EXHIBIT 10.2
AMERICAN EXPRESS COMPANY
2007 INCENTIVE COMPENSATION PLAN
MASTER AGREEMENT
DATED APRIL 23, 2007
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Nonqualified Stock Options, Restricted Stock Awards and Restricted
Stock Unit Awards ("Awards") are issued pursuant to the 2007 Incentive
Compensation Plan (the "Plan") of American Express Company (the "Company") at
the discretion and subject to the administration of the Compensation and
Benefits Committee, or its successor (the "Committee") of the Board of
Directors of the Company (the "Board"). Awards issued on or after April 23,
2007 shall contain the general terms set forth in the applicable provisions of
this Master Agreement. The specific terms of individual Awards will be
contained in the Award Schedule(s) delivered to participants in the Plan (the
"Participants"). All Awards shall be subject to the Plan and any
administrative guidelines or interpretations by the Committee under the Plan,
the Plan and any such guidelines or interpretations being incorporated into
this Master Agreement by reference and made a part hereof. As used herein, the
term "shares" refers to the common shares of the Company having a par value of
$.20 per share, or the shares of any other stock of any other class into which
such shares may thereafter be changed.
SECTION I
MASTER AGREEMENT PROVISIONS RELATING TO
A GRANT OF NONQUALIFIED STOCK OPTION
1. Sections I, IV and V of this Master Agreement, together with an
Award Schedule referring to Section I of this Master Agreement, shall contain
the terms of a specific Nonqualified Stock Option ("Option") issued to a
Participant. Each Award Schedule shall specify the number of shares subject to
the Option, the Option Date of Grant, the Option Exercise Date(s), the Option
Exercise Price and any additional terms applicable to the Option. Such
additional terms may address any matter deemed appropriate by the Committee or
its delegate and may include terms not contained in this Master Agreement
and/or may delete terms contained in this Master Agreement. A stock
appreciation right is included herein only if specifically approved by the
Committee and reflected in an Award Schedule.
2. Unless otherwise determined by the Committee and subject to the
provisions of this Master Agreement and the applicable provisions of the Plan,
a Participant may exercise this Option as follows:
(a) No part of this Option may be exercised before the first
Option Exercise Date listed in the Award Schedule or after the
expiration of ten years from the Date of Grant set forth in the Award
Schedule;
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(b) At any time or times on or after the first Option
Exercise Date listed in the Award Schedule, a Participant may
exercise this Option as to any number of shares which, when added to
the number of shares as to which a Participant has theretofore
exercised this Option, if any, will not exceed 25% of the total
number of shares covered hereby;
(c) At any time or times on or after the second Option
Exercise Date listed in the Award Schedule, a Participant may
exercise this Option as to any number of shares which, when added to
the number of shares as to which a Participant has theretofore
exercised this Option, if any, will not exceed 50% of the total
number of shares covered hereby;
(d) At any time or times on or after the third Option
Exercise Date listed in the Award Schedule, a Participant may
exercise this Option as to any number of shares which, when added to
the number of shares as to which a Participant has theretofore
exercised this Option, if any, will not exceed 75% of the total
number of shares covered hereby; and
(e) At any time or times on or after the fourth Option
Exercise Date listed in the Award Schedule and thereafter through the
expiration date of this Option, a Participant may exercise this
Option as to any number of shares which, when added to the number of
shares as to which the Participant has theretofore exercised this
Option, if any, will not exceed the total number of shares covered
hereby.
This Option may not be exercised for a fraction of a share.
3. A Participant may not exercise this Option and, if applicable, any
stock appreciation right included herein, unless all of the following
conditions are met:
(a) Legal counsel for the Company must be satisfied at the
time of exercise that the issuance of shares upon exercise will be in
compliance with the Securities Act of 1933, as amended, and
applicable United States federal, state, local and foreign laws;
(b) The Participant must pay at the time of exercise the
full purchase price for the shares being acquired hereunder, by (i)
paying in cash in United States dollars (which may be in the form of
a check), (ii) tendering shares owned by the Participant which have a
fair market value equal to the full purchase price for the shares
being acquired, such fair market value to be determined in such
reasonable manner as may be provided from time to time by the
Committee or as may be required in order to comply with the
requirements of any applicable laws or regulations, (iii) if
permitted by the Committee, by authorizing a third party to sell, on
behalf of the Participant, the appropriate number of shares otherwise
issuable to the Participant upon the exercise of this Option and to
remit to the Company a sufficient portion of the sale proceeds to pay
the entire exercise price and any tax withholding resulting from such
exercise, or (iv) tendering a combination of the forms of payment
provided for in this Paragraph 3(b); and
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(c) The Participant must, at all times during the period
beginning with the Date of Grant of this Option and ending on the
date of such exercise, have been employed by the Company or an
Affiliate (as defined in the Plan) or have been engaged in a period
of Related Employment (as defined in the Plan). However, if the
Participant ceases to be so employed or terminates a period of
Related Employment by reason of the Participant's disability or
Retirement (as such terms are defined in the Plan and interpreted and
administered by the Committee) while holding this Option which has
not expired and has not been fully exercised, the Participant may, at
any time within five years of the date of the onset of such
disability (but in no event after the expiration of this Option under
Paragraph 2(a) above with respect to ten years from the Date of
Grant) or in the case of Retirement until the expiration of the
Option under Paragraph 2(a) above, exercise this Option with respect
to the number of shares, after giving full effect to the gradual
vesting provisions of Paragraph 2 above, as to which the Participant
could have exercised this Option on the date of the onset of such
disability or Retirement, or with respect to such greater number of
shares as determined by the Committee in its sole discretion, and any
remaining portion of this Option shall be canceled by the Company. In
the event the Participant's employment by the Company and its
Affiliates or Related Employment terminates for reasons other than
disability or Retirement as described in this Paragraph 3(c) or death
as described in Paragraph 4 below, this Option shall be canceled by
the Company; provided, however, if within two years following a
Change in Control (as defined in Section IV of this Master
Agreement), a Participant is terminated under circumstances that
would entitle the Participant to severance under an applicable U.S.
severance plan (other than Constructive Termination, as defined in
the applicable plan), the Participant may, at any time within 90 days
following such termination (but in no event after the expiration of
this Option under Paragraph 2(a) above with respect to ten years from
the Date of Grant), exercise this Option with respect to the number
of shares as to which the Participant could have exercised this
Option on the date of such termination. For any other Participant not
covered by a U.S. severance plan, the 90-day extension period shall
apply if the Participant is terminated within two years following a
Change in Control and the Participant would have been entitled to
severance under the applicable U.S. severance plan had the
Participant been a U.S. employee.
