EXHIBIT 10.19
AMENDMENT TO THE
PRE-2008
NONQUALIFIED DEFERRED
COMPENSATION PLANS
OF
AMERICAN EXPRESS
COMPANY
(Adopted effective
January 1, 2009)
WHEREAS, American Express Company
(the “ Company ”) maintains the NQDC Plans (as
defined in Section 1.1(1)); and
WHEREAS, the NQDC Plans have
remaining Participant (as defined in Section 1.1(m)) balances,
but do not allow for any future deferrals thereunder;
and
WHEREAS, the Participant balances
under the NQDC Plans consist of amounts that were earned and vested
on or before December 31, 2004 (the “ Grandfathered
Amounts ”), and amounts that either vested on or after
January 1, 2005, or will vest in the future (the “
Non-Grandfathered Amounts ”); and
WHEREAS, the Participants have
previously made Elections (as defined in Section 1.1(i)) under
the Prior NQDC Plans (as defined in
Section 1.1(p));
WHEREAS, the Company desires to
amend the NQDC Plans with respect to the Non-Grandfathered Amounts
to comply with the requirements of Section 409A of the
Internal Revenue Code of 1986, as amended, and the Treasury
Regulations promulgated and other official guidance issued
thereunder (collectively, “ Section 409A ”);
and
WHEREAS, the Company desires to
preserve the exemption from Section 409A of Grandfathered
Amounts, but to provide for two designated permissible payment
dates each year for amounts that are payable pursuant to the
existing terms of the NQDC Plans;
NOW, THEREFORE, the Company hereby
adopts the following amendments to the NQDC Plans, effective
January 1, 2009:
ARTICLE 1
DEFINITIONS
1.1 Definitions . For
purposes of this Amendment, unless the context clearly indicates
otherwise, the following terms shall have the meanings provided
thereto by this Section 1.1:
(a) “ Amendment ”
means this Amendment to the Pre-2008 Nonqualified Deferred
Compensation Plans of American Express Company, as amended from
time to time.
(b) “ Amounts ”
means the Grandfathered Amounts and the Non-Grandfathered Amounts,
collectively.
(c) “ Beneficiary
” means the individual or entity designated by a Participant
in accordance with the NQDC Plans or Section 5.4 to receive
the Participant’s Amounts in the event of the
Participant’s death.
(d) “ Board ”
means the Board of Directors of the Company.
(e) “ Change in Control
” has the meaning given such term in the Supplemental
Retirement Plan.
(f) “ Code ”
means the Internal Revenue Code of 1986, as amended.
(g) “ Committee ”
means the Compensation and Benefits Committee of the Board, or such
successor committee as may be designated by the Board. References
to the “Committee” include any person to whom the
Compensation and Benefits Committee has delegated its
authority.
(h) “ Disability
,” for purposes of the Non-Grandfathered Amounts, has the
meaning given such term by Section 409A. Whether a Participant
has a Disability shall be determined in accordance with
Section 409A and the Policy.
(i) “ Election ”
means a Participant’s deferral election under a NQDC Plan for
a given year, specifying the time and form of payment of the
Participant’s Amounts for that year.
(j) “ Material
Modification ” has the meaning given such term by
Internal Revenue Service Notice 2005-1.
(k) “ Moody’s A
Rate ” means, for a calendar year, the average corporate
bond yield rate for such calendar year, as announced by
Moody’s Investor Services for borrowers rated
“A.”
(l) “ NQDC Plans
” means the 1981 Bonus Deferral, the 1985 Career Investment
Option, the 1986 Salary Deferral Plan, the 1986 Salary Deferral
Plan (T-bill plan), the 1987 Q Plan, the 1987 Salary Deferral
Plan, the 1987 Executives’ Incentive Compensation Plan, the
1988 Salary Deferral Plan, the 1988 Senior Management Incentive
Plan Deferral Guide, the 1989 Salary Deferral Plan, the 1989 Senior
Management Incentive Plan Deferral, the 1990 Salary/Bonus Deferral
Program, the 1991 Salary/Bonus Deferral Program, the 1992
Salary/Bonus Deferral Program, the 1993 SMIP Salary and Bonus
Deferral Program, the 1994 Pay-for-Performance Deferral Program,
the 1995 Pay-for-Performance Deferral Program, the 1996
Pay-for-Performance Deferral Program, the 1997 Pay-for-Performance
Deferral Program, the 1998 Pay-for-Performance Deferral Program,
the 1998 Senior Management Incentive Plan Deferral Guide, the 1999
Pay-for-Performance Deferral Program, the 1999 Pay-for-Performance
Supplemental Deferral Program, the 2000 Pay-for-Performance
Deferral Program, the 2001 Pay-for-Performance Deferral Program,
the 2002 Pay-for-Performance Deferral Program, the 2003
Pay-for-Performance Deferral Program, the 2004 Pay-for-Performance
Deferral Program, the 2005 Pay-for-Performance Deferral Program,
the 2006 Pay-for-Performance Deferral Program, the 2007
Pay-for-Performance Deferral Program, and each other elective
nonqualified deferred compensation plan of the Company (other than
the Supplemental Retirement Plan) adopted by the Company prior to
January 1, 2009.
