EXHIBIT 3.1
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
AMERICAN EXPRESS COMPANY
(UNDER SECTION 805 OF THE BUSINESS CORPORATION LAW)
The undersigned, being the Secretary of AMERICAN EXPRESS COMPANY, a
New York corporation (the "Corporation), hereby certifies that:
1. The name of the Corporation is AMERICAN EXPRESS COMPANY.
2. The Certificate of Incorporation of the Corporation was filed by
the Department of State on June 10, 1965.
3. The Certificate of Incorporation, as heretofore amended and
restated, is hereby further amended pursuant to Sections 805 and 502 of the
Business Corporation Law by the addition thereto of a new Section 9 that
creates, and sets forth the designation, number and relative rights,
preferences and limitations of, a new series of the Corporation's preferred
shares, par value $1.66 2/3 each, such series being designated as "Fixed Rate
Cumulative Perpetual Preferred Stock, Series A" . Such new Section 9
shall read as follows:
"Section 9. DESIGNATION OF FIXED RATE CUMULATIVE PERPETUAL PREFERRED
STOCK, SERIES A
A. DESIGNATION AND NUMBER OF SHARES. There is hereby created out of
the authorized and unissued preferred shares of the Corporation a series of
preferred shares designated as the "Fixed Rate Cumulative Perpetual Preferred
Stock, Series A" (the "DESIGNATED PREFERRED STOCK"). The authorized number of
shares of Designated Preferred Stock shall be 3,388,890.
B. GENERAL MATTERS. Each share of Designated Preferred Stock shall be
identical in all respects to every other share of Designated Preferred Stock.
The Designated Preferred Stock shall be perpetual, subject to the provisions
of subsection G below. The Designated Preferred Stock shall rank equally with
Parity Stock and shall rank senior to Junior Stock with respect to the payment
of dividends and the distribution of assets in the event of any dissolution,
liquidation or winding up of the Corporation.
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C. DEFINITIONS. The following terms are used in this Section 9 as
defined below:
(a) "APPLICABLE DIVIDEND RATE" means (i) during the period from the
Original Issue Date to, but excluding, the first day of the first Dividend
Period commencing on or after the fifth anniversary of the Original Issue
Date, 5% per annum and (ii) from and after the first day of the first Dividend
Period commencing on or after the fifth anniversary of the Original Issue
Date, 9% per annum.
(b) "APPROPRIATE FEDERAL BANKING AGENCY" means the "appropriate Federal
banking agency" with respect to the Corporation as defined in Section 3(q) of
the Federal Deposit Insurance Act (12 U.S.C. Section 1813(q)), or any
successor provision.
(c) "BUSINESS COMBINATION" means a merger, consolidation, statutory share
exchange or similar transaction that requires the approval of the
Corporation's stockholders.
(d) "BUSINESS DAY" means any day except Saturday, Sunday and any day on
which banking institutions in the State of New York generally are authorized
or required by law or other governmental actions to close.
(e) "BYLAWS" means the bylaws of the Corporation, as they may be amended
from time to time.
(f) "CHARTER" means the Corporation's certificate or articles of
incorporation, articles of association, or similar organizational document.
(g) "COMMON STOCK" means the Common Shares, par value $0.20 per share, of
the Corporation.
(h) "DIVIDEND PAYMENT DATE" means February 15, May 15, August 15 and
November 15 of each year.
(i) "DIVIDEND PERIOD" has the meaning set forth in subsection E(a).
(j) "DIVIDEND RECORD DATE" has the meaning set forth in subsection E(a).
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(k) "JUNIOR STOCK" means the Common Stock and any other class or series
of stock of the Corporation the terms of which expressly provide that it ranks
junior to Designated Preferred Stock as to dividend rights and/or as to rights
on liquidation, dissolution or winding up of the Corporation.
(l) "LIQUIDATION AMOUNT" means $1,000 per share of Designated Preferred
Stock.
(m) "LIQUIDATION PREFERENCE" has the meaning set forth in subsection
F(a).