4. Except as otherwise determined by the Committee, a Participant may
not assign, transfer, pledge, hypothecate or otherwise dispose of this Option
(and any stock appreciation right included herein), except by will or the laws
of descent and distribution, and this Option is exercisable during the
Participant's lifetime only by the Participant. If the Participant or anyone
claiming under or through the Participant attempts to violate this Paragraph
4, such attempted violation shall be null and void and without effect, and the
Company's obligation to make any further payments (stock or cash) hereunder
shall terminate. If at the time of the Participant's death this Option has not
been fully exercised, the Participant's estate or any person who acquires the
right to exercise this Option by bequest or inheritance or by reason of the
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Participant's death may, at any time within five years after the date of the
Participant's death (but in no event after the expiration of this Option under
Paragraph 2 (a) above with respect to ten years from the Date of Grant or the
time period described in Paragraph 3(c) above with respect to disability),
exercise this Option with respect to the number of shares, after giving full
effect to the gradual vesting provisions of Paragraph 2 above, as to which the
Participant could have exercised this Option at the time of the Participant's
death, or with respect to such greater number of shares as determined by the
Committee in its sole discretion. The Committee may, in its discretion,
provide the Participant's estate, or any person acquiring the right to
exercise this Option upon the Participant's death, a minimum of six months to
exercise this Option without regard to the expiration of this Option under
Paragraph 2(a) above. The applicable requirements of Paragraph 3 above must be
satisfied at the time of such exercise.
5. In the event that the Company or any of its Affiliates is a
participant in a corporate merger, consolidation or other similar transaction,
neither the Company nor such Affiliate shall be obligated to cause any other
participant in such transaction to assume this Option or to substitute a new
option for this Option.
6. (a) If approved by the Committee and subject to the conditions
specified in Paragraph 6(b) below, within such time or times as this Option
shall be exercisable in whole or in part and to the extent that it shall then
be exercisable in accordance with Paragraph 2 above, the Participant (or any
person acting under Paragraph 4 above) may surrender unexercised this Option
or any portion thereof which is then exercisable to the Company and receive
from the Company in exchange therefor that number of shares having an
aggregate value equal to 100% of the excess of the value of one share over the
Option Exercise Price per share heretofore specified times the lesser of (i)
the number of shares as to which this Option then is exercisable or (ii) the
number of shares as to which this Option is surrendered to the Company. This
right to surrender unexercised this Option or any portion thereof which is
then exercisable is referred to herein as a "stock appreciation right." No
fractional shares shall be delivered, but in lieu thereof a cash adjustment
shall be made.
(b) If granted by the Committee, the stock appreciation right may
be exercised only if, and to the extent that,
(i) this Option is at the time exercisable, and
(ii) on the date of exercise (1) this Option will,
in accordance with Paragraph 2(a) above, expire within 30
days, or (2) the Participant has ceased to be an employee of
the Company or an Affiliate thereof or terminated a period
of Related Employment by reason of the Participant's
disability or Retirement (as defined in the Plan), or (3)
the Participant has died.
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Notwithstanding Paragraph 6(b)(ii) above, but subject to the
conditions of Paragraph 6(b)(i) above, (1) the ability to exercise a
stock appreciation right may be further limited to the extent
determined by the Committee as necessary or desirable to comply with
applicable provisions of United States federal, state, local or
foreign law or regulation, and (2) if the Participant is on the date
of exercise an executive officer of the Company as that term is
defined in the Securities Exchange Act of 1934, as amended, and the
rules thereunder (an "Insider"), the stock appreciation right may be
exercised only with respect to a maximum of 50% of the shares subject
to this Option granted hereunder, unless otherwise determined by the
Committee.
(c) The Committee may elect from time to time in its sole
discretion to settle the obligation arising out of the exercise of
the stock appreciation right, by the payment of cash equal to the
aggregate value of the shares it otherwise would be obligated to
deliver or partly by the payment of cash and partly by the delivery
of shares.
(d) For all purposes under this Paragraph 6, the value of a
share shall be the fair market value thereof, as determined by the
Committee, on the last business day preceding the date of the
election to exercise the stock appreciation right, provided that if
notice of such election is received by the Committee more than three
business days after the date of such election (as such date of
election is stated in the notice of election), the Committee may, but
need not, determine the value of a share as of the day preceding the
date on which the notice of election is received.
7. It shall be a condition to the obligation of the Company to
furnish shares upon exercise of this Option or settlement of a stock
appreciation right by delivery of shares and/or cash (a) that the Participant
(or any person acting under Paragraph 4 above) pay to the Company or its
designee, upon its demand, in accordance with Paragraph 17(f) of the Plan,
such amount as may be demanded for the purpose of satisfying its obligation or
the obligation of any of its Affiliates or other person to withhold United
States federal, state, local or foreign income, employment or other taxes
incurred by reason of the exercise of this Option or the settlement of the
stock appreciation right or the transfer of shares thereupon, (b) whether the
settlement of the stock appreciation right is to be made by delivery of shares
or by the payment of cash, that the Participant (or any person acting under
Paragraph 4 above) execute such forms as the Committee shall prescribe for the
purpose of evidencing the surrender of this Option in whole or in part, as the
case may be, and (c) that the Participant (or any person acting under
Paragraph 4 above) provide the Company with any forms, documents or other
information reasonably required by the Company in connection with the grant.
The Company shall have the right to deduct or cause to be deducted from any
payment made in settlement of a stock appreciation right any United States
federal, state, local or foreign income, employment or other taxes that it
determines are required by law to be withheld with respect to such payment. If
the amount requested for the purpose of satisfying the withholding obligation
is not paid, the Company may refuse to furnish shares upon exercise of this
Option or shares and/or cash upon settlement of the stock appreciation right.
