The following summary sets forth certain terms and provisions of the notes and the Indenture (as defined herein), does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the terms and provisions of the notes and the Indenture, including the definitions therein, copies of which are available as set forth under “Where You Can Find More Information.” Capitalized terms not otherwise defined herein have the meanings given to them in the notes and in the Indenture. Because the following is only a summary, it does not contain all of the information that you may find useful in evaluating an investment in the exchange notes. We urge you to read the Indenture and the notes because they, and not this description, define your rights as holders of the notes. For purposes of this section, the term “notes” refers to the original notes and any exchange notes issued in exchange therefor and references to the “Company,” “we,” “our” and “us” refer only to American Express Company and not to its subsidiaries.
The original notes were issued and the exchange notes will be issued under the Indenture, dated as of December 3, 2012, between the Company and The Bank of New York Mellon, as Trustee. Each series of notes will be senior unsecured obligations of the Company and will rank prior to all present and future subordinated indebtedness of the Company and on an equal basis with all other present and future senior unsecured indebtedness of the Company. The 2022 notes will mature on December 2, 2022 and the 2042 notes will mature on December 3, 2042.
Neither series of notes will be subject to redemption prior to maturity unless certain events occur involving United States taxation. In such event, we will redeem the notes of the applicable series at a redemption price of 100% of their principal amount plus accrued and unpaid interest to the date of redemption. See “—Redemption Upon a Tax Event.” The notes will not be subject to any sinking fund or to any provisions for repayment at your option.
The Indenture is by its terms subject to and governed by the Trust Indenture Act of 1939, as amended.
The 2022 notes will bear interest at a rate of 2.650% per annum and the 2042 notes will bear interest at a rate of 4.050% per annum. Each series of notes will bear interest from December 3, 2012 or from the most recent date to which interest on that series of notes has been paid or duly provided for, until the principal of the note is paid or made available for payment. We will pay interest on each interest payment date and at maturity or upon redemption or repayment, if any. Interest payment date means the date on which payments of interest on a note (other than payments on maturity) are to be made. Maturity means the date on which the principal of a note becomes due and payable, whether at the stated maturity or by declaration of acceleration or otherwise. Stated maturity means the date specified in a note as the date on which principal of such note is due and payable. Interest on the notes will be paid on the basis of a 360 day year comprised of twelve 30-day months.
The interest payment dates for the 2022 notes will be on June 2 and December 2 of each year and the regular record dates will be on May 15 and November 15 of each year, commencing on June 2, 2013. The interest payment dates for the 2042 notes will be on June 3 and December 3 of each year and the regular record dates will be on May 15 and November 15 of each year, commencing on June 3, 2013. We will pay interest to the person in whose name a note is registered at the close of business on the regular record date next preceding the applicable interest payment date. Regular record date means the date on which a note must be held in order for the holder to receive an interest payment on the next interest payment date. However, we will pay interest at maturity or upon redemption or repayment to the person to whom we pay the principal.
If any day on which a payment is due is not a Business Day (as defined below), then the holder of the note shall not be entitled to payment of the amount due until the next Business Day and shall not be entitled to any additional principal, interest or other payment as a result of such delay except as otherwise provided under “—Payment of Additional Amounts.”
“Business Day” means any day that is not a Saturday or Sunday or any other day on which banks in New York City are authorized or obligated by law or regulation to close.
The registration rights agreements require us to pay additional interest on the original notes in certain circumstances. See “The Exchange Offers—Registration Rights Agreements.”
Payment of Additional Amounts
We will, subject to the exceptions and limitations set forth below, pay as additional interest on the notes, such additional amounts as are necessary in order that the net payment by us or a paying agent of the principal of and interest on the notes to a holder that is not (i) a citizen or resident of the United States, (ii) a corporation or other entity taxable as a corporation or organized in or under the laws of the United States or any political supervision thereof, (iii) an estate, the income of which is subject to United States federal income taxation regardless of its source or (iv) a trust if (A) a U.S. court is able to exercise primary supervision over the trust’s administration and (B) one or more United States persons have the authority to control all of the trust’s substantial decisions, after deduction for any present or future tax, assessment or governmental charge of the United States or a political subdivision or taxing authority thereof or therein, imposed by withholding with respect to the payment, will not be less than the amount that would have been payable had no such withholding or deduction been required.