(n) "MINIMUM AMOUNT" means $847,222,500.
(o) "ORIGINAL ISSUE DATE" means the date on which shares of Designated
Preferred Stock are first issued.
(p) "PARITY STOCK" means any class or series of stock of the Corporation
(other than Designated Preferred Stock) the terms of which do not expressly
provide that such class or series will rank senior or junior to Designated
Preferred Stock as to dividend rights and/or as to rights on liquidation,
dissolution or winding up of the Corporation (in each case without regard to
whether dividends accrue cumulatively or non-cumulatively).
(q) "PREFERRED DIRECTOR" has the meaning set forth in subsection I(b).
(r) "PREFERRED STOCK" means any and all series of preferred shares
of the Corporation, including the Designated Preferred Stock.
(s) "QUALIFIED EQUITY OFFERING" means the sale and issuance for cash
by the Corporation to persons other than the Corporation or any of its
subsidiaries after the Original Issue Date of shares of perpetual
Preferred Stock, Common Stock or any combination of such stock, that, in
each case, qualify as and may be included in Tier 1 capital of the
Corporation at the time of issuance under the applicable risk-based
capital guidelines of the Corporation's Appropriate Federal Banking
Agency (other than any such sales and issuances made pursuant to
agreements or arrangements entered into, or pursuant to financing plans
which were publicly announced, on or prior to October 13, 2008).
(t) "SHARE DILUTION AMOUNT" has the meaning set forth in subsection
E(b).
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(u) "SIGNING DATE" means the Original Issue Date.
(v) "SUCCESSOR PREFERRED STOCK" has the meaning set forth in
subsection G(a).
(w) "VOTING PARITY STOCK" means, with regard to any matter as to which the
holders of Designated Preferred Stock are entitled to vote as specified in
subsections I(a) and I(b), any and all series of Parity Stock upon which like
voting rights have been conferred and are exercisable with respect to such
matter.
(x) Unless the context otherwise requires, any reference to a "SUBSECTION"
refers to a subsection of this Section 9, as it may be amended from time to
time.
D. CERTAIN VOTING MATTERS. Holders of shares of Designated Preferred
Stock will be entitled to one vote for each such share on any matter on which
holders of Designated Preferred Stock are entitled to vote, including any
action by written consent.
E. DIVIDENDS.
(a) RATE. Holders of Designated Preferred Stock shall be entitled to
receive, on each share of Designated Preferred Stock if, as and when
declared by the Board of Directors or any duly authorized committee of
the Board of Directors, but only out of assets legally available
therefor, cumulative cash dividends with respect to each Dividend Period
(as defined below) at a rate per annum equal to the Applicable Dividend
Rate on (i) the Liquidation Amount per share of Designated Preferred
Stock and (ii) the amount of accrued and unpaid dividends for any prior
Dividend Period on such share of Designated Preferred Stock, if any. Such
dividends shall begin to accrue and be cumulative from the Original Issue
Date, shall compound on each subsequent Dividend Payment Date (I.E., no
dividends shall accrue on other dividends unless and until the first
Dividend Payment Date for such other dividends has passed without such
other dividends having been paid on such date) and shall be payable
quarterly in arrears on each Dividend Payment Date, commencing with the
first such Dividend Payment Date to occur at least 20 calendar days after
the Original Issue Date. In the event that any Dividend Payment Date
would otherwise fall on a day that is not a Business Day, the dividend
payment due on that date will be postponed to the next day that is a
Business Day and no additional dividends will accrue as a result of that
postponement. The period from and including any Dividend Payment Date to,
but excluding, the next Dividend Payment Date is a "DIVIDEND PERIOD",
provided that the initial Dividend Period shall be the period from and
including the Original Issue Date to, but excluding, the next Dividend
Payment Date.
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Dividends that are payable on Designated Preferred Stock in respect
of any Dividend Period shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. The amount of dividends payable on
Designated Preferred Stock on any date prior to the end of a Dividend
Period, and for the initial Dividend Period, shall be computed on the
basis of a 360-day year consisting of twelve 30-day months, and actual
days elapsed over a 30-day month.