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SECTION II
MASTER AGREEMENT PROVISIONS RELATING TO
AWARDS OF RESTRICTED STOCK
1. Sections II, IV and V of this Master Agreement, together with an
Award Schedule referring to Section II of this Master Agreement, shall contain
the terms of a specific Restricted Stock Award ("RSA") issued to a
Participant. Each Award Schedule shall specify the number of shares awarded,
the Award Date, the Expiration Date and any additional terms applicable to the
Award. Such additional terms may address any matter deemed appropriate by the
Committee or its delegate and may include terms not contained in this Master
Agreement and/or may delete terms contained in this Master Agreement.
2. An RSA consists of the number of shares specified in an Award
Schedule and is subject to the provisions of the Plan. In addition, the
following terms, conditions and restrictions apply to RSAs issued under the
Plan:
(a) Except as otherwise determined by the Committee, such
shares cannot be sold, assigned, transferred, pledged, hypothecated
or otherwise disposed of (except that Participants may designate a
beneficiary as provided herein) on or before the Expiration Date and
prior to the subsequent issuance to a Participant (or, in the event
of a Participant's death, the Participant's designated beneficiary)
of a certificate or an uncertificated book entry position for such
shares free of any legend or other transfer restriction relating to
the terms, conditions and restrictions provided for in the Award
Schedule or this Master Agreement. If a Participant or anyone
claiming under or through such Participant attempts to violate this
Paragraph 2(a), such attempted violation shall be null and void and
without effect, and the Company's obligation to make any further
payments or deliveries (in stock or cash) hereunder shall terminate.
(b) An RSA shall be evidenced by a share certificate or an
uncertificated book entry position maintained by the Company's
transfer agent and registrar.
(c) If (i) a Participant's continuous employment with the
Company and its Affiliates (as defined in the Plan) shall terminate
for any reason on or before the Expiration Date, except for a period
of Related Employment (as defined in the Plan), and except as
provided in Paragraph 2(d) below or (ii) within the period following
the Expiration Date as determined by the Committee, a Participant (or
such Participant's designated beneficiary) has not paid to the
Company or such Affiliate or other person an amount equal to any
United States federal, state, local or foreign income, employment or
other taxes which the Company determines is required to be withheld
in respect of such shares, or fails to provide such information as is
described in Paragraph 4 below, then, unless the Committee determines
otherwise, the Participant's RSA or portion thereof shall be
automatically terminated, cancelled, and rendered null and void as of
the Expiration Date without any action on the part of the Company,
and the Company shall be deemed to have exercised its repurchase
option without the requirement of any payment, and shall be entitled
to the return from such Participant (or the Participant's designated
beneficiary or the Secretary of the Company) of any share
certificate(s) issued in respect of the Award or the cancellation of
any book entry memo position maintained by the Company's transfer
agent and registrar with respect to a Participant's RSA.
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(d) On or before the Expiration Date, the Committee shall
have the authority, in its sole discretion, to determine whether and
to what extent, the termination provisions of Paragraph 2(c) shall
cease to be effective with respect to a Participant's Award in the
following situations:
(i) a Participant shall die or have a termination
of employment or Related Employment by reason of disability
or Retirement (as such terms are defined in the Plan and
interpreted and administered by the Committee); or
(ii) in such circumstances as the Committee, in its
sole discretion, shall deem appropriate if, since the Award
Date, a Participant has been in the continuous employment of
the Company or an Affiliate or has undertaken Related
Employment.
(e) The share certificate, if any, issued in respect of a
RSA shall be held in escrow by the Secretary of the Company during
the period up to and including the date determined by the Committee
pursuant to Paragraph 2(c) above, unless otherwise determined by the
Committee.
3. In the event of any change in the outstanding shares of the
Company by reason of any stock split, stock dividend, split-up, split-off,
spin-off, recapitalization, merger, consolidation, rights offering,
reorganization, combination, subdivision or exchange of shares, sale by the
Company of all or part of its assets, distribution to shareholders other than
a normal cash dividend, or other extraordinary or unusual event, or in the
event a Participant (or the Participant's designated beneficiary) receives any
shares, securities or other property in respect of the shares which have been
awarded to a Participant (including, but not limited to, by way of a dividend
or other distribution on such shares), any such shares, securities or other
property received by a Participant (or a Participant's designated beneficiary)
in respect of the shares awarded to such Participant shall, other than upon a
Change In Control as defined in Section IV of this Master Agreement, be
subject to the Company's right to receive or cancel such shares, securities or
other property from such Participant (or such Participant's designated
beneficiary) as provided in Paragraph 2(c) above and the other terms,
conditions and restrictions specified herein to the extent that, and in such
manner as, the Committee shall determine. Any such determination by the
Committee under this Paragraph 3 shall be final, binding and conclusive.
4. If the Company, in its sole discretion, shall determine that the
Company or an Affiliate or other person has incurred or will incur any
obligation to withhold any United States federal, state, local or foreign
income, employment or other taxes by reason of making of the Award to a
Participant, the transfer of shares to a Participant (or the Participant's
designated beneficiary) pursuant thereto or the lapse or release of the
termination provisions contained in Paragraph 2(c) above with respect to a
Participant's Award or any other restrictions upon such shares, such
Participant (or such Participant's designated beneficiary) will, promptly upon
demand therefor by the Company, pay to the Company or such Affiliate or other
person any amount demanded by it for the purpose of satisfying such liability.
If the amount so demanded is not promptly paid or if such Participant (or such
Participant's designated beneficiary) shall fail to promptly provide the
Company with any and all forms, documents or other information reasonably
required by the Company in connection with the Award, the Company or its
designee may refuse to permit the transfer of such shares and may, without
further consent by or notice to such Participant (or such Participant's
designated beneficiary), cancel the Award and the shares otherwise issuable
under the Award.
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SECTION III
MASTER AGREEMENT PROVISIONS RELATING TO
AWARDS OF A RESTRICTED STOCK UNIT
1. Sections III, IV and V of this Master Agreement, together with an
Award Schedule referring to Section III of this Master Agreement, shall
contain the terms of a specific Restricted Stock Unit ("RSU") issued to a
Participant. Each Award Schedule shall specify the number of shares to be
awarded, the RSU Date, the Expiration Date and any additional terms applicable
to the Award. Such additional terms may address any matter deemed appropriate
by the Committee or its delegate and may include terms not contained in this
Master Agreement and/or may delete terms contained in this Master Agreement.
