EXHIBIT 1.0
American Express
Company
19,801,981 Common
Shares, par value $0.20 per share
___________
Underwriting
Agreement
June
1, 2009
Goldman, Sachs & Co.,
As
representative of the several Underwriters
named
in Schedule I hereto,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
American
Express Company, a New York corporation (the
“Company”), proposes, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the “Underwriters”) an
aggregate of 19,801,981 Common Shares, par value $0.20 per share,
of the Company (the “Firm Securities”) and, at the
election of the Underwriters, up to 2,970,296 additional Common
Shares, par value $0.20 per share, of the Company (the
“Optional Securities”)(the Firm Securities and the
Optional Securities that the Underwriters elect to purchase
pursuant to Section 2 hereof being collectively called the
“Securities”).
1. The
Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) An
“automatic shelf registration statement” as defined
under Rule 405 under the Securities Act of 1933, as amended (the
“Act”) on Form S-3 (File No. 333-138032) in respect of
the Securities has been filed with the Securities and Exchange
Commission (the “Commission”) not earlier than three
years prior to the date hereof; such registration statement, and
any post-effective amendment thereto, became effective on filing;
and no stop order suspending the effectiveness of such registration
statement or any part thereof has been issued and no proceeding for
that purpose has been instituted or threatened by the Commission,
and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by the
Company (the base prospectus filed as part of such registration
statement,
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in the form in which it has most recently been filed with the
Commission on or prior to the date of this Agreement, is
hereinafter called the “Basic Prospectus”; any
preliminary prospectus (including any preliminary prospectus
supplement) relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act is hereinafter called a
“Preliminary Prospectus”; the various parts of such
registration statement, including all exhibits thereto but
excluding Form T-1 and including any prospectus supplement relating
to the Securities that is filed with the Commission and deemed by
virtue of Rule 430B to be part of such registration statement, each
as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the
“Registration Statement”; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time
(as defined in Section 1(c) hereof), is hereinafter called the
“Pricing Prospectus”; the form of the final prospectus
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a) hereof is
hereinafter called the “Prospectus”; any reference
herein to the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of
such prospectus; any reference to any amendment or supplement to
the Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and incorporated therein, in each case after the date
of the Basic Prospectus, such Preliminary Prospectus, or the
Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act relating to
the Securities is hereinafter called an “Issuer Free Writing
Prospectus” (for the avoidance of doubt, a written
communication prepared by an Underwriter other than with the prior
consent of the Company shall not be deemed to be an Issuer Free
Writing Prospectus);
(b) No
order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder, and
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did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Goldman, Sachs & Co. expressly for use therein;
(c) For
the purposes of this Agreement, the “Applicable Time”
is 7:00 p.m. (Eastern time) on the date of this Agreement. The
Pricing Prospectus, as of the Applicable Time, did not include 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; and each Issuer Free Writing Prospectus listed on
Schedule II(a) hereto does not conflict with the information
contained in the Registration Statement, the Pricing Prospectus or
the Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Prospectus as
of the Applicable Time, did not include 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; provided, however, that
this representation and warranty shall not apply to statements or
omissions made in an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through Goldman, Sachs & Co.
