EX-10.44 4 d131774dex1044.htm FORM OF RESTRICTED STOCK UNIT AWARD AGREEMENT FOR EXECUTIVE OFFICERS AMERICAN EXPRESS COMPANY
EXHIBIT 10.44
AMERICAN EXPRESS COMPANY
2007 INCENTIVE COMPENSATION PLAN
[ ] RESTRICTED STOCK UNIT AWARD AGREEMENT (BAND 99)
This [ ] Restricted Stock Unit Award Agreement (Band 99) sets forth the terms and conditions of the Restricted Stock Units granted by American Express Company pursuant to the Company’s 2007 Incentive Compensation Plan, as amended and restated, to select employees in Band 99 during [ ]. Capitalized terms used herein have the meanings given such terms herein or by Appendix A.
Additional specific terms of a Participant’s Award under this Agreement are set forth in the Participant’s Award Communication, which shall include the Date of Grant, the Number of Shares, the Vesting Date, and any additional terms applicable to such Award. The terms of the performance vesting requirement applicable to a Participant’s Award under this Agreement are set forth on Schedule A, including the Performance Requirement and the Performance Period.
For Awards granted in special situations (such as grants to newly hired or promoted Participants), the vesting and/or performance requirements, if any, and references to the Date of Grant, the Vesting Date or the Performance Period applicable to the Participant’s Award may vary from the terms set forth in this Agreement, as specified in the Participant’s Award Communication, which terms shall apply instead of the terms set forth in this Agreement. If a Participant’s Award Communication provides for vesting of the Number of Shares in installments, references to the Vesting Date shall refer to the date an installment vests and references to Earned Shares shall refer to the portion of the Number of Shares that vest on a given Vesting Date, as applicable, and each installment will be treated separately under this Agreement as necessary to give effect to the intent thereof.
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(i) if the Change in Control qualifies as a Section 409A Change Event, then the shares shall be issued to the Participant immediately upon the occurrence of the Defined Termination, but in no event later than five days thereafter; or
(ii) if the Change in Control does not qualify as a Section 409A Change Event, then the shares shall be issued to the Participant at the time specified by Section 6(a).
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distribution in the event of the Participant’s death), including, but not limited to, by execution, levy, garnishment, attachment, pledge, bankruptcy or in any other manner. If a Participant or anyone claiming under or through the Participant attempts to violate this Section 8(a), such attempted violation shall be null and void and without effect.
(i) The terms of a Participant’s Award (including terms under this Agreement or the Participant’s Award Communication) may be amended from time to time by the Committee, in its sole discretion, in any manner that the Committee deems appropriate; provided, however, that (i) no such amendment shall adversely affect in a material manner any right of the Participant under the Award without the written consent of the Participant; (ii) the Committee shall not amend the Participant’s Award if the amendment would disqualify the Award from the exception to Section 162(m) of the Code; and (iii) the Committee may not amend or delete Section 4 or Section A1(g) in a manner that is detrimental to the Participant without the Participant’s written consent.
(ii) The Senior Vice President, Global Compensation may amend, revise or make any changes to this Agreement to reflect any amendments, revisions, changes or other actions approved or taken by the Committee pursuant to Section 9(d)(i).
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corporation, any separation of a corporation (including a spin-off or other distribution of stock or property by a corporation), any reorganization of a corporation, or any partial or complete liquidation by the Company, the Committee shall make such adjustment in the class and the Number of Shares or other terms of the Award Communications of outstanding Awards as may be determined to be appropriate by the Committee, and such adjustments shall be final, conclusive and binding for all purposes.
(g) Governing Law. As provided by Paragraph 17(o) of the Plan, the validity, construction, interpretation, administration and effect of the Plan and of its rules and regulations, and rights relating to the Plan and to the Award issued under this Agreement, shall be governed by the substantive laws, but not the choice of law rules, of the State of New York.
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AMERICAN EXPRESS COMPANY
2007 INCENTIVE COMPENSATION PLAN
[ ] RESTRICTED STOCK UNIT AWARD AGREEMENT (BAND 99)
APPENDIX A
(a) “409A Policy” means the Company’s Section 409A Compliance Policy, as amended and restated from time to time, or any successor thereto.
