EXHIBIT 10.1
BERKSHIRE HATHAWAY INC.
1440 Kiewit Plaza
Omaha, Nebraska 68131
Telephone (402) 346-1400
July 20, 1995
American Express Company
American Express Tower
World Financial Center
New York, New York 10285-5170
Attn: Mr. Harvey Golub
Dear Mr. Golub:
As you know, Berkshire Hathaway Inc. and its subsidiaries
(collectively, "Berkshire") have made the commitments listed on Appendix A
(the "Passivity Commitments") to the Board of Governors of the Federal Reserve
System and these commitments are designed to assure that Berkshire will not
exercise or attempt to exercise a controlling influence over the management or
policies of American Express Company ("AXP") or any subsidiary of AXP for
purposes of federal and state banking laws.
I understand that Berkshire's compliance with these commitments is
important not only to Berkshire but also to AXP and that it is important to
AXP that these commitments remain in full force and effect.
Therefore, Berkshire agrees as follows with American Express, such
agreement to be in effect for such time as Berkshire shall beneficially own
10% or more of the outstanding voting securities of AXP:
1. Berkshire shall comply with the Passivity Commitments in all
respects and will not directly or indirectly take or propose any action or
enter into any relationship that conflicts with or contravenes the Passivity
Commitments. If Berkshire proposes to take an action or enter into a
relationship and either party is concerned as to whether the action or
relationship is permitted under the terms of the Passivity Commitments,
Berkshire and American Express will discuss the matter and Berkshire will not
take such action or enter into such relationship unless both parties agree
that it is in accordance with the Passivity Commitments.
Mr. Harvey Golub
July 20, 1995
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2. Berkshire shall cause each of its subsidiaries that may now or
in the future own shares of AXP to comply with this Agreement.
3. Berkshire shall notify AXP immediately upon learning that the
Board of Governors of the Federal Reserve system has initiated or may initiate
a proceeding under the Bank Holding Company Act or the Change in Bank Control
Act in connection with or related to the Passivity Commitments or Berkshire's
ownership of shares of AXP, and Berkshire shall immediately inform AXP of any
communications from the Board of Governors, the Federal Deposit Insurance
Corporation, the State of Utah Department of Financial Institutions, the
Delaware Banking Department, the State of New York Department of Insurance or
the Department of Insurance of the State of Illinois to Berkshire in
connection with or related to the Passivity Commitments or Berkshire's
investment in AXP.
4. AXP, upon periodically receiving information from Berkshire as
to the entities that are subsidiaries of Berkshire, will not knowingly enter
into any relationship or transaction with such entities that will cause
Berkshire to be in violation of any of sections 8(b) through (e) of the
Passivity Commitments.
5. The parties acknowledge and agree that a breach of this
Agreement may cause irreparable injury to the non-breaching party for which
there is no adequate remedy at law and that the non-breaching party therefore
shall be entitled to specific performance, injunctive and other equitable
relief in such event in addition to all other legal rights and remedies. This
Agreement shall be governed by the internal laws of New York without regard to
its conflicts of law principles.
Very truly yours,
Berkshire Hathaway Inc.
By: /s/ Warren E. Buffet
Warren E. Buffet
Chairman of the Board
Accepted and Agreed
American Express Company
By: /s/ Harvey Golub
Harvey Golub
Chairman of the Board
WEB/km
Appendix
Passivity Commitments
Berkshire Hathaway* commits that it will not, directly or indirectly:
(1) acquire or retain shares that would cause its ownership of
American Express** voting securities to equal or exceed 15% of the amount
outstanding (if at such time Berkshire Hathaway has a representative on the
Board of Directors of American Express as allowed by section 4 hereof), or
otherwise acquire or retain shares that reflect ownership or more than 17% of
the amount outstanding; _provided_ that for the purposes of this commitment
shares held by officers or directors of Berkshire Hathaway shall be aggregated
with shares held by Berkshire Hathaway;
(2) take any action causing American Express or any company controlled
by American Express to become a subsidiary of Berkshire Hathaway;
(3) propose a director or slate of directors in opposition to a
nominee or slate of nominees proposed by the management or the board of
directors or American Express or any of its subsidiaries;
(4) seek or accept representation on the board of directors of
American Express or any of its subsidiaries; _provided_ that this commitment
does not prevent Berkshire Hathaway from agreeing, if it desires to do so, to a
request by the management or board of directors of American Express to have no
more than one representative of Berkshire Hathaway be elected to the board of
directors of American Express or be nominated by management to stand for
election to the board of directors; and _further provided_ that in no event
shall any representative of Berkshire Hathaway serve as a director of any
subsidiary of American Express that accepts deposits that are insured by the
Federal Deposit Insurance Corporation ("FDIC"), or of American Express Bank
International ("AEBI");
* For purposes of these commitments, references to Berkshire Hathaway include
Berkshire Hathaway, Inc. and all of its subsidiaries.
** For purposes of these commitments, references to American Express include
American Express Company and all of its subsidiaries.
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(5) solicit or participate in soliciting proxies with respect to any
matter presented to the shareholders of American Express or any of its
subsidiaries (except to the extent that a representative on the board of
directors as permitted by item 4 as deemed to be part of the solicitation made
by the board);
(6) exercise or attempt to exercise a controlling influence over the
management or policies of American Express; _provided_ that this provision does
not prohibit Berkshire Hathaway from having a representative on the board of
directors of American Express if otherwise permitted by item 4 (but such person
shall exercise reasonable efforts to minimize his or her involvement with
respect to any FDIC-insured subsidiaries or AEBI, such as with respect to
membership on
board committees, or abstaining from participation and voting with respect to
those matters that are directly related to (and generally limited to) the
business or affairs of such companies, such as the selection of principal
executive officers of such companies, or the sale of such companies, or other
major decisions involving such companies);
(7) have or seek to have any director, officer, employee, affiliate
or other representative of Berkshire Hathaway serve as an officer, agent or
employee of American Express or any subsidiary of American Express;
(8) with regard to relationships with American Express and the FDIC-
insured subsidiaries of American Express, except with the prior written consent
of the FDIC and the Board of Governors of the Federal Reserve System;
(a) initiate any policy or directive mandating that any
Berkshire Hathaway subsidiary favor American Express to the exclusion of any
competing entity, except as such may be the result of generic policies favoring
best price, service or similar attributes of business relationships;
(b) obtain services or enter transactions other than in the
ordinary course of business and on terms and conditions comparable to those in
transactions with similarly situated parties that do not own American Express
securities;
(c) increase the extent of its current banking
relationships with FDIC-insured subsidiaries of American Express or with AEBI in
an amount that would be material to such subsidiaries or to Berkshire Hathaway,
including any increase in deposit relationships other than changes based on use
of credit cards issued by such FDIC-insured subsidiaries by customers of
Berkshire Hathaway subsidiaries;
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(d) permit the sale of any of its insurance products
through the offices or employees of American Express or of subsidiaries of
American Express; or
(e) enter into any joint venture or other profit-sharing
or similar arrangements with any FDIC-insured subsidiaries of American Express
or with AEBI under which the compensation to either Berkshire Hathaway or such
subsidiary is measured by the profitability of the service being offered or of
the enterprise in which such service is being used;
(9) dispose or threaten to dispose of shares of American Express in
any manner as a condition of specific action or nonaction by American Express or
any of its subsidiaries so as to attempt to influence American Express or any of
its subsidiaries.