American Express Co S-3ASR, filed Feb 9, 2024
American Express Co (AXP)
SECURITIES AND EXCHANGE COMMISSION
UNDER
THE SECURITIES ACT OF 1933
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New York
(State or other jurisdiction of
incorporation or organization) |
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13-4922250
(I.R.S. Employer
Identification Number) |
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New York, New York 10285
(212) 640-2000
Chief Legal Officer
American Express Company
200 Vesey Street
New York, New York 10285
(212) 640-2000
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David S. Carroll, Esq.
David A. Kanarek, Esq. American Express Company 200 Vesey Street New York, New York 10285 (212) 640-2000 |
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Craig B. Brod, Esq.
David Lopez, Esq. Francesca L. Odell, Esq. Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, New York 10006 (212) 225-2000 |
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| | Large accelerated filer ☒ | | | Accelerated filer ☐ | | | Non-accelerated filer ☐ | | | Smaller reporting company ☐ | |
| | | | | | | | | | | Emerging growth company ☐ | |
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American Express Company
Debt Securities
Preferred Shares Depositary Shares Common Shares Warrants Units Guarantees |
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200 Vesey Street
New York, New York 10285
Attention: Secretary
(212) 640-2000
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SEC registration fee
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Printing and engraving expenses
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Legal fees and expenses
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Accounting fees and expenses
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Fees and expenses of trustee, depositary, transfer agent and/or warrant agent
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Fees of Rating Agencies
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Miscellaneous
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Total
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Exhibit
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Description
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| | 4(e) | | | Second Supplemental Indenture dated as of May 26, 2022 to the Subordinated Indenture dated as of August 1, 2007, between the Registrant and The Bank of New York Mellon, as trustee (incorporated by reference to Exhibit 4.1 of the Registrant’s Current Report on Form 8-K (File No. 1-7657), filed on May 26, 2022). | |
| | 4(f)* | | | Fourth Supplemental Indenture dated as of February 9, 2024 to the Subordinated Indenture dated as of August 1, 2007, between the Registrant and The Bank of New York Mellon, as trustee. | |
| | 4(g)* | | | | |
| | 4(h)* | | | | |
| | 4(i)** | | | Form of Deposit Agreement, including form of Depositary Receipt. | |
| | 4(j) | | | Form of Common Share Certificate (incorporated by reference to Exhibit 4 of Registrant’s Registration Statement on Form 8-A/A Amendment No. 1 (File No. 1 7657), filed on June 12, 2000). | |
| | 4(k)** | | | Form of Warrant Agreement for Common Shares and Preferred Shares (including form of Warrant Certificates). | |
| | 4(l)** | | | Form of Warrant Agreement for Debt Securities (including form of Warrant Certificates). | |
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4(m)**
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| | Form of Currency Warrant Agreement (including form of Currency Warrant). | |
| | 4(n)** | | | Form of Stock Index Warrant Agreement. | |
| | 4(o)** | | | Form of Warrant Agreement for Other Stock (including form of Warrant Certificate). | |
| | 4(p)** | | | Form of Unit Agreement. | |
| | 4(q)** | | | Form of Unit Certificate. | |
| | 4(r)** | | | Form of Guarantee. | |
| | 5* | | | | |
| | 23(a)* | | | | |
| | 23(b)* | | | | |
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| | 25(a)* | | | | |
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| | 107* | | | |
| | | | | AMERICAN EXPRESS COMPANY | | |||
| | | | | By: | | |
/s/ Christophe Y. Le Caillec
CHRISTOPHE Y. LE CAILLEC
Chief Financial Officer |
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Signature
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Title
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/s/ Stephen J. Squeri
STEPHEN J. SQUERI
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Chairman, Chief Executive Officer and Director (Principal Executive Officer)
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/s/ Christophe Y. Le Caillec
CHRISTOPHE Y. LE CAILLEC
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| | Chief Financial Officer (Principal Financial Officer) | | |||
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/s/ Jessica Lieberman Quinn
JESSICA LIEBERMAN QUINN
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Executive Vice President and Corporate Controller (Principal Accounting Officer)
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THOMAS J. BALTIMORE, JR.
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| | Director | | |||
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JOHN J. BRENNAN
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| | Director | | |||
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PETER CHERNIN
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| | Director | | |||
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WALTER J. CLAYTON III
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| | Director | | |||
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RALPH DE LA VEGA
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| | Director | | |||
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THEODORE J. LEONSIS
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| | Director | | |||
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Signature
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Title
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DEBORAH P. MAJORAS
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Director |
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KAREN L. PARKHILL
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| | Director | | |||
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CHARLES E. PHILLIPS, JR
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| | Director | | |||
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LYNN A. PIKE
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| | Director | | |||
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DANIEL L. VASELLA
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| | Director | | |||
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LISA W. WARDELL
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| | Director | | |||
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CHRISTOPHER D. YOUNG
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| | Director | | |||
as Attorney in Fact
Exhibit 1(a)
AMERICAN EXPRESS COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
To the Representative or
Representatives named in the
Terms Agreement referred to
below
American Express Company, a New York corporation (the “Company”), may issue and sell from time to time series of its debt securities registered under the Registration Statement referred to in Section 1(a) hereof. Such debt securities may have varying designations, denominations, currencies, interest rates and payment dates, maturities, redemption provisions and selling prices. The basic provisions set forth herein are intended to be incorporated by reference in a terms agreement of the type referred to below relating to the series of debt securities to be issued and sold by the Company pursuant thereto (the “Securities”) to the firm or firms named therein (each an “Underwriter” and together the “Underwriters”) for whom you (the “Representatives”) are acting as representatives. The Securities will be issued under (i) in the case of senior debt securities, an indenture, dated as of August 1, 2007, between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as trustee (such trust company, or such other trustee as may be named for the Securities, being hereafter referred to as the “Trustee”), as it may be supplemented or amended by one or more indentures supplemental thereto (the “Senior Debt Indenture”) or (ii) in the case of subordinated debt securities, a subordinated debt indenture, dated as of August 1, 2007, between the Company and the Trustee, as it may be supplemented or amended by one or more indentures supplemental thereto (the “Subordinated Debt Indenture”). References to the “Indenture” herein mean the Senior Debt Indenture in the case of senior debt securities or the Subordinated Debt Indenture in the case of subordinated debt securities.
The obligation of the Underwriters to purchase, and the Company to sell, the Securities is evidenced by the terms agreement (the “Terms Agreement”) substantially in the form specified in Exhibit I hereto delivered at the time the Company determines to sell the Securities. The Terms Agreement specifies the firm or firms that will be Underwriters, the principal amount of the Securities to be purchased by each Underwriter, the purchase price to be paid by the Underwriters for the Securities, the public offering price, if any, of the Securities, whether the Underwriters are authorized to solicit institutional investors to purchase Securities pursuant to Delayed Delivery Contracts (as defined in Section 3(b)), certain terms thereof and the Underwriters’ compensation therefor and any terms of the Securities not otherwise specified in the Indenture (including, but not limited to, designations, denominations, currencies, interest rates and payment dates, maturities, redemption provisions and sinking fund requirements). The Terms Agreement specifies any details of the terms of the offering that should be reflected in the Final Prospectus. The Terms Agreement, together with the provisions hereof incorporated therein by reference, is herein referred to as this “Agreement.”
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 that were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include, without limitation, the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 20 hereof.
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1. Representations and Warranties. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405, on Form S-3. Such Registration Statement, including any amendments or supplements thereto filed prior to the Execution Time, became effective upon filing. The Company may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more Preliminary Prospectuses. The Company will file with the Commission a Final Prospectus relating to the Securities in accordance with Rule 424(b), which shall contain all information required by the Act and the rules thereunder. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed (if required) in accordance with Rule 424(b) and on the Closing Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; on each Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; 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; provided, however, that the Company makes no representations or warranties as to (i) that part of the Registration Statement that shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from any document in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in such document.
(c) 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. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein.
(d) (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 and (iv) at the Execution Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was or is (as the case may be) a “Well-Known Seasoned Issuer” as defined in Rule 405. The Company agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) 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)) of the Securities and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an “ineligible issuer” (as defined in Rule 405) (“Ineligible Issuer”), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from the applicable Disclosure Package based upon and in conformity with written information furnished in writing to the Company by any Underwriter through the Representatives specifically for inclusion therein.
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(g) The consolidated historical financial statements and schedules of the Company included in the Base Prospectus, as it may be amended and supplemented prior to the Applicable Time, present fairly, and the consolidated historical financial statements and schedules of the Company included in the Final Prospectus will present fairly, in all material respects the financial condition, the results of 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).
(h) The interactive data in the eXtensible business reporting language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(i) The Company’s auditors are independent public accountants with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder.
(j) The Indenture and the Securities have been duly authorized; the Indenture has been duly qualified under the Trust Indenture Act; and the Indenture, when duly executed and delivered, and the Securities, when duly executed, authenticated, issued and delivered as contemplated hereby, by the Indenture and by the Delayed Delivery Contracts (as defined in Section 3(b)), if any, will constitute valid and legally binding obligations of the Company in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities and the Indenture conform in all material respects to the descriptions thereof in the Disclosure Package or Final Prospectus.
(k) Subsequent to the respective dates as of which information contained in the Registration Statement, the Base Prospectus or any Preliminary Prospectus is given, except as disclosed in the applicable Disclosure Package, there has not been any material adverse change in the results of operations, financial condition or business of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(l) Each of the Company and its Principal 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 Disclosure Package, any Preliminary Prospectus and the Final Prospectus; and each of the Company and its Principal 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 results of operations, financial condition or business of the Company and its Principal Subsidiaries, taken as a whole.
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(m) Neither the issuance or sale of the Securities, nor the execution, delivery and performance of this Agreement, the Indenture and any Delayed Delivery Contracts (as defined in Section 3(b)) and the consummation of any other transactions contemplated herein or in any Delayed Delivery Contracts 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 by-laws or other constitutive documents of the Company or any of its subsidiaries, (ii) the terms of the Indenture or any other 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 results of operations, financial condition or business of the Company and its subsidiaries, taken as a whole.
(n) 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 results of operations, financial condition or business 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 applicable Disclosure Package.
(o) Neither the Company nor any of its 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 results of operations, financial condition or business of the Company and its subsidiaries, taken as a whole.
(p) 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 have been obtained under the Act and the Trust Indenture Act and 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.
(q) Except as may be permitted under Regulation M of the Exchange Act, 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.
