AMENDMENT OF
AMERICAN EXPRESS
KEY EXECUTIVE LIFE INSURANCE PLAN
RESOLVED, that pursuant to Section 10.01 of the American Express Company
Key Executive Life Insurance Plan (the "Plan"), the Plan is amended
effective as of February 28, 2000 (the "Effective Date"), as follows:
1. Article II, Section 2.19, Subsection (c) of the Plan is hereby
deleted in its entirety and replaced with a new Subsection (c) to
read as follows:
(c) The consummation of a reorganization, merger or
consolidation, in each case, unless, following such
reorganization, merger or consolidation, (i) more than 50%
of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization,
merger or consolidation (or any parent thereof) and the
combined voting power of the then outstanding voting
securities of such corporation 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 entities who were the beneficial owners,
respectively, of the Outstanding Company Common Shares and
Outstanding Company Voting Securities immediately prior to
such reorganization, merger or consolidation, in
substantially the same proportions as their ownership
immediately prior to such reorganization, merger or
consolidation of such Outstanding Company Common Shares and
Outstanding Company Voting Shares, as the case may be, (ii)
no Person (excluding the Company, any employee benefit plan
(or related trust) of the Company, a Subsidiary or such
corporation resulting from such reorganization, merger or
consolidation or any parent or a subsidiary thereof, and any
Person beneficially owning, immediately prior to such
reorganization, merger or consolidation, 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 reorganization, merger or consolidation
(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
reorganization, merger or consolidation (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 reorganization, merger or
consolidation; or
2. Article II, Section 2.19 Subsection (d) is hereby deleted in its
entirety and replaced with a new Subsection (d) to read as
follows:
(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 (A) 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 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, (B) no Person (excluding the Company and any
employee benefit plan (or related trust) of the Company or a
Subsidiary 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
2
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 (C) 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
3. Article VII, Section 7.02, Subsection (d)(ii) is hereby deleted
in its entirety and replaced with a new Subsection (d)(ii) to
read as follows:
(d)(ii)(A) This Subsection (d)(ii) shall apply in the event
of a Major Transaction. A Major Transaction shall mean a
transaction described in either paragraph (1) or (2) below:
(1) The consummation of a reorganization, merger or
consolidation, in each case, if, following such
reorganization, merger or consolidation, more than 50% but
not more than 60% of, respectively, the then outstanding
shares of common stock of the corporation resulting from
such reorganization, merger or consolidation (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 is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively,
of the Outstanding Company Common Shares and Outstanding
Company Voting Securities immediately prior to such
reorganization, merger or consolidation, in substantially
the same proportions as their ownership immediately prior to
such reorganization, merger or consolidation of such
Outstanding Company Common Shares and Outstanding Company
Voting Shares, as the case may be, but only if:
3
(A) no Person (excluding the Company, any employee benefit
plan (or related trust) of the Company, a Subsidiary or such
corporation resulting from such reorganization, merger or
consolidation or any parent or a subsidiary thereof, and any
Person beneficially owning, immediately prior to such
reorganization, merger or consolidation, 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 reorganization,
merger or consolidation (or any parent thereof) or 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
(B) at least a majority of the members of the board of
directors of the corporation resulting from such
reorganization, merger or consolidation (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 reorganization, merger or
consolidation.
(2) The consummation of the sale, lease, exchange or other
disposition of all or substantially all of the assets of the
Company to a corporation with respect to which following
such sale, lease, exchange or other disposition more
than 50% but not more than 60% 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 is then beneficially owned, directly
or indirectly, by all or substantially all of the
individuals and 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
4
such Outstanding Company Common Shares and Outstanding
Company Voting Shares, as the case may be, but only if:
(A) no Person (excluding the Company and any employee
benefit plan (or related trust) of the Company or a
Subsidiary 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
(B) 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.