However, our obligation to pay additional amounts shall not apply:
(1) to a tax, assessment or governmental charge that would not have been imposed but for the beneficial owner or the holder, or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, the holder if the holder is an estate, trust, partnership, limited liability company, corporation or other entity, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
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| (a) being or having been present or engaged in a trade or business in the United States or having or having had a permanent establishment in the United States; |
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| (b) having a current or former relationship with the United States, including a relationship as a citizen or resident thereof; |
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| (c) being or having been a foreign or domestic personal holding company, a passive foreign investment company or a controlled foreign corporation with respect to the United States, a corporation that has accumulated earnings to avoid United States federal income tax or a private foundation or other tax-exempt organization; or |
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| (d) being or having been a “10-percent shareholder” of the Company as defined in section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended, or the Code, or any successor provision or being or having been a bank whose receipt of interest on a note is described in section 881(c)(3)(A) of the Code or any successor provision; |
(2) to any beneficial owner that is not the sole beneficial owner of a note, or a portion thereof, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to a tax, assessment or governmental charge (including backup withholding) that would not have been imposed but for the failure of the holder or any other person to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the United States of the holder or beneficial owner of such note, if compliance is required by statute or by regulation of the Treasury, without regard to any tax treaty, or by an applicable income tax treaty to which the United States is a party as a precondition to partial or complete relief or exemption from such tax, assessment or other governmental charge (including, but not limited to, the failure to provide United States Internal Revenue Service, or IRS, Form W-8BEN, W-8ECI or any subsequent versions thereof), or any other certification, information, documentation, reporting or other similar requirement under United States income tax laws or regulations that would establish entitlement to otherwise applicable relief or exemption from any tax, assessment or governmental charge;
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(4) to a tax, assessment or governmental charge that is imposed otherwise than by withholding by the Company or a paying agent from the payment;
(5) to a tax, assessment or governmental charge that would not have been imposed or withheld but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 10 days after the payment becomes due or is duly provided for, whichever occurs later;
(6) to a tax, assessment or governmental charge that is imposed or withheld by reason of the presentation of a note for payment more than 30 days after the date on which such payment becomes due or is duly provided for, whichever occurs later;
(7) to an estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or a similar tax, assessment or governmental charge;
(8) to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on any note, if such payment can be made without such withholding by any other paying agent;
(9) to any withholding or deduction which is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the European Union’s Economic and Finance Ministers Council meeting of 26-27 November 2000, or any law implementing or complying with, or introduced in order to conform to, any such directive (including the Council Directive 2003/48/EC adopted on June 3, 2003); or
(10) in the case of any combination of items (1), (2), (3), (4), (5), (6), (7), (8) and (9).
The notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable thereto. Except as specifically provided under this heading “—Payment of Additional Amounts” and under the heading “—Redemption Upon a Tax Event,” we shall not be required to make any payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
Redemption Upon a Tax Event
If as a result of (a) any change in (including any announced prospective change), or amendment to, the laws (including any regulations or rulings promulgated thereunder) of the United States (or any political subdivision or taxing authority thereof or therein), or any change in (including any announced prospective change), or amendment to, any official position regarding the application or interpretation of such laws, which change or amendment is announced or becomes effective on or after November 13, 2012, or (b) a taxing authority of the United States taking any action, or such action becoming generally known, on or after November 13, 2012, whether or not such action is taken with respect to us or any of our affiliates, there is in either case a material increase in the probability that we will or may be required to pay additional amounts as described herein under the heading “—Payment of Additional Amounts” above, then we may in either case, at our option, redeem, in whole or in part, the notes of each series on at least 30 days’ and no more than 60 days’ prior written notice, at a redemption price equal to the principal amount of the notes of such series being redeemed, together with any accrued and unpaid interest thereon to the date fixed for redemption.
In order to exercise this right, we must determine, in our business judgment, that the obligation to pay such additional amounts cannot be avoided by the use of reasonable measures available to us, not including substitution of the obligor under the notes of the relevant series. Prior to the publication of any notice of redemption, we will deliver to the trustee an officer’s certificate stating that we are entitled to effect a redemption and setting forth a statement of facts showing that the conditions precedent to our right to so redeem have occurred and an opinion of counsel to that effect based on that statement of facts.
Further Issuances
We may from time to time, without notice to or consent of the holders of the notes of a given series, issue additional notes with the same ranking, interest rate, maturity date and other terms as the notes of such series, other than the original issue date, interest accrual date, first payment of interest and issue price; provided, however, that
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unless such additional notes are issued under a separate CUSIP, either such additional notes are part of the same issue, are issued in a qualified reopening or do not have, for purposes of U.S. federal income taxation, more than de minimis original issue discount as of the date of the issue of such additional notes. Any additional notes, together with the notes of the applicable series, will constitute a single series of notes under the Indenture.
Restrictions as to Liens
The Indenture includes a covenant providing that we will not at any time directly or indirectly create, or allow to exist or be created, any mortgage, pledge, encumbrance or lien of any kind upon:
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| • | any shares of capital stock owned by us of either of TRS or American Express Banking Corp., so long as they continue to be our subsidiaries, which we refer to collectively as the “principal subsidiaries”; or |
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| • | any shares of capital stock owned by us of a subsidiary that owns, directly or indirectly, capital stock of the principal subsidiaries. |
However, liens of this nature are permitted if we provide that the notes will be secured by the lien equally and ratably with any and all other obligations also secured, for as long as any other obligations of that type are so secured. However, we may incur or allow to exist upon the stock of the principal subsidiaries liens for taxes, assessments or other governmental charges or levies that are not yet due or are payable without penalty or that we are contesting in good faith, or liens of judgments that are on appeal or are discharged within 60 days.
This covenant will cease to be binding on us with respect to each series of the notes to which this covenant applies following discharge of those notes.
