Exhibit 1.0
EXECUTION
VERSION
TERMS AGREEMENT
May 13, 2009
American Express
Company
200 Vesey Street
New York, New York 10285
Attention: Treasurer
Ladies and Gentlemen:
We (the “
Representatives ”) understand that American Express
Company, a New York corporation (the “ Company
”), proposes to issue and sell U.S.$ 1,250,000,000 aggregate
principal amount of its 7.250% Notes due May 20, 2014 (the “
2014 Notes ”) and U.S.$ 1,750,000,000 aggregate
principal amount of its 8.125% Notes due May 20, 2019 (the “
2019 Notes ” and, together with the 2014 Notes, the
“ Securities ”) pursuant to the Company’s
Registration Statement on Form S-3 (No. 333-138032) (the “
Registration Statement ”).
Subject to the terms and conditions
set forth herein or incorporated by reference herein, the
underwriters named in Schedule I hereto (the “
Underwriters ”) offer to purchase, severally and not
jointly, the principal amount of Securities set forth therein
opposite their respective names at 99.492% of the principal amount
of the 2014 Notes and 99.225% of the principal amount of the 2019
Notes, together with accrued interest, if any, thereon from May 18,
2009 to the Closing Date. The Closing Date shall be May 18, 2009,
at 9:30 a.m. at the offices of Cleary Gottlieb Steen & Hamilton
LLP, One Liberty Plaza, New York, New York, or at such other time
or place on the same or such other date as the Representatives and
the Company may agree upon in writing, and shall occur in Federal
(same day) funds. The Securities shall be represented by one or
more global securities (the “ Global Securities
”) registered in the name of Cede & Co., the nominee of
The Depository Trust Company, New York, New York (the “
Depository ”).
The Securities shall have the
following terms:
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Title:
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U.S.$
1,250,000,000 aggregate principal amount of its 7.250%
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Notes due May
20, 2014.
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U.S.$
1,750,000,000 aggregate principal amount of its 8.125%
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Notes due May
20, 2019.
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Maturity:
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May 20, 2014
for the 2014 Notes.
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May 20, 2019
for the 2019 Notes.
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Interest
Payment Dates:
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May 20 and
November 20 of each year, beginning November 20,
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2009.
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Initial Price
to Public:
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99.842% of the
principal amount of the 2014 Notes and 99.675%
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of the
principal amount of the 2019 Notes, plus accrued interest,
if
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any, from May
18, 2009.
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Underwriting
Discount:
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0.350% for the
2014 Notes.
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0.450% for the
2019 Notes.
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Net Proceeds
Before
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Expenses to
Company:
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U.S$
2,980,087,500.
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Delayed
Delivery
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None.
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Contracts:
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Redemption
provisions:
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The Company may
not redeem the Securities prior to maturity
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unless certain
events occur involving United States taxation.
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Indenture:
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Senior Debt
Indenture dated as of August 1, 2007 among the
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Company and The
Bank of New York Mellon, as trustee.
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Counsel for
the
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Underwriters:
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Cleary Gottlieb
Steen & Hamilton LLP
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Additional
terms:
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As set forth in
the Prospectus Supplement dated May 13, 2009 to
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the Prospectus
dated October 16, 2006 relating to the Securities.
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Except as expressly set forth below,
all the provisions contained in the document entitled
“American Express Company––Debt
Securities––Underwriting Agreement Basic
Provisions” filed as an exhibit to the Registration Statement
on October 16, 2006 (the “ Basic Provisions ”),
a copy of which you have previously received, are herein
incorporated by reference in their entirety and shall be deemed to
be a part of this Terms Agreement, except as provided herein, to
the same extent as if the Basic Provisions had been set forth in
full herein. Terms defined in the Basic Provisions, except as
otherwise defined herein, are used herein as therein
defined.
Amendments to the Basic
Provisions:
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1.