(r) 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 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.
(s) There is and has been no failure on the part of the Company or 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, including Section 402 related to loans and Sections 302 and 906 related to certifications.
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(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 not be an “investment company”, as such term is defined in the Investment Company Act.
(u) 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 management, including the principal executive officer and principal financial officer as appropriate; and such disclosure controls and procedures are effective.
(v) None of the Company, any of its subsidiaries or, 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 is aware of or has taken any action, directly or indirectly, that would result in a violation by the Company or its subsidiaries of the Foreign Corrupt Practices Act of 1977 (the “FCPA”) or the Bribery Act 2010 of the United Kingdom, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company and, to the knowledge of the Company, its subsidiaries have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. No part of the proceeds of the offering will be used, directly or indirectly, in violation of the FCPA or the Bribery Act 2010 of the United Kingdom.
(w) The operations of the Company are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and the rules and regulations thereunder and any applicable related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any governmental entity involving the Company with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened, except, where such action, suit or proceeding would not, individually or in the aggregate, have a material adverse effect on the results of operations, financial condition or business of the Company and its subsidiaries, taken as a whole.
(x) None of the Company, any of its subsidiaries, or, to the knowledge of the Company, any director, officer, agent or employee of the Company or any of its subsidiaries is, and none of the Company or any of its U.S. subsidiaries is 50% or more owned in the aggregate by, an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, or His Majesty’s Treasury (collectively, “Sanctions”), nor is the Company located, organized or resident in a country or territory that is the subject of comprehensive Sanctions generally prohibiting dealings with such country or territory (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and the Crimea regions of Ukraine, Cuba, Iran, North Korea, Syria and non-Ukrainian government controlled areas of Kherson and Zaporhizhia (each, a “Sanctioned Country”)).
Any certificate signed by any officer of the Company and delivered to the Underwriters or Counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in the Terms Agreement the principal amount of the Securities set forth opposite such Underwriter’s name in the Terms Agreement.
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3. Delivery and Payment.
(a) Delivery of and payment for the Securities shall be made on the date and at the time specified in the Terms Agreement or at such time on such later date not more than three Business Days thereafter as the Representatives and the Company may determine (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). The Securities shall be in global or definitive form and in such denominations and registered in such names as you may require upon at least two Business Days’ notice prior to the Closing Date. Delivery of the Securities shall be made by the Company to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
(b) If so authorized in the Terms Agreement, the Underwriters may solicit offers from investors of the types set forth in the Base Prospectus or any Preliminary Prospectus to purchase Securities from the Company pursuant to delayed delivery contracts (“Delayed Delivery Contracts”). Such contracts shall be substantially in the form of Exhibit II hereto but with such changes therein as the Company may approve. Securities to be purchased pursuant to Delayed Delivery Contracts are herein called “Contract Securities”. When Delayed Delivery Contracts are authorized in the Terms Agreement, the Company will enter into a Delayed Delivery Contract in each case where a sale of Contract Securities arranged through you has been approved by the Company but, except as the Company may otherwise agree, such Delayed Delivery Contracts must be for at least the minimum principal amount of Contract Securities set forth in the Terms Agreement, and the aggregate principal amount of Contract Securities may not exceed the amount set forth in the Terms Agreement. The Company will advise you not later than 9:30 A.M., New York City time, on the third full Business Day preceding the Closing Date (or at such later time as you may otherwise agree) of the sales of the Contract Securities that have been so approved. You and the other Underwriters will not have any responsibility in respect of the validity or performance of Delayed Delivery Contracts.
(c) The amount of Securities to be purchased by each Underwriter as set forth in the Terms Agreement shall be reduced by an amount that shall bear the same proportion to the total principal amount of Contract Securities as the principal amount of Securities set forth opposite the name of such Underwriter bears to the total principal amount of Securities set forth in the Terms Agreement, except to the extent that you determine that such reduction shall be otherwise than in such proportion and so advise the Company; provided, however, that the total principal amount of Securities to be purchased by all Underwriters shall be the total principal amount of Securities set forth in the Terms Agreement less the aggregate principal amount of Contract Securities.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus.
5. Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement unless the Company has furnished you with a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed. The Company will promptly advise the Representatives (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed and become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice that would prevent its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will promptly use its reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or prevention and, upon such issuance, occurrence or prevention, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or prevention, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable, unless the Company shall, in its sole judgment, determine that it is in the Company’s best interest not to do so.
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(b) The Company will prepare a final term sheet relating to such Securities, in a form approved by the Representatives and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) Prior to the termination of any offering of the Securities, if there occurs an event or development as a result of which the Disclosure Package or any Issuer Free Writing Prospectus would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package or any Issuer Free Writing Prospectus may cease until it is amended or supplemented, and will amend or supplement, at the expense of the Company, the Disclosure Package or any such Issuer Free Writing Prospectus, as the case may be, to correct any such misstatements or omissions and supply any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus, as then supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement that will correct such statement or omission or effect such compliance, (3) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (4) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited) covering a 12-month period beginning after the date on which the Final Prospectus is filed pursuant to Rule 424 under the Act that will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company will furnish to the Underwriters copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Underwriters may reasonably request.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc. (“FINRA”), in connection with its review of the offering; provided, however, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
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(h) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all expenses incident to the performance of its obligations hereunder, including, without limiting the generality of the foregoing, all costs, taxes and expenses incident to the issue and delivery of the Securities, all fees and expenses of the Company’s counsel and accountants, and all costs and expenses incident to the preparing, printing, filing and distributing of all documents relating to the offering, and will reimburse the Underwriters for any expenses and disbursements (including fees and disbursements of counsel not exceeding the amount, if any, specified in the Terms Agreement) incurred by them in connection with the matters referred to in Section 5(g) hereof and the preparation of memoranda relating thereto, for any filing fee of FINRA relating to the Securities, and for any fees charged by investment rating agencies for rating the Securities. Notwithstanding the foregoing, and subject to clause (i) below, in connection with any sale of Securities to any Underwriter pursuant to any Terms Agreement, the fees and disbursements of Counsel for the Underwriters will be paid by the Underwriters party to the applicable Terms Agreement.
| (i) | If (1) a sale of Securities provided for in this Agreement is not consummated by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or because any other condition of the Underwriters’ obligations hereunder required to be fulfilled by the Company is not fulfilled or (2) a Terms Agreement is terminated by the Representatives in accordance with the provisions of Section 7 or Section 11, the Company will reimburse the Underwriters named in the Terms Agreement for all reasonable out-of-pocket disbursements (including fees and disbursements of counsel) incurred by the Underwriters in connection with the proposed purchase and sale of the Securities. |
(i) If so stated in the Terms Agreement, the Company will use its commercially reasonable efforts to cause an application for the listing of the Securities on The New York Stock Exchange, Inc. or listing or quotation on such other securities exchange or automatic quotation system specified in the Terms Agreement and for the registration of the Securities under the Exchange Act to become effective.
(j) The Company agrees that, unless it obtains the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided, however, that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus”. The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company will not, without your consent, offer or sell any debt securities denominated in the currency in which the Securities are denominated having a maturity of more than one year (except under prior contractual commitments or pursuant to bank credit agreements) other than the Securities or publicly announce an intention to effect any such transaction during the period beginning on the Execution Time and ending on the business day immediately following the Closing Date.
(l) The Company will not take, 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, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
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6. Agreements of the Underwriters. The Underwriters agree that they will comply in all material respects with the selling restrictions set forth in the Base Prospectus, any Preliminary Prospectus and any Final Prospectus under the caption “Plan of Distribution,” “Underwriting” or any similar captions, as applicable.
7. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy, in all material respects, of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date; to the accuracy, in all material respects, of the statements of the Company made in any certificates pursuant to the provisions hereof; to the performance by the Company in all material respects of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any material change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 7; (ii) any material change, or any development involving a prospective change, in or affecting the results of operations, financial condition or business 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 Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) or (iii) any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change the effect of which, in any case referred to in clause (i), (ii) or (iii) above, in the reasonable judgment of the Representatives, makes it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(c) The Company shall have requested and caused counsel for the Company, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) The Company and each Principal Subsidiary has been duly incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation. The Company and each Principal Subsidiary has the corporate power necessary to own its properties and conduct the businesses in which they are engaged as described in any Preliminary Prospectus and the Final Prospectus; and except as may be disclosed in any Preliminary Prospectus and the Final Prospectus, all outstanding shares of capital stock of each of the Principal Subsidiaries are owned by the Company directly, or indirectly through wholly-owned subsidiaries, free and clear of any lien, pledge and encumbrance or, to the best of such counsel’s knowledge, any claim of any third party, except as permitted by the Indenture;
(ii) The Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
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(iii) The Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement (and, in the case of any Contract Securities, pursuant to the Delayed Delivery Contracts with respect thereto), will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iv) The Indenture conforms in all material respects to the description thereof in the Registration Statement and the Base Prospectus, each as it may be amended and supplemented prior to the Applicable Time, and any Preliminary Prospectus and, at the Closing Date, the Indenture will conform in all material respects to the description thereof in the Final Prospectus;
(v) The Registration Statement has become effective under the Act; any required filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, Exhibit 25(a) and Exhibit 25(b), as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date the Registration Statement contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus as of its date and on the Closing Date contained or contains an untrue statement of a material fact or omitted or omits 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 (in each case, including the documents incorporated by reference therein but excluding than the financial statements or schedules and other financial and statistical information contained therein, as to which such counsel need express no opinion) and the statements included or incorporated by reference in the Final Prospectus under the heading “Description of Debt Securities” and any similar headings, insofar as such statements summarize documents specifically discussed therein, provide a fair summary of such documents;
(vi) Such counsel has no reason to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Disclosure Package and the final term sheet prepared and filed pursuant to Section 5(b) hereto, when taken together as a whole, at the Applicable Time contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading (including the documents incorporated by reference therein but excluding the financial statements or schedules and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vii) Such counsel does not know of any contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Act or by the rules and regulations of the Commission thereunder, or which are required to be filed by the Exchange Act or the Trust Indenture Act or the rules and regulations of the Commission thereunder as exhibits to any document incorporated by reference in the Final Prospectus, which have not been filed as exhibits to the Registration Statement or to such document or incorporated therein by reference as permitted by such rules and regulations of the Commission;
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(viii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(ix) 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 have been obtained under the Act and the Trust Indenture Act, and 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 in this Agreement, in any Delayed Delivery Contract and in the Registration Statement and the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(x) To the best of such counsel’s knowledge, neither the Company nor any of its Principal Subsidiaries is in violation of its corporate charter or by-laws, or, to the best of such counsel’s knowledge, in default under any agreement, indenture or instrument the effect of any of which would be material to the Company and its subsidiaries taken as a whole;
(xi) Neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to (i) the charter or by-laws of the Company or any of its Principal 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 known to such counsel to which the Company or any of its Principal Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company, any of its Principal Subsidiaries or any of their respective properties of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its Principal Subsidiaries or any of its or their properties (but such counsel need not express an opinion relating to the United States federal securities laws or any state securities or Blue Sky laws), except, in the case of (ii) and (iii), where any such breach, violation or default would not be material to the Company and its subsidiaries, taken as a whole;
(xii) Except as required by the Act, the Exchange Act, the Trust Indenture Act and applicable state securities laws, no consent, authorization or order of, or filing or registration with, any court or governmental agency is required for the execution, delivery and performance of this Agreement, any Delayed Delivery Contract and the Indenture, except as has been duly obtained or made and is in full force and effect;
(xiii) Such counsel does not know of any litigation or any governmental proceeding pending or threatened against the Company or any of its subsidiaries which would affect the subject matter of this Agreement or the Indenture or is required to be disclosed in the Registration Statement which is not disclosed and correctly summarized therein; and
(xiv) 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.