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(m) “ Participant
” means an individual who has accrued benefits under the NQDC
Plans.
(n) “ Person ,”
for purposes of the Non-Grandfathered Amounts, has the meaning
given such term in the definition of “Change in
Control” under the Supplemental Retirement Plan.
(o) “ Policy ”
means the American Express Section 409A Compliance Policy, as
amended from time to time, and any successor policy
thereto.
(p) “ Prior NQDC Plans
” means the NQDC Plans and the terms thereof as in effect on
October 3, 2004, or for a NQDC Plan adopted after such date,
as of the date of adoption of such NQDC Plan.
(q) “ Retirement
,” for purposes of the Non-Grandfathered Amounts, means a
voluntary Separation from Service by a Participant who is
Retirement Eligible on the date of such Separation from
Service.
(r) “ Retirement
Eligible ” means, with respect to a Participant, he is
age 55 or older with ten or more actual or deemed years of service
with the Company.
(s) “ Separation from
Service ,” for purposes of the Non-Grandfathered Amounts,
has the meaning given such term by Section 409A. Whether a
Participant has a Separation from Service shall be determined in
accordance with Section 409A and the Policy.
(t) “ Severance Plan
” means, collectively, (A) the American Express Senior
Executive Severance Plan, effective January 1, 1994, as
amended and restated effective January 1, 2009, and as further
amended from time to time, and any successor plan thereto, and
(B) the American Express Severance Pay Plan, effective
January 1, 1987, as amended and restated effective
January 1, 2009, and as further amended from time to time, and
any successor plan thereto.
(u) “ Supplemental
Retirement Plan ” means the American Express Supplemental
Retirement Plan, as amended and restated effective January 1,
2009, and as further amended from time to time.
(v) “ Unforeseeable
Emergency ,” for purposes of the Non-Grandfathered
Amounts, means a severe financial hardship of the Participant
resulting from (i) an illness or accident of the Participant,
the Participant’s spouse or the Participant’s dependent
(as defined in Section 152 of the Code, without regard to
paragraphs (b)(1), (b)(2) and (d)(1)(b) thereof), (ii) a loss
of the Participant’s property due to casualty, or
(iii) such other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of
the Participant, all as determined by the Committee based on the
relevant facts and circumstances and in accordance with
Section 409A.
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ARTICLE 2
GRANDFATHERED
AMOUNTS
2.1 Effect of this Amendment
. The maintenance of the accounts or subaccounts for Grandfathered
Amounts, the earnings crediting thereon and the other terms
applicable thereto shall continue to be governed by the respective
Prior NQDC Plans. In addition, except as otherwise provided by this
Article 2, the payment of a Participant’s Grandfathered
Amounts shall be made in accordance with the terms of the
respective Prior NQDC Plans and the Participant’s respective
Elections thereunder. This Amendment is intended not to cause a
Material Modification to the NQDC Plans, and shall be interpreted,
operated and administered consistent with this intent. In the event
that it is subsequently determined that the changes made by this
Section 2.1 or other provisions of this Amendment would
constitute a Material Modification to the Grandfathered Amounts
under the NQDC Plans, then this Article 2 or the other
provisions that constitute such a Material Modification shall be
null and void and of no further effect.
2.2 Form of Payment . Payment
of a Participant’s Grandfathered Amounts under the NQDC Plans
shall be made in a lump sum or in a specified number of annual
installments, in accordance with the terms of the respective Prior
NQDC Plans and the Participant’s respective Elections
thereunder.
2.3 Time of Payment
.