(B) If all or any portion of the payments or benefits to which
the Participant will be entitled under the Plan, either
alone or together with other payments or benefits which the
Participant receives or is entitled to receive directly or
indirectly from the Company or any of its subsidiaries or
any other person or entity that would be treated as a payor
of parachute payments as hereinafter defined, under any
other plan, agreement or arrangement, would constitute a
"parachute payment" within the meaning of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code")
or any successor provision thereto and regulations or other
guidance thereunder (except that "2.95" shall be used
instead of "3" under Section 280G(b)(2)(A)(ii) of the Code
or any successor provision thereto), such payment or
benefits provided to the Participant under this Plan, and
any other payments or benefits which the
5
Participant receives or is entitled to receive directly or
indirectly from the Company or any of its subsidiaries or
any other person or entity that would be treated as a payor
of parachute payments as hereinafter defined, under any
other plan, agreement or arrangement which would constitute
a parachute payment, shall be reduced (but not below zero)
as described below to the extent necessary so that no
portion thereof would constitute such a parachute payment as
previously defined (except that "2.95" shall be used instead
of "3" under Section 280G(b)(2)(A)(ii) of the Code or any
successor provision thereto). Whether payments or benefits
to the Participant would constitute a "parachute payment",
whether such payments or benefits are to be reduced pursuant
to the first sentence of this paragraph, and the extent to
which they are to be so reduced, will be determined by the
firm serving, immediately prior to the Major Transaction, as
the Company's independent auditors, or if that firm refuses
to serve, by another qualified firm, whether or not serving
as independent auditors, designated by the Administration
Committee under the American Express Senior Executive
Severance Plan (the "Firm"). The Firm will be paid
reasonable compensation by the Company for such services. If
the Firm concludes that its determination is inconsistent
with a final determination of a court or the Internal
Revenue Service, the Firm shall, based on such final
determination, redetermine whether the amount payable to the
Participant should have been reduced and, if applicable, the
amount of any such reduction. If the Firm determines that a
lesser payment should have been made to the Participant,
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
Participant made on the date of the Participant's receipt of
such Excess Amount, which the Participant 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 any successor provision thereto),
compounded semi-annually (the "Section 1274 Rate") from the
date of the Participant's receipt of such Excess Amount
until the date of such repayment (or
6
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). If the Firm determines that a greater payment
should have been made to the Participant, within five
business days of such determination, the Company will pay to
the Participant the amount of the deficiency, together with
interest thereon from the date such 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). If a reduction is to be made pursuant
to this paragraph, the Firm will have the right to determine
which payments and benefits will be reduced, either those
under this Plan alone or such other payments or benefits
which the Participant receives or is entitled to receive
directly or indirectly from the Company or any of its
subsidiaries or any other person or entity that would be
treated as a payor of parachute payments as previously
defined, under any other plan, agreement or arrangement.
4. Article VII, Section 7.02, Subsection (d)(iii) is hereby amended
by adding a new Subsection (d)(iii) to read as follows:
(d)(iii)(A) This Section (d)(iii) shall apply in the event
of a Change in Control, as defined in Section 2.19 hereof.
(B) 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
7
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.
(C) 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 Agreement or any other plan,
arrangement or agreement with the Company, any Person (as
such term is defined in Section 1.22 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,
8
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.
(D) 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
redeter-
9
mined 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 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.
(E) 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
10
or other advisors or consultants (and any such opinions or
advice which are in writing shall be attached to the
statement).
5. Article X, Section 10.01 and Article XI, Section 11.01 of the
Plan is each amended by deleting the last sentence thereof and
adding the following new sentence, to read as follows:
The forgoing sentence to the contrary notwithstanding,
for a period of two years and one day after the date of
a Change in Control, neither the Board of Directors nor
the Committee may terminate this Plan or amend this
Plan in a manner that is detrimental to the rights of
any participant of the Plan without his or her written
consent.
11
AMERICAN EXPRESS
KEY EXECUTIVE LIFE INSURANCE PLAN
RESOLVED, that pursuant to Section 10.01 of the American Express Company
Key Executive Life Insurance Plan (the "Plan"), the Plan is amended
effective as of February 28, 2000 (the "Effective Date"), as follows:
1. Article II, Section 2.19, Subsection (c) of the Plan is hereby
deleted in its entirety and replaced with a new Subsection (c) to
read as follows:
(c) The consummation of a reorganization, merger or
consolidation, in each case, unless, following such
reorganization, merger or consolidation, (i) more than 50%
of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization,
merger or consolidation (or any parent thereof) and the
combined voting power of the then outstanding voting
securities of such corporation 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 entities who were the beneficial owners,
respectively, of the Outstanding Company Common Shares and
Outstanding Company Voting Securities immediately prior to
such reorganization, merger or consolidation, in
substantially the same proportions as their ownership
immediately prior to such reorganization, merger or
consolidation of such Outstanding Company Common Shares and
Outstanding Company Voting Shares, as the case may be, (ii)
no Person (excluding the Company, any employee benefit plan
(or related trust) of the Company, a Subsidiary or such
corporation resulting from such reorganization, merger or
consolidation or any parent or a subsidiary thereof, and any
Person beneficially owning, immediately prior to such
reorganization, merger or consolidation, 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 reorganization, merger or consolidation
(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
reorganization, merger or consolidation (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 reorganization, merger or
consolidation; or
2. Article II, Section 2.19 Subsection (d) is hereby deleted in its
entirety and replaced with a new Subsection (d) to read as
follows:
(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 (A) 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 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, (B) no Person (excluding the Company and any
employee benefit plan (or related trust) of the Company or a
Subsidiary 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
2
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 (C) 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
3. Article VII, Section 7.02, Subsection (d)(ii) is hereby deleted
in its entirety and replaced with a new Subsection (d)(ii) to
read as follows:
(d)(ii)(A) This Subsection (d)(ii) shall apply in the event
of a Major Transaction. A Major Transaction shall mean a
transaction described in either paragraph (1) or (2) below:
(1) The consummation of a reorganization, merger or
consolidation, in each case, if, following such
reorganization, merger or consolidation, more than 50% but
not more than 60% of, respectively, the then outstanding
shares of common stock of the corporation resulting from
such reorganization, merger or consolidation (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 is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively,
of the Outstanding Company Common Shares and Outstanding
Company Voting Securities immediately prior to such
reorganization, merger or consolidation, in substantially
the same proportions as their ownership immediately prior to
such reorganization, merger or consolidation of such
Outstanding Company Common Shares and Outstanding Company
Voting Shares, as the case may be, but only if:
3
(A) no Person (excluding the Company, any employee benefit
plan (or related trust) of the Company, a Subsidiary or such
corporation resulting from such reorganization, merger or
consolidation or any parent or a subsidiary thereof, and any
Person beneficially owning, immediately prior to such
reorganization, merger or consolidation, 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 reorganization,
merger or consolidation (or any parent thereof) or 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
(B) at least a majority of the members of the board of
directors of the corporation resulting from such
reorganization, merger or consolidation (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 reorganization, merger or
consolidation.