expressly for use therein;
(d) The
Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement and the
Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Goldman, Sachs
& Co. expressly for use therein;
(e) The
consolidated historical financial statements and schedules of the
Company included in the Pricing Prospectus present fairly, in all
material respects the financial condition, the results of
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operations and cash flows of the Company and its consolidated
subsidiaries as of the dates and for the periods indicated, comply
as to form with the applicable accounting requirements of the Act
and have been prepared in conformity with generally accepted
accounting principles, applied on a consistent basis throughout the
periods involved (except as otherwise noted therein);
(f) Subsequent
to the respective dates as of which information contained in the
Registration Statement and the Pricing Prospectus is given, except
as disclosed in the Pricing Prospectus, (i) there has not been any
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, (ii) neither the
Company nor any of its subsidiaries has entered into any
transaction not in the ordinary course of business material to the
Company and its subsidiaries, taken as a whole, and (iii) neither
the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, not in the
ordinary course of business that are material in relation to the
Company and its subsidiaries, taken as a whole;
(g) Each
of the Company and its subsidiaries has been duly incorporated or
otherwise constituted and is validly existing as a corporation or
other legal entity in good standing under the laws of the
jurisdiction in which it is chartered or organized with full
corporate power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described
in the Pricing Prospectus; and each of the Company and its
subsidiaries is duly qualified to do business as a foreign
corporation or other entity and is in good standing under the laws
of each jurisdiction that, in the opinion of counsel for the
Company, requires such qualification, except where the failure to
be so qualified 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;
(h) The
Company has an authorized capitalization as set forth in the
Pricing Prospectus and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and
are fully paid and non-assessable and conform in all material
respects to the description of the Common Shares contained in the
Pricing Prospectus and Prospectus;
(i) The
unissued Securities to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as
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provided herein, will be duly and validly issued and fully paid
and non-assessable and will conform in all material respects to the
description of the Securities contained in the Prospectus;
(j) Neither
the issuance or sale of the Securities, nor the execution, delivery
and performance of this Agreement and the consummation of any other
transactions contemplated herein will conflict with, or result in a
breach or violation of, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets of the
Company or any of its subsidiaries pursuant to (i) the charter or
bylaws or other constitutive documents of the Company or any of its
subsidiaries, (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
the Company or any of its subsidiaries is a party or bound or to
which its or their property is subject, or (iii) to the best
knowledge of the Company, any statute, law, rule, regulation,
judgment, order or decree applicable to the Company, any of its
subsidiaries or any of their respective properties of any court,
regulatory body, administrative agency, governmental agency,
arbitrator or other authority having jurisdiction over the Company
or any of its subsidiaries or any of its or their properties,
except, in the case of (ii) or (iii), where such conflict, breach
or imposition of any lien, charge or encumbrance 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;
and no consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein;
(k) 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
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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;
(l) To
the best knowledge of the Company, no material action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or threatened that
(i) could reasonably be expected to have a material adverse effect
on the performance of this Agreement or the consummation of any of
the transactions contemplated hereby or (ii) could reasonably be
expected to 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, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Pricing
Prospectus;
(m) The
Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof, will
not be an “investment company”, as such term is defined
in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(n) (A)
(i) At the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus),
(iii) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c)) made any
offer relating to the Securities in reliance on the exemption in
Rule 163, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Act; and (B) at the
earliest time after the filing of the Registration Statement that
the Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Act) of the
Securities, the Company was not an Ineligible Issuer (as defined in
Rule 405 under the Act);
(o) PricewaterhouseCoopers
LLP are independent public accountants with respect to the Company
within the meaning of the Act and the applicable published rules
and regulations thereunder;
(p) The
Company and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded
as
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necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(q) The
Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the Exchange Act) that comply
with the requirements of the Exchange Act; such disclosure controls
and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made
known to the Company’s principal executive officer and
principal financial officer by others within those entities; and
such disclosure controls and procedures are effective;
(r) There
is and has been no failure on the part of the Company and any of
the Company’s directors or officers, in their capacities as
such, to comply with any provision of the Sarbanes Oxley Act of
2002 and the rules and regulations promulgated in connection
therewith (the “Sarbanes Oxley Act”), including Section
402 related to loans and Sections 302 and 906 related to
certifications.
(s) The
Company has not taken, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, any
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities
(t) The
operations of the Company are currently in compliance with
applicable financial recordkeeping and reporting requirements of
the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering
Laws”) in all material respects and any instances of
non-compliance have been resolved with the applicable governmental
agency and no formal action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company with respect to the Money Laundering Laws is
pending or, to the best knowledge of the Company, is
threatened;
(u) Neither
the Company nor any of its subsidiaries, nor, to the knowledge of
the Company, any director, officer, agent, employee or other person
acting on behalf of the Company or any of its subsidiaries, has
(i)
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used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; (iii) violated or is in violation of any provision of the
U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment; and
(v) None
of the Company, any of its subsidiaries or, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of
the U.S. Department of the Treasury (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the
offering of the Securities hereunder, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
2. Subject
to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase
from the Company, at a purchase price per share of $24.41675, the
number of Firm Securities set forth opposite the name of such
Underwriter in Schedule I hereto and (b) in the event and to the
extent that the Underwriters shall exercise the election to
purchase Optional Securities as provided below, the Company agrees
to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from
the Company, at the purchase price per share set forth in clause
(a) of this Section 2, that portion of the number of Optional
Securities as to which such election shall have been exercised (to
be adjusted by you so as to eliminate fractional shares) determined
by multiplying such number of Optional Securities by a fraction,
the numerator of which is the maximum number of Optional Securities
which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Securities
that all of the Underwriters are entitled to purchase
hereunder.