Payment
Principal and interest on the notes will be payable initially at the principal corporate trust office of the trustee. At our option, payment of interest may be made, subject to collection, by check mailed to the holders of record at the address registered with the trustee.
Modification of the Indenture
We may make modifications and amendments to the Indenture with respect to one or both series of notes by supplemental indenture without the consent of the holders of the notes of the applicable series in the following instances:
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| • | to evidence the succession of another corporation to us and the assumption by such successor of our obligations under the Indenture; |
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| • | to add to or modify our covenants or events of default for the benefit of the holders of the notes of such series; |
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| • | to cure any ambiguity or make any other provisions with respect to matters or questions arising under the Indenture that will not adversely affect the interests of the holders of the notes of such series in any material respect (provided that any modification or amendment to the Indenture made solely to conform the provisions of the Indenture or the notes to the description of those documents contained in the “Description of New Notes” section of the confidential offering circular pursuant to which the original notes were initially sold (which is substantially the same as this “Description of Notes” section) will be deemed not to adversely affect the interests of the holders of the notes in any material respect); |
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| • | to modify, eliminate or add to the provisions of the Indenture as necessary to qualify it under any applicable federal law; |
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| • | to name, by supplemental indenture, a trustee other than The Bank of New York Mellon for a series of notes; |
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| • | to provide for the acceptance of appointment by a successor trustee; |
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| • | to supplement any provisions of the Indenture as is necessary to permit or facilitate the defeasance and discharge of any notes as described in this prospectus. |
We may also modify the Indenture in manners applicable solely to other series of debt securities issuable under the Indenture (for example, to provide for the issuance of additional series of debt securities) without the consent of the holders of the notes.
Any other modifications or amendments of the Indenture by way of supplemental indenture require the consent of the holders of a majority in principal amount of the notes at the time outstanding of each series affected. However, no such modification or amendment may, without the consent of the holder of each note affected thereby:
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| • | modify the terms of payment of principal or interest with respect to any series of notes; |
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| • | reduce the percentage of holders of notes necessary to modify or amend the Indenture or waive our compliance with any restrictive covenant; or |
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| • | subordinate the indebtedness evidenced by the notes to any of our other indebtedness. |
Events of Default, Notice and Waiver
The Indenture provides holders of notes with remedies if we fail to perform specific obligations, such as making payments on the notes. You should review these provisions carefully in order to understand what constitutes an event of default under the Indenture.
An event of default with respect to a series of notes will be:
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| • | default in the payment of the principal of any note of that series when it is due and payable; |
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| • | default for 30 days in the payment of an installment of interest on any note of that series; |
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| • | default for 60 days after written notice to us in the performance of any other covenant in respect of the notes of that series; |
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| • | certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of us or our property; and |
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| • | an event of default with respect to any other series of debt securities outstanding under the Indenture or as defined in any other indenture or instrument under which we have outstanding any indebtedness for borrowed money, as a result of which indebtedness of us of at least $50,000,000 principal amount shall have been accelerated and that acceleration shall not have been annulled within 15 days after written notice thereof. |
An event of default with respect to a particular series of debt securities issued under the Indenture does not necessarily constitute an event of default with respect to any other series of debt securities. The trustee may withhold notice to the holders of a series of notes of any default with respect to that series, except in the payment of principal or interest, if it considers such withholding to be in the interests of the holders of that series.
If an event of default with respect to a series of notes has occurred and is continuing, the trustee or the holders of 25% in aggregate principal amount of the notes of that series may declare the principal of all the notes of that series to be due and payable immediately.
The Indenture contains a provision entitling the trustee to be indemnified to its reasonable satisfaction by the holders before exercising any right or power under the Indenture at the request of any of the holders. The Indenture provides that the holders of a majority in principal amount of the outstanding notes of a series may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred upon the trustee with respect to the notes of that series. The right of a holder to institute a proceeding with respect to the Indenture is subject to certain conditions precedent including notice and indemnity to
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the trustee. However, the holder has an absolute right to receipt of principal at stated maturity and interest on any overdue principal and interest or to institute suit for the enforcement thereof.
The holders of not less than a majority in principal amount of the outstanding notes of a series under the Indenture may on behalf of the holders of all the notes of that series waive any past defaults, except a default in payment of the principal of or interest on any note of that series and a default in respect of a covenant or provision of the Indenture that cannot be amended or modified without the consent of the holder of each note affected.
We are required by the Indenture to furnish to the trustee annual statements as to the fulfillment of our obligations under the Indenture.
Defeasance of the Indenture and Notes
The Indenture permits us to be discharged from our obligations under the Indenture and with respect to a particular series of notes if we comply with the following procedures. This discharge from our obligations is referred to in this prospectus as defeasance.
