance with its terms or be canceled, as determined by the
Committee.
Such determination by the Committee shall be made as promptly as
practicable following the end of the Award Period or upon the earlier
termination of employment or performance of services, or at such other time or
times as the Committee shall determine, and shall be made pursuant to criteria
specified by the Committee.
Payment of any amount in respect of the Performance Grants which the
Committee determines to pay as provided above shall be made by the Company, as
promptly as practicable after the end of the Award Period or at such other time
or times as the Committee shall determine, and may be made in cash, Common
Shares, Other Company Securities or property, or other forms of payment, or any
combination thereof or in such other manner, as determined by the Committee in
its discretion. Notwithstanding anything in this Paragraph 8 to the contrary,
the Committee may, in its discretion, determine and pay out the Actual Value of
the Performance Grants at any time during the Award Period, including but not
limited to upon a Defined Event.
9. DEFERRAL OF COMPENSATION. The Committee shall determine whether or not
an Award shall be made in conjunction with deferral of the participant's salary,
bonus or other compensation, or any combination thereof, and whether or not such
deferred amounts may be
(i) forfeited to the Company or to other participants, or any
combination thereof, under certain circumstances (which may include,
but need not be limited to, certain types of termination of employment
or performance of services for the Company and its Affiliates),
(ii) credited with income equivalents (which may include, but need
not be limited to, interest, dividends or other rates of return) until
the date or dates of payment of the Award, if any,
(iii) subject to increase or decrease in value based upon the
attainment of or failure to attain, respectively, certain performance
measures and/or
(iv) any other terms and conditions the Committee deems necessary.
10. QUALIFYING AWARDS. The Committee may, in its sole discretion, grant an
Award (a "Qualifying Award") to any key employee with the intent that such Award
qualifies as "performance-based compensation" under Section 162(m) of the Code,
or any successor provision thereto, and the regulations thereunder ("Section
162(m)"). The provisions of this Paragraph 10 as well as all other applicable
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provisions of the Plan not inconsistent with this Paragraph 10 shall apply to
all Qualifying Awards issued under the Plan, and any ambiguities in construction
shall be interpreted to effectuate that intent. Qualifying Awards shall be of
the type set forth in subparagraph (a) or (b) below.
(a) Qualifying Awards may be issued as Stock Options and Stock
Appreciation Rights. Commencing with calendar year 1998, the number of
Common Shares underlying all Options and Stock Appreciation Rights
that may be granted to any participant within any three consecutive
calendar years shall be limited to 3,000,000 (inclusive of Options or
Stock Appreciation Rights granted under the 1989 Plan during 1998),
subject to adjustment as provided in Paragraph 16. The foregoing
limitation shall be subject to the limitation set forth in Paragraph
4(b).
(b)(i) Qualifying Awards (other than Stock Options and Stock
Appreciation Rights) may be issued as Performance Grants and any other
Award whose payment is conditioned upon the achievement of the
performance objectives described in this subparagraph. Amounts earned
under such Awards shall be based upon the attainment of performance
objectives established by the Committee in accordance with Section
162(m). Such performance objectives may vary by participant and by
Award and shall be based upon the attainment of specific amounts of,
or changes in one or more of the following: revenues, earnings,
shareholders' equity, return on equity, assets, return on assets,
capital, return on capital, book value, economic value added,
operating margins, cash flow, shareholder return, expenses or market
share. The Committee may provide that in measuring the achievement of
the performance objectives, an Award may include or exclude items such
as realized investment gains and losses, extraordinary, unusual or
non-recurring items, asset write-downs, effects of accounting charges,
currency fluctuations, acquisitions, divestitures,
reserve-strengthening and other non-operating items. The foregoing
objectives may be applicable to the Company as a whole, one or more of
its subsidiaries, divisions, business units or business lines, or any
combination of the foregoing, and may be applied on an absolute basis
or be relative to other companies, industries or indices or be based
upon any combination of the foregoing. In addition to the performance
objectives the Committee may also condition payment of any such Award
upon the attainment of conditions, such as completion of a period of
service, notwithstanding that the performance objective or objectives
specified in the Award are satisfied. The Committee shall have the
discretion, by participant and by Award, to reduce (but not to
increase) some or all of the amount that would otherwise be payable
under the Award by reason of the satisfaction of the performance
objectives set forth in the Award. In making any such determination,
the Committee is authorized to take into account any such factor or
factors it determines are appropriate, including but not limited to
Company, business unit and individual performance.