2. Subject to the provisions of the Plan and the following terms,
conditions and restrictions herein set forth, the Company will issue to a
Participant a certificate for the number of shares specified in an Award
Schedule as promptly as practicable after the last day of a period of four
years from the RSU Date (the "Restricted Period"):
(a) Except as otherwise determined by the Committee, rights
under this RSU may not be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or the laws of
descent and distribution, on or before the last day of the Restricted
Period and prior to the subsequent issuance to a Participant (or, in
the event of a Participant's death, the Participant's designated
beneficiary) of a certificate for such shares free of any legend or
other transfer restriction relating to the terms, conditions and
restrictions provided for in this Master Agreement. If a Participant
or anyone claiming under or through a Participant attempts to violate
this Paragraph 2(a), such attempted violation shall be null and void
and without effect, and the Company's obligations hereunder shall
terminate.
(b) If (i) a Participant's continuous employment with the
Company and its Affiliates (as defined in the Plan) shall terminate
for any reason on or before the last day of the Restricted Period,
except for a period of Related Employment (as defined in the Plan),
and except as provided in Paragraph 2(c) below, or (ii) within the
period following the last day of the Restricted Period as determined
by the Committee, a Participant (or such Participant's designated
beneficiary) has not paid to the Company or such Affiliate or other
person an amount equal to any United States federal, state, local or
foreign income, employment or other taxes which the Company
determines is required to be withheld in respect of such shares, or
fails to provide such information as is described in Paragraph 4
below, then, unless the Committee determines otherwise, this RSU or
portion thereof shall be automatically terminated, cancelled, and
rendered null and void as of the last day of the Restricted Period
without any action on the part of the Company.
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(c) If a Participant shall, on or before the last day of the
Restricted Period, die or have a termination of employment or Related
Employment by reason of disability or Retirement (as such terms are
defined in the Plan and interpreted and administered by the
Committee), or by reason of such other circumstances as the
Committee, in its sole discretion, shall deem appropriate, after a
Participant have been, since the RSU Date, in the continuous
employment of the Company or an Affiliate or have undertaken Related
Employment, the Committee, in its sole discretion, shall determine
whether and to what extent, if any, the Company's right as specified
in Paragraph 2(b) above (and in any and all other terms, conditions
and restrictions imposed hereby) shall lapse and cease to be
effective. The Company's right specified in Paragraph 2(b) above
shall be exercisable at such time as to the remaining shares, if any.
(d) From time to time during the Restricted Period, the
Company shall pay to a Participant an amount of cash equal to the
regular quarterly cash dividend paid by the Company on a number of
shares equal to the number of shares remaining to be issued to a
Participant hereunder less any applicable United States federal,
state, local or foreign income, employment or other taxes that the
Company determines are required to be withheld therefrom. The
Company's obligation to make such payment shall cease with respect to
any shares at such time as the Company's right becomes exercisable
with respect thereto pursuant to Paragraph 2(b) or 2(c) above.
3. If the Company, in its sole discretion, shall determine that the
Company or an Affiliate or other person has incurred or will incur any
obligation to withhold any United States federal, state, local or foreign
income, employment or other taxes by reason of the issuance or operation of
this RSU, a Participant (or, in the event of a Participant's death, the legal
representatives of a Participant's estate) will, promptly upon demand therefor
by the Company, pay to the Company or such Affiliate or other person, in
accordance with Paragraph 17(f) of the Plan, any amount demanded by it for the
purpose of satisfying such obligation. If the amount so demanded is not
promptly paid or if a Participant (or, in the event of a Participant's death,
the legal representatives of a Participant's estate) shall fail to promptly
provide the Company with any and all forms, documents or other information
reasonably required by the Company in connection with this RSU, the Company or
its designee may refuse to permit the transfer of any shares and the
distribution of any proceeds and may, without further consent by or notice to
a Participant (or, in the event of a Participant's death, the legal
representatives of a Participant's estate) cancel its agreement to issue to a
Participant any shares and cancel any shares otherwise issuable hereunder.
SECTION IV
MASTER AGREEMENT COMMON PROVISIONS RELATING TO
MORE THAN ONE FORM OF AWARD
1. Notwithstanding anything in this Master Agreement to the contrary
(but subject to those provisions in Paragraph 3 or 4 below which could reduce
payments hereunder as a result of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code")), upon a Change in Control (as applicable to a
particular award), the award holder shall immediately be:
(a) with respect to any Option issued pursuant to the Option
provisions of this Master Agreement, 100% vested in the total number
of shares covered thereby such that they shall be fully exercisable;
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(b) with respect to any RSA issued pursuant to the RSA
provisions of this Master Agreement, 100% vested in the total number
of shares covered thereby such that they shall no longer be subject
to any transfer restrictions imposed by this Master Agreement; and
(c) with respect to any RSU issued pursuant to the RSU
provisions of this Master Agreement, entitled to receive the total
number of shares covered thereby such that they shall no longer be
subject to any restrictions on issuance imposed by this Master
Agreement.
The Committee may not amend or delete this Section IV of this Master Agreement
in a manner that is detrimental to the award holder, without his written
consent.