(b) “Affiliate” has the meaning given such term by Paragraph 3(b) of the Plan, which states that unless the Committee provides otherwise, “Affiliate” means any entity in which the Company has a direct or indirect equity interest of 50% or more, as determined by the Committee in its discretion.
(c) “Agreement” means the [ ] Restricted Stock Unit Award Agreement (Band 99).
(d) “Award” means the Restricted Stock Units granted by the Company to a Participant pursuant to the Plan, the Agreement and the Participant’s Award Communication.
(e) “Award Communication” for a Participant and the Participant’s Award means, collectively, the Participant’s year-end compensation statement for the year preceding the year that includes the Date of Grant (if applicable), and any other written or electronic communication by or on behalf of the Company to the Participant regarding the particular terms of the Participant’s Award, and the LTIA Overview or similar document describing the terms of the Award generally.
(f) “Board” means the Board of Directors of the Company.
(g) “Change in Control” means the happening of any of the following:
(i) Any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a “Person”) becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 25% or more of either (i) the then outstanding common shares of the Company (the “Outstanding Company Common Shares”) or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that such beneficial ownership shall not constitute a Change in Control if it occurs as a result of any of the following acquisitions of securities: (A) any acquisition directly from the Company; (B) any acquisition by the Company or any corporation, partnership, trust or other entity controlled by the Company (a “Subsidiary”); (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiary; (D) any acquisition by an underwriter temporarily holding Company securities pursuant to an offering of such securities; (E) any acquisition by an individual, entity or group that is permitted to, and actually does, report its beneficial ownership on Schedule 13-G (or any successor schedule), provided that, if any such individual, entity or group subsequently becomes required to or does report its beneficial ownership on Schedule 13D (or any successor schedule), then, for purposes of this subsection, such individual, entity or group shall be deemed to have first acquired, on the first date on which such individual, entity or group becomes required to or does so report, beneficial ownership of all of the Outstanding Company Common Stock and Outstanding Company Voting Securities beneficially owned by it on such date; or (F) any acquisition by any corporation pursuant to a reorganization, merger or consolidation if, following such reorganization, merger or consolidation, the conditions described in clauses (A), (B) and (C) of Section A1(h)(iii) are
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satisfied. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any Person (the “Subject Person”) became the beneficial owner of 25% or more of the Outstanding Company Common Shares or Outstanding Company Voting Securities as a result of the acquisition of Outstanding Company Common Shares or Outstanding Company Voting Securities by the Company which, by reducing the number of Outstanding Company Common Shares or Outstanding Company Voting Securities, increases the proportional number of shares beneficially owned by the Subject Person; provided, that if a Change in Control would be deemed to have occurred (but for the operation of this sentence) as a result of the acquisition of Outstanding Company Common Shares or Outstanding Company Voting Securities by the Company, and after such share acquisition by the Company, the Subject Person becomes the beneficial owner of any additional Outstanding Company Common Shares or Outstanding Company Voting Securities which increases the percentage of the Outstanding Company Common Shares or Outstanding Company Voting Securities beneficially owned by the Subject Person, then a Change in Control shall then be deemed to have occurred; or
(ii) Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board, including by reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation; or
(iii) The consummation of a reorganization, merger, statutory share exchange, consolidation, or similar corporate transaction involving the Company or any of its direct or indirect Subsidiaries (each a “Business Combination”), in each case, unless, following such Business Combination, (A) the Outstanding Company Common Shares and the Outstanding Company Voting Securities immediately prior to such Business Combination, continue to represent (either by remaining outstanding or being converted into voting securities of the resulting or surviving entity or any parent thereof) more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from Business Combination (including, without limitation, a corporation that, as a result of such transaction, owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries), (B) no Person (excluding the Company, any employee benefit plan (or related trust) of the Company, a Subsidiary or such corporation resulting from such Business Combination or any parent or subsidiary thereof, and any Person beneficially owning, immediately prior to such Business Combination, directly or indirectly, 25% or more of the Outstanding Company Common Shares or Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 25% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination (or any parent thereof) or the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors, and (C) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination (or any parent thereof) were members of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such Business Combination; or