(ii) Under all Awards granted pursuant to this subparagraph (b), in
any one calendar year: (A) no participant may be paid cash, Common
Shares, Other Company Securities or other property (other than shares
of Restricted Stock) or any combination of the foregoing with a value
(as determined by the Committee) in excess of $6.5 million and (B) in
addition, no participant may receive more than 100,000 shares of
Restricted Stock, subject to adjustment to the extent provided in
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Paragraph 16. For purposes of the foregoing sentence, the calendar
year or years in which amounts under Qualifying Awards are deemed paid
or received shall be as determined by the Committee.
11. PAYMENT OF AWARDS. The Committee may, in its discretion, settle any
Award through the payment of cash, the delivery of Common Shares or Other
Company Securities, the granting of Awards or a combination thereof. Any Award
settlement, including payment deferrals, may be subject to conditions,
restrictions and contingencies as the Committee shall determine. The Committee
may permit or require the deferral of any Award payment, subject to such terms,
rules and procedures as the Committee may establish, which may include
provisions for the payment or crediting of interest, or dividend equivalents,
including converting such credits into deferred Common Share equivalents.
12. AMENDMENT OF THE PLAN OR AWARDS. The Plan may be amended in whole or
in part at any time and from time to time by the Board, and the terms of any
outstanding Award under the Plan may be amended from time to time by the
Committee in its discretion in any manner that it deems, provided however, that
no amendment may be made without shareholder approval if such amendment (i)
would increase the number of shares available for grant specified in Paragraphs
4(b) or 10, (ii) would decrease the minimum Option exercise price set forth in
Paragraph 5(a) (other than changes made pursuant to Paragraph 16 hereof), (iii)
reduce the minimum vesting periods set forth in Paragraphs 5(c)(i), 6(b) or 7(c)
or (iv) would, in the absence of shareholder approval, adversely affect
compliance of the Plan with applicable laws, rules and regulations. No such
amendment shall adversely affect in a material manner any right of a participant
under the Award without his written consent, unless the Committee determines in
its discretion that there have occurred or are about to occur significant
changes in the participant's position, duties or responsibilities, or
significant changes in economic, legislative, regulatory, tax, accounting or
cost/benefit conditions which are determined by the Committee in its discretion
to have or to be expected to have a significant effect on the performance of the
Company, or any subsidiary, affiliate, division or department thereof, on the
Plan or on any Award under the Plan. Any shareholder approval requirement under
the Plan will be met if such approval is obtained in accordance with applicable
law.
13. DISABILITY. For the purposes of this Plan, a participant shall be
deemed to have terminated his employment or performance of services for the
Company and its Affiliates by reason of disability, if the Committee shall
determine that the physical or mental condition of the participant by reason of
which such employment or performance of services terminated was such at that
time as would entitle him to payment of monthly disability benefits under the
Company's Long Term Disability Benefit Plan, or, if the participant is not
eligible for benefits under such plan, under any similar disability plan of the
Company or an Affiliate in which he is a participant. If the participant is not
eligible for benefits under any disability plan of the Company or an Affiliate,
he shall be deemed to have terminated such employment or performance of services
by reason of disability if the Committee shall determine that his physical or
mental condition would entitle him to benefits under the Company's Long Term
Disability Benefit Plan if he were eligible therefor. Notwithstanding the above,
the Committee may determine a participant's disability based upon any other
criteria specified by the Committee.
14. TERMINATION OF A PARTICIPANT. For all purposes under the Plan, the
Committee shall determine whether a participant has terminated employment by or
the performance of services for the Company and its Affiliates; provided,
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however, that transfers between the Company and an Affiliate or between
Affiliates, and approved leaves of absence shall not be deemed such a
termination.