In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York, or the federal laws of the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing whom such counsel believes to be reliable and who are satisfactory to Counsel for the Underwriters and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (c) shall also include any supplements thereto at the Closing Date.
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(d) You shall have received from Counsel for the Underwriters such opinion or opinions dated the Closing Date with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board of Directors, the Chief Executive Officer, any Vice Chairman, any President, any Executive Vice President, the Treasurer or any Assistant Treasurer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, the Disclosure Package and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied, in all material respects, all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the results of operations, financial condition or business 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 Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused the Company’s independent auditors to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives. Additionally, if any of the audited financial statements or financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus have not been audited by the Company’s independent auditors, the Company shall have requested and caused such other independent public accountants as have audited such financial statements or financial statement schedules to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives. References to the Final Prospectus in the letters furnished under this paragraph (f)will include any supplement thereto at the date of the letter.
(g) Prior to the Closing Date, the Company shall have furnished to you such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and Counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
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8. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 7 hereof is not satisfied, because of any termination pursuant to Section 11 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through the Representatives for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus, any issuer information filed or required to be filed pursuant to Rule 433(d) or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon (x) any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein or (y) that part of the Registration Statement that shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act; provided, further that the foregoing indemnity with respect to the Final Prospectus or any Permitted Free Writing Prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any losses, claims, damages or liabilities otherwise covered by this paragraph purchased Securities, or to the benefit of any person controlling such Underwriter, if a copy of the Final Prospectus or Permitted Free Writing Prospectus (as then amended and supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person if required so to have been delivered, at or prior to the entry into the contract of sale of Securities with such person, and if the Final Prospectus or Permitted Free Writing Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability that any Underwriter may otherwise have.
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(c) Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 9 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively “Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation that does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d). No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party.
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(e) The obligations of the Company under this Section 9 shall be in addition to any liability that the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act or the Exchange Act; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability that the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Company (including any person who, with his consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Act or the Exchange Act.
10. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions that the principal amount of Securities set forth opposite their names in the Terms Agreement bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities that the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Securities that the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in the Terms Agreement, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if arrangements satisfactory to you and the Company for the purchase of such Securities by other persons are not made within 36 hours after such failure, this Agreement will terminate without liability to any non-defaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any non-defaulting Underwriter for damages occasioned by its default hereunder.
11. Termination. This Agreement shall be subject to termination by the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading in the Company’s common stock shall have been suspended by the Commission or The New York Stock Exchange, Inc. or trading in securities generally shall have been suspended or materially limited or minimum prices shall have been established on such Exchange, (ii) a banking moratorium shall have been declared either by federal or New York State authorities or a material disruption in securities settlement or clearance services in the United States or (iii) there shall have occurred any outbreak of major hostilities in which the United States is involved, declaration by the United States of a national emergency or war, or other substantial national or international calamity or crisis the effect of which on financial markets is such as to make it, in the reasonable judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Final Prospectus (exclusive of any supplement thereto). Any such termination shall be without liability of any party to any other party except that the provisions of Section 5(h) and Section 9 shall at all times be effective. If you elect to terminate this Agreement as provided in this Section 11, the Company shall be notified promptly by you by telephone or facsimile, confirmed by letter.
12. Representations and Indemnities to Survive. The respective agreements, warranties, indemnities and other statements of the Company or its officers, and of the Underwriters, set forth in or made pursuant to this Agreement will remain in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling persons referred to in Section 9 hereof, and will survive delivery of and payment for the Securities.
15
13. Notices. All notices or communications hereunder shall be in writing and if sent to the Representatives will be mailed, delivered or telefaxed to you at your address set forth for that purpose in the Terms Agreement, or if sent to the Company, will be mailed or delivered to it at American Express Company, 200 Vesey Street, New York, New York 10285, Attention of the Treasurer. Any party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose.
14. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 9 hereof, and no other person will have any right or obligation hereunder.
15. No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company and (c) the Company’s engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
16. Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
17. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
18. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement. Delivery of this Agreement by one party to the other may be made by facsimile, electronic mail (including any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
19. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
20. Definitions. The terms that follow, when used in this Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Applicable Time” shall mean [ ], New York City time, on the date of the Terms Agreement.
“Base Prospectus” shall mean the prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Effective Date, as it may be amended or supplemented from time to time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Counsel for the Underwriters” shall mean [ ].
16
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution Time, if any, (iii) the Issuer Free Writing Prospectus identified in Schedule II of the Terms Agreement (excluding the treasury benchmark, treasury price, treasury yield, re-offer spread to benchmark, and re-offer yield included therein) and (iv) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became or become effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that the Terms Agreement is executed and delivered by the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Investment Company Act” shall mean the Investment Company Act of 1940, as amended.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base Prospectus that describes the Securities and the offering thereof and is used prior to filing of the Final Prospectus, together with the Base Prospectus.
“Principal Subsidiaries” shall mean American Express Travel Related Services Company, Inc., American Express National Bank, American Express Credit Corporation, American Express Limited and American Express International, Inc.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a)above, including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended.
“Rule 158,” “Rule 163,” “Rule 164,” “Rule 172,” “Rule 405,” “Rule 415,” “Rule 424”, “Rule 430B” and “Rule 433” refer to such rules under the Act.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended and the rules and regulations of the Commission promulgated thereunder.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405.
17
EXHIBIT I
FORM OF TERMS AGREEMENT
Debt Securities
[Date]
American Express Company
200 Vesey Street
New York, New York 10285
Attention: Treasurer
Ladies and Gentlemen:
We, as representatives (the “Representative(s)”) of the Underwriters (as defined below), understand that American Express Company, a New York corporation (the “Company”), proposes to issue and sell $ aggregate principal amount of its [Name of Securities] (the “Securities”). 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 the Securities set forth therein opposite their respective names at % of the principal amount thereof, together with accrued interest, if any, thereon from , 20 to the Closing Date. The Closing Date shall be at 9:30 A.M. on , 20 at the offices of [ ].
The Securities shall have the terms set forth in Schedule II hereto.
All the provisions contained in the document entitled “American Express Company—Debt Securities—Underwriting Agreement Basic Provisions” and filed with the Commission on , 2024 (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 are used herein as therein defined.
For purposes of the Basic Provisions, “Applicable Time” with respect to this Terms Agreement, shall mean : [A.M.][P.M.], [New York City time], on the date of this agreement.
[The Securities will be listed on ..]
[In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Terms Agreement, and any interest and obligation in or under this Terms Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Terms Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Terms Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Terms Agreement were governed by the laws of the United States or a state of the United States.
As used in the immediately preceding paragraph, “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b), (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b), or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.]
1
[Notwithstanding and to the exclusion of any other term of this Terms Agreement or any other agreements, arrangements, or understanding between the Underwriters and the Company, the Company acknowledges and accepts that a BRRD Liability arising under this Terms Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts and agrees to be bound by:
| (a) | the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of any of the Underwriters to the Company under this Terms Agreement, that (without limitation) may include and result in any of the following, or some combination thereof: |
| (i) | the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; |
| (ii) | the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of any of the Underwriters or another person, and the issue to or conferral on the Company of such shares, securities or obligations; |
| (iii) | the cancellation of the BRRD Liability; and |
| (iv) | the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and |
| (b) | the variation of the terms of this Terms Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority. |
As used in this paragraph, “Bail-in Legislation” means a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time; “Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation; “BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms; “BRRD Liability” means a liability in respect of which the relevant Write-Down and Conversion Powers in the applicable Bail-in Legislation may be exercised; “EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/pages.aspx?p=499; and “Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to any of the Underwriters.]
[Notwithstanding and to the exclusion of any other term of this Terms Agreement or any other agreements, arrangements, or understanding between the Underwriters and the Company, the Company acknowledges and accepts that a UK Bail-in Liability arising under this Terms Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges, accepts and agrees to be bound by:
| (a) | the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of any of the Underwriters to the Company under this Terms Agreement, that (without limitation) may include and result in any of the following, or some combination thereof: |
| (i) | the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon; |
2
| (ii) | the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of any of the Underwriters or another person, and the issue to or conferral on the Company of such shares, securities or obligations; |
| (iii) | the cancellation of the UK Bail-in Liability; and |
| (iv) | the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and |
| (b) | the variation of the terms of this Terms Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of UK Bail-in Powers by the relevant UK resolution authority. |
As used in this paragraph, “UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings); “UK Bail-in Powers” means the powers under the UK Bail-in Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability; and “UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.]