If we deposit with the trustee sufficient cash and/or government securities to pay and discharge the principal and interest to the date of maturity of such series of notes, then from and after the ninety-first day following such deposit:
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| • | we will be deemed to have paid and discharged the entire indebtedness on the notes of such series; and |
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| • | our obligations under the Indenture with respect to the notes of that series will cease to be in effect, except for certain obligations to register the transfer or exchange of the notes of that series, replace stolen, lost or mutilated notes of that series, maintain paying agencies and hold moneys for payment in trust. |
The Indenture also provides that the defeasance will not be effective unless we deliver to the trustee a written opinion of our counsel to the effect that holders of the notes subject to defeasance will not recognize gain or loss on those notes for federal income tax purposes solely as a result of the defeasance and that the holders of those notes will be subject to federal income tax in the same amounts and at the same times as would be the case if the defeasance had not occurred.
Following the defeasance, holders of the applicable notes would be able to look only to the trust fund for payment of principal and interest on their notes.
Book-Entry, Delivery and Form
Except as set forth below, the notes will be issued in fully registered, global form in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. Notes initially will be represented by one or more notes in registered global form without interest coupons (the “Global Notes”). The Global Notes will be deposited with, or on behalf of, DTC and registered in the name of Cede & Co., as nominee of DTC, for the accounts of participants in DTC. Unless and until exchanged, in whole or in part, for notes in definitive registered form, a Global Note may not be transferred except as a whole by the depositary for such Global Note to a nominee of such depositary, by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such nominee to a successor of such depositary or a nominee of such successor.
Ownership of beneficial interests in a Global Note will be limited to persons, called participants, that have accounts with the depositary (currently DTC) or persons that may hold interests through participants in DTC. Investors may hold their interests in a Global Note directly through Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”) and Clearstream Banking, société anonyme (“Clearstream”), if they are participants in such systems, or indirectly through organizations that are participants in such systems. Euroclear and Clearstream will hold interests in a Global Note on behalf of their participants through their respective depositaries, which in turn will hold such interests in the Global Note in customers’ securities accounts in the depositaries’ names on the books of DTC.
Upon the issuance of a Global Note, the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face amounts of the notes beneficially owned by
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the participants. Ownership of beneficial interests in a Global Note will be shown on, and the transfer of ownership interests will be effected only through, records maintained by DTC, with respect to interests of participants, and on the records of participants, with respect to interests of persons holding through participants.
So long as DTC, or its nominee, is the registered owner of the Global Note, DTC or its nominee, as the case may be, will be considered the sole owner or holder of the notes represented by the Global Note for all purposes under the Indenture and the notes. Except as described below, owners of beneficial interests in a Global Note will not be entitled to have the notes represented by the Global Note registered in their names, will not receive or be entitled to receive physical delivery of the notes in definitive form and will not be considered the owners or holders of the notes under the Indenture. Accordingly, each person owning a beneficial interest in a Global Note must rely on the procedures of the depositary for that Global Note and, if that person is not a participant, on the procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the Indenture. The laws of some states may require that some purchasers of notes take physical delivery of these notes in definitive form. Such laws may impair the ability to transfer beneficial interests in a Global Note.
To facilitate subsequent transfers, all notes deposited by participants with DTC are registered in the name of DTC’s nominee, Cede & Co. The deposit of the notes with DTC and their registration in the name of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of the actual beneficial owners of the notes. DTC’s records reflect only the identity of the direct participants to whose accounts such notes are credited, which may or may not be the beneficial owners. The participants will remain responsible for keeping account of their holdings on behalf of their customers.
We will make payments due on the notes to Cede & Co., as nominee of DTC, in immediately available funds. DTC’s practice upon receipt of any payment of principal, interest or other distribution of underlying securities or other property to holders on that Global Note, is to immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests in that Global Note as shown on the records of the depositary. Payments by participants or indirect participants to owners of beneficial interests in a Global Note held through such participants or indirect participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of those participants or indirect participants. Payment to Cede & Co. is our responsibility. Disbursement of such payments to direct participants is the responsibility of Cede & Co. Disbursement of such payments to the beneficial owners is the responsibility of direct and indirect participants. Neither we nor the Trustee nor any other agent of ours or any agent of the trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in the Global Note or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests or for any other aspect of the relationship between DTC and its participants or indirect participants or the relationship between such participants or indirect participants and the owners of beneficial interests in the Global Notes.
Transfers between participants in DTC will be effected under DTC’s procedures and will be settled in same day funds. Transfers between participants in Euroclear and Clearstream will be effected in the ordinary way in accordance with their respective rules and operating procedures. If a holder requires physical delivery of a definitive note for any reason, including to sell notes to persons in jurisdictions that require such delivery of such notes or to pledge such notes, such holder must transfer its interest in the relevant Global Note in accordance with the normal procedures of DTC and the procedures set forth in the Indenture.
Cross-market transfers between DTC, on the one hand, and directly or indirectly through Euroclear or Clearstream participants, on the other, will be effected by DTC in accordance with DTC rules on behalf of Euroclear or Clearstream, as the case may be, by its respective depositary; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with its rules and procedures and within its established deadlines (Brussels time). Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the Global Note in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear participants and Clearstream participants may not deliver instructions directly to the depositories for Euroclear or Clearstream.
