As filed with the Securities and Exchange Commission on May 8, 2007
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERICAN EXPRESS COMPANY
(Exact name of registrant as specified in its charter)
New York 13-4922250
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(State or other (I.R.S. Employer
jurisdiction Identification No.)
of incorporation or
organization)
200 Vesey Street
New York, NY 10285 10285
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(Address of principal (zip code)
executive
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AMERICAN EXPRESS COMPANY 2007 INCENTIVE COMPENSATION PLAN
(Full title of the plan)
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LOUISE M. PARENT, ESQ.
Executive Vice President
and General Counsel
American Express Company
200 Vesey Street
New York, New York 10285
(Name and address of agent for service)
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(212) 640-2000
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Offering Price Per Aggregate Offering Amount of
Title of Securities Amount to be Share (2) Price (2) Registration
to be Registered Registered (1) Fee (2)
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Common Shares, par - 1 - $63.39 $63.39 $0.00
value $.20 per share
52,999,999 N/A N/A N/A
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(1) This registration statement consists of one (1) Common Share being newly
registered and, pursuant to Instruction E to Form S-8 and interpretations of
the Staff of the SEC's Division of Corporation Finance, 52,999,999 Common
Shares previously registered on a Registration Statement on Form S-8
(Registration No. 333-98479). See "Explanatory Statement". Pursuant to
Rule 416 under the Securities Act of 1933, this registration statement also
covers an indeterminate number of Common Shares that may be issued upon stock
splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based upon the
average of the high and low sales prices of such securities on the New York
Stock Exchange on May 4, 2007. An aggregate registration fee of $211,393.00
was previously paid in connection with the filing of Registration Statement
No. 333-98479 (see note (1) above), of which $172,366.60 related to the
52,999,999 shares being carried forward. See "Explanatory Statement".
EXPLANATORY STATEMENT
On August 21, 2002, a total of 65,000,000 of the Common Shares, par value
$.20 per share (the "Common Shares"), of American Express Company (the
"Registrant") were registered on Form S-8 (Registration No. 333-98479) for
issuance under the American Express Company 1998 Incentive Compensation Plan,
as amended (the "1998 Plan"). On April 23, 2007, the Registrant's shareholders
approved the American Express Company 2007 Incentive Compensation Plan (the
"2007 Plan"). As a result of the approval of the 2007 Plan, no additional
awards will be made under the 1998 Plan, and 53,000,000 of the Common Shares
that were available for new grants under the 1998 Plan on April 23, 2007 are
now issuable under the 2007 Plan. Pursuant to Instruction E to Form S-8 and
interpretations of Staff of the SEC's Division of Corporation Finance,
52,999,999 of the unissued Common Shares previously registered and available
for issuance under the 1998 Plan as of that date are carried forward and
deemed covered by this registration statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2006;
(b) the Registrant's Current Reports on Form 8-K filed on January 1, January
26, February 13, February 28, and April 27, 2007 and Amended Current
Reports on Form 8-K/A filed on March 7, and April 27, 2007; and
(c) the description of the Registrant's Common Shares, par value $.20 per
share (the "Common Shares"), contained in the Registrant's Registration
Statement on Form 8-A/A dated June 12, 2000.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior
to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and
to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the offering of the Common Shares
registered hereby have been passed upon by Harold E. Schwartz, Vice President
and Senior Counsel of the Registrant. Mr. Schwartz is paid a salary by, and is
a participant in various employee benefit plans offered generally to employees
of, the Registrant. Mr. Schwartz has options to purchase Common Shares of the
Registrant.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VI of the Registrant's By-laws, as amended, provides as
follows:
SECTION 6.1. DIRECTORS, OFFICERS AND EMPLOYEES. The corporation shall, to
the fullest extent permitted by applicable law as the same exists or may
hereafter be in effect, indemnify any person, made or threatened to be made, a
party to, or who is otherwise involved in, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
legislative or investigative, by reason of the fact that such person, is or
was or has agreed to become a director of the corporation, or is or was an
officer or employee of the corporation, or serves or served or has agreed to
serve any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity at the request of the
corporation, against judgments, fines, penalties, amounts paid in settlement
and reasonable expenses, including attorneys' fees actually and necessarily
incurred in connection with such action or proceeding, or any appeal therein;
provided, however, that no indemnification shall be provided to any such
person if a judgment or other final adjudication adverse to the director,
officer or employee establishes that (i) his acts were committed in bad faith
or were the result of active and deliberate dishonesty and, in either case,
were material to the cause of action so adjudicated, or (ii) he personally
gained in fact a financial profit or other advantage to which he was not
legally entitled. Any action or proceeding by or in the right of the
corporation to procure a judgment in its favor or by or in the right of any
other corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
which any director, officer or employee serves or served or agreed to serve at
the request of the corporation shall be included in the actions for which
directors, officers and employees will be indemnified under the terms of this
Section 6.1. Such indemnification shall include the right to be paid advances
of any expenses incurred by such person in connection with such action, suit
or proceeding, upon receipt of an undertaking by or on behalf of such person
to repay such amount consistent with the provisions of applicable law.
(B.C.L. Sections 721, 722, 723(c).)