Please accept this offer by signing a copy of this Terms Agreement in the space set forth below and returning the signed copy to us, or by sending us a written acceptance in the following form:
“We hereby accept your offer, set forth in the Terms Agreement, dated , 20 , to purchase the Securities on the terms set forth therein.”
| Very truly yours, | ||
| By | ||
| Title: | ||
| Address: | ||
| Accepted: | ||
| American Express Company | ||
| By | ||
| Title: | ||
3
SCHEDULE I
| Name | Principal Amount of [Name of Securities] | |||
| [Names of Underwriters] | $ | |||
| Total | $ | |||
4
SCHEDULE II
(FORM OF FREE WRITING PROSPECTUSES INCLUDED IN THE DISCLOSURE PACKAGE)
Title:
Currency:
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Additional Terms:
(Insert any delayed delivery provisions for Securities)
5
EXHIBIT II
AMERICAN EXPRESS COMPANY
[Insert specific title of securities]*
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]*
| American Express Company | ||
| c/o | ||
Gentlemen:
The undersigned hereby agrees to purchase from American Express Company (hereinafter called the “Company”), and the Company agrees to sell to the undersigned, [If one delayed closing, insert the following: as of the date hereof, for delivery on (the “Delivery Date”)]
$
principal amount of the Company’s [title of Securities] (the “Securities”), offered by the Company’s prospectus relating thereto, receipt of a copy of which is hereby acknowledged, at a purchase price of % of the principal amount thereof plus accrued interest, if any, and on the further terms and conditions set forth in this contract.
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for delivery on the dates set forth below, Securities in the principal amounts set forth below:
| Delivery Date | Principal Amount | |||
| $ | ||||
| $ | ||||
| $ | ||||
| $ | ||||
Each of such delivery dates is hereinafter referred to as a “Delivery Date.”]
Payment for the Securities that the undersigned has agreed to purchase for delivery on [the] [each] Delivery Date shall be made to the Company or its order by certified or official bank check in New York Clearing House funds or by wire transfer payable in same-day funds (or as otherwise specified in the Terms Agreement) at the office of [ ] at [ ].M., time, on such Delivery Date upon delivery to the undersigned of the Securities to be purchased by the undersigned for delivery on such Delivery Date in definitive form and in such denominations and registered in such names as the undersigned may designate in writing to the Company not less than five full Business Days prior to such Delivery Date. If no designation is received, the Securities will be registered in the name of the undersigned and issued in a denomination equal to the aggregate principal amount of Securities to be purchased by the undersigned on such Delivery Date.
1
The obligation of the undersigned to take delivery of, and make payment for, Securities on [the] [each] Delivery Date shall be subject only to the conditions that (1) investment in the Securities shall not at such Delivery Date be prohibited under the laws of any jurisdiction in the United States to which the undersigned is subject, which investment the undersigned represents is not prohibited on the date hereof, and (2) the Company shall have delivered to the Underwriters the principal amount of the Securities to be purchased by them pursuant to the Underwriting Agreement referred to in the prospectus mentioned above and received payment therefor.
Promptly after completion of the sale to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the opinion of counsel for the Company delivered to the Underwriters in connection therewith.
This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other.
It is understood that the acceptance of this contract and any other similar contracts is in the Company’s sole discretion and without limiting the foregoing, need not be on a first-come, first-served basis. If this contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned when such counterpart is mailed or delivered.
This contract shall be governed by, and construed in accordance with, the laws of the State of New York.
| Very truly yours, | ||
| (Name of Purchaser) | ||
| By | ||
| (Title of Signatory) | ||
| (Address of Purchaser) | ||
| Accepted, as of the above date: | ||
| American Express Company | ||
| By | ||
| (Title of Signatory) | ||
2
Exhibit 4(f)
AMERICAN EXPRESS COMPANY
As Issuer
and
THE BANK OF NEW YORK MELLON
formerly known as The Bank of New York
As Trustee
FOURTH SUPPLEMENTAL INDENTURE
dated as of February 9, 2024
to
THE SUBORDINATED INDENTURE
dated as of August 1, 2007
FOURTH SUPPLEMENTAL INDENTURE (this “Fourth Supplemental Indenture”), dated as of February 9, 2024, between AMERICAN EXPRESS COMPANY, a corporation duly organized and existing under the laws of the State of New York (herein called the “Company”) having its principal office at 200 Vesey Street, New York, NY 10285, and THE BANK OF NEW YORK MELLON (formerly known as The Bank of New York), a banking corporation duly organized and existing under the laws of the State of New York, as Trustee (herein called the “Trustee”) having its principal office at 240 Greenwich Street, 7E, New York, NY 10286.
WITNESSETH
WHEREAS, the Company and the Trustee have executed and delivered a Subordinated Indenture, dated as of August 1, 2007 (the “Original Indenture,”) and the Second Supplemental Indenture, dated as of May 26, 2022 (the “Second Supplemental Indenture,” and the Original Indenture, together with the Second Supplemental Indenture and this Fourth Supplemental Indenture, the “Indenture”), providing for the issuance of the Company’s debentures, notes or other evidences of unsecured indebtedness to be issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time to time be authorized by or pursuant to the authority granted in one or more resolutions of the Board of Directors.
WHEREAS, Section 11.01 of the Original Indenture provides that the Company, when authorized by or pursuant to the authority granted in a resolution of its Board of Directors, and the Trustee, at any time and from time to time, may, without consent of Holders, enter into one or more indentures supplemental thereto, in form satisfactory to the Trustee to add to, change or eliminate any of the provisions of the Indenture; provided, that any such addition, change or elimination shall not apply to any outstanding Security.
WHEREAS, this Fourth Supplemental Indenture will not apply to any outstanding Security because the amendments contained in this Fourth Supplemental Indenture will apply only to Securities of a series created pursuant to the Indenture on or after the date hereof.
WHEREAS, the Company desires, and has requested, the Trustee to join with it in entering into this Fourth Supplemental Indenture for the purpose of amending the Original Indenture in certain respects as permitted by Section 11.01 of the Original Indenture.
WHEREAS, the entry into this Fourth Supplemental Indenture, as required by Section 11.01 of the Original Indenture, has been authorized by a resolution of its Board of Directors.
WHEREAS, all actions required by the Company to be taken in order to make this Fourth Supplemental Indenture a valid and legally binding instrument in accordance with its terms, have been taken and performed, and the execution and delivery of this Fourth Supplemental Indenture has been duly authorized in all respects.
NOW, THEREFORE, the Company and the Trustee mutually covenant and agree as follows:
Article 1
DEFINITIONS
Section 101. Relation to Original Indenture.
(a) This Fourth Supplemental Indenture shall constitute an integral part of the Original Indenture.
Section 102. Definitions. For all purposes of this Fourth Supplemental Indenture, except as otherwise expressly provided for or unless the context otherwise requires:
(a) Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Original Indenture;
(b) Terms defined both herein and in the Original Indenture shall have the meanings assigned to them herein.
Article 2
AMENDMENTS TO THE INDENTURE
For all Securities of a series created pursuant to the Original Indenture on or after the date hereof, the Original Indenture is hereby amended as follows:
Section 201. Amendments to Section 1.01. The following changes are made to Section 1.01 of the Original Indenture:
The definition of “Corporate Trust Office” is hereby deleted, amended and restated in its entirety to read as follows, and references in the Indenture to “Corporate Trust Office” shall mean Corporate Trust Office as such term is so amended:
““Corporate Trust Office” means the principal office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office of The Bank of New York, at the date of the execution of this Indenture, is located at 240 Greenwich Street, 7E, New York, NY 10286, Attn: Corporate Trust Administration.”
The following new term is hereby inserted immediately following the definition of “Corporation”:
““Covenant Default” means a default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty that has been included solely for the benefit of Securities of another series), and a continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee, or to the Company and the Trustee by the Holders of a majority in principal amount of the Outstanding Securities of such series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default.””
The following new term is hereby inserted immediately following the definition of “Foreign Currency”:
““GAAP” means, at any date or for any period, U.S. generally accepted accounting principles as in effect on such date or for such period.”
The definition of “Senior Indebtedness” is hereby deleted, amended and restated in its entirety to read as follows, and references in the Indenture to “Senior Indebtedness” shall mean Senior Indebtedness as such term is so amended:
“Senior Indebtedness”: See Section 13.01 hereof.
Section 202. Amendment to Section 3.05. The seventh paragraph of Section 3.05 of the Original Indenture is hereby deleted, amended and restated in its entirety to read as follows:
“As provided in Section 3.04 hereof, each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. Notwithstanding the foregoing and except as otherwise specified as contemplated by Section 3.01, no Global Security shall be registered for transfer or exchange, or authenticated or delivered, pursuant to this Section 3.05 or Sections 3.06, 3.07, 4.07 or 11.07 in the name of a Person other than the Depositary for such Security or its nominee until (i) the Depositary with respect to a Global Security notifies the Company in writing that it is unwilling or unable to continue as Depositary for such Global Security or the Depositary ceases to be a clearing agency registered under the Exchange Act or other applicable statute or regulation if required thereunder, and the Company does not appoint a successor Depositary within 90 days, (ii) the Company executes and delivers to the Trustee a Company Order that such Global Security shall be so transferable and exchangeable or (iii) there shall have occurred and be continuing an Event of Default with respect to the Securities of such Series. Upon the occurrence in respect of any Global Security of any series of any one or more of the conditions specified in clauses (i), (ii) or (iii) of the preceding sentence or such other conditions as may be specified as contemplated by Section 3.01 for such series, the Company shall execute, and the Trustee upon receipt of a Company Order shall authenticate and deliver, without service charge, (i) to the Depositary or to each Person specified by such Depositary a new Security or Securities of the same series, of like tenor and terms in definitive form and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security, and (ii) to such Depositary a new Global Security of like tenor and terms and in a principal amount equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered pursuant to clause (i).”
Section 203. Amendment to Section 7.01. The definition of an “Event of Default” in Section 7.01 of the Original Indenture, as amended by the Second Supplemental Indenture, is hereby deleted, amended and restated in its entirety to read as follows, and references in the Indenture to an “Event of Default” or “Events of Default” shall mean an Event of Default or Events of Default as such term is so amended:
“Event of Default” whenever used herein with respect to Securities of any series means such events as may be established with respect to the Securities of such series as contemplated by Section 3.01 hereof and any one of the following events, continued for the period of time, if any, and after the giving of notice, if any, designated herein or therein, as the case may be, unless the same is either not applicable to such series or is deleted or modified pursuant to the authority granted in the applicable Board Resolution or in the supplemental indenture under which such series of Securities is issued, as the case may be, as contemplated by Section 3.01 hereof:
(a) [Intentionally omitted];
(b) [Intentionally omitted];
(c) [Intentionally omitted];
(d) [Intentionally omitted];
(e) [Intentionally omitted];
(f) [Intentionally omitted];
(g) the institution by the Company of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Federal Bankruptcy Code or any other applicable Federal or State law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(h) any other Event of Default provided in or pursuant to the authority granted in the applicable Board Resolution or in the supplemental indenture under which such series of Securities is issued, as the case may be, as contemplated by Section 3.01 hereof.”