Dividends that are payable on Designated Preferred Stock on any
Dividend Payment Date will be payable to holders of record of Designated
Preferred Stock as they appear on the stock register of the Corporation
on the applicable record date, which shall be the 15th calendar day
immediately preceding such Dividend Payment Date or such other record
date fixed by the Board of Directors or any duly authorized committee of
the Board of Directors that is not more than 60 nor less than 10 days
prior to such Dividend Payment Date (each, a "DIVIDEND RECORD DATE"). Any
such day that is a Dividend Record Date shall be a Dividend Record Date
whether or not such day is a Business Day.
Holders of Designated Preferred Stock shall not be entitled to any
dividends, whether payable in cash, securities or other property, other
than dividends (if any) declared and payable on Designated Preferred
Stock as specified in this subsection E (subject to the other provisions
of this Section 9).
(b) PRIORITY OF DIVIDENDS. So long as any share of Designated
Preferred Stock remains outstanding, no dividend or distribution shall be
declared or paid on the Common Stock or any other shares of Junior Stock
(other than dividends payable solely in shares of Common Stock) or Parity
Stock, subject to the immediately following paragraph in the case of
Parity Stock, and no Common Stock, Junior Stock or Parity Stock shall be,
directly or indirectly, purchased, redeemed or otherwise acquired for
consideration by the Corporation or any of its subsidiaries unless all
accrued and unpaid dividends for all past Dividend Periods, including the
latest completed Dividend Period (including, if applicable as provided in
subsection E(a) above, dividends on such amount), on all outstanding
shares of Designated Preferred Stock have been or are contemporaneously
declared and paid in full (or have been declared and a sum sufficient for
the payment thereof has been set aside for the benefit of the holders of
shares of Designated Preferred Stock on the applicable record date). The
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foregoing limitation shall not apply to (i) redemptions, purchases or
other acquisitions of shares of Common Stock or other Junior Stock in
connection with the administration of any employee benefit plan in the
ordinary course of business (including purchases to offset the Share
Dilution Amount (as defined below) pursuant to a publicly announced
repurchase plan) and consistent with past practice, PROVIDED that any
purchases to offset the Share Dilution Amount shall in no event exceed
the Share Dilution Amount; (ii) purchases or other acquisitions by a
broker-dealer subsidiary of the Corporation solely for the purpose of
market-making, stabilization or customer facilitation transactions in
Junior Stock or Parity Stock in the ordinary course of its business;
(iii) purchases by a broker-dealer subsidiary of the Corporation of
capital stock of the Corporation for resale pursuant to an offering by
the Corporation of such capital stock underwritten by such broker-dealer
subsidiary; (iv) any dividends or distributions of rights or Junior Stock
in connection with a stockholders' rights plan or any redemption or
repurchase of rights pursuant to any stockholders' rights plan; (v) the
acquisition by the Corporation or any of its subsidiaries of record
ownership in Junior Stock or Parity Stock for the beneficial ownership of
any other persons (other than the Corporation or any of its
subsidiaries), including as trustees or custodians; and (vi) the exchange
or conversion of Junior Stock for or into other Junior Stock or of Parity
Stock for or into other Parity Stock (with the same or lesser aggregate
liquidation amount) or Junior Stock, in each case, solely to the extent
required pursuant to binding contractual agreements entered into prior to
the Signing Date or any subsequent agreement for the accelerated
exercise, settlement or exchange thereof for Common Stock. "SHARE
DILUTION AMOUNT" means the increase in the number of diluted shares
outstanding (determined in accordance with generally accepted accounting
principles in the United States, and as measured from the date of the
Corporation's consolidated financial statements most recently filed with
the Securities and Exchange Commission prior to the Original Issue Date)
resulting from the grant, vesting or exercise of equity-based
compensation to employees and equitably adjusted for any stock split,
stock dividend, reverse stock split, reclassification or similar
transaction.