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Each Underwriter hereby
represents to and agrees with the Company that:
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(i)
In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a “
Relevant Member State ”), each Underwriter has
represented and agreed that with effect from and including the date
on which the Prospectus Directive is implemented in that Relevant
Member State (the “ Relevant Implementation Date
”), it has not made and will not make an offer of Securities
to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Securities which has
been approved by the competent authority in that Relevant Member
State or, where appropriate, approved in another Relevant Member
State and notified to the competent authority in that Relevant
Member State, all in accordance with the Prospectus Directive,
except that it may, with effect from and including the Relevant
Implementation Date, make an offer of Securities to the public in
that Relevant Member State at any time: (a) to legal entities which
are authorized or regulated to operate in the financial markets or,
if not so authorized or
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regulated, whose corporate
purpose is solely to invest in securities; (b) to any legal entity
which has two or more of (1) an average of at least 250 employees
during the last financial year; (2) a total balance sheet of more
than €43,000,000; and (3) an annual net turnover of more than
€50,000,000, as shown in its last annual or consolidated
accounts; (c) to fewer than 100 natural or legal persons (other
than qualified investors as defined in the Prospectus Directive)
subject to obtaining the prior consent of the Representatives for
any such offer; or (d) in any other circumstances which do not
require the publication by the issuer of a prospectus pursuant to
Article 3 of the Prospectus Directive. For the purposes of this
provision, the expression an “offer of Securities to the
public” in relation to any Securities in any Relevant Member
State means the communication in any form and by any means of
sufficient information on the terms of the offer and the Securities
to be offered so as to enable an investor to decide to purchase or
subscribe the Securities, as the same may be varied in that Member
State by any measure implementing the Prospectus Directive in that
Member State and the expression Prospectus Directive means
Directive 2003/71/EC and includes any relevant implementing measure
in each Relevant Member State.
(ii) It has (a)
only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement
to engage in investment activity (within the meaning of Section 21
of the Financial Services and Markets Act 2000 (the “
FSMA ”)) received by it in connection with the issue
or sale of the Securities in circumstances in which Section 21(1)
of the FSMA does not apply to the Company; and (b) complied and
will comply with all applicable provisions of the FSMA with respect
to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom.
(iii) It
has not offered, sold or delivered and will not offer, sell or
deliver any of the Securities directly or indirectly, or distribute
the Prospectus or any other offering material relating to the
Securities, in or from any jurisdiction outside the United States
or the jurisdictions described in paragraphs (i)-(ii) of this
Section 1 except under circumstances that will result in compliance
with the applicable laws and regulations thereof and that will not
impose any obligations on the Company except as set forth
herein.
2. The
fourth subclause of Section 1(b) of the Basic Provisions is amended
and restated as follows:
“and on the date of any filing
pursuant to Rule 424(b), as of its date and on the Closing Date,
the Final Prospectus (together with any supplement thereto) will
not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;”
3. The
first sentence of Section 1(c) of the Basic Provisions is amended
and restated as follows:
“As of the Applicable Time,
the Disclosure Package, when considered as a whole, did not contain
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.”
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4. The
first sentence of Section 1(f) of the Basic Provisions is amended
to delete the words “listed on the schedule to the Terms
Agreement” immediately following the words “Each Issuer
Free Writing Prospectus.”
5.
Section 1(o) of the Basic Provisions is amended and restated as
follows:
“Neither the Company nor any
of American Express Banking Corp., American Express Travel Related
Services Company, American Express Bank, FSB, American Express
Centurion Bank, American Express Credit Corporation, American
Express Limited and American Express International (the “
Principal Subsidiaries ”) is in violation or default
of (i) any provision of its charter or bylaws or other constitutive
documents, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
it is a party or bound or to which its property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or decree
of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the
Company or such Principal Subsidiary or any of its properties, as
applicable, except, in the case of (ii) or (iii), where such
violation or default would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole.”
6.
Section 1 of the Basic Provisions is amended to insert the
following at the end of the existing provisions:
“(t)
The Company is not and, after giving
effect to the offering and sale of the Securities and the
application of the proceeds thereof, will
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