The
Company hereby grants to the Underwriters the right to purchase at
their election up to 2,970,296 Optional Securities, at the purchase
price per share set forth in the paragraph above, for the sole
purpose of covering sales of shares in excess of the number of Firm
Securities, provided that the purchase price per Optional Share
shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Firm
Securities but not payable on the Optional Securities. Any such
election to purchase Optional Securities may be exercised only by
written notice from you
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to the Company, given within a period of 30 calendar days after
the date of this Agreement, setting forth the aggregate number of
Optional Securities to be purchased and the date on which such
Optional Securities are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in
Section 4 hereof) or, unless you and the Company otherwise agree in
writing, earlier than two or later than ten business days after the
date of such notice.
3. Upon
the authorization by you of the release of the Firm Securities, the
several Underwriters propose to offer the Firm Securities for sale
upon the terms and conditions set forth in the Prospectus.
4. (a)
The Securities to be purchased by each Underwriter hereunder in
such authorized denominations and registered in such names as
Goldman, Sachs & Co. may request upon at least forty-eight
hours’ prior notice to the Company shall be delivered by or
on behalf of the Company to Goldman, Sachs & Co., through the
facilities of the Depository Trust Company (“DTC”), for
the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to
Goldman, Sachs & Co. at least forty-eight hours in advance. The
time and date of such delivery and payment shall be, with respect
to the Firm Securities, 9:30 a.m., New York City time, on June 5,
2009 or such other time and date as Goldman, Sachs & Co. and
the Company may agree upon in writing, and, with respect to the
Optional Securities, 9:30 a.m., New York time, on the date
specified by Goldman, Sachs & Co. in the written notice given
by Goldman, Sachs & Co. of the Underwriters’ election to
purchase such Optional Securities, or such other time and date as
Goldman, Sachs & Co. and the Company may agree upon in writing.
Such time and date for delivery of the Firm Securities is herein
called the “First Time of Delivery”, such time and date
for delivery of the Optional Securities, if not the First Time of
Delivery, is herein called the “Second Time of
Delivery”, and each such time and date for delivery is herein
called a “Time of Delivery”.
(b) The
documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Securities and any additional documents
requested by the Underwriters pursuant to Section 8(k) hereof, will
be delivered at the offices of Sullivan & Cromwell LLP, 125
Broad Street, New York, NY 10004 (the “Closing
Location”), and the Securities will be delivered to the
Underwriters through DTC, all at such Time of Delivery. A meeting
will be held at the Closing Location at 3:00 p.m., New York City
time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this Section 4,
“New York Business Day” shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a
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day on which banking institutions in New York City are generally
authorized or obligated by law or executive order to close.
5. The
Company agrees with each of the Underwriters:
(a) To
prepare the Prospectus in a form approved by you and to file such
Prospectus pursuant to the applicable paragraph of Rule 424(b)
under the Act within the time period prescribed; to make no further
amendment or any supplement to the Registration Statement, the
Basic Prospectus or the Prospectus prior to the last Time of
Delivery unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object; to advise
you, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or
becomes effective or any amendment or supplement to the Prospectus
has been filed and to furnish you with copies thereof; to file
promptly all other material required to be filed by the Company
with the Commission pursuant to Rule 433(d) under the Act; to
advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
other prospectus in respect of the Securities, of any notice of
objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act, of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, of the
institution or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or
for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or other prospectus or suspending any
such qualification, to promptly use its best efforts to obtain the
withdrawal of such order; and in the event of any such issuance of
a notice o