When dividends are not paid (or declared and a sum sufficient for
payment thereof set aside for the benefit of the holders thereof on the
applicable record date) on any Dividend Payment Date (or, in the case of
Parity Stock having dividend payment dates different from the Dividend
Payment Dates, on a dividend payment date falling within a Dividend
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Period related to such Dividend Payment Date) in full upon Designated
Preferred Stock and any shares of Parity Stock, all dividends declared on
Designated Preferred Stock and all such Parity Stock and payable on such
Dividend Payment Date (or, in the case of Parity Stock having dividend
payment dates different from the Dividend Payment Dates, on a dividend
payment date falling within the Dividend Period related to such Dividend
Payment Date) shall be declared PRO RATA so that the respective amounts
of such dividends declared shall bear the same ratio to each other as all
accrued and unpaid dividends per share on the shares of Designated
Preferred Stock (including, if applicable as provided in subsection E(a)
above, dividends on such amount) and all Parity Stock payable on such
Dividend Payment Date (or, in the case of Parity Stock having dividend
payment dates different from the Dividend Payment Dates, on a dividend
payment date falling within the Dividend Period related to such Dividend
Payment Date) (subject to their having been declared by the Board of
Directors or a duly authorized committee of the Board of Directors out of
legally available funds and including, in the case of Parity Stock that
bears cumulative dividends, all accrued but unpaid dividends) bear to
each other. If the Board of Directors or a duly authorized committee of
the Board of Directors determines not to pay any dividend or a full
dividend on a Dividend Payment Date, the Corporation will provide written
notice to the holders of Designated Preferred Stock prior to such
Dividend Payment Date.
Subject to the foregoing, and not otherwise, such dividends (payable
in cash, securities or other property) as may be determined by the Board
of Directors or any duly authorized committee of the Board of Directors
may be declared and paid on any securities, including Common Stock and
other Junior Stock, from time to time out of any funds legally available
for such payment, and holders of Designated Preferred Stock shall not be
entitled to participate in any such dividends.
F. LIQUIDATION RIGHTS.
(a) VOLUNTARY OR INVOLUNTARY LIQUIDATION. In the event of any
liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, holders of Designated Preferred Stock
shall be entitled to receive for each share of Designated Preferred
Stock, out of the assets of the Corporation or proceeds thereof (whether
capital or surplus) available for distribution to stockholders of the
Corporation, subject to the rights of any creditors of the Corporation,
before any distribution of such assets or proceeds is made to or set
aside for the holders of Common Stock and any other stock of the
Corporation ranking junior to Designated Preferred Stock as to such
distribution, payment in full in an amount equal to the sum of (i) the
Liquidation Amount per share and (ii) the amount of any accrued and
unpaid dividends (including, if applicable as provided in subsection E(a)
above, dividends on such amount), whether or not declared, to the date of
payment (such amounts collectively, the "LIQUIDATION PREFERENCE").
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(b) PARTIAL PAYMENT. If in any distribution described in subsection
F(a) above the assets of the Corporation or proceeds thereof are not
sufficient to pay in full the amounts payable with respect to all
outstanding shares of Designated Preferred Stock and the corresponding
amounts payable with respect of any other stock of the Corporation
ranking equally with Designated Preferred Stock as to such distribution,
holders of Designated Preferred Stock and the holders of such other stock
shall share ratably in any such distribution in proportion to the full
respective distributions to which they are entitled.
(c) RESIDUAL DISTRIBUTIONS. If the Liquidation Preference has been
paid in full to all holders of Designated Preferred Stock and the
corresponding amounts payable with respect of any other stock of the
Corporation ranking equally with Designated Preferred Stock as to such
distribution has been paid in full, the holders of other stock of the
Corporation shall be entitled to receive all remaining assets of the
Corporation (or proceeds thereof) according to their respective rights
and preferences.