(iv) The consummation of the sale, lease, exchange or other disposition of all or substantially all of the assets of the Company, unless such assets have been sold, leased, exchanged or disposed of to a corporation with respect to which following such sale, lease, exchange or other disposition (A) more than 50% of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation (or any parent thereof) entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such sale, lease, exchange or other disposition in substantially the same proportions as their ownership immediately prior to such sale, lease, exchange or other disposition of such Outstanding Company Common Shares and Outstanding Company Voting Shares, as the case may be, (B) no Person (excluding the Company and any employee benefit plan (or related trust)) of the Company or a Subsidiary or of such corporation or a subsidiary thereof and any Person beneficially owning, immediately prior to such sale, lease, exchange or other disposition, directly or indirectly, 25% or more of the Outstanding Company Common Shares or Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 25% or more of respectively, the then outstanding shares of common stock of such corporation (or any parent thereof) and the combined voting power of the then outstanding voting securities of such corporation (or any parent thereof) entitled to vote generally in
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the election of directors, and (C) at least a majority of the members of the board of directors of such corporation (or any parent thereof) were members of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale, lease, exchange or other disposition of assets of the Company; or
(v) Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company.
(h) “Clawback Requirements” means Section 10D of the Exchange Act and any regulations promulgated, or national securities exchange listing conditions adopted, with respect thereto.
(i) “Code” means the Internal Revenue Code of 1986, as amended and restated from time to time, and includes the applicable Treasury Regulations promulgated and other official guidance issued thereunder.
(j) “Committee” means the Compensation and Benefits Committee of the Board. To the extent that the Committee has delegated its authority to certain officers and employees of the Company, references to the Committee with respect to a matter for which the Committee has delegated its authority shall include the officers and employees to whom such authority has been delegated.
(k) “Company” means American Express Company.
(l) “Consent to Detrimental Conduct Provisions” with respect to a Participant means the “Consent to the Application of Forfeiture and Detrimental Conduct Provisions to Incentive Compensation Plan Awards” or similar document, and any successor thereto, executed by the Participant.
(m) “Consent to Xxxx-Xxxxx Clawback Provisions” with respect to a Participant means the “Consent to the Requirements of Section 954 of the Xxxx-Xxxxx Act” or similar document, and any successor thereto, executed by the Participant.
(n) “Constructive Termination” has the meaning given such term by the Senior Executive Severance Plan, which generally states that a “Constructive Termination” of a Participant means any termination of the Participant’s Employment by the Participant as a result of Good Reason within two years after a Change in Control, and that “Good Reason” generally means the occurrence of any of the following events without the Participant’s written consent: (i) a material reduction in the Participant’s base salary (except for similar across the board changes affecting all similarly situated employees) or any material reduction in the aggregate of the Participant’s annual and long-term incentive opportunity, in each case from that in effect immediately prior to the Change in Control, (ii) the requirement that the Participant be based more than 50 miles from the location at which the Participant was based immediately prior to the Change in Control and which location is more than 35 miles from the Participant’s residence, (iii) the assignment to the Participant of any duties that are materially inconsistent with the Participant’s duties prior to the Change in Control, or (iv) a significant reduction in the Participant’s position, duties, or responsibilities from those in effect prior to the Change in Control; provided, however, in order for any of the foregoing events to constitute Good Reason, the Participant must notify the Company within 30 days after the occurrence of the event giving rise to a Good Reason and the Company shall have 30 days to remedy the condition, and if remedied by the Company within such 30-day period, no Good Reason shall exist on account of the remedied event.
(o) “Date of Grant” for an Award means the date specified by the applicable Award Communication.
(p) “Defined Termination” has the meaning given such term by the Senior Executive Severance Plan, which states that “Defined Termination” means a Separation from Service within two years after a Change in Control that occurs as a result of either an Involuntary Termination or a Constructive Termination.
(q) “Disability” has the meaning given such term by Section 409A of the Code, which generally provides that “Disability” of a Participant means either (i) the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (ii) the Participant is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering the employees of the Participant’s employer.