(2) The consummation of the sale, lease, exchange or other
disposition of all or substantially all of the assets of the
Company to a corporation with respect to which following
such sale, lease, exchange or other disposition more
than 50% but not more than 60% 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 is then beneficially owned, directly
or indirectly, by all or substantially all of the
individuals and 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
4
such Outstanding Company Common Shares and Outstanding
Company Voting Shares, as the case may be, but only if:
(A) no Person (excluding the Company and any employee
benefit plan (or related trust) of the Company or a
Subsidiary 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
(B) 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.
(B) If all or any portion of the payments or benefits to which
the Participant will be entitled under the Plan, either
alone or together with other payments or benefits which the
Participant receives or is entitled to receive directly or
indirectly from the Company or any of its subsidiaries or
any other person or entity that would be treated as a payor
of parachute payments as hereinafter defined, under any
other plan, agreement or arrangement, would constitute a
"parachute payment" within the meaning of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code")
or any successor provision thereto and regulations or other
guidance thereunder (except that "2.95" shall be used
instead of "3" under Section 280G(b)(2)(A)(ii) of the Code
or any successor provision thereto), such payment or
benefits provided to the Participant under this Plan, and
any other payments or benefits which the
5
Participant receives or is entitled to receive directly or
indirectly from the Company or any of its subsidiaries or
any other person or entity that would be treated as a payor
of parachute payments as hereinafter defined, under any
other plan, agreement or arrangement which would constitute
a parachute payment, shall be reduced (but not below zero)
as described below to the extent necessary so that no
portion thereof would constitute such a parachute payment as
previously defined (except that "2.95" shall be used instead
of "3" under Section 280G(b)(2)(A)(ii) of the Code or any
successor provision thereto). Whether payments or benefits
to the Participant would constitute a "parachute payment",
whether such payments or benefits are to be reduced pursuant
to the first sentence of this paragraph, and the extent to
which they are to be so reduced, will be determined by the
firm serving, immediately prior to the Major Transaction, as
the Company's independent auditors, or if that firm refuses
to serve, by another qualified firm, whether or not serving
as independent auditors, designated by the Administration
Committee under the American Express Senior Executive
Severance Plan (the "Firm"). The Firm will be paid
reasonable compensation by the Company for such services. If
the Firm concludes that its determination is inconsistent
with a final determination of a court or the Internal
Revenue Service, the Firm shall, based on such final
determination, redetermine whether the amount payable to the
Participant should have been reduced and, if applicable, the
amount of any such reduction. If the Firm determines that a
lesser payment should have been made to the Participant,
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
Participant made on the date of the Participant's receipt of
such Excess Amount, which the Participant 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 any successor provision thereto),
compounded semi-annually (the "Section 1274 Rate") from the
date of the Participant's receipt of such Excess Amount
until the date of such repayment (or
6
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). If the Firm determines that a greater payment
should have been made to the Participant, within five
business days of such determination, the Company will pay to
the Participant the amount of the deficiency, together with
interest thereon from the date such 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). If a reduction is to be made pursuant
to this paragraph, the Firm will have the right to determine
which payments and benefits will be reduced, either those
under this Plan alone or such other payments or benefits
which the Participant receives or is entitled to receive
directly or indirectly from the Company or any of its
subsidiaries or any other person or entity that would be
treated as a payor of parachute payments as previously
defined, under any other plan, agreement or arrangement.
4. Article VII, Section 7.02, Subsection (d)(iii) is hereby amended
by adding a new Subsection (d)(iii) to read as follows:
(d)(iii)(A) This Section (d)(iii) shall apply in the event
of a Change in Control, as defined in Section 2.19 hereof.
(B) 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
7
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.
(C) 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 Agreement or any other plan,
arrangement or agreement with the Company, any Person (as
such term is defined in Section 1.22 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,
8
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.
(D) 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
redeter-
9
mined 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 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.
(E) 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
10
or other advisors or consultants (and any such opinions or
advice which are in writing shall be attached to the
statement).
5. Article X, Section 10.01 and Article XI, Section 11.01 of the
Plan is each amended by deleting the last sentence thereof and
adding the following new sentence, to read as follows:
The forgoing sentence to the contrary notwithstanding,
for a period of two years and one day after the date of
a Change in Control, neither the Board of Directors nor
the Committee may terminate this Plan or amend this
Plan in a manner that is detrimental to the rights of
any participant of the Plan without his or her written
consent.
11