(d) MERGER, CONSOLIDATION AND SALE OF ASSETS NOT LIQUIDATION. For
purposes of this subsection F, the merger or consolidation of the
Corporation with any other corporation or other entity, including a
merger or consolidation in which the holders of Designated Preferred
Stock receive cash, securities or other property for their shares, or the
sale, lease or exchange (for cash, securities or other property) of all
or substantially all of the assets of the Corporation, shall not
constitute a liquidation, dissolution or winding up of the Corporation.
G. REDEMPTION.
(a) OPTIONAL REDEMPTION. Except as provided below, the Designated
Preferred Stock may not be redeemed prior to the first Dividend Payment
Date falling on or after the third anniversary of the Original Issue
Date. On or after the first Dividend Payment Date falling on or after the
third anniversary of the Original Issue Date, the Corporation, at its
option, subject to the approval of the Appropriate Federal Banking
Agency, may redeem, in whole or in part, at any time and from time to
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time, out of funds legally available therefor, the shares of Designated
Preferred Stock at the time outstanding, upon notice given as provided in
subsection G(c) below, at a redemption price equal to the sum of (i) the
Liquidation Amount per share and (ii) except as otherwise provided below,
any accrued and unpaid dividends (including, if applicable as provided in
subsection E(a) above, dividends on such amount) (regardless of whether
any dividends are actually declared) to, but excluding, the date fixed
for redemption.
Notwithstanding the foregoing, prior to the first Dividend Payment
Date falling on or after the third anniversary of the Original Issue
Date, the Corporation, at its option, subject to the approval of the
Appropriate Federal Banking Agency, may redeem, in whole or in part, at
any time and from time to time, the shares of Designated Preferred Stock
at the time outstanding, upon notice given as provided in subsection G(c)
below, at a redemption price equal to the sum of (i) the Liquidation
Amount per share and (ii) except as otherwise provided below, any accrued
and unpaid dividends (including, if applicable as provided in subsection
E(a) above, dividends on such amount) (regardless of whether any
dividends are actually declared) to, but excluding, the date fixed for
redemption; PROVIDED that (x) the Corporation (or any successor by
Business Combination) has received aggregate gross proceeds of not less
than the Minimum Amount (plus the "Minimum Amount" as defined in the
relevant certificate of designations for each other outstanding series of
preferred stock of such successor that was originally issued to the
United States Department of the Treasury (the "SUCCESSOR PREFERRED
STOCK") in connection with the Troubled Asset Relief Program Capital
Purchase Program) from one or more Qualified Equity Offerings (including
Qualified Equity Offerings of such successor), and (y) the aggregate
redemption price of the Designated Preferred Stock (and any Successor
Preferred Stock) redeemed pursuant to this paragraph may not exceed the
aggregate net cash proceeds received by the Corporation (or any successor
by Business Combination) from such Qualified Equity Offerings (including
Qualified Equity Offerings of such successor).
The redemption price for any shares of Designated Preferred Stock
shall be payable on the redemption date to the holder of such shares
against surrender of the certificate(s) evidencing such shares to the
Corporation or its agent. Any declared but unpaid dividends payable on a
redemption date that occurs subsequent to the Dividend Record Date for a
Dividend Period shall not be paid to the holder entitled to receive the
redemption price on the redemption date, but rather shall be paid to the
holder of record of the redeemed shares on such Dividend Record Date
relating to the Dividend Payment Date as provided in subsection E above.
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(b) NO SINKING FUND. The Designated Preferred Stock will not be
subject to any mandatory redemption, sinking fund or other similar
provisions. Holders of Designated Preferred Stock will have no right to
require redemption or repurchase of any shares of Designated Preferred
Stock.