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(r) “Early Retirement” with respect to a Participant means the termination of the Participant’s Employment at a time that the Participant has attained 10 or more years of service (or deemed service under applicable retirement arrangements) with the Company or applicable Affiliates and the Participant is age 55 or older, but younger than age 62.
(s) “Employment” means employment with the Company or an Affiliate, or engagement in Related Employment.
(t) “EU Retirement” with respect to a Participant means the termination of the Participant’s Employment at a time that the Participant has attained 15 or more years of service (or deemed service under applicable retirement arrangements) with the Company or applicable Affiliates.
(u) “Exchange Act” means the Securities Exchange Act of 1934, as amended and restated from time to time.
(v) “Fair Market Value” has the meaning given such term by Paragraph 5(b) of the Plan, which generally states that “Fair Market Value” of a share on a given date is the fair market value of a share on such date, as determined in such reasonable manner as may be provided from time to time by the Committee or as may be required in order to comply with the requirements of any applicable laws or regulation; and unless the Committee determines otherwise, the “Fair Market Value” of a Company share on a given date shall be the closing price of a Company share as reported on the New York Stock Exchange composite tape on such date.
(w) “Full Retirement” with respect to a Participant means the termination of the Participant’s Employment at a time that the Participant has attained 10 or more years of service (or deemed service under applicable retirement arrangements) with the Company or applicable Affiliates and the Participant is age 62 or older.
(x) “Involuntary Termination” has the meaning given such term by the Senior Executive Severance Plan, which generally states that an “Involuntary Termination” of a Participant means any involuntary termination of the Participant’s Employment for reasons other than Good Cause within two years after a Change in Control, and that “Good Cause” generally means the occurrence of any of the following: (i) the Participant’s willful and continued failure to adequately perform substantially all of the duties of the Participant’s Employment; (ii) the Participant’s willful engagement in conduct which is demonstrably and materially injurious to the Company and such of its subsidiaries and affiliated companies and other trades or businesses, monetarily or otherwise; or (iii) the Participant’s conviction of a felony.
(y) “LTIA Overview” for a Participant’s Award means the overview, program, summary, guide or similar document provided by or on behalf of the Company describing certain terms of the Participant’s Award. Generally, new LTIA Overviews are provided each year describing the Awards granted to employees in specified Band levels as part of the Company’s annual award process for that year.
(z) “Number of Shares” for an Award means the number of shares subject to such Award, as specified in the applicable Award Communication.
(aa) “Participant” means an employee to whom an Award has been granted pursuant to the Plan and the Agreement, and following such employee’s death, the employee’s beneficiary or any person who acquires the right to receive payment of the employee’s Award by bequest or inheritance or by reason of the employee’s death.
(bb) “Performance Period” for an Award means the performance period established by the Committee and set forth in Schedule A.
(cc) “Performance Requirement” for an Award means the performance objectives established by the Committee and set forth in Schedule A.
(dd) “Plan” means the Company’s 2007 Incentive Compensation Plan, as amended and restated from time to time, or any successor thereto.
(ee) “Related Employment” has the meaning given such term by Paragraph 14 of the Plan, which generally states that “Related Employment” of an individual means the employment or performance of services by the individual for an employer that is neither the Company nor an Affiliate, provided that (a) such employment or performance of
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services is undertaken by the individual at the request of the Company or an Affiliate; (b) immediately prior to undertaking such employment or performance of services, the individual was engaged in Employment; and (c) such employment or performance of services is in the best interests of the Company and is recognized by the Committee, in its discretion, as Related Employment.
(ff) “Restricted Stock Unit” means an Award that is a promise to issue shares to a Participant in the future if the applicable vesting conditions are satisfied.
(gg) “Retirement” means Early Retirement, Full Retirement or EU Retirement.
(hh) “RSU Payout Percentage” means the “RSU Payout Percentage” determined pursuant to Schedule A.