(a) Except as otherwise provided by
Section 2.3(b), payment of a Participant’s Grandfathered
Amounts under the NQDC Plans shall be made in accordance with the
terms of the respective Prior NQDC Plans and the
Participant’s respective Elections thereunder.
(b) In order to reduce the
Company’s administrative expenses in maintaining the NQDC
Plans, and pursuant to the Company’s authority under the
Prior NQDC Plans, the payment of a Participant’s
Grandfathered Amounts pursuant to the terms of the respective Prior
NQDC Plans and the Participant’s respective Elections
thereunder are hereby changed as follows:
(i) If a Participant designated a
specified date as the time when his Grandfathered Amounts under a
NQDC Plan are to be paid, and another applicable payment event
under the applicable Prior NQDC Plan has not occurred as of the
specified date, then payment of the such Grandfathered Amounts
shall be made (or commence, in the case of installment payments) on
the first March 15 or September 15 following the
specified date (or if the Participant designated March 15 or
September 15 as the specified date, payment shall be made or
commence on such specified date), or as soon thereafter as
administratively feasible.
(ii) For payments of Grandfathered
Amounts as a result of a Participant’s “separation from
service,” “termination of employment” or similar
event under the Prior NQDC Plans and the Participant’s
respective Elections, payment shall be made (or commence, in the
case of installment payments) on the first March 15 or
September 15 which is at least six months following the
occurrence of such event, or as soon thereafter as administratively
feasible. Whether a Participant has a “separation from
service,” “termination of employment” or similar
event for purposes of the NQDC Plans shall be determined in
accordance with the Prior NQDC Plans and the Company’s prior
practices thereunder.
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2.4 Changes to Time and Form of
Payment . A Participant is not allowed to change his existing
Elections under the NQDC Plans. The Company may further modify the
time and form of payment of Grandfathered Amounts under the NQDC
Plans so long as such modification would not be treated as a
Material Modification to the NQDC Plans.
2.5 Exemption from
Section 409A . The payment of the Grandfathered Amounts
under the NQDC Plans is intended to be exempt from the requirements
Section 409A as amounts that were earned and vested on or
before December 31, 2004 under an arrangement as in effect on
October 3, 2004, and this Amendment and the NQDC Plans shall
be interpreted, operated and administered consistent with this
intent.
ARTICLE 3
NON-GRANDFATHERED
AMOUNTS
3.1 Effect of this Amendment
. Except as otherwise provided by this Article 3, the
maintenance of the accounts or subaccounts for Non-Grandfathered
Amounts under the NQDC Plans and the earnings crediting thereon
shall continue to be governed by the terms of the respective Prior
NQDC Plans to the extent such treatment would not cause a violation
of Section 409A.
3.2 Specified Date Elections
. If a Participant designated a specified date as the time when his
Non-Grandfathered Amounts under a NQDC Plan are to be paid, and the
Participant has not had a Separation of Service as of the specified
date, then payment of the such Non-Grandfathered Amounts shall be
made as follows: (A) if the Participant elected a lump-sum
payment of such Non-Grandfathered Amounts, it shall be made on the
first March 15 or September 15 following the specified
date (or if the Participant designated March 15 or
September 15 as the specified date, payment shall be made on
such specified date), or as soon thereafter as administratively
feasible, but in no event later than 90 days; and (B) if the
Participant elected annual installment payments of such
Non-Grandfathered Amounts, it shall begin on the first
March 15 or September 15 following the specified date (or
if the Participant designated March 15 or September 15 as
the specified date, payment shall begin on such specified date), or
as soon thereafter as administratively feasible, but in no event
later than 90 days, and shall continue on each March 15 (or as
soon thereafter as administratively feasible, but in no event later
than 90 days) thereafter for the period selected by the
Participant. If a Participant who is to receive or has begun
receiving payments in annual installments under this
Section 3.2 experiences a Separation from Service before
having received all of the annual installments to which the
Participant is entitled, then if the Participant is Retirement
Eligible at the time of his Separation from Service, the
Participant shall receive or continue to receive the remaining
annual installment payments as scheduled, and if the Participant is
not Retirement Eligible at the time of his Separation from Service,
then the remaining installments shall be paid to the Participant in
a lump sum pursuant to Section 3.3(b).
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3.3 Separation from Service .