(c) NOTICE OF REDEMPTION. Notice of every redemption of shares of
Designated Preferred Stock shall be given by first class mail, postage
prepaid, addressed to the holders of record of the shares to be redeemed
at their respective last addresses appearing on the books of the
Corporation. Such mailing shall be at least 30 days and not more than 60
days before the date fixed for redemption. Any notice mailed as provided
in this subsection G(c) shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice, but failure duly
to give such notice by mail, or any defect in such notice or in the
mailing thereof, to any holder of shares of Designated Preferred Stock
designated for redemption shall not affect the validity of the
proceedings for the redemption of any other shares of Designated
Preferred Stock. Notwithstanding the foregoing, if shares of Designated
Preferred Stock are issued in book-entry form through The Depository
Trust Company or any other similar facility, notice of redemption may
be given to the holders of Designated Preferred Stock at such time and in
any manner permitted by such facility. Each notice of redemption given to
a holder shall state: (1) the redemption date; (2) the number of shares
of Designated Preferred Stock to be redeemed and, if less than all the
shares held by such holder are to be redeemed, the number of such shares
to be redeemed from such holder; (3) the redemption price; and (4) the
place or places where certificates for such shares are to be surrendered
for payment of the redemption price.
(d) PARTIAL REDEMPTION. In case of any redemption of part of the
shares of Designated Preferred Stock at the time outstanding, the shares
to be redeemed shall be selected either PRO RATA or in such other manner
as the Board of Directors or a duly authorized committee thereof may
determine to be fair and equitable. Subject to the provisions hereof, the
Board of Directors or a duly authorized committee thereof shall have full
power and authority to prescribe the terms and conditions upon which
shares of Designated Preferred Stock shall be redeemed from time to time.
If fewer than all the shares represented by any certificate are redeemed,
a new certificate shall be issued representing the unredeemed shares
without charge to the holder thereof.
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(e) EFFECTIVENESS OF REDEMPTION. If notice of redemption has been
duly given and if on or before the redemption date specified in the
notice all funds necessary for the redemption have been deposited by the
Corporation, in trust for the PRO RATA benefit of the holders of the
shares called for redemption, with a bank or trust company doing business
in the Borough of Manhattan, The City of New York, and having a capital
and surplus of at least $500 million and selected by the Board of
Directors, so as to be and continue to be available solely therefor,
then, notwithstanding that any certificate for any share so called for
redemption has not been surrendered for cancellation, on and after the
redemption date dividends shall cease to accrue on all shares so called
for redemption, all shares so called for redemption shall no longer be
deemed outstanding and all rights with respect to such shares shall
forthwith on such redemption date cease and terminate, except only the
right of the holders thereof to receive the amount payable on such
redemption from such bank or trust company, without interest. Any funds
unclaimed at the end of three years from the redemption date shall, to
the extent permitted by law, be released to the Corporation, after which
time the holders of the shares so called for redemption shall look only
to the Corporation for payment of the redemption price of such shares.
(f) STATUS OF REDEEMED SHARES. Shares of Designated Preferred Stock
that are redeemed, repurchased or otherwise acquired by the Corporation
shall revert to authorized but unissued shares of Preferred Stock
(PROVIDED that any such cancelled shares of Designated Preferred Stock
may be reissued only as shares of any series of Preferred Stock other
than Designated Preferred Stock).
H. CONVERSION. Holders of Designated Preferred Stock shares shall
have no right to exchange or convert such shares into any other securities.
I. VOTING RIGHTS.
(a) GENERAL. The holders of Designated Preferred Stock shall not
have any voting rights except as set forth below or as otherwise from
time to time required by law.