(ii) “Section 409A Change Event” means a “change in ownership,” a “change in effective control” or a “change in ownership of a substantial portion of the assets” of the Company, each as defined by Section 409A of the Code. Section 409A of the Code generally states that (i) a “change in ownership” of a company means that any one person, or more than one person acting as a group, acquires ownership of stock of the company that, together with stock held by such person or group, constitutes more than 50% of the total fair market value or total voting power of the stock of the company; (ii) a “change in effective control” of a company means (A) that any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the company possessing 30% or more of the total voting power of the stock of the company, or (B) a majority of members of the company’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the company’s board of directors before the date of the appointment or election; and (iii) a “change in ownership of a substantial portion of the assets” of a company means that any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the company that have a total gross fair market value equal to or more than 40% of the total gross fair market value of all of the assets of the company immediately before such acquisition or acquisitions).
(jj) “Senior Executive Severance Plan” means the Company’s Senior Executive Severance Plan, as amended and restated from time to time, or any successor thereto.
(kk) “Separation from Service” has the meaning given such term by Section 409A of the Code (and as determined in accordance with the 409A Policy), which generally states that an employee has a “Separation from Service” with an employer if the employee dies, retires, or otherwise has a termination of his or her employment with such employer. Whether a Separation from Service has occurred is determined based on whether the facts and circumstances indicate that the employer and employee reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the employee would perform after such date would permanently decrease to no more than 20% of the average level of bona fide services performed over the immediately preceding 36-month period.
(ll) “shares” refers to the shares of the Company’s common stock, par value of $.20 per share, or the shares of any other stock of any other class into which such shares may thereafter be changed.
(mm) “Vesting Date” of an Award means the vesting date specified in the Award Communication for such Award. (For the avoidance of doubt, the Vesting Date of an Award may differ from the last day of the Award’s Performance Period.)
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AMERICAN EXPRESS COMPANY
2007 INCENTIVE COMPENSATION PLAN
[ ] RESTRICTED STOCK UNIT AWARD AGREEMENT (BAND 99)
APPENDIX B
SECTION 280G TERMS & PROCEDURES
Section B1. “Best Net” Limitation. In the event that any payment or benefit received or to be received by a Participant under the Agreement in connection with a Change in Control or termination of the Participant’s employment (collectively, the “Payments”), will be subject to the excise tax referred to in Section 4999 of the Code (the “Excise Tax”), then the Payments shall be reduced to the extent necessary so that no portion of the Payments is subject to the Excise Tax but only if (A) the net amount of all payments and benefits received or to be received by a Participant in connection with the applicable Change in Control or the termination of the Participant’s employment, whether pursuant to the terms of the Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in such Change in Control or any Person affiliated with the Company or such Person (the “Total Payments”), as so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments), is greater than or equal to (B) the net amount of such Total Payments without any such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Total Payments and the amount of Excise Tax to which the Participant would be subject in respect of such unreduced Total Payments); provided, however, that the Participant may elect in writing to have other components of his or her Total Payments reduced prior to any reduction in the Payments hereunder.
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AMERICAN EXPRESS COMPANY
2007 INCENTIVE COMPENSATION PLAN
[ ] RESTRICTED STOCK UNIT AWARD AGREEMENT (BAND 99)
APPENDIX C
DETRIMENTAL CONDUCT PROVISIONS
(i) either (1) all Competitors derived from the column titled “Standard” on the Competitor List for the lines of business and departments (as listed on the Competitor List under the “Line of Business” column) that the Employee provided services to or managed during the two-year period preceding the date the Employee’s active employment with the Company or its Affiliates terminates, or (2) if the job function the Employee is employed in at the time his or her active employment with the Company or its Affiliates terminates is listed on the Competitor List under the “Line of Business” column, the Competitors cited for that job function under the “Standard” column of the Competitor List; and
(ii) the Entities (as defined in Section C7(c) below) listed on the Competitor List under the column titled “Business Unit Wide Competitors” for the business units the Employee provided services to or managed during the two-year period preceding the date his or her active employment with the Company or its Affiliates terminates. If any line(s) of business the Employee provided services to or managed during the two-year period preceding the date his or her active employment with the Company or its Affiliates terminates is not listed on the Competitor List then, with respect to such line(s) of business, the Employee shall not be employed by, provide advice to or act as a consultant for (1) an Entity’s line of business that competes with those line(s) of business and (2) the Entities listed on the Competitor List under the column titled “Business Unit Wide Competitors” for the business units the Employee provided services to or managed during the two-year period preceding the date the Employee’s active employment with the Company or its Affiliates terminates. Except for Business Unit Wide Competitors, the prohibition against being employed by, providing advice to or acting as a consultant for a Competitor is limited to the line(s) of business of the Competitor that compete with the line(s) of business of the Company or its Affiliates that the Employee provided services to or managed. With respect to Business Unit Wide Competitors, the Employee agrees not to be employed by, provide advice to or act as a consultant for such Entities in any line of business because these Entities compete with several of the Company’s or its Affiliates’ lines of business. The Company can revise the Competitor List at its discretion at any time and from time to time and as revised will become part of this Appendix C; a copy of the current Competitor List will be available through the Corporate Secretary’s Office. Notwithstanding anything in this Appendix C to the contrary, the Company shall not make any addition to the Competitor List for a period of two years following the date of a Change in Control.