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Because of the time zone differences, the securities account of a Euroclear or Clearstream participant purchasing an interest in the Global Note from a DTC participant will be credited during the securities settlement processing day (which must be a business day for Euroclear or Clearstream, as the case may be) immediately following the DTC settlement date, and such credit of any transaction’s interests in the Global Note settled during such processing day will be reported to the relevant Euroclear or Clearstream participant on such day. Cash received in Euroclear or Clearstream as a result of sales of interests in a Global Note by or through a Euroclear or Clearstream participant to a DTC participant will be received with value on the DTC settlement date, but will be available in the relevant Euroclear or Clearstream cash account only as of the business day following settlement in DTC.
We expect that DTC will take any action permitted to be taken by a holder of notes (including the presentation of notes for exchange as described below) only at the direction of one or more participants to whose account the DTC interests in a Global Note are credited and only in respect of such portion of the aggregate principal amount of the notes as to which such participant or participants has or have given such direction. However, if DTC no longer is willing to act as depositary, ceases to be a clearing agency or if there is an Event of Default under the notes, DTC will exchange each Global Note for definitive notes, which it will distribute to its participants.
Although we expect that DTC, Euroclear and Clearstream will follow the foregoing procedures in order to facilitate transfers of interests in each Global Note among participants of DTC, Euroclear and Clearstream, DTC, Euroclear and Clearstream are under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. Neither we nor the trustee will have any responsibility for the performance by DTC, Euroclear or Clearstream or their participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC was created to hold securities of its participants and to facilitate the clearance and settlement of securities transactions, such as transfers and pledges, among its participants in such securities through electronic computerized book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates. DTC’s participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations, some of whom own DTC. Access to DTC’s book-entry system is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Euroclear and Clearstream hold securities for participating organizations. They also facilitate the clearance and settlement of securities transactions between their respective participants through electronic book-entry changes in the accounts of such participants. Euroclear and Clearstream provide various services to their participants, including the safekeeping, administration, clearance, settlement, lending and borrowing of internationally traded securities. Euroclear and Clearstream interface with domestic securities markets. Euroclear and Clearstream participants are financial institutions such as underwriters, securities brokers and dealers, banks, trust companies and certain other organizations. Indirect access to Euroclear or Clearstream is also available to others such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Euroclear or Clearstream participant, either directly or indirectly.
The information in this section concerning DTC and DTC’s book-entry system, as well as information regarding Euroclear and Clearstream, has been obtained from sources that we believe to be reliable, but we do not take any responsibility for its accuracy or completeness. We assume no responsibility for the performance by DTC, Euroclear, Clearstream or their respective participants of their respective obligations, including obligations that they have under the rules and procedures that govern their operations.
Certificated Notes
We will issue notes in definitive registered form in exchange for the Global Notes in the following instances. If DTC notifies us that it is unwilling or unable to continue as depository for the Global Notes or if DTC ceases to be a clearing agency registered under the Exchange Act, and we do not appoint a successor depository within 90 days, we will issue notes in definitive form. We will also issue definitive notes in exchange for the Global
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Notes if an event of default with respect to the notes occurs and is continuing as described under “—Events of Default, Notice and Waiver.” If we issue definitive notes, the notes may be presented for registration of transfer and exchange at the office of the trustee in New York, New York. In such circumstances, we will pay principal of, and interest on, the notes at the office of the trustee in New York, New York. We will make payments of principal on the notes only against surrender of such notes. All payments of principal and interest will be made by U.S. dollar check drawn on a bank in The City of New York and mailed to the persons in whose names such notes are registered at such person’s address as provided in the register. For holders of at least $1,000,000 in aggregate principal amount of notes, we will make payment by wire transfer to a U.S. dollar account maintained by the payee with a bank in The City of New York or in Europe, provided that the trustee receives a written request from such holder to such effect designating such account no later than May 15 or November 15, as the case may be, immediately preceding such interest payment date.
Neither we nor the Trustee shall be liable for any delay by DTC or any participant or indirect participant in DTC in identifying the beneficial owners of the related notes and each of those persons may conclusively rely on, and will be protected in relying on, instructions from DTC for all purposes, including with respect to the registration and delivery, and the respective principal amounts, of the notes to be issued.
Notices
So long as the Global Notes are held on behalf of DTC or any other clearing system, notices to holders of notes represented by a beneficial interest in the Global Notes may be given by delivery of the relevant notice to DTC or the alternative clearing system, as the case may be.
Trustee
The Bank of New York Mellon will be the trustee under the Indenture with respect to the notes and will be the paying agent and registrar for the notes. We and our affiliates have entered, and from time to time may continue to enter, into banking or other relationships with The Bank of New York Mellon or its affiliates. For example, The Bank of New York Mellon provides custodial services to us and provides corporate trust services to our affiliates. We and our affiliates may have other customary banking relationships (including other trusteeships) with the trustee.
Within 90 days after a default, the trustee must give to the holders of the notes of the applicable series notice of all uncured and unwaived defaults by us known to it. However, except in the case of default in payment, the trustee may withhold such notice if it determines that such withholding is in the interest of such holders. The trustee may resign or be removed by the holders of a majority of the notes of one or both series (each voting as a class) in certain circumstances, and a successor trustee may be appointed by us to act with respect to the notes.