15. RELATED EMPLOYMENT. For the purposes of this Plan, Related Employment
shall mean the employment or performance of services by an individual for an
employer that is neither the Company nor an Affiliate, provided that (i) such
employment or performance of services is undertaken by the individual at the
request of the Company or an Affiliate, (ii) immediately prior to undertaking
such employment or performance of services, the individual was employed by or
performing services for the Company or an Affiliate or was engaged in Related
Employment as herein defined and (iii) such employment or performance of
services is in the best interests of the Company and is recognized by the
Committee, in its discretion, as Related Employment for purposes of this
Paragraph 15. The death or disability of an individual during a period of
Related Employment as herein defined shall be treated, for purposes of this
Plan, as if the death or onset of disability had occurred while the individual
was employed by or performing services for the Company or an Affiliate.
16. DILUTION AND OTHER ADJUSTMENTS. In the event of any change in the
outstanding Common Shares of the Company by reason of any stock split, stock
dividend, split-up, split-off, spin-off, recapitalization, merger,
consolidation, rights offering, reorganization, combination, subdivision or
exchange of shares, a sale by the Company of all or part of its assets, any
distribution to shareholders other than a normal cash dividend, or other
extraordinary or unusual event, if the Committee shall determine, in its
discretion, that such change equitably requires an adjustment in the terms of
any Award or the maximum number of Common Shares that may be issued as Awards
pursuant to the Plan, such adjustment may be made by the Committee and shall be
final, conclusive and binding for all purposes of the Plan. The Committee may
also provide for the adjustment and settlement of outstanding Awards as it deems
appropriate and consistent with the Plan's purpose in the event of a "change in
control" of the Company, as that term is defined in the Company's Senior
Executive Severance Plan.
17. DESIGNATION OF BENEFICIARY BY PARTICIPANT. A participant may name a
beneficiary to receive any payment in which he may be entitled in respect of any
Award under the Plan in the event of his death, on a written form to be provided
by and filed with the Secretary, and in a manner determined by the Committee in
its discretion. The Committee reserves the right to review and approve
beneficiary designations. A participant may change his beneficiary from time to
time in the same manner, unless such participant has made an irrevocable
designation. Any designation of beneficiary under the Plan (to the extent it is
valid and enforceable under the applicable law) shall be controlling over any
other disposition, testamentary, or otherwise, as determined by the Committee in
its discretion. If no designated beneficiary survives the participant and is
living on the date on which any amount becomes payable to such participant's
beneficiary, such payment will be made to the legal representatives of the
participant's estate, and the term "beneficiary" as used in the Plan shall be
deemed to include such person or persons. If there is any question as to the
legal right of any beneficiary to receive a distribution under the Plan, the
Committee in its discretion may determine that the amount in question be paid to
the legal representatives of the estate of the participant, in which event the
Company, the Board and the Committee and the members thereof will have no
further liability to anyone with respect to such amount.
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18. FINANCIAL ASSISTANCE. If the Committee determines that such action is
advisable, the Company may assist any person to whom an Award has been granted
in obtaining financing from the Company under the American Express 1983 Stock
Purchase Assistance Plan (or other program of the Company, or one of its
Affiliates approved pursuant to applicable law), or from a bank or other third
party, on such terms as are determined by the Committee, and in such amount as
is required to accomplish the purposes of the Plan, including, but not limited
to, to permit the exercise of an Award, the participation therein, and/or the
payment of any taxes in respect thereof. Such assistance may take any form that
the Committee deems appropriate, including, but not limited to, a direct loan
from the Company or an Affiliate, a guarantee of the obligation by the Company
or an Affiliate, or the maintenance by the Company or an Affiliate of deposits
with such bank or third party.
19. MISCELLANEOUS PROVISIONS.
(a) No employee or other person shall have any claim or right to be
granted an Award under the Plan. Determinations made by the Committee
under the Plan need not be uniform and may be made selectively among
eligible individuals under the Plan, whether or not such eligible
individuals are similarly situated. Neither the Plan nor any action
taken hereunder shall be construed as giving any employee or other
person any right to continue to be employed by or perform services for
the Company or any Affiliate, and the right to terminate the
employment of or performance of services by any participant at any
time and for any reason is specifically reserved.