Section 204. Amendment to Section 7.07. Section 7.07 of the Original Indenture is hereby deleted, amended and restated in its entirety to read as follows:
“No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee (or other similar official), or for any other remedy hereunder, unless:
| 1) | an Event of Default or Covenant Default with respect to such series of Securities shall have occurred and be continuing and such Holder previously shall have given to the Trustee for the Securities of such affected series written notice of the occurrence and continuance thereof; |
| 2) | the Holders of not less than a majority in principal amount of the Outstanding Securities of such affected series shall have made written request to such Trustee to institute proceedings in respect of such Event of Default or Covenant Default in its own name as Trustee hereunder; |
| 3) | such Holder or Holders have offered to such Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; |
| 4) | such Trustee for 90 days after receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and |
| 5) | no direction inconsistent with such written request has been given to such Trustee during such 90-day period by the Holders of a majority in principal amount of the Outstanding Securities of such affected series; |
it being understood and intended that no one or more Holders of Securities of such affected series shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities of such affected series, or to obtain or to seek to obtain priority or preference over any other such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders of the Securities of such affected series. Other than as provided in Section 7.08 hereof, only the Trustee or the Holders of not less than a majority in principal amount of the Outstanding Securities of such affected series may institute a proceeding against the Company on account of any Covenant Default. Notwithstanding the foregoing, Holders shall have an absolute right to receive payment of the principal of, and interest on, their Securities of any series when due, and to institute suit to enforce any such payment.”
Section 205. Amendment to Section 8.02. Section 8.02 of the Original Indenture is hereby deleted, amended and restated in its entirety to read as follows:
“Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series which is known to a Responsible Officer of the Trustee or of which such Trustee has been given written notice, the Trustee shall transmit to all Holders of the Securities of such series, as their names and addresses appear in the Securities Register, notice of such default hereunder with respect to such series known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of principal of (or premium, if any) or interest, if any, on any Security of such series, or in the payment of any redemption payment, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interest of such Holders.”
Section 206. Amendment to Section 13.01. Section 13.01 of the Original Indenture is hereby amended and supplemented by the addition of the following language following the first paragraph thereof:
““Senior Indebtedness” means the principal of and interest on:
(a) all indebtedness of the Company, whether outstanding on the date of issuance of the Securities of any series issued pursuant to this Indenture or thereafter created, incurred or assumed, which is for money borrowed or which is evidenced by a note, bond, indenture or similar instrument;
(b) all obligations of the Company under leases required or permitted to be capitalized under GAAP;
(c) all of the Company’s reimbursement obligations with respect to any letter of credit, banker’s acceptance, security purchase facility or similar credit transactions;
(d) all obligations of the types referred to in clauses (a), (b) or (c) above of another person, the payment of which the Company is responsible or liable as guarantor or otherwise;
(e) any agreements or obligations to pay deferred purchase price or conditional sales agreements other than in the ordinary course of business;
(f) all obligations of the types referred to in clauses (a) through (e) above of another person secured by any lien on any property or assets of the Company (whether or not that obligation has been assumed by the Company); and
(g) amendments, modifications, renewals, extensions, deferrals and refundings of any of the above types of indebtedness.
Senior Indebtedness shall continue to be Senior Indebtedness and to be entitled to the benefits of the subordination provisions of the Indenture irrespective of any amendment, modification or waiver of any term of the Senior Indebtedness, or any extension or renewal of the Senior Indebtedness. Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness shall not include (i) indebtedness incurred for the purchase of goods, materials or property, or for services obtained in the ordinary course of business or for other liabilities arising in the ordinary course of business, (ii) any indebtedness which by its terms is expressly made equal in rank and payment with or subordinated to the Securities, (iii) obligations by the Company owed to its Subsidiaries and (iv) any series of Securities created pursuant to the Indenture.”
Section 207. Amendment to Section 13.02(a). Section 13.02(a) of the Original Indenture is hereby deleted, amended and restated in its entirety to read as follows:
“Upon (i) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property; (ii) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings; (iii) any assignment by the Company for the benefit of creditors; or (iv) any other marshalling of the assets of the Company, all principal, premium, if any, and interest, if any, due upon all Senior Indebtedness shall first be paid in full, or payment thereof provided for in money or money’s worth in accordance with its terms, before any payment is made on account of the principal of, premium, if any, or interest on the indebtedness evidenced by the Securities, and upon any such dissolution or winding-up or liquidation or reorganization any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Securities would be entitled, except for the provisions hereof, shall (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the rights conferred by the provisions hereof upon the Senior Indebtedness and the holders thereof with respect to the Securities and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law), be paid by the Company or any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, or by the Holders of the Securities if received by them, directly to the holders of Senior Indebtedness (pro rata to each such holder on the basis of the respective amounts of Senior Indebtedness held by such holder) or their representatives, to the extent necessary to pay all Senior Indebtedness (including interest thereon) in full in money or money’s worth in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness, before any payment or distribution is made to the Holders of the indebtedness evidenced by the Securities. The consolidation of the Company with, or a merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided in Section 10.01 hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 13.02(a).”
Section 208. Amendment to Section 13.02(b). Section 13.02(b) of the Original Indenture is hereby deleted, amended and restated in its entirety to read as follows:
“In the event that any payment or distribution of assets of the Company of any kind or character not permitted by Section 13.02(a), whether in cash, property or securities, shall be received by the Trustee for, or the Holders of, the Securities before all Senior Indebtedness is paid in full, or provision made for such payment, in accordance with its terms, at a time when a responsible officer of the Trustee or such Holder has actual knowledge that such payment should not have been made to it, such payment or distribution shall be held in trust for the benefit of, and, upon written request, shall be paid over or delivered to, the holders of such Senior Indebtedness or their representative or representatives, or to the Trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all such Senior Indebtedness in full in accordance with its terms, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness.”
Section 209. Amendment to Section 13.02(c). The second sentence of Section 13.02(c) of the Original Indenture is hereby deleted, amended and restated in its entirety to read as follows:
“No direct or indirect payment, in cash, property or securities, by set-off or otherwise, may be made or agreed to be made on account of the Securities or interest thereon, or in respect of any repayment, redemption, retirement, purchase or other acquisition of the Securities, if, at the time of such payment or immediately after giving effect thereto, (i) the Company defaults in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or declaration or otherwise or (ii) an event of default occurs with respect to any Senior Indebtedness permitting the holders thereof to accelerate the maturity thereof and written notice of such event of default (requesting that payments on the Securities cease) is given to the Company by the holders of Senior Indebtedness, and such event of default shall not have been cured or waived or shall not have ceased to exist.”
Section 210. Amendment to Section 13.03. Section 13.03 of the Original Indenture is supplemented by adding the following paragraph following the last paragraph:
“In matters between Holders of the Securities and any other type of the Company’s creditors, any payments that would otherwise be paid to holders of Senior Indebtedness and that are made to Holders of the Securities because of such subrogation will be deemed a payment by the Company on account of Senior Indebtedness and not on account of the Securities.”
Article 3
MISCELLANeOUS
Section 301. Effect of Fourth Supplemental Indenture. Upon the execution and delivery of this Fourth Supplemental Indenture by each of the Company and the Trustee, the Original Indenture shall be supplemented in accordance herewith, and this Fourth Supplemental Indenture shall form a part of the Indenture for all purposes.
Section 302. Confirmation of Indenture. The Original Indenture, as supplemented and amended by the Second Supplemental Indenture and by this Fourth Supplemental Indenture, is in all respects ratified and confirmed, and the Original Indenture, the Second Supplemental Indenture and this Fourth Supplemental Indenture shall be read, taken and construed as one and the same instrument. This Fourth Supplemental Indenture constitutes an integral part of the Indenture. In the event of a conflict between the terms and conditions of the Original Indenture or the Second Supplemental Indenture and the terms and conditions of this Fourth Supplemental Indenture, the terms and conditions of this Fourth Supplemental Indenture shall prevail.
Section 303. Governing Law. This Fourth Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.
Section 304. Separability. In case any provision contained in this Fourth Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 305. Effect of Headings. The titles and headings of the articles and sections of this Fourth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 306. Counterparts. This Fourth Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. Each party agrees that this Fourth Supplemental Indenture may be electronically or digitally signed, and that any such electronic or digital signatures appearing on this Fourth Supplemental Indenture are the same as handwritten signatures for the purposes of validity, enforceability and admissibility.
Section 307. Trustee. The Trustee makes no representations as to the validity or sufficiency of this Fourth Supplemental Indenture. The statements and recitals herein are deemed to be those of the Company and not of the Trustee.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly executed as of the day and year first above written.
| AMERICAN EXPRESS COMPANY | |
| as Issuer |
| By: | /s/ Kerri Bernstein | |
| Name: Kerri Bernstein | ||
| Title: Treasurer |
|
THE BANK OF NEW YORK MELLON | |
| as Trustee |
| By: | /s/ Stacey B. Poindexter | |
| Name: Stacey B. Poindexter | ||
| Title: Vice President |
[Signature Page for the Fourth Supplemental Indenture]
Exhibit 4(g)
Permanent Registered [ ] Senior Global Note
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE TO THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO A NOMINEE FOR DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO AMERICAN EXPRESS COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
AMERICAN EXPRESS COMPANY
[ ] Notes due ,
$
| No. | CUSIP: | |
| CC: | ISIN: |
AMERICAN EXPRESS COMPANY, a New York corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, (a) the principal amount shown above and (b) accrued and unpaid interest, if any, on the principal amount then outstanding at the interest rate and on the interest payment dates, each as specified in the prospectus supplement attached hereto as Annex I and delivered herewith (together with any prospectuses, prospectus supplements or other supplements referenced therein (however titled), the “Prospectus”).
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof and in the Prospectus, which further provisions shall have the same effect as though fully set forth in this place.
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual, facsimile or electronic signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, AMERICAN EXPRESS COMPANY has caused this instrument to be duly executed.
Dated: ,
|
TRUSTEE’S CERTIFICATE OF AUTHENTICATION |
AMERICAN EXPRESS COMPANY | |
| This is one of the Securities described in the within-mentioned Indenture. | By: | |
| Attest: | ||
| By: | ||
| THE BANK OF NEW YORK MELLON | ||
| As Trustee | ||
| By: | ||
(Reverse of Global Note)
AMERICAN EXPRESS COMPANY
[ ] Notes due ,
$
No.