2. A "Change in Control" means the happening of any of the following:
(a) Any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") becomes the beneficial
owner (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 25% or more of either (i) the then outstanding
common shares of the Company (the "Outstanding Company Common
Shares") or (ii) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities");
provided, however, that such beneficial ownership shall not
constitute a Change in Control if it occurs as a result of any of the
following acquisitions of securities: (A) any acquisition directly
from the Company; (B) any acquisition by the Company or any
corporation, partnership, trust or other entity controlled by the
Company (a "Subsidiary"); (C) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
Subsidiary; (D) any acquisition by an underwriter temporarily holding
Company securities pursuant to an offering of such securities; (E)
any acquisition by an individual, entity or group that is permitted
to, and actually does, report its beneficial ownership on Schedule
13-G (or any successor schedule), provided that, if any such
individual, entity or group subsequently becomes required to or does
report its beneficial ownership on Schedule 13D (or any successor
schedule), then, for purposes of this subsection, such individual,
entity or group shall be deemed to have first acquired, on the first
date on which such individual, entity or group becomes required to or
does so report, beneficial ownership of all of the Outstanding
Company Common Stock and Outstanding Company Voting Securities
beneficially owned by it on such date; or (F) any acquisition by any
corporation pursuant to a reorganization, merger or consolidation if,
following such reorganization, merger or consolidation, the
conditions described in clauses (i), (ii) and (iii) of Paragraph 2(c)
are satisfied. Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person (the "Subject
Person") became the beneficial owner of 25% or more of the
Outstanding Company Common Shares or Outstanding Company Voting
Securities as a result of the acquisition of Outstanding Company
Common Shares or Outstanding Company Voting Securities by the Company
which, by reducing the number of Outstanding Company Common Shares or
Outstanding Company Voting Securities, increases the proportional
number of shares beneficially owned by the Subject Person; provided,
that if a Change in Control would be deemed to have occurred (but for
the operation of this sentence) as a result of the acquisition of
Outstanding Company Common Shares or Outstanding Company Voting
Securities by the Company, and after such share acquisition by the
Company, the Subject Person becomes the beneficial owner of any
additional Outstanding Company Common Shares or Outstanding Company
Voting Securities which increases the percentage of the Outstanding
Company Common Shares or Outstanding Company Voting Securities
beneficially owned by the Subject Person, then a Change in Control
shall then be deemed to have occurred; or
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(b) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders, was approved
by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result
of either an actual or threatened election contest or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board, including by reason of agreement
intended to avoid or settle any such actual or threatened contest or
solicitation; or
(c) The consummation of a reorganization, merger, statutory
share exchange, consolidation, or similar corporate transaction
involving the Company or any of its direct or indirect Subsidiaries
(each a "Business Combination"), in each case, unless, following such
Business Combination, (i) the Outstanding Company Common Shares and
the Outstanding Company Voting Securities immediately prior to such
Business Combination, continue to represent (either by remaining
outstanding or being converted into voting securities of the
resulting or surviving entity or any parent thereof) more than 50% of
the then-outstanding shares of common stock and the combined voting
power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from Business Combination (including, without
limitation, a corporation that, as a result of such transaction, owns
the Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries), (ii) no Person
(excluding the Company, any employee benefit plan (or related trust)
of the Company, a Subsidiary or such corporation resulting from such
Business Combination or any parent or subsidiary thereof, and any
Person beneficially owning, immediately prior to such Business
Combination, directly or indirectly, 25% or more of the Outstanding
Company Common Shares or Outstanding Company Voting Securities, as
the case may be) beneficially owns, directly or indirectly, 25% or
more of, respectively, the then outstanding shares of common stock of
the corporation resulting from such Business Combination (or any
parent thereof) or the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors and (iii) at least a majority of the
members of the board of directors of the corporation resulting from
such Business Combination (or any parent thereof) were members of the
Incumbent Board at the time of the execution of the initial agreement
or action of the Board providing for such Business Combination; or
(d) The consummation of the sale, lease, exchange or other
disposition of all or substantially all of the assets of the Company,
unless such assets have been sold, leased, exchanged or disposed of
to a corporation with respect to which following such sale, lease,
exchange or other disposition (i) more than 50% of, respectively, the
then outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities of
such corporation (or any parent thereof) entitled to vote generally
in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
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entities who were the beneficial owners, respectively, of the
Outstanding Company Common Shares and Outstanding Company Voting
Securities immediately prior to such sale, lease, exchange or other
disposition in substantially the same proportions as their ownership
immediately prior to such sale, lease, exchange or other disposition
of such Outstanding Company Common Shares and Outstanding Company
Voting Shares, as the case may be, (ii) no Person (excluding the
Company and any employee benefit plan (or related trust)) of the
Company or a Subsidiary or of such corporation or a subsidiary
thereof and any Person beneficially owning, immediately prior to such
sale, lease, exchange or other disposition, directly or indirectly,
25% or more of the Outstanding Company Common Shares or Outstanding
Company Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 25% or more of respectively, the then
outstanding shares of common stock of such corporation (or any parent
thereof) and the combined voting power of the then outstanding voting
securities of such corporation (or any parent thereof) entitled to
vote generally in the election of directors and (iii) at least a
majority of the members of the board of directors of such corporation
(or any parent thereof) were members of the Incumbent Board at the
time of the execution of the initial agreement or action of the Board
providing for such sale, lease, exchange or other disposition of
assets of the Company; or
(e) Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
3. This Paragraph 3 shall apply in the event of a Change in Control.
(a) In the event that any payment or benefit received or to
be received by a Participant hereunder in connection with a Change in
Control or termination of such Participant's employment (such
payments and benefits, excluding Gross-Up Payment (as hereinafter
defined), being hereinafter referred to collectively as the
"Payments"), will be subject to the excise tax referred to in Section
4999 of the Code (the "Excise Tax"), then (i) in the case of a
Participant who is classified in Band 70 (or its equivalent) or above
immediately prior to such Change in Control (a "Tier 1 Employee"),
the Company shall pay to such Tier 1 Employee, within five days after
receipt by such Tier 1 Employee of the written statement referred to
in paragraph (e) below, an additional amount (the "Gross Up Payment")
such that the net amount retained by such Tier 1 Employee, after
deduction of any Excise Tax on the Payments and any federal, state
and local income and employment taxes and Excise Tax upon the
Gross-Up Payment, shall be equal to the Payments and (ii) in the case
of a Participant other than a Tier 1 Employee, the Payments shall be
reduced to the extent necessary so that no portion of the Payments is
subject to the Excise Tax but only if (A) the net amount of all Total
Payments (as hereinafter defined), as so reduced (and after
subtracting the net amount of federal, state and local income and
employment taxes on such reduced Total Payments), is greater than or
equal to (B) the net amount of such Total Payments without any such
reduction (but after subtracting the net amount of federal, state and
local income and employment taxes on such Total Payments and the
amount of Excise Tax to which the Participant would be subject in
respect of such unreduced Total Payments); provided, however, that
the Participant may elect in writing to have other components of his
or her Total Payments reduced prior to any reduction in the Payments
hereunder.