(b) No participant or other person shall have any right with
respect to the Plan, the Common Shares reserved for issuance under the
Plan or in any Award, contingent or otherwise, until written evidence
of the Award shall have been delivered to the recipient and all the
terms, conditions and provisions of the Plan and the Award applicable
to such recipient (and each person claiming under or through him) have
been met.
(c) Except as may be approved by the Committee, an Award or a
participant's rights and interest under the Plan may not be sold,
assigned or transferred, hypothecated or encumbered in whole or in
part either directly or by operation of law or otherwise (except in
the event of a participant's death) including, but not by way of
limitation, execution, levy, garnishment, attachment, pledge,
bankruptcy or in any other manner. Not by way of limitation, the
Committee may allow for a participant to transfer an Award to one or
more members of his immediate family, to a partnership of which the
only partners are members of the participant's immediate family, or to
a trust established by the participant for the benefit of one or more
members of his immediate family.
(d) No Common Shares, Other Company Securities or property, other
securities or property, or other forms of payment shall be issued
hereunder with respect to any Award unless counsel for the Company
shall be satisfied that such issuance will be in compliance with
applicable federal, state, local and foreign legal, securities
exchange and other applicable requirements.
(e) The Company and its Affiliates shall have the right to deduct
from any payment made under the Plan any federal, state, local or
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foreign income or other taxes required by law to be withheld with
respect to such payment. It shall be a condition to the obligation of
the Company to issue Common Shares, Other Company Securities or
property, other securities or property, or other forms of payment, or
any combination thereof, upon exercise, settlement or payment of any
Award under the Plan, that the participant (or any beneficiary or
person entitled to act) pay to the Company, upon its demand, such
amount as may be requested by the Company for the purpose of
satisfying any liability to withhold federal, state, local or foreign
income or other taxes. If the amount requested is not paid, the
Company may refuse to issue Common Shares, Other Company Securities or
property, other securities or property, or other forms of payment, or
any combination thereof. Notwithstanding anything in the Plan to the
contrary, the Committee may, in its discretion, permit an eligible
participant (or any beneficiary or person entitled to act) to elect to
pay a portion or all of the amount requested by the Company for such
taxes with respect to such Award, at such time and in such manner as
the Committee shall deem to be appropriate (including, but not limited
to, by authorizing the Company to withhold, or agreeing to surrender
to the Company on or about the date such tax liability is
determinable, Common Shares, Other Company Securities or property,
other securities or property, or other forms of payment, that would
otherwise be distributed, or have been distributed, as the case may
be, pursuant to such Award to such person, having a fair market value
equal to the amount of such taxes).
(f) The Plan shall be unfunded. The Company shall not be required
to establish any special or separate fund or to make any other
segregation of assets to assure the payment of any Award under the
Plan, and the rights to the payment of Awards shall be no greater than
the rights of the Company's general creditors.
(g) By accepting any Award or other benefit under the Plan, each
participant and each person claiming under or through him shall be
conclusively deemed to have indicated his acceptance and ratification
of, and consent to, any action taken under the Plan by the Company,
the Board or the Committee or its delegates.
(h) Fair market value in relation to Common Shares, Other Company
Securities or property, other securities or property or other forms of
payment of Awards under the Plan, or any combination thereof, as of
any specific time shall mean such value as determined by the Committee
in accordance with applicable law.
(i) The masculine pronoun includes the feminine and the singular
includes the plural wherever appropriate.
(j) The appropriate officers of the Company shall cause to be filed
any reports, returns or other information regarding Awards hereunder
or any Common Shares issued pursuant hereto as may be required by
Section 13 or 15(d) of the Exchange Act (or any successor provision)
or any other applicable statute, rule or regulation.
(k) The validity, construction, interpretation, administration and
effect of the Plan, and of its rules and regulations, and rights
relating to the Plan and to Awards granted under the Plan, shall be
governed by the substantive laws, but not the choice of law rules, of
the State of New York.