This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness (hereinafter called “Securities”) of the Company of the series hereinafter specified, all such Securities issued and to be issued under an indenture dated as of August 1, 2007, between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee (the “Trustee”), as supplemented by the first supplemental indenture dated as of February 12, 2021 and the second supplemental indenture dated as of May 1, 2023, each between the Company and the Trustee (as so supplemented and as may be further supplemented from time to time, hereinafter called the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the rights and limitation of rights thereunder of the Holders of Securities and of the rights, obligations, duties and immunities of the Trustee for each series of Securities and of the Company, and the terms upon which Securities are and are to be authenticated and delivered. As provided in the Indenture, Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may be denominated in currencies other than U.S. dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption or repurchase provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants, Events of Default or Covenant Breaches and may otherwise vary as in the Indenture provided or permitted. This Note is one of a series of the Securities designated [ ] Notes due , (the “Notes”). Additional notes on the same terms and conditions and with the same CUSIP number as those of the Notes may be issued by the Company without the consent of the Holders of the Notes. Such further notes shall be consolidated and form a single series with the Notes.
Payment of the principal of, and premium, if any, and interest on, this Note will be made in immediately available funds at the office or agency of the Trustee maintained for that purpose in the Borough of Manhattan, The City of New York, State of New York, in such coin or currency of the United States of America or other currency or composite currency, as specified on the face of this Note or in the Prospectus, as at the time of payment shall be legal tender for payment of public and private debts; provided, however, that (A) at the option of the Company payment of interest on any Note issued in definitive form will be payable (i) by a U.S. dollar check drawn on a bank in The City of New York mailed to the address of the person entitled thereto as such address shall appear in the Security Register, or (ii) by wire transfer in immediately available funds at the place and to the account as the Person entitled thereto may designate, as specified in the Security Register in writing no later than the fifteenth day immediately preceding the relevant Interest Payment Date and (B) payment on any Note issued as a Global Security will be made to or as directed by the Depositary.
R-1
Redemption
If so specified in the Prospectus, the Company may, at its option, redeem this Note in whole or in part, on the redemption date specified in the Prospectus and at the redemption price specified therein. Provisions regarding requirements and procedures for redemption, if other than as set forth in the Indenture, will be set forth in the Prospectus.
Unless otherwise specified in the Prospectus, this Note will not be subject to any sinking fund.
Other Terms
The Indenture contains provisions for defeasance and discharge at the Company’s option of either the entire principal of all the Notes of any series or of certain covenants in the Indenture upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. No other defaults under or breaches of the Indenture or terms of the Notes will result in an Event of Default, whether after notice, the passage of time or otherwise, and therefore none of such events (even if constituting a Covenant Breach) will result in a right of acceleration of payment of the outstanding principal amount of the Notes.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding of each series affected thereby. The Indenture also permits, with certain exceptions as therein provided, the Holders of not less than a majority in aggregate principal amount of outstanding Notes of any series, on behalf of the holders of all the Notes of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences with respect to a series. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain exceptions therein set forth, the transfer of this Note is registrable on the Securities Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Trustee to be maintained for that purpose in the City of New York, New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
R-2
The Notes are issuable only in registered form without coupons in denominations set forth in the Prospectus. As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes of a like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.
This Note is a Global Security and will only be exchangeable for a Note in definitive form if (i) the Depositary with respect to this Global Security notifies the Company in writing that it is unwilling or unable to continue as Depositary for such Global Security or the Depositary ceases to be a clearing agency registered under the Exchange Act or other applicable statute or regulation if required thereunder, and the Company does not appoint a successor Depositary within 90 days, (ii) the Company executes and delivers to the Trustee a Company Order that this Global Security shall be so transferable and exchangeable or (iii) there shall have occurred and be continuing an Event of Default with respect to the Notes.
No service charge shall be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with the registration of such transfer or exchange, other than certain exchanges not involving any transfer.
In case this Note shall at any time become mutilated, destroyed, stolen or lost and this Note or evidence of the loss, theft, or destruction hereof (together with such indemnity and such other documents or proof as may be required by the Company or the Trustee) shall be delivered to the principal corporate trust office of the Trustee, a new Note of like tenor and Principal Amount will be issued by the Company in exchange for, or in lieu of, this Note. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the holder of this Note.
Holders of Securities may not enforce their rights pursuant to the Indenture or the Note except as provided in the Indenture.
All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture, and all terms used in this Note that are defined in the Prospectus shall have the meanings assigned to them in the Prospectus. In the event of any inconsistency between the definitions in the Indenture and the definitions in the Prospectus, the definitions in the Prospectus shall govern.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
Prior to due presentment for registration of transfer, the Company, the Trustee for the Notes and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the Holder hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note be overdue, and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.
R-3
Annex I
Exhibit 4(h)
Permanent Registered [ ] Subordinated Global Note
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE TO THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO A NOMINEE FOR DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO AMERICAN EXPRESS COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
AMERICAN EXPRESS COMPANY
[ ] Notes due ,
$
| No. | CUSIP: | |
| CC: | ISIN: |
AMERICAN EXPRESS COMPANY, a New York corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, (a) the principal amount shown above and (b) accrued and unpaid interest, if any, on the principal amount then outstanding at the interest rate and on the interest payment dates, each as specified in the prospectus supplement attached hereto as Annex I and delivered herewith (together with any prospectuses, prospectus supplements or other supplements referenced therein (however titled), the “Prospectus”).
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof and in the Prospectus, which further provisions shall have the same effect as though fully set forth in this place.
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual, facsimile or electronic signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, AMERICAN EXPRESS COMPANY has caused this instrument to be duly executed.
Dated: ,
|
TRUSTEE’S CERTIFICATE OF AUTHENTICATION |
AMERICAN EXPRESS COMPANY | |
| This is one of the Securities described in the within-mentioned Indenture. | By: | |
| Attest: | ||
| By: | ||
| THE BANK OF NEW YORK MELLON | ||
| As Trustee | ||
| By: | ||
(Reverse of Global Note)
AMERICAN EXPRESS COMPANY
[ ] Notes due ,
$
No.
This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness (hereinafter called “Securities”) of the Company of the series hereinafter specified, all such Securities issued and to be issued under an indenture dated as of August 1, 2007, between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee (the “Trustee”), as supplemented by the second supplemental indenture dated as of May 26, 2022 and the fourth supplemental indenture dated as of February [ ], 2024, each between the Company and the Trustee (as so supplemented and as may be further supplemented from time to time, hereinafter called the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the rights and limitation of rights thereunder of the Holders of Securities and of the rights, obligations, duties and immunities of the Trustee for each series of Securities and of the Company, and the terms upon which Securities are and are to be authenticated and delivered. As provided in the Indenture, Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may be denominated in currencies other than U.S. dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption or repurchase provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants, Events of Default or Covenant Defaults and may otherwise vary as in the Indenture provided or permitted. This Note is one of a series of the Securities designated [ ] Notes due , (the “Notes”). Additional notes on the same terms and conditions and with the same CUSIP number as those of the Notes may be issued by the Company without the consent of the Holders of the Notes. Such further notes shall be consolidated and form a single series with the Notes.
Payment of the principal of, and premium, if any, and interest on, this Note will be made in immediately available funds at the office or agency of the Trustee maintained for that purpose in the Borough of Manhattan, The City of New York, State of New York, in such coin or currency of the United States of America or other currency or composite currency, as specified on the face of this Note or in the Prospectus, as at the time of payment shall be legal tender for payment of public and private debts; provided, however, that (A) at the option of the Company payment of interest on any Note issued in definitive form will be payable (i) by a U.S. dollar check drawn on a bank in The City of New York mailed to the address of the person entitled thereto as such address shall appear in the Security Register, or (ii) by wire transfer in immediately available funds at the place and to the account as the Person entitled thereto may designate, as specified in the Security Register in writing no later than the fifteenth day immediately preceding the relevant Interest Payment Date and (B) payment on any Note issued as a Global Security will be made to or as directed by the Depositary.
R-1
Redemption
If so specified in the Prospectus, the Company may, at its option, redeem this Note in whole or in part, on the redemption date specified in the Prospectus and at the redemption price specified therein. Provisions regarding requirements and procedures for redemption, if other than as set forth in the Indenture, will be set forth in the Prospectus.
Unless otherwise specified in the Prospectus, this Note will not be subject to any sinking fund.
Subordination
The payment of principal of and interest on this Note is, to the extent and in the manner provided in the Indenture, subordinated and subject in right of payment to the prior payment in full of all amounts then due on all Senior Indebtedness of the Company, and this Note is issued subject to such subordination provisions contained in the Indenture. Each Holder of this Note, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee such Holder’s attorney-in-fact for any and all such purposes. Each Holder of this Note, by his or her acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter created, incurred, assumed or guaranteed, and waives reliance by each such Holder upon said provisions.
Other Terms
The Indenture contains provisions for defeasance and discharge at the Company’s option of either the entire principal of all the Notes of any series or of certain covenants in the Indenture upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. No other defaults under or breaches of the Indenture or terms of the Notes will result in an Event of Default, whether after notice, the passage of time or otherwise, and therefore none of such events (even if constituting a Covenant Default) will result in a right of acceleration of payment of the outstanding principal amount of the Notes.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding of each series affected thereby. The Indenture also permits, with certain exceptions as therein provided, the Holders of not less than a majority in aggregate principal amount of outstanding Notes of any series, on behalf of the holders of all the Notes of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences with respect to a series. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
R-2
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain exceptions therein set forth, the transfer of this Note is registrable on the Securities Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Trustee to be maintained for that purpose in the City of New York, New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations set forth in the Prospectus. As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes of a like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.
This Note is a Global Security and will only be exchangeable for a Note in definitive form if (i) the Depositary with respect to this Global Security notifies the Company in writing that it is unwilling or unable to continue as Depositary for such Global Security or the Depositary ceases to be a clearing agency registered under the Exchange Act or other applicable statute or regulation if required thereunder, and the Company does not appoint a successor Depositary within 90 days, (ii) the Company executes and delivers to the Trustee a Company Order that this Global Security shall be so transferable and exchangeable or (iii) there shall have occurred and be continuing an Event of Default with respect to the Notes.
No service charge shall be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with the registration of such transfer or exchange, other than certain exchanges not involving any transfer.