If a Participant has a Separation of Service, regardless of whether
the Participant designated a later specified date as the time when
his Non-Grandfathered Amounts are to be paid, then:
(a) If a Participant is Retirement
Eligible at the time of his Separation from Service, then payment
of the Participant’s Non-Grandfathered Amounts shall be made
as follows: (A) if the Participant elected a lump-sum payment
of his Non-Grandfathered Amounts, payment of such Non-Grandfathered
Amounts shall be made on the first March 15 or
September 15 which is at least six months following the
Participant’s Separation from Service for any reason from the
Company, or as soon thereafter as administratively feasible, but in
no event later than 90 days; and (B) if the Participant
elected annual installment payments of his Non-Grandfathered
Amounts, payment of such Non-Grandfathered Amounts shall begin on
the first March 15 or September 15 which is at least six
months following the Participant’s Separation from Service
for any reason from the Company, or as soon thereafter as
administratively feasible, but in no event later than 90 days, and
shall continue on each March 15 (or as soon thereafter as
administratively feasible, but in no event later than 90 days)
thereafter for the period selected by the Participant. A
Participant who has experienced a Separation from Service and has
begun receiving payments as set forth above, shall continue
receiving any remaining payments according to the terms in effect
on the date of his Separation from Service, even if later
re-employed by the Company.
(b) If a Participant is not
Retirement Eligible at the time of his Separation from Service,
then regardless of the Participant’s Elections, payment of
all of the Participant’s Non-Grandfathered Amounts shall be
made in a lump sum on the first March 15 or September 15
which is at least six months following the Participant’s
Separation from Service, or as soon thereafter as administratively
feasible, but in no event later than 90 days.
3.4 Death . Upon a
Participant’s death, payment of the Participant’s
Non-Grandfathered Amounts shall be made to the Participant’s
Beneficiary or Beneficiaries designated to receive the
Participant’s Amounts. If a Participant dies while still
actively employed by the Company, the payment of his
Non-Grandfathered Amounts shall be made as a single lump-sum
payment on the first March 15 or September 15 which is at
least six months following the Participant’s death, or as
soon thereafter as administratively feasible, but in no event later
than 90 days. If a Participant elects annual installment payments
and dies after such installment payments have commenced, any
remaining installment payments shall be made to the
Participant’s Beneficiary or Beneficiaries as a single
lump-sum payment on the first March 15 or September 15
which is at least six months following the Participant’s
death, or as soon thereafter as administratively feasible, but in
no event later than 90 days.
3.5 Disability . In the event
of the Disability of a Participant, payment of the
Participant’s Non-Grandfathered Amounts shall be made as
follows: (a) if the Participant elected a lump-sum payment of
his Non-Grandfathered Amounts, payment of such Non-Grandfathered
Amounts shall be made on the first March 15 or
September 15 which is at least six months following the
Participant’s date of Disability, or as soon thereafter as
administratively feasible, but in no event later than 90 days; and
(b) if the Participant elected annual installment payments of
his Non-Grandfathered Amounts, payment of such Non-Grandfathered
Amounts shall begin on the first March 15 or September 15
which is at least six months following the
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Participant’s date of Disability, or as
soon thereafter as administratively feasible, but in no event later
than 90 days, and shall continue on each March 15 (or as soon
thereafter as administratively feasible, but in no event later than
90 days) thereafter for the period selected by the Participant for
such Amounts.
3.6 Unforeseen Emergency . If
a Participant experiences an Unforeseeable Emergency, the
Participant may petition the Committee to receive a partial or full
payout of his Non-Grandfathered Amounts. The payout, if any, shall
not exceed the lesser of (a) the Participant’s vested
Non-Grandfathered Amounts, or (b) the amount necessary to
satisfy the Unforeseeable Emergency, plus amounts necessary to pay
federal, state, or local income taxes or penalties reasonably
anticipated as a result of the distribution. A Participant shall
not be eligible to receive a payout to the extent that the
Unforeseeable Emergency is or may be relieved (i) through
reimbursement or compensation by insurance or otherwise,
(ii) by liquidation of the Participant’s assets, to the
extent the liquidation of such assets would not itself cause severe
financial hardship, or (iii) by cessation of a deferral
election, if any, under an elective nonqualified deferred
compensation plan of the Company. If the Committee, in its sole
discretion, approves a Participant’s petition for payout,
such payout shall be made in a lump sum on the date on which such
approval occurs, or as soon as administratively feasible
thereafter, but in no event later than 90 days. At the time of its
determination, and to the extent permissible by Section 409A,
the Committee shall determine how any payment under this
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