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(b) For purposes of determining whether the Payments will be
subject to the Excise Tax, the amount of such Excise Tax and whether
any Payments are to be reduced hereunder: (i) all payments and
benefits received or to be received by the Participant in connection
with such Change in Control or the termination of such Participant's
employment, whether pursuant to the terms of this Master Agreement or
any other plan, arrangement or agreement with the Company, any Person
(as such term is defined in Paragraph 2(a) above) whose actions
result in such Change in Control or any Person affiliated with the
Company or such Person (all such payments and benefits, excluding the
Gross-Up Payment and any similar gross-up payment to which a Tier 1
Employee may be entitled under any such other plan, arrangement or
agreement, being hereinafter referred to as the "Total Payments"),
shall be treated as "parachute payments" (within the meaning of
Section 280G(b)(2) of the Code) unless, in the opinion of the Firm,
such payments or benefits (in whole or in part) do not constitute
parachute payments, including by reason of Section 280G(b)(2)(A) or
Section 280G(b)(4)(A) of the Code; (ii) no portion of the Total
Payments the receipt or enjoyment of which the Participant shall have
waived at such time and in such manner as not to constitute a
"payment" within the meaning of Section 280G(b) of the Code shall be
taken into account; (iii) all "excess parachute payments" within the
meaning of Section 280G(b)(l) of the Code shall be treated as subject
to the Excise Tax unless, in the opinion of the Firm, such excess
parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered (within the meaning of
Section 280G(b)(4)(B) of the Code) in excess of the Base Amount
(within the meaning of Section 280G(b)(3) of the Code) allocable to
such reasonable compensation, or are otherwise not subject to the
Excise Tax; and (iv) the value of any noncash benefits or any
deferred payment or benefit shall be determined by the Firm in
accordance with the principles of Sections 280G(d)(3) and (4) of the
Code and regulations or other guidance thereunder. For purposes of
determining the amount of the Gross Up Payment in respect of a Tier 1
Employee and whether any Payments in respect of a Participant (other
than a Tier 1 Employee) shall be reduced, a Participant shall be
deemed to pay federal income tax at the highest marginal rate of
federal income taxation (and state and local income taxes at the
highest marginal rate of taxation in the state and locality of such
Participant's residence, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and
local taxes) in the calendar year in which the Gross Up Payment is to
be made (in the case of a Tier 1 Employee) or in which the Payments
are made (in the case of a Participant other than a Tier 1 Employee).
The Firm will be paid reasonable compensation by the Company for its
services.
(c) In the event that the Excise Tax is finally determined
to be less than the amount taken into account hereunder in
calculating the Gross-Up Payment, then an amount equal to the amount
of the excess of the earlier payment over the redetermined amount
(the "Excess Amount") will be deemed for all purposes to be a loan to
the Tier 1 Employee made on the date of the Tier 1 Employee's receipt
of such Excess Amount, which the Tier 1 Employee will have an
obligation to repay to the Company on the fifth business day after
demand, together with interest on such amount at the lowest
applicable Federal rate (as defined in Section 1274(d) of the Code or
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any successor provision thereto), compounded semi-annually (the
"Section 1274 Rate") from the date of the Tier 1 Employee's receipt
of such Excess Amount until the date of such repayment (or such
lesser rate (including zero) as may be designated by the Firm such
that the Excess Amount and such interest will not be treated as a
parachute payment as previously defined). In the event that the
Excise Tax is finally determined to exceed the amount taken into
account hereunder in calculating the Gross-Up Payment (including by
reason of any payment the existence or amount of which cannot be
determined at the time of the Gross Up Payment), within five business
days of such determination, the Company will pay to the Tier 1
Employee an additional amount, together with interest thereon from
the date such additional amount should have been paid to the date of
such payment, at the Section 1274 Rate (or such lesser rate
(including zero) as may be designated by the Firm such that the
amount of such deficiency and such interest will not be treated as a
parachute payment as previously defined). The Tier 1 Employee and the
Company shall each reasonably cooperate with the other in connection
with any administrative or judicial proceedings concerning the amount
of any Gross-Up Payment.
(d) As soon as practicable following a Change in Control,
the Company shall provide to each Tier 1 Employee and to each other
Participant with respect to whom it is proposed that Payments be
reduced, a written statement setting forth the manner in which the
Total Payments in respect of such Tier 1 Employee or other
Participant were calculated and the basis for such calculations,
including, without limitation, any opinions or other advice the
Company has received from the Firm or other advisors or consultants
(and any such opinions or advice which are in writing shall be
attached to the statement).
4. The terms of any Option, RSA or RSU (including terms under this
Master Agreement or any Award Schedule) may be amended from time to time by
the Committee in its sole discretion in any manner that it deems appropriate
(including, but not limited to, acceleration of the date of payments
thereunder); provided, however, that no such amendment shall adversely affect
in a material manner any right of a Participant under such Option, RSA or RSU
without the written consent of such Participant; provided, however, that the
Committee shall not have the authority to amend any Option held by any
executive officer of the Company as defined in Rule 3(b)(7) under the
Securities Exchange Act of 1934, as amended, so that the amount of
compensation an executive officer could receive is not based solely on an
increase in the value of shares, or to otherwise amend any Award issued to
such executive officer if the amendment would cause compensation payable
thereunder to be nondeductible under Section 162(m) of the Code (or any
successor provision) or regulations thereunder assuming such executive officer
is a covered employee for purposes of such Section.
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5. If and to the extent permitted by the Committee, and subject to
the provisions of the Plan, a Participant may, by completing the form provided
by the Corporate Secretary for such purpose and returning it to the Corporate
Secretary's Office in New York City, name a beneficiary or beneficiaries to
receive any payment or exercise any rights to which such Participant may
become entitled under an Award in the event of such Participant's death. To
the extent permitted by the Corporate Secretary, a Participant may change his
or her designated beneficiary or beneficiaries from time to time by submitting
a new form to the Corporate Secretary's Office in New York City, to the extent
permitted by law (for example, unless such Participant has made a prior
irrevocable designation). If a Participant does not designate a beneficiary,
or if no designated beneficiary is living on the date any amount becomes
payable under an Award, such payment will be made to the legal representatives
of such Participant's estate, which will be deemed to be the Participant's
designated beneficiary under the Award.