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employees to the media or financial analysts. During the Restricted Period, an Employee may not (i) provide information considered proprietary by the Company to the media or financial analysts or (ii) discuss the Company or its Affiliates with the media or financial analysts, without the explicit written permission of the Executive Vice President of Corporate Affairs and Communications. This Section C1(b) shall not be applicable to any truthful statement required by any legal proceeding.
(a) Repayment of Financial Gain.
(i) If an Employee fails to comply with the requirements of Section C1(a) through Section C1(g), the Company may cancel any outstanding Awards and recover from the Employee (1) the Amount (as that term is defined in Section C7(a) below) of any gain realized on Stock Options that the Employee exercised, as of the date exercised, (2) the Amount of any payments received by the Employee for Portfolio Grant Awards, Performance Grant Awards or other Awards granted under the Plan and (3) the Number (as that term is defined in Section C7(d) below) of shares of stock whose restrictions lapsed (or the value of the Number of such shares of stock at the time the restrictions lapsed) pursuant to an award of Restricted Stock or Restricted Stock Units or other Award, during the 24-month period preceding the Employee’s last day of active employment.
(ii) If an Employee fails to comply with the requirements of Section C1(a) through Section C1(g), the Employee must and agrees to repay the Company, upon demand by the Company, in accordance with the terms of this Section C2, and the Company shall be entitled, to the extent and in the manner permitted by the 409A Policy, to set-off against the amount of any such repayment obligation against any amount owed, from any source, to the Employee by the Company or its Affiliates.
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(a) “Amount” means the gross amount, before deduction of applicable taxes or other amounts, and includes the gross amount of any dividends or dividend equivalents paid to the Employee on awards of Restricted Stock or Restricted Stock Units.
(b) “Award” means a Performance Grant Award, Portfolio Grant Award, Restricted Stock, Restricted Stock Unit, Stock Option or other award issued under the Plan.
(c) “Entity” or “Entities” mean any corporation, partnership, association, joint venture, trust, government, governmental agency or authority, person or other organization or entity.
(d) “Number” means the total number of shares of stock, before reduction for the payment of applicable taxes or other amounts, and includes the total number of any shares of stock paid to the Employee on awards of Restricted Stock or Restricted Stock Units.
(e) “Performance Grant Award” means a performance grant award issued under the Plan, and includes the annual bonus provided to Executive Officers.
(f) “Portfolio Grant Award” means a portfolio grant award issued under the Plan.
(g) “Restricted Stock,” “Restricted Stock Unit” and “Stock Option” have the respective meanings given such terms in the Plan.
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AMERICAN EXPRESS COMPANY
2007 INCENTIVE COMPENSATION PLAN
[ ] RESTRICTED STOCK UNIT AWARD AGREEMENT (BAND 99)
SCHEDULE A
PERFORMANCE REQUIREMENT
Performance Requirement:
[ ]
Performance Period:
[ ]
Earned Shares:
[ ]
RSU Payout Percentage:
[ ]
Definitions:
[ ]
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