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20. PLAN TERMINATION. The Plan may be suspended in whole or in part at any
time and from time to time by the Board. This Plan shall terminate upon the
earlier of the following dates or events to occur:
(a) upon the adoption of a resolution of the Board terminating the
Plan; or
(b) ten years from the date the Plan is initially approved and
adopted by the shareholders of the Company in accordance with
Paragraph 21 hereof, provided, however, that the Board may, prior to
the expiration of such ten-year period, extend the term of the Plan
for an additional period of up to five years for the grant of Awards
other than Incentive Stock Options. No termination of the Plan shall
materially alter or impair any of the rights or obligations of any
person, without his consent, under any Award theretofore granted under
the Plan, except that subsequent to termination of the Plan, the
Committee may make amendments permitted under Paragraph 12.
21. SHAREHOLDER ADOPTION. The Plan shall be submitted to the shareholders
of the Company for their approval and adoption at a meeting to be held on or
before April 27, 1998, or at any adjournment thereof. The Plan shall not be
effective and no Award shall be made hereunder unless and until the Plan has
been so approved and adopted. The shareholders shall be deemed to have approved
and adopted the Plan only if it is approved and adopted at a meeting of the
shareholders duly held by vote taken in the manner required by the laws of the
State of New York.
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EXHIBIT 5
[Letterhead of American Express Company]
May 14, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: American Express Company
1998 Incentive Compensation Plan
Ladies and Gentlemen:
I am Group Counsel of American Express Company (the "Company"), and
I have represented the Company in connection with the preparation of the
Registration Statement on Form S-8 of the Company relating to 52,970,000 Common
Shares, par value $.60 per share (the "Common Shares"), of the Company being
registered for offer and sale pursuant to the 1998 Incentive Compensation Plan
(the "Plan")(which includes 17,970,000 shares registered but not issued under
the Company's 1989 Long-Term Incentive Plan).
I or members of my staff have examined the Certificate of
Incorporation, as amended, and the By-laws of the Company, the Plan and such
other corporate documents and records as I have deemed necessary in order to
render the opinion set forth below.
Based upon the foregoing, and subject to the qualification that 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 the United States, 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. In the case of Common Shares delivered in respect of an award of
restricted stock, when such shares have been delivered in accordance with and
pursuant to the terms of the Plan, such shares will be validly issued and, when
the restrictions on the transfer of such shares and the Company's option to
cancel or repurchase have expired, all as provided in the Plan, such shares will
be fully paid and nonassessable.
3. In the case of Common Shares delivered upon the exercise of
stock options and delivered in respect of stock appreciation rights and
performance grants or other awards that may be made pursuant to the terms of the
Plan, when such shares have been delivered in accordance with and pursuant to
the terms of the Plan, such shares will be validly issued and, subject to any
restrictions on such shares that the Compensation and Benefits Committee of the
Company's Board of Directors in its discretion may impose pursuant to the Plan,
will be fully paid and nonassessable.
<PAGE>
Securities and Exchange Commission
May 14, 1998
Page Two
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to me in Item 5 of the Registration
Statement.
Very truly yours,
/s/ Douglas H. Daniels
Douglas H. Daniels
Group Counsel
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 and related Prospectus pertaining to the 1998 Incentive Compensation
Plan of American Express Company (the "Company"), for the registration of
52,970,000 common shares (which includes 17,970,000 shares registered but not
issued under the Company's 1989 Long-Term Incentive Plan), of our report dated
February 5, 1998, 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, 1997, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
May 14, 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 Karl 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 52,970,000 Common
Shares, par value $.60 per share, that may be issued pursuant to the American
Express Company 1998 Incentive Compensation Plan: 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
27th day of April, 1998.
AMERICAN EXPRESS COMPANY
By:/s/ Richard Karl Goeltz
Richard Karl 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 Karl Goeltz By /s/ F. Ross Johnson
- ------------------------------- -------------------------------
Richard Karl 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
- ------------------------------- -------------------------------
Daniel F. Akerson Jan Leschly
Director Director
By /s/Anne L. Armstrong By
- ------------------------------- -------------------------------
Anne L. Armstrong Drew Lewis
Director Director
By By /s/ Frank P. Popoff
- ------------------------------- -------------------------------
Edwin L. Artzt Frank P. Popoff
Director Director
By /s/ William G. Bowen
- -------------------------------
William G. Bowen
Director
<PAGE>