6. If the Company, in its sole discretion, shall determine that the
listing upon any securities exchange or registration or qualification under
any United States federal, state, local or foreign law of any shares to be
delivered pursuant to an Award is necessary or desirable, delivery of such
shares shall not be made in shares until such listing, registration or
qualification shall have been completed. Until a certificate for some or all
of the shares subject to an RSU is issued to a Participant, a Participant
shall have no rights as a shareholder of the Company and, in particular, shall
not be entitled to vote such shares or to receive any dividend or other
distribution paid in respect thereof.
7. Notwithstanding anything to the contrary contained herein, the
Committee, in its sole discretion, may approve and the Company may issue
Options, RSAs or RSUs that are not governed by the provisions contained in
this Master Agreement.
8. Any action taken or decision made by the Company, the Board, or
the Committee or its delegates arising out of or in connection with the
construction, administration, interpretation or effect of any provision of the
Plan or this Master Agreement shall lie within its sole and absolute
discretion, as the case may be, and shall be final, conclusive and binding on
the Participant and all persons claiming under or through the Participant. By
receipt of such Awards or other benefit under the Plan, the Participant and
each person claiming under or through the Participant shall be conclusively
deemed to have indicated acceptance and ratification of, and consent to, any
action taken under the Plan or this Master Agreement, by the Company, the
Board or the Committee or its delegates.
9. The validity, construction, interpretation, administration and
effect of the Plan and of its rules and regulations, and rights relating to
the Plan, and to any Award issued under this Master Agreement, shall be
governed by the substantive laws, but not the choice of law rules, of the
State of New York, in the United States of America.
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10. The Committee may rescind, without further notice to the
Participant, any Award issued to the Participant under the Plan in duplicate,
or in error, as determined in the sole discretion of the Committee.
SECTION V
MASTER AGREEMENT
DETRIMENTAL CONDUCT PROVISIONS
1. APPLICABILITY. Unless the Committee expressly determines
otherwise, the provisions of this Section V of this Master Agreement shall
apply to all Awards issued under the Plan.
2. DETRIMENTAL CONDUCT. If a current or former employee of, or other
individual that provides or has provided services for the Company (the
"Employee") engages in Detrimental Conduct, Awards previously issued to such
Employee may be canceled, rescinded or otherwise restricted and the Company
can recover any payments received by and stock delivered to the Employee in
accordance with the terms of Paragraph 3. For purposes of this Section V,
"Detrimental Conduct" shall mean the conduct described in Paragraphs 2(a)
through 2(g).
(a) NONCOMPETE. For a one-year period after the last day of
active employment if the Employee is a Band 70 or above employee or
for a six-month period after the last day of active employment if the
Employee is a Band 50 or 60 employee, and during the Employee's
employment with the Company, the Employee shall not be employed by,
provide advice to or act as a consultant for any Competitor. The
Company has defined Competitor for certain lines of business,
departments or job functions by establishing a specific standard
and/or by name as set forth in the Company's Competitor List(s). An
Employee's personal list of competitors will be the sum of:
(1) either (i) all competitors derived from the
column titled Standard on the Competitor List for the lines
of business and departments (as listed on the Competitor
List under the Line of Business column) that the Employee
provided services to or managed during the two-year period
preceding the date the Employee's active employment with the
Company terminates, or (ii) if the job function the Employee
is employed in at the time his or her active employment with
the Company terminates is listed on the Competitor List
under the Line of Business column, the competitors cited for
that job function under the Standard column of the
Competitor List; and
(2) the Entities (as that term is defined in
Paragraph 8) listed on the Competitor List under the column
titled Business Unit Wide Competitors for the business
units, i.e. AEB or TRS, the Employee provided services to or
managed during the two-year period preceding the date his or
her active employment with the Company terminates. If any
line(s) of business the Employee provided services to or
managed during the two-year period preceding the date his or
her active employment with the Company terminates is not
listed on the Competitor List then, with respect to such
line(s) of business, the Employee shall not be employed by,
provide advice to or act as a consultant for (i) an Entity's
line of business that competes with those line(s) of
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business and (ii) the Entities listed on the Competitor List
under the column titled Business Unit Wide Competitors for
the business units the Employee provided services to or
managed during the two-year period preceding the date the
Employee's active employment with the Company terminates.
Except for Business Unit Wide Competitors, the prohibition
against being employed by, providing advice to or acting as
a consultant for a Competitor is limited to the line(s) of
business of the Competitor that compete with the line(s) of
business of the Company that the Employee provided services
to or managed. With respect to Business Unit Wide
Competitors, the Employee agrees not to be employed by,
provide advice to or act as a consultant for such Entities
in any line of business because these Entities compete with
several of the Company's lines of business. The Company can
revise the Competitor List at its discretion at any time and
from time to time and as revised will become part of this
Section V; a copy of the current Competitor List will be
available through the Corporate Secretary's Office.
Notwithstanding anything in this Section V to the contrary,
the Company shall not make any addition to the Competitor
List for a period of two years following the date of a
Change in Control (as defined in Section IV of this Plan
Master Agreement, and as amended from time to time, or any
successor thereto).
(b) NONDENIGRATION. For a one-year period after an
Employee's last day of active employment ("the Restricted Period")
and during his or her employment with the Company, an Employee or
anyone acting at his or her direction may not denigrate the Company
or the Company's employees to the media or financial analysts. During
the Restricted Period an Employee may not (i) provide information
considered proprietary by the Company to the media or financial
analysts or (ii) discuss the Company with the media or financial
analysts, without the explicit written permission of the Executive
Vice President of Corporate Affairs and Communications. This
Paragraph shall not be applicable to any truthful statement required
by any legal proceeding.
(c) NONSOLICITATION OF EMPLOYEES. During the Restricted
Period, an Employee may not employ or solicit for employment any
employee of the Company. In addition, during the Restricted Period an
Employee may not advise or recommend to any other person that he or
she employ or solicit for employment, any person employed by the
Company for the purpose of employing that person at an Entity at
which the Employee is or intends to be (i) employed, (ii) a member of
the Board of Directors, or (iii) providing consulting services.