In case this Note shall at any time become mutilated, destroyed, stolen or lost and this Note or evidence of the loss, theft, or destruction hereof (together with such indemnity and such other documents or proof as may be required by the Company or the Trustee) shall be delivered to the principal corporate trust office of the Trustee, a new Note of like tenor and Principal Amount will be issued by the Company in exchange for, or in lieu of, this Note. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the holder of this Note.
R-3
Holders of Securities may not enforce their rights pursuant to the Indenture or the Note except as provided in the Indenture.
All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture, and all terms used in this Note that are defined in the Prospectus shall have the meanings assigned to them in the Prospectus. In the event of any inconsistency between the definitions in the Indenture and the definitions in the Prospectus, the definitions in the Prospectus shall govern.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
Prior to due presentment for registration of transfer, the Company, the Trustee for the Notes and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the Holder hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note be overdue, and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.
R-4
Annex I
Exhibit 5
D: +1 212 225 2530
flodell@cgsh.com
February 9, 2024
American Express Company
200 Vesey Street
New York, New York 10285
Ladies and Gentlemen:
We have acted as special counsel to American Express Company, a New York corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of the Company’s registration statement on Form S-3 (including the documents incorporated by reference therein, the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time, together or separately and in one or more series (if applicable), of the Company’s (i) debt securities (the “Debt Securities”); (ii) preferred shares, par value $1.66 2/3 per share (the “Preferred Shares”); (iii) fractional interests in Preferred Shares represented by depositary receipts (the “Depositary Shares”); (iv) common shares, par value $0.20 per share (the “Common Shares”); (v) warrants to purchase Debt Securities, Preferred Shares, Common Shares or equity securities issued by another entity (the “Securities Warrants”); (vi) warrants the value of which is related to other items or indices (the “Other Warrants”, and the Securities Warrants and Other Warrants are collectively referred to herein as the “Warrants”); (vii) units each consisting of one or more other Securities (as defined below) or any combination of such Securities or the debt obligations of third parties (the “Units”); and (viii) guarantees, including for debt securities of subsidiaries, which may be offered for consideration that may include consents or exchanges of existing securities (the “Guarantees”). The Debt Securities, Preferred Shares, Depositary Shares, Common Shares, Warrants, Units and Guarantees are collectively referred to herein as the “Securities.” The Securities being registered under the Registration Statement will have an indeterminate aggregate initial offering price and will be offered on a continuous or delayed basis pursuant to the provisions of Rule 415 under the Securities Act.
American Express Company, p. 2
The Debt Securities are to be issued in one or more series and may be either senior debt securities issued pursuant to a senior indenture dated as of August 1, 2007 between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as senior trustee, as supplemented by the first supplemental indenture dated as of February 12, 2021 and the second supplemental indenture dated as of May 1, 2023, each between the Company and the senior trustee (as amended or supplemented, the “Senior Indenture”), or subordinated debt securities issued pursuant to a subordinated indenture dated as of August 1, 2007 between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as subordinated trustee, as supplemented by the second supplemental indenture dated as of May 26, 2022 and the fourth supplemental indenture dated as of February 9, 2024, each between the Company and the subordinated trustee (as amended or supplemented, the “Subordinated Indenture”). The Senior Indenture and the Subordinated Indenture are each referred to herein as an “Indenture” and collectively referred to herein as the “Indentures.” The terms of the Preferred Shares are to be established in one or more certificates of amendment to be filed with the Secretary of State of the State of New York (each, a “Certificate of Amendment”). The Depositary Shares are to be issued under one or more deposit agreements (each, a “Deposit Agreement”), to be entered into between the Company and the depositary to be named therein. The Warrants are to be issued under one or more warrant agreements (each, a “Warrant Agreement”), to be entered into between the Company and the warrant agent to be named therein. The Units are to be issued under one or more unit agreements (each, a “Unit Agreement”), to be entered into between the Company and the unit agent to be named therein. The Guarantees are to be issued pursuant to one or more guarantees to be issued by the Company.
In arriving at the opinions expressed below, we have reviewed the following documents:
| (a) | the Registration Statement; |
| (b) | executed copies of the Indentures, conformed copies of which are filed as Exhibits 4(a), 4(b), 4(c), 4(d), 4(e) and 4(f) to the Registration Statement; |
| (c) | the form of certificate of Common Shares filed as Exhibit 4(j) to the Registration Statement; and |
| (d) | copies of the Company’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) and Bylaws, as amended and restated (the “Bylaws”), certified by the Secretary of State of the State of New York and the corporate secretary of the Company, respectively. |
In addition, we have reviewed the originals or copies certified or otherwise identified to our satisfaction of all such corporate records of the Company and such other documents, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinions expressed below.
American Express Company, p. 3
In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:
| 1. | The Debt Securities will be the valid, binding and enforceable obligations of the Company, entitled to the benefits of the applicable Indenture. |
| 2. | The Preferred Shares will be validly issued by the Company, fully paid and, except as may otherwise be provided by Section 630 of the Business Corporation Law of the State of New York, non-assessable. |
| 3. | The Depositary Shares, upon the due issuance by the depositary of depositary receipts evidencing such Depositary Shares against the deposit of such Depositary Shares in respect thereof in accordance with the Deposit Agreement, will be validly issued and will entitle the holders thereof to the rights specified in the Deposit Agreement and the depositary receipts issued thereunder. |
| 4. | The Common Shares, including Common Shares to be issued upon conversion, exchange or exercise of any other Security in accordance with its terms, will be validly issued by the Company, fully paid and, except as may otherwise be provided by Section 630 of the Business Corporation Law of the State of New York, non-assessable. |
| 5. | The Warrants will be the valid, binding and enforceable obligations of the Company. |
| 6. | The Units will be the valid, binding and enforceable obligations of the Company. |
| 7. | The Guarantees will be the valid, binding and enforceable obligations of the Company. |
Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of any agreement or obligation of the Company, (a) we have assumed that the Company and each other party to such agreement or obligation has satisfied or, prior to the issuance of the Securities, will satisfy, those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it and (b) such opinions are subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.
American Express Company, p. 4
In rendering the opinions expressed above, we have further assumed that (i) prior to the issuance of the Securities, the Company will authorize the offering and issuance of the Securities and will duly authorize, approve and establish the final terms and conditions thereof, which terms will conform to the descriptions thereof in the Registration Statement and the terms of any agreement governing those Securities, and will not violate any applicable law, conflict with any matter of public policy, result in a default under or breach of any agreement or instrument binding upon the Company or violate any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; (ii) prior to the issuance of the Securities, the Company will duly authorize, execute and deliver any applicable Deposit Agreement, Warrant Agreement, Unit Agreement, Guarantee and any other agreement necessary with respect to the Securities or contemplated by the Securities or the Registration Statement and will take any other appropriate or necessary corporate action, including the filing of any Certificate of Amendment with the Secretary of State of the State of New York; (iii) any agreement governing the Securities and any instruments evidencing the Securities will be governed by New York law; (iv) the Securities will be offered, issued, sold and delivered in compliance with applicable law and any requirements therefor set forth in any corporate action authorizing such Securities and any agreement governing those Securities and in the manner contemplated by the Registration Statement; (v) the Securities will be offered, sold and delivered to, and paid for by, the purchasers thereof at the price specified in, and in accordance with the terms of, an agreement or agreements duly authorized, executed and delivered by the parties thereto, which price, in the case of Common Shares or Preferred Shares, shall not be less than the respective par value thereof; and (vi) if issued in certificated form, certificates representing the Securities will be duly executed and delivered and, to the extent required by any applicable agreement, duly authenticated or countersigned, and if issued in book-entry form, the Securities will be duly registered to the extent required by any applicable agreement.
In rendering the opinion expressed in paragraph 1 above, we have assumed that each series of Debt Securities will be issued with an original aggregate principal amount (or in the case of Debt Securities issued at an original issue discount, an aggregate issue price) of $2,500,000 or more.
We note that any designation in the Securities or any applicable agreement governing those Securities of the U.S. federal courts sitting in New York City as the venue for actions or proceedings relating to such Securities is (notwithstanding any waiver thereof) subject to the power of such courts to transfer actions pursuant to 28 U.S.C. §1404(a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient forum for such an action or proceeding.
We note that by statute New York provides that a judgment or decree rendered in a currency other than the currency of the United States shall be converted into U.S. dollars at the rate of exchange prevailing on the date of entry of the judgment or decree. There is no corresponding federal statute and no controlling federal court decision on this issue. Accordingly, we express no opinion as to whether a federal court would award a judgment in a currency other than U.S. dollars or, if it did so, whether it would order conversion of the judgment into U.S. dollars. In addition, to the extent that any Securities or applicable agreement governing those Securities includes a provision relating to indemnification against any loss in obtaining currency due from a court judgment in another currency, we express no opinion as to the enforceability of such provision.
The foregoing opinions are limited to the law of the State of New York.
American Express Company, p. 5
We hereby consent to the use of our name in the prospectus constituting a part of the Registration Statement under the heading “Legal Matters” as counsel for the Company that has passed on the validity of the Securities and to the use of this opinion letter as a part (Exhibit 5) of the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. The opinions expressed herein are rendered on and as of the date hereof, and we assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.
| Very truly yours, | ||
| CLEARY GOTTLIEB STEEN & HAMILTON LLP | ||
| By | /s/ Francesca L. Odell | |
| Francesca L. Odell, a Partner | ||
Exhibit 23(b)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of American Express Company of our report dated February 9, 2024 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in American Express Company's Annual Report on Form 10-K for the year ended December 31, 2023. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
New York, New York
February 9, 2024
Exhibit 24(a)
AMERICAN EXPRESS COMPANY
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Laureen E. Seeger and Kristina V. Fink, severally, each with full power to act alone and without the other, his or her true and lawful attorney-in-fact, with full power of substitution, and with the authority to execute in the name of each such person, a registration statement covering primary and secondary offerings of debt securities, preferred shares, depositary shares, common shares, warrants, units and guarantees of American Express Company and any and all amendments (including without limitation, post-effective amendments) to such registration statement, and to file such registration statement with the Securities and Exchange Commission, together with any exhibits thereto and other documents therewith, necessary or advisable to enable American Express Company to comply with the Securities Act of 1933, and any rules, regulations or requirements of the Securities and Exchange Commission in respect thereof, which amendments may make such other changes in the registration statement as the aforesaid attorney-in-fact executing the same deems appropriate.