(b) PREFERRED STOCK DIRECTORS. Whenever, at any time or times,
dividends payable on the shares of Designated Preferred Stock have not
been paid for an aggregate of six quarterly Dividend Periods or more,
whether or not consecutive, the authorized number of directors of the
Corporation shall automatically be increased by two and the holders of
the Designated Preferred Stock shall have the right, with holders of
shares of any one or more other classes or series of Voting Parity Stock
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outstanding at the time, voting together as a class, to elect two
directors (hereinafter the "PREFERRED DIRECTORS" and each a "PREFERRED
DIRECTOR") to fill such newly created directorships at the Corporation's
next annual meeting of stockholders (or at a special meeting called for
that purpose prior to such next annual meeting) and at each subsequent
annual meeting of stockholders until all accrued and unpaid dividends for
all past Dividend Periods, including the latest completed Dividend Period
(including, if applicable as provided in subsection E(a) above, dividends
on such amount), on all outstanding shares of Designated Preferred Stock
have been declared and paid in full at which time such right shall
terminate with respect to the Designated Preferred Stock, except as
herein or by law expressly provided, subject to revesting in the event of
each and every subsequent default of the character above mentioned;
PROVIDED that it shall be a qualification for election for any Preferred
Director that the election of such Preferred Director shall not cause the
Corporation to violate any corporate governance requirements of any
securities exchange or other trading facility on which securities of the
Corporation may then be listed or traded that listed or traded companies
must have a majority of independent directors. Upon any termination of
the right of the holders of shares of Designated Preferred Stock and
Voting Parity Stock as a class to vote for directors as provided above,
the Preferred Directors shall cease to be qualified as directors, the
term of office of all Preferred Directors then in office shall terminate
immediately and the authorized number of directors shall be reduced by
the number of Preferred Directors elected pursuant hereto. Any Preferred
Director may be removed at any time, with or without cause, and any
vacancy created thereby may be filled, only by the affirmative vote of
the holders a majority of the shares of Designated Preferred Stock at the
time outstanding voting separately as a class together with the holders
of shares of Voting Parity Stock, to the extent the voting rights of such
holders described above are then exercisable. If the office of any
Preferred Director becomes vacant for any reason other than removal from
office as aforesaid, the remaining Preferred Director may choose a
successor who shall hold office for the unexpired term in respect of
which such vacancy occurred.
(c) CLASS VOTING RIGHTS AS TO PARTICULAR MATTERS. So long as any
shares of Designated Preferred Stock are outstanding, in addition to any
other vote or consent of stockholders required by law or by the Charter,
the vote or consent of the holders of at least 66 2/3% of the shares of
Designated Preferred Stock at the time outstanding, voting as a separate
class, given in person or by proxy, either in writing without a meeting
or by vote at any meeting called for the purpose, shall be necessary for
effecting or validating:
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(i) AUTHORIZATION OF SENIOR STOCK. Any amendment or alteration of
the Charter to authorize or create or increase the authorized amount of,
or any issuance of, any shares of, or any securities convertible into or
exchangeable or exercisable for shares of, any class or series of capital
stock of the Corporation ranking senior to Designated Preferred Stock
with respect to either or both the payment of dividends and/or the
distribution of assets on any liquidation, dissolution or winding up of
the Corporation;
(ii) AMENDMENT OF DESIGNATED PREFERRED STOCK. Any amendment,
alteration or repeal of any provision of the Charter (including, unless
no vote on such merger or consolidation is required by subsection
I(c)(iii) below, any amendment, alteration or repeal by means of a
merger, consolidation or otherwise) so as to adversely affect the rights,
preferences, privileges or voting powers of the Designated Preferred
Stock; or
(iii) SHARE EXCHANGES, RECLASSIFICATIONS, MERGERS AND
CONSOLIDATIONS. Any consummation of a binding share exchange or
reclassification involving the Designated Preferred Stock, or of a merger
or consolidation of the Corporation with another corporation or other
entity, unless in each case (x) the shares of Designated Preferred Stock
remain outstanding or, in the case of any such merger or consolidation
with respect to which the Corporation is not the surviving or resulting
entity, are converted into or exchanged for preference securities of the
surviving or resulting entity or its ultimate parent, and (y) such shares
remaining outstanding or such preference securities, as the case may be,
have such rights, preferences, privileges and voting powers, and
limitations and restrictions thereof, taken as a whole, as are not
materially less favorable to the holders thereof than the rights,
preferences, privileges and voting powers, and limitations and
restrictions thereof, of Designated Preferred Stock immediately prior to
such consummation, taken as a whole;
PROVIDED, HOWEVER, that for all purposes of this subsection I(c), any increase
in the amount of the authorized Preferred Stock, including any increase in the
authorized amount of Designated Preferred Stock necessary to satisfy
preemptive or similar rights granted by the Corporation to other persons prior
to the Signing Date, or the creation and issuance, or an increase in the
authorized or issued amount, whether pursuant to preemptive or similar rights
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or otherwise, of any other series of Preferred Stock, or any securities
convertible into or exchangeable or exercisable for any other series of
Preferred Stock, ranking equally with and/or junior to Designated Preferred
Stock with respect to the payment of dividends (whether such dividends are
cumulative or non-cumulative) and the distribution of assets upon liquidation,
dissolution or winding up of the Corporation will not be deemed to adversely
affect the rights, preferences, privileges or voting powers, and shall not
require the affirmative vote or consent of, the holders of outstanding shares
of the Designated Preferred Stock.