(d) NONSOLICITATION OF CUSTOMERS. During the Restricted
Period, an Employee may not directly or indirectly solicit or enter
into any arrangement with any Entity which is, at the time of such
solicitation, a significant customer of the Company for the purpose
of engaging in any business transactions of the nature performed or
contemplated by the Company. This Paragraph shall apply only to
customers whom the Employee personally serviced while employed by the
Company or customers the Employee acquired material information about
while employed by the Company.
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(e) MISCONDUCT. During his or her employment with the
Company, an Employee may not engage in any conduct that results in
termination of his or her employment for Misconduct. For purposes of
this Section V, "Misconduct" is (i) material violation of the
American Express Company Code of Conduct, (ii) criminal activity,
(iii) gross insubordination, or (iv) gross negligence in the
performance of duties.
(f) CONFIDENTIAL INFORMATION. During the Restricted Period
and during his or her employment with the Company, an Employee may
not misappropriate or improperly disclose confidential information or
trade secrets of the Company and its businesses, including but not
limited to information about marketing or business plans, possible
acquisitions or divestitures, potential new products or markets and
other data not available to the public.
(g) OTHER DETRIMENTAL CONDUCT. During the Restricted Period,
an Employee may not take any actions that the Company reasonably
deems detrimental to its interests. To the extent practicable, the
Company will request an Employee to cease and desist or rectify the
conduct prior to seeking any legal remedies under this Paragraph and
will only seek legal remedies if the Employee does not comply with
such request. This Paragraph shall not be applied to conduct that is
otherwise permitted by Paragraphs 2(a) through 2(f). For example, if
an Employee leaves the Company's employment to work for an Entity
that is not a Competitor under Paragraph 2(a), the Company will not
claim that employment with that Entity violates Paragraph 2(g).
Notwithstanding anything in this Section V to the contrary, this
Paragraph 2(g) shall not be applicable to an Employee from and after
his or her last day of active employment, if his or her active
employment terminates for any reason (other than for Misconduct, as
defined in Paragraph 2(e) above) within two years following a Change
in Control (as such term is defined in Section IV of this Master
Agreement, as amended from time to time, or any successor thereto).
3. REMEDIES.
(a) REPAYMENT OF FINANCIAL GAIN. If an Employee fails to
comply with the requirements of Paragraphs 2(a) through 2(g) and is
at Band 70 or above at the time his or her active employment with the
Company terminates, the Company may cancel any outstanding Awards and
recover from the Employee (i) the amount of any gain realized on
Options and stock appreciation rights exercised, as of the date
exercised, (ii) any payments received for Portfolio Grant Awards or
other Awards and (iii) stock whose restrictions lapsed (or the value
of the stock at the time the restrictions lapsed) pursuant to am RSA,
RSU Award or other Awards, during the last two years the Employee was
employed by the Company. If an Employee fails to comply with the
requirements of Paragraphs 2(a) through 2(g) and is at Band 50 or 60
at the time his or her active employment with the Company terminates,
the Company may cancel any outstanding Awards and recover from the
Employee the amount of any gain realized on Options and stock
appreciation rights exercised, as of the date exercised, which were
exercised during the last six months the Employee was employed by the
Company. If an Employee fails to comply with the requirements of
Paragraphs 2(a) through 2(g), the Employee must and agrees to repay
the Company in accordance with the terms of this Paragraph and the
Company shall be entitled to set-off against the amount of any such
repayment obligation any amount owed, from any source, to the
Employee by the Company.
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(b) OTHER REMEDIES. The remedy provided pursuant to
Paragraph 3(a) shall be without prejudice to the Company's right to
recover any losses resulting from a violation of this Section V and
shall be in addition to whatever other remedies the Company may have,
at law or equity, for violation of the terms of this Section V.
4. APPROVAL TO EXERCISE OPTIONS. If an Employee is a Band 70 or above
employee and elects to exercise more than 40% of all of his or her outstanding
vested Options in any 90-day period, such Employee will need the written
approval of the Chief Executive Officer or President of American Express
Company or their delegate. If an Employee is a member of the Global Leadership
Team ("GLT") and elects to exercise more than 25% of all his or her
outstanding vested Options in any 90-day period, such Employee will need the
written approval of the Chief Executive Officer or President of American
Express Company or, if he or she is the Chief Executive Officer or President
of American Express Company, the written approval of the Committee. If an
Employee is a Band 50 or 60 employee and elects to exercise more than 40% of
all of his or her outstanding vested Options in any 90-day period, such
Employee will need the written approval of the Executive Officer who manages
the area he or she works in. The standard for determining whether to approve
an Employee's request to exercise options will be whether he or she is
complying and will comply with the requirement of Paragraphs 2(a) through
2(g). If an Employee's request for approval is denied, he or she may submit a
second request after 90 days have elapsed from the submission date of a
completed Notice of Exercise of Employee Stock Option form ("Form") on the
first request. An Employee will have 30 trading days (exclusive of blackout
periods due to "window" closings) from the date he or she receives written
approval to exercise up to the full number of options requested in the Form.
5. COMPENSATION BAND CHANGES. If the Company changes its current
system of classifying employees in compensation bands and management tiers,
the references to Bands 50, 60 and 70, Executive Officers and GLT members in
this Section V will be construed to mean the compensation level(s) and
management tiers in the new or revised system that, in the Company's
discretion, most closely approximates these bands and management tiers under
the current system.
6. INVOLUNTARY TERMINATIONS. This Section V will not apply to
employees of the Company who enter into a severance agreement with the Company
or other involuntary terminations as determined by the Company (excluding
terminations covered by Paragraph 2(e)).
7. COURT MODIFICATION. If any term of this Section V is determined by
a court of competent jurisdiction not to be enforceable in the manner set
forth in this Section V, such term shall be enforceable to the maximum extent
possible under applicable law and such court shall reform such term to make it
enforceable.
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8. DEFINITION OF ENTITY. As used in this Section V, the word Entity
or Entities shall mean any corporation, partnership, association, joint
venture, trust, government, governmental agency or authority, person or other
organization or entity.
9. WAIVERS. The failure of the Company to enforce at any time any
term of this Section V shall not be construed to be a waiver of such term or
of any other term. Any waiver or modification of the terms of this Section V
will only be effective if reduced to writing and signed by both the Employee
and the President or Chief Executive Officer of the Company.
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