SECTION 6.2 OTHER INDEMNIFICATION. The corporation may indemnify any
person to whom the corporation is permitted by applicable law or these by-laws
to provide indemnification or the advancement of expenses, whether pursuant to
rights granted pursuant to, or provided by, the New York Business Corporation
Law or any other law or these by-laws or other rights created by (i) a
resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended that
these by-laws authorize the creation of other rights in any such manner. The
right to be indemnified and to the reimbursement or advancement of expenses
incurred in defending a proceeding in advance of its final disposition
authorized by this Section 6.2, shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the certificate of incorporation, by-laws, agreement, vote of shareholders or
disinterested directors or otherwise.
(B.C.L. Sections 721, 723(c).)
SECTION 6.3 MISCELLANEOUS. The right to indemnification conferred by
Section 6.1, and any indemnification extended under Section 6.2, (i) is a
contract right pursuant to which the person entitled thereto may bring suit as
if the provisions thereof were set forth in a separate written contract
between the corporation and such person, (ii) is intended to be retroactive to
events occurring prior to the adoption of this Article VI, to the fullest
extent permitted by applicable law, and (iii) shall continue to exist after
the rescission or restrictive modification thereof with respect to events
occurring prior thereto. The benefits of Section 6.1 shall extend to the
heirs, executors, administrators and legal representatives of any person
entitled to indemnification under this Article.
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For the undertaking with respect to indemnification, see Item 9 below.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
4.1 Registrant's Restated Certificate of Incorporation, dated May 29,
1997 (incorporated by reference to Exhibit 4.1 of the Registrant's
Registration Statement on Form S-3 (File No. 333-32525), filed with
the Commission on July 31, 1997).
4.2 Registrant's Certificate of Amendment of the Certificate of
Incorporation (incorporated by reference to Exhibit 3.1 of the
Registrant's Quarterly Report on Form 10-Q (Commission File No.
1-7657) for the quarter ended March 31, 2000).
4.3 Registrant's By-Laws, as amended through September 27, 2006
(incorporated by reference to Exhibit 3.1 of the Registrant's Current
Report on Form 8-K (Commission File No. 1-7657) filed with the
Commission on September 29, 2006).
4.4 Form of Certificate for the Registrant's Common Shares (incorporated
by reference to Exhibit 4 of the Registrant's Registration Statement
on Form 8-A/A (File No.1-7657), filed with the Commission on June 12,
2000).
4.5 American Express Company 2007 Incentive Compensation Plan (incorporated
by reference to Exhibit 10.1 of the Registrant's Current Report on
Form 8-K (Commission File No. 1-7657) filed with the Commission on
April 27, 2007).
5* Opinion and consent of Harold E. Schwartz, Esq.
23.1* Consent of PricewaterhouseCoopers LLP
23.2* Consent of Ernst & Young LLP.
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities and Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on this
7th day of May, 2007.
AMERICAN EXPRESS COMPANY
(Registrant)
By /s/ Stephen P. Norman
Stephen P. Norman
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 7, 2007.
/s/ KENNETH I. Chenault /s/ JAN LESCHLY
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Kenneth I. Chenault Jan Leschly
Chairman, Chief Executive Director
Officer and Director
/s/ DANIEL T. HENRY /S/ RICHARD C. LEVIN
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Daniel T. Henry Richard C. Levin
Executive Vice President and Director
Acting Chief Financial Officer
/s/ JOAN C. AMBLE /S/ RICHARD A. MCGINN
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Joan C. Amble Richard A. McGinn
Executive Vice President Director
and Comptroller
/s/ DANIEL F. AKERSON /s/ EDWARD D. MILLER
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Daniel F. Akerson Edward D. Miller
Director Director
/s/ CHARLENE BARSHEFSKY /S/ FRANK P. POPOFF
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Charlene Barshefsky Frank P. Popoff
Director Director
/s/ URSULA M. BURNS /S/ STEVEN S. REINEMUND
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Ursula M. Burns Steven S. Reinemund
Director Director
/s/ PETER CHERNIN /S/ ROBERT D. WALTER
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Peter Chernin Robert D. Walter
Director Director
/s/ VERNON E. JORDAN, JR. /S/ RONALD A. WILLIAMS
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Vernon E. Jordan, Jr. Ronald A. Williams
Director Director
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EXHIBIT INDEX
The following exhibits are filed herewith, except as noted below.
Exhibit No. Description
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4.1 Registrant's Restated Certificate of Incorporation, dated May 29,
1997 (incorporated by reference to Exhibit 4.1 of the Registrant's
Registration Statement on Form S-3 (File No. 333-32525), filed with
the Commission on July 31, 1997).
4.2 Registrant's Certificate of Amendment of the Certificate of
Incorporation (incorporated by reference to Exhibit 3.1 of the
Company's Quarterly Report on Form 10-Q (Commission File No. 1-7657)
for the quarter ended March 31, 2000).
4.3 Registrant's By-Laws, as amended through September 27, 2006
(incorporated by reference to Exhibit 3.1 of the Registrant's
Current Report on Form 8-K (Commission File No. 1-7657) filed with
the Commission on September 29, 2006).
4.4 Form of Certificate for the Registrant's Common Shares (incorporated
by reference to Exhibit 4 of the Registrant's Registration Statement
on Form 8-A/A (File No. 1-07657), filed with the Commission on June
12, 2000).
4.5 American Express Company 2007 Incentive Compensation Plan
(incorporated by reference to Exhibit 10.1 of the Registrant's
Current Report on Form 8-K (Commission File No. 1-7657) filed with
the Commission on April 27, 2007).
5* Opinion and consent of Harold E. Schwartz, Esq.
23.1* Consent of PricewaterhouseCoopers LLP
23.2* Consent of Ernst & Young LLP.
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* Filed herewith.
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