This Power of Attorney may be executed in counterparts.
| /s/ Stephen J. Squeri | Chairman, Chief Executive Officer and Director | February 9, 2024 | ||
| Stephen J. Squeri | ||||
| /s/ Christophe Y. Le Caillec | Chief Financial Officer | February 9, 2024 | ||
| Christophe Y. Le Caillec | ||||
| /s/ Jessica Lieberman Quinn | Executive Vice President and Corporate Controller | February 9, 2024 | ||
| Jessica Lieberman Quinn | ||||
| /s/ Thomas J. Baltimore, Jr. | Director | February 9, 2024 | ||
| Thomas J. Baltimore, Jr. | ||||
| /s/ John J. Brennan | Director | February 9, 2024 | ||
| John J. Brennan | ||||
| /s/ Peter Chernin | Director | February 9, 2024 | ||
| Peter Chernin | ||||
| /s/ Walter J. Clayton III | Director | February 9, 2024 | ||
| Walter J. Clayton III | ||||
| /s/ Ralph de la Vega | Director | February 9, 2024 | ||
| Ralph de la Vega | ||||
| /s/ Theodore J. Leonsis | Director | February 9, 2024 | ||
| Theodore J. Leonsis |
| /s/ Deborah P. Majoras | Director | February 9, 2024 | ||
| Deborah P. Majoras | ||||
| /s/ Karen L. Parkhill | Director | February 9, 2024 | ||
| Karen L. Parkhill | ||||
| /s/ Charles E. Phillips, Jr. | Director | February 9, 2024 | ||
| Charles E. Phillips, Jr. | ||||
| /s/ Lynn A. Pike | Director | February 9, 2024 | ||
| Lynn A. Pike | ||||
| /s/ Daniel L. Vasella | Director | February 9, 2024 | ||
| Daniel L. Vasella | ||||
| /s/ Lisa W. Wardell | Director | February 9, 2024 | ||
| Lisa W. Wardell | ||||
| /s/ Christopher D. Young | Director | February 9, 2024 | ||
| Christopher D. Young |
Exhibit 25(a)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION
TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) ¨
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
| New
York (Jurisdiction of incorporation if not a U.S. national bank) |
13-5160382 (I.R.S. employer identification no.) |
| 240
Greenwich Street, New York, N.Y. (Address of principal executive offices) |
10286 (Zip code) |
American Express Company
(Exact name of obligor as specified in its charter)
| New
York (State or other jurisdiction of incorporation or organization) |
13-4922250 (I.R.S. employer identification no.) |
| 200
Vesey Street New York, New York (Address of principal executive offices) |
10285 |
Senior Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the Trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name | Address | |
| Superintendent of the Department of Financial Services of the State of New York | One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 | |
| Federal Reserve Bank of New York | 33 Liberty Street, New York, N.Y. 10045 | |
| Federal Deposit Insurance Corporation | 550 17th
Street, NW Washington, D.C. 20429 | |
| The Clearing House Association L.L.C. | 100 Broad
Street New York, N.Y. 10004 |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").
| 1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
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| 4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-261533). |
| 6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
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SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 2nd day of February, 2024.
| THE BANK OF NEW YORK MELLON | |||
| By: | /s/ Francine Kincaid | ||
| Name: | Francine Kincaid | ||
| Title: | Vice President | ||
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EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31, 2023, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| Dollar amounts in thousands | ||||
| ASSETS | ||||
| Cash and balances due from depository institutions: | ||||
| Noninterest-bearing balances and currency and coin | 4,078,000 | |||
| Interest-bearing balances | 119,816,000 | |||
| Securities: | ||||
| Held-to-maturity securities | 49,578,000 | |||
| Available-for-sale debt securities | 76,492,000 | |||
| Equity securities with readily determinable fair values not held for trading | 0 | |||
| Federal funds sold and securities purchased under agreements to resell: | ||||
| Federal funds sold in domestic offices | 0 | |||
| Securities purchased under agreements to resell | 13,524,000 | |||
| Loans and lease financing receivables: | ||||
| Loans and leases held for sale | 0 | |||
| Loans and leases held for investment | 32,622,000 | |||
| LESS: Allowance for loan and lease losses | 285,000 | |||
| Loans and leases held for investment, net of allowance | 32,337,000 | |||
| Trading assets | 5,476,000 | |||
| Premises and fixed assets (including capitalized leases) | 2,754,000 | |||
| Other real estate owned | 2,000 | |||
| Investments in unconsolidated subsidiaries and associated companies | 1,560,000 | |||
| Direct and indirect investments in real estate ventures | 0 | |||
| Intangible assets | 6,934,000 | |||
| Other assets | 19,978,000 | |||
| Total assets | 332,529,000 | |||
| LIABILITIES | ||||
| Deposits: | ||||
| In domestic offices | 188,830,000 | |||
| Noninterest-bearing | 58,891,000 | |||
| Interest-bearing | 129,939,000 | |||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs | 98,296,000 | |||
| Noninterest-bearing | 3,925,000 | |||
| Interest-bearing | 94,371,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase: | ||||
| Federal funds purchased in domestic offices | 0 | |||
| Securities sold under agreements to repurchase | 3,820,000 | |||
| Trading liabilities | 3,653,000 | |||
| Other borrowed money: | ||||
| (includes mortgage indebtedness and obligations under capitalized leases) | 1,700,000 | |||
| Not applicable | ||||
| Not applicable | ||||
| Subordinated notes and debentures | 0 | |||
| Other liabilities | 8,604,000 | |||
| Total liabilities | 304,903,000 | |||
| EQUITY CAPITAL | ||||
| Perpetual preferred stock and related surplus | 0 | |||
| Common stock | 1,135,000 | |||
| Surplus (exclude all surplus related to preferred stock) | 12,224,000 | |||
| Retained earnings | 17,672,000 | |||
| Accumulated other comprehensive income | -3,405,000 | |||
| Other equity capital components | 0 | |||
| Total bank equity capital | 27,626,000 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 | |||
| Total equity capital | 27,626,000 | |||
| Total liabilities and equity capital | 332,529,000 |
I, Dermot McDonogh, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Dermot
McDonogh
Chief Financial Officer
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
| Robin A. Vince | |||
| Jeffrey A. Goldstein | Directors | ||
| Joseph J. Echevarria | |||
Exhibit 25(b)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION
TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) ¨
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
| New
York (Jurisdiction of incorporation if not a U.S. national bank) |
13-5160382 (I.R.S. employer identification no.) |
| 240
Greenwich Street, New York, N.Y. (Address of principal executive offices) |
10286 (Zip code) |
American Express Company
(Exact name of obligor as specified in its charter)
| New
York (State or other jurisdiction of incorporation or organization) |
13-4922250 (I.R.S. employer identification no.) |
| 200
Vesey Street New York, New York (Address of principal executive offices) |
10285 |
Subordinated Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the Trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name | Address | |
| Superintendent of the Department of Financial Services of the State of New York | One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 | |
| Federal Reserve Bank of New York | 33 Liberty Street, New York, N.Y. 10045 | |
| Federal Deposit Insurance Corporation | 550 17th
Street, NW Washington, D.C. 20429 | |
| The Clearing House Association L.L.C. | 100 Broad
Street New York, N.Y. 10004 |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").
| 1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
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| 4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-261533). |
| 6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
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SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 2nd day of February, 2024.
| THE BANK OF NEW YORK MELLON | |||
| By: | /s/ Francine Kincaid | ||
| Name: | Francine Kincaid | ||
| Title: | Vice President | ||
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EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31, 2023, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| Dollar amounts in thousands | ||||
| ASSETS | ||||
| Cash and balances due from depository institutions: | ||||
| Noninterest-bearing balances and currency and coin | 4,078,000 | |||
| Interest-bearing balances | 119,816,000 | |||
| Securities: | ||||
| Held-to-maturity securities | 49,578,000 | |||
| Available-for-sale debt securities | 76,492,000 | |||
| Equity securities with readily determinable fair values not held for trading | 0 | |||
| Federal funds sold and securities purchased under agreements to resell: | ||||
| Federal funds sold in domestic offices | 0 | |||
| Securities purchased under agreements to resell | 13,524,000 | |||
| Loans and lease financing receivables: | ||||
| Loans and leases held for sale | 0 | |||
| Loans and leases held for investment | 32,622,000 | |||
| LESS: Allowance for loan and lease losses | 285,000 | |||
| Loans and leases held for investment, net of allowance | 32,337,000 | |||
| Trading assets | 5,476,000 | |||
| Premises and fixed assets (including capitalized leases) | 2,754,000 | |||
| Other real estate owned | 2,000 | |||
| Investments in unconsolidated subsidiaries and associated companies | 1,560,000 | |||
| Direct and indirect investments in real estate ventures | 0 | |||
| Intangible assets | 6,934,000 | |||
| Other assets | 19,978,000 | |||
| Total assets | 332,529,000 | |||
| LIABILITIES | ||||
| Deposits: | ||||
| In domestic offices | 188,830,000 | |||
| Noninterest-bearing | 58,891,000 | |||
| Interest-bearing | 129,939,000 | |||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs | 98,296,000 | |||
| Noninterest-bearing | 3,925,000 | |||
| Interest-bearing | 94,371,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase: | ||||
| Federal funds purchased in domestic offices | 0 | |||
| Securities sold under agreements to repurchase | 3,820,000 | |||
| Trading liabilities | 3,653,000 | |||
| Other borrowed money: | ||||
| (includes mortgage indebtedness and obligations under capitalized leases) | 1,700,000 | |||
| Not applicable | ||||
| Not applicable | ||||
| Subordinated notes and debentures | 0 | |||
| Other liabilities | 8,604,000 | |||
| Total liabilities | 304,903,000 | |||
| EQUITY CAPITAL | ||||
| Perpetual preferred stock and related surplus | 0 | |||
| Common stock | 1,135,000 | |||
| Surplus (exclude all surplus related to preferred stock) | 12,224,000 | |||
| Retained earnings | 17,672,000 | |||
| Accumulated other comprehensive income | -3,405,000 | |||
| Other equity capital components | 0 | |||
| Total bank equity capital | 27,626,000 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 | |||
| Total equity capital | 27,626,000 | |||
| Total liabilities and equity capital | 332,529,000 |
I, Dermot McDonogh, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Dermot
McDonogh
Chief Financial Officer
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
| Robin A. Vince | |||
| Jeffrey A. Goldstein | Directors | ||
| Joseph J. Echevarria | |||