(d) CHANGES AFTER PROVISION FOR REDEMPTION. No vote or consent of
the holders of Designated Preferred Stock shall be required pursuant to
subsection I(c) above if, at or prior to the time when any such vote or
consent would otherwise be required pursuant to such subsection, all
outstanding shares of the Designated Preferred Stock shall have been
redeemed, or shall have been called for redemption upon proper notice and
sufficient funds shall have been deposited in trust for such redemption,
in each case pursuant to subsection G above.
(e) PROCEDURES FOR VOTING AND CONSENTS. The rules and procedures for
calling and conducting any meeting of the holders of Designated Preferred
Stock (including, without limitation, the fixing of a record date in
connection therewith), the solicitation and use of proxies at such a
meeting, the obtaining of written consents and any other aspect or matter
with regard to such a meeting or such consents shall be governed by any
rules of the Board of Directors or any duly authorized committee of the
Board of Directors, in its discretion, may adopt from time to time, which
rules and procedures shall conform to the requirements of the Charter,
the Bylaws, and applicable law and the rules of any national securities
exchange or other trading facility on which Designated Preferred Stock is
listed or traded at the time.
J. RECORD HOLDERS. To the fullest extent permitted by applicable law,
the Corporation and the transfer agent for Designated Preferred Stock may deem
and treat the record holder of any share of Designated Preferred Stock as the
true and lawful owner thereof for all purposes, and neither the Corporation
nor such transfer agent shall be affected by any notice to the contrary.
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K. NOTICES. All notices or communications in respect of Designated
Preferred Stock shall be sufficiently given if given in writing and delivered
in person or by first class mail, postage prepaid, or if given in such other
manner as may be permitted in the Charter or Bylaws or by applicable law.
Notwithstanding the foregoing, if shares of Designated Preferred Stock are
issued in book-entry form through The Depository Trust Company or any
similar facility, such notices may be given to the holders of Designated
Preferred Stock in any manner permitted by such facility.
L. NO PREEMPTIVE RIGHTS. No share of Designated Preferred Stock shall
have any rights of preemption whatsoever as to any securities of the
Corporation, or any warrants, rights or options issued or granted with respect
thereto, regardless of how such securities, or such warrants, rights or
options, may be designated, issued or granted.
M. REPLACEMENT CERTIFICATES. The Corporation shall replace any
mutilated certificate at the holder's expense upon surrender of that
certificate to the Corporation. The Corporation shall replace certificates
that become destroyed, stolen or lost at the holder's expense upon delivery to
the Corporation of reasonably satisfactory evidence that the certificate has
been destroyed, stolen or lost, together with any indemnity that may be
reasonably required by the Corporation.
N. OTHER RIGHTS. The shares of Designated Preferred Stock shall not
have any rights, preferences, privileges or voting powers or relative,
participating, optional or other special rights, or qualifications,
limitations or restrictions thereof, other than as set forth herein or in the
Charter or as provided by applicable law."
4. The foregoing amendment of the Certificate of Incorporation was
authorized by the Board of Directors of the Corporation at a meeting duly
called and held on December 29, 2008.
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IN WITNESS WHEREOF, the undersigned has signed this Certificate
of Amendment of the Certificate of Incorporation of American Express
Company under Section 805 of the Business Corporation Law on the
7th day of January 2009.
/s/ Stephen P. Norman
---------------------
Name: Stephen P. Norman
Title: Secretary
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