Unclaimed Funds
All funds deposited with the trustee or any paying agent for the payment of principal, interest or additional amounts in respect of the notes of a given series that remain unclaimed for two years after the maturity date of such series will be returned to the Company upon its request. Thereafter, any right of any holder of notes to such funds shall be enforceable only against the Company.
Governing Law
The notes and the Indenture will be governed by and construed in accordance with the laws of the State of New York. Actions relating to the notes and Indenture may be brought in the state or federal courts in New York.
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MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material U.S. federal income tax consequences to you if you exchange original notes for exchange notes pursuant to the exchange offers. This summary is limited to considerations for exchanging holders of original notes that have held the original notes, and will hold the exchange notes, as capital assets, and that acquire exchange notes pursuant to the exchange offers. This summary does not discuss all aspects of U.S. federal income taxation that may be relevant to a particular beneficial owner of original notes or to beneficial owners of original notes that may be subject to special tax rules, including a bank, a tax-exempt entity, an insurance company, a dealer in securities or currencies, a trader in securities electing to mark to market, an entity taxed as a partnership or partners therein, an individual or an entity taxed as an individual, a person that holds original notes or will hold exchange notes as a position in a “straddle” or conversion transaction, or as part of a “synthetic security” or other integrated financial transaction, or a person that has a “functional currency” other than the U.S. dollar. In addition, this summary does not address any state, local, or non-U.S. tax considerations. You should consult your own tax advisor regarding the U.S. federal, state, local, and non-U.S. income and other tax consequences of the ownership and disposition of the notes.
This discussion is based on the Code, U.S. Treasury regulations, published administrative interpretations of the IRS and judicial decisions, all of which are subject to change, possibly with retroactive effect.
For purposes of this discussion, you are a “U.S. holder” if you are a beneficial owner of original notes that is a citizen or resident of the United States or a domestic corporation or otherwise subject to U.S. federal income tax on a net income basis in respect of the original notes. You are a “Non-U.S. holder” if you are a beneficial owner of original notes that is not a U.S. holder.
Tax Consequences to Holders who Participate in the Exchange Offers
An exchange of original notes for exchange notes will not be a taxable event for U.S. federal income tax purposes. Your initial tax basis in the exchange notes will equal your tax basis in the original notes, and your holding period for the exchange notes will include your holding period for the original notes.
Tax Consequences to U.S. Holders of Holding and Disposing of the Notes
Payments of Interest
If you are a U.S. holder, payments of stated interest on the notes will be taxable to you as ordinary interest income at the time that such payments are accrued or are received, in accordance with your method of tax accounting.
Amortizable Bond Premium
If your initial tax basis in a note exceeds the stated principal amount of your note, then you will be considered to have amortizable bond premium equal to such excess. You may elect to amortize this premium using a constant yield method over the term of the notes. If you elect to amortize bond premium, you may offset each interest payment on the notes by the portion of the bond premium allocable to the payment and must reduce your tax basis in the notes by the amount of the premium so amortized.
Market Discount
If your initial tax basis in a note was less than the stated principal amount of your note (subject to a de minimis exception), then you will be treated as having acquired that note at a market discount. You are required to treat any gain on the sale, exchange, retirement or other taxable disposition of a note as ordinary income to the extent of any accrued market discount on the note at the time of the disposition, unless you have previously included such market discount in income pursuant to an election by you to include the market discount in income as it accrues. If you dispose of a note in certain nontaxable transactions, any accrued market discount will be includible as ordinary income to you as if you had sold the note in a taxable transaction at its fair market value at the time of such disposition.
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Sale, Exchange, Redemption or Other Disposition of the Notes
Except as described above with respect to accrued market discount, upon the disposition of a note by sale, exchange, redemption or otherwise, you generally will recognize capital gain or loss equal to the difference between (i) the amount realized on the disposition (other than amounts attributable to accrued interest not previously recognized as income, which will be taxed as such) and (ii) your adjusted tax basis in the note. Your adjusted tax basis in an exchange note will equal your tax basis in an original note, increased by market discount, if any, taken into account by you and reduced by any amortizable bond premium previously amortized by you. Any capital gain or loss will be long-term capital gain or loss if you hold the notes for more than one year. Certain non-corporate U.S. holders are eligible for preferential rates of U.S. federal income taxation in respect of long-term capital gains. The deductibility of capital losses is subject to limitations under the Code.
Issue Price of the Notes
We will provide the issue price of the notes to the Trustee for the notes within 90 days after the issuance of the original notes, and investors in the notes may obtain that information from the Trustee. The original notes were issued in a debt-for-debt exchange that was treated as a disposition for U.S. federal income tax purposes, and they were issued with no more than de minimis OID. Since an exchange of original notes for exchange notes is not a taxable event for U.S. federal income tax purposes, the adjusted issue price of the exchange notes will equal the adjusted issue price of the original notes.
