EX-10.38



 





     EXHIBIT 10.38



AMENDMENT OF

AMERICAN EXPRESS

ANNUAL INCENTIVE AWARD PLAN




     RESOLVED, that pursuant to Section 7.1 thereof, the American Express Senior Executive
Severance Plan (the “Plan”) is amended, effective as of January 22, 2007, as follows:




	1.	 	Section (f) of Article VI is amended in its entirety to read as follows:





          (f) For purposes of this Plan, “Change in Control” means the happening of any of the
following:





     (1) Any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a “Person”) becomes the beneficial owner (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 25 percent 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 (i), (ii) and (iii) of Article VI(f)(3)
are 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 percent 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




     (2) 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




     (3) 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, (i) 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 percent 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



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more subsidiaries), (ii) 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 percent or more of the Outstanding
Company Common Shares or Outstanding Company Voting Securities, as the case may
be) beneficially owns, directly or indirectly, 25 percent 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 (iii) 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




     (4) 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 (i) more than 50
percent 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, (ii) 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 percent or more of the Outstanding Company Common Shares or
Outstanding Company Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 25 percent or more of respectively, the then outstanding
            shares of common stock of such corporation (or any parent thereof) and the
combined voting power of the then outstanding voting securities of such
corporation (or any parent thereof) entitled to vote generally in the election
of directors and (iii) 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



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initial agreement or action
of the Board providing for such sale, lease, exchange or other disposition of
assets of the Company; or




     (5) Approval by the shareholders of the Company of a complete liquidation
or dissolution of the Company.




	2.	 	Section (g) of Article VI is hereby deleted in its entirety.






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