Backup Withholding and Information Reporting
If you are a U.S. holder that is not a corporation or other exempt recipient, we must file information returns with the IRS in connection with payments on the notes made to you. You generally will not be subject to U.S. backup withholding tax in connection with the exchange offers, or on payments on the notes if you provide a correct taxpayer identification number, certify as to no loss of exemption from backup withholding and otherwise comply with applicable requirements of the backup withholding rules. You may also be subject to information reporting and backup withholding requirements with respect to the proceeds from a sale of the notes. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be refunded or credited against the holder’s U.S. federal income tax liability, if any, provided that the required information is furnished to the IRS in a timely manner.
Tax Consequences to Non-U.S. Holders
If you are a Non-U.S. holder, you will generally not be subject to U.S. federal income tax on any gain on the sale, exchange or other taxable disposition of notes. Payments of interest on the notes will be treated as ordinary interest income and will generally not be subject to tax provided that (i) you do not actually or constructively own 10% or more of the total combined voting power of all classes of our voting stock; and (ii) you provide a statement signed under penalties of perjury that includes your name and address and certifies that you are a Non-U.S. holder in compliance with applicable requirements, generally made, under current procedures, on IRS Form W-8BEN (or satisfy certain documentary evidence requirements for establishing that you are a Non-U.S. holder).
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PLAN OF DISTRIBUTION
Based on existing interpretations of the Securities Act by the SEC staff set forth in several no-action letters to third parties, and subject to the immediately following sentence, we believe exchange notes issued under the exchange offers in exchange for original notes may be offered for resale, resold and otherwise transferred by the holders thereof (other than holders that are broker-dealers) without further compliance with the registration and prospectus delivery provisions of the Securities Act. However, any holder of original notes that is an affiliate of ours or that intends to participate in the exchange offers for the purpose of distributing the exchange notes, or any broker-dealer that purchased any of the original notes from us for resale pursuant to Rule 144A or any other available exemption under the Securities Act, (i) will not be able to rely on the interpretations of the SEC staff set forth in the above-mentioned no-action letters, (ii) will not be entitled to tender its original notes in the exchange offers, and (iii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the original notes unless such sale or transfer is made pursuant to an exemption from such requirements.
Each broker-dealer that receives exchange notes for its own account pursuant to the exchange offers must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for original notes where such original notes were acquired as a result of market-making activities or other trading activities. We have agreed that, for a period of 180 days after the expiration date, we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale.
We will not receive any proceeds from any sale of exchange notes by broker-dealers. Exchange notes received by broker-dealers for their own account pursuant to the exchange offers may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the exchange notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers that may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such exchange notes. Any broker-dealer that resells exchange notes that were received by it for its own account pursuant to the exchange offers and any broker or dealer that participates in a distribution of such exchange notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit on any such resale of exchange notes and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
For a period of 180 days after the expiration date we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the letter of transmittal. We have agreed to pay all expenses incident to the exchange offers (including the expenses of one counsel for the holders of the original notes and the exchange notes) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the original notes and the exchange notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
Notwithstanding the foregoing, we may suspend the use of this prospectus by broker-dealers under specified circumstances. For example, we may suspend the use of this prospectus if:
| | |
| • | the SEC or any state securities authority requests an amendment or supplement to this prospectus or the related registration statement or requests additional information; |
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| • | the SEC or any state securities authority issues any stop order suspending the effectiveness of the registration statement or initiates proceedings for that purpose; |
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| • | we receive notification of the suspension of the qualification of the exchange notes for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose; |
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| • | the suspension is required by law; |
30
| |
• | we determine that the continued effectiveness of the registration statement of which this prospectus forms a part and use of this prospectus would require disclosure of confidential information related to a material acquisition or divestiture of assets or a material corporate transaction, event or development; or |
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• | an event occurs or we discover any fact that makes any statement made in the registration statement of which this prospectus forms a part untrue in any material respect or that requires the making of any changes in such registration statement in order to make the statements therein not misleading. |
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| We will not receive any proceeds from the issuance of exchange notes in the exchange offers. |
VALIDITY OF THE EXCHANGE NOTES
The validity of the exchange notes offered hereby will be passed upon by Cleary Gottlieb Steen & Hamilton LLP.
EXPERTS
The financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting), incorporated into this prospectus by reference to our Annual Report on Form 10-K for the year ended December 31, 2011, have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
31
|
|
|
Offer to Exchange |
$1,274,725,000 aggregate principal amount of 2.650% Senior Notes due December 2, 2022 |
(CUSIP Nos. 025816 BC2 and U02581 AG8) |
for |
$1,274,725,000 aggregate principal amount of 2.650% Senior Notes due December 2, 2022 |
(CUSIP No. 025816 BD0) |
that have been registered under the Securities Act |
and |
Offer to Exchange |
$1,052,459,000 aggregate principal amount of 4.050% Senior Notes due December 3, 2042 |
(CUSIP Nos. 025816 BE8 and U02581 AH6) |
for |
$1,052,459,000 aggregate principal amount of 4.050% Senior Notes due December 3, 2042 |
(CUSIP No. 025816 BF5) |
that have been registered under the Securities Act |
|
|
|
PROSPECTUS
, 2013 |
|
|
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. 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.
Item 21.Exhibits and Financial Statement Schedules.
The “Exhibit Index” on pages II-6 and II-7 is hereby incorporated by reference.
Item 22. Undertakings.
(a) The undersigned registrant hereby undertakes:
II-1
(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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.
(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.
(b) 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.
(c) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(d) The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant 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 the 11th day of January, 2013.
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| AMERICAN EXPRESS COMPANY |
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| By: | /s/ DANIEL T. HENRY |
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|
| | DANIEL T. HENRY |
| | Executive Vice President and
Chief Financial Officer |
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 the 11th day of January, 2013.
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Signature | | Title |
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|
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* | | Chairman, Chief Executive Officer and Director |
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KENNETH I. CHENAULT | | |
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/s/ DANIEL T. HENRY | | Executive Vice President and Chief Financial Officer |
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DANIEL T. HENRY | | |
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| | Executive Vice President and Corporate Comptroller |
* | | (Principal Accounting Officer) |
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LINDA ZUKAUCKAS | | |
II-3
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Signature | | Title |
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|
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* | | Director |
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CHARLENE BARSHEFSKY | | |
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* | | Director |
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URSULA M. BURNS | | |
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* | | Director |
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PETER CHERNIN | | |
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* | | Director |
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THEODORE J. LEONSIS | | |
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* | | Director |
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JAN LESCHLY | | |
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| | Director |
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RICHARD C. LEVIN | | |
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* | | Director |
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RICHARD A. MCGINN | | |
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* | | Director |
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EDWARD D. MILLER | | |
II-4
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Signature | | Title |
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|
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| | Director |
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STEVEN S REINEMUND | | |
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* | | Director |
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DANIEL L. VASELLA | | |
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* | | Director |
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ROBERT D. WALTER | | |
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* | | Director |
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RONALD A. WILLIAMS | | |
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*By: /s/ LOUISE M. PARENT | | |
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LOUISE M. PARENT as Attorney-in-Fact | | |
II-5
EXHIBIT INDEX
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Exhibit Number | | Description |
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3.1 | | Registrant’s Restated Certificate of Incorporation (incorporated by reference to Exhibit 4.1 of the Registrant’s Registration Statement on Form S-3, dated July 31, 1997 (Commission File No. 333-32525)) |
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3.2 | | 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) |
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3.3 | | Registrant’s Certificate of Amendment of the Certificate of Incorporation (incorporated by reference to Exhibit 3.3 of the Registrant’s Quarterly Report on Form 10-Q (Commission File No. 1-7657) for the quarter ended March 31, 2008) |
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3.4 | | Registrant’s Certificate of Amendment of the Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (Commission File No. 1-7657), dated January 7, 2009 (filed January 9, 2009)) |
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3.5 | | Registrant’s By-Laws, as amended through February 24, 2011, (incorporated by reference to Exhibit 3.5 of the Registrant’s Annual Report on Form 10-K (Commission File No. 1-7657) for the year ended December 31, 2010) |
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4.1* | | Senior Indenture, dated as of December 3, 2012, by and between American Express Company and The Bank of New York Mellon, as trustee |
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4.2* | | Form of 2.650% Rule 144A Global Note due 2022 |
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4.3* | | Form of 2.650% Regulation S Global Note due 2022 |
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4.4* | | Form of 4.050% Rule 144A Global Note due 2042 |
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4.5* | | Form of 4.050% Regulation S Global Note due 2042 |
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4.6* | | Registration Rights Agreement for the Senior Notes due 2022, dated as of December 3, 2012, by and between American Express Company and Credit Suisse Securities (USA) LLC, as representative of the dealer managers |
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4.7* | | Registration Rights Agreement for the Senior Notes due 2042, dated as of December 3, 2012, by and between American Express Company and Credit Suisse Securities (USA) LLC, as representative of the dealer managers |
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4.8* | | Form of 2.650% Unrestricted Global Note due 2022 |
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4.9* | | Form of 4.050% Unrestricted Global Note due 2042 |
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5.1* | | Opinion of Cleary Gottlieb Steen & Hamilton LLP |
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12.1 | | Computation in support of ratios of earnings to fixed charges with respect to the years ended December 31, 2007 through 2011 (incorporated by reference to Exhibit 12 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2011) and for the nine months ended September 30, 2012 (incorporated by reference to Exhibit 12 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2012) |
II-6
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Exhibit Number | | Description |
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21.1 | | Subsidiaries of the Registrant (incorporated by reference to Exhibit 21 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2011) |
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23.1* | | Consent of PricewaterhouseCoopers LLP |
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23.2* | | Consent of Cleary Gottlieb Steen & Hamilton LLP (included in Exhibit 5.1) |
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24.1* | | Power of attorney |
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25.1* | | Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of The Bank of New York Mellon, as Trustee under the Indenture |
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99.1* | | Form of Letter of Transmittal |
II-7
