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<SEC-DOCUMENT>0000928385-00-000822.txt : 20000324
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ACCESSION NUMBER: 0000928385-00-000822
CONFORMED SUBMISSION TYPE: 10-K/A
PUBLIC DOCUMENT COUNT: 25
CONFORMED PERIOD OF REPORT: 19991231
FILED AS OF DATE: 20000323
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CAPITAL ONE FINANCIAL CORP
CENTRAL INDEX KEY: 0000927628
STANDARD INDUSTRIAL CLASSIFICATION: PERSONAL CREDIT INSTITUTIONS [6141]
IRS NUMBER: 541719854
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 10-K/A
SEC ACT:
SEC FILE NUMBER: 001-13300
FILM NUMBER: 576166
BUSINESS ADDRESS:
STREET 1: 2980 FAIRVIEW PARK DRIVE
STREET 2: STE 1300
CITY: FALLS CHURCH
STATE: VA
ZIP: 22042
BUSINESS PHONE: 7032051000
MAIL ADDRESS:
STREET 1: 2980 FAIRVIEW PARK DRIVE SUITE 1300
CITY: FALLS CHURCH
STATE: VA
ZIP: 22042
FORMER COMPANY:
FORMER CONFORMED NAME: OAKSTONE FINANCIAL CORP
DATE OF NAME CHANGE: 19940728
</SEC-HEADER>
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<TEXT>
<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM 10-K
----------------
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934.
For the fiscal year ended December 31, 1999.
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED).
For the transition period from to
Commission File No. 1-13300
CAPITAL ONE FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 54-1719854
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
2980 Fairview Park Drive, Suite 1300
Falls Church, Virginia 22042-4525
(Address of Principal Executive (Zip Code)
Offices)
Registrant's telephone number, including area code: (703) 205-1000
Securities registered pursuant to section 12(b) of the act:
Name of Each Exchange on
Title of Each Class Which Registered
Common Stock, $.01 Par Value New York Stock Exchange
Preferred Stock Purchase Rights* New York Stock Exchange
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* Attached to each share of Common Stock is a Right to acquire 1/100th of a
share of the Registrant's Cumulative Participating Preferred Stock, par
value $.01 per share, which Rights are not presently exercisable.
Securities Registered Pursuant to Section 12(g) of the Act:
None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [_]
The aggregate market value of the voting stock held by non-affiliates of the
registrant as of the close of business on February 29, 2000.
Common Stock, $.01 Par Value: $7,263,238,371*
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* In determining this figure, the registrant assumed that the executive
officers of the registrant and the registrant's directors are affiliates of
the registrant. Such assumption shall not be deemed to be conclusive for any
other purpose.
The number of shares outstanding of the registrant's common stock as of the
close of business on February 29, 2000:
Common Stock, $.01 Par Value: 196,988,353 shares
DOCUMENTS INCORPORATED BY REFERENCE
1. Portions of the Annual Report to stockholders for the year ended December
31, 1999 are incorporated by reference into Parts I, II and IV.
2. Portions of the Proxy Statement for the annual meeting of stockholders to
be held on April 27, 2000 are incorporated by reference into Part III.
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<PAGE>
CAPITAL ONE FINANCIAL CORPORATION
1999 ANNUAL REPORT ON FORM 10-K
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
Item 1. Business............................................................................... 1
Overview............................................................................... 1
Business Segments...................................................................... 2
Operations............................................................................. 3
Funding................................................................................ 5
Competition............................................................................ 5
Employees.............................................................................. 5
Supervision and Regulation............................................................. 5
Risk Factors........................................................................... 11
Item 2. Properties............................................................................. 15
Item 3. Legal Proceedings...................................................................... 15
Item 4. Submission of Matters to a Vote of Security Holders.................................... 15
Item 5. Market for Company's Common Stock and Related Stockholder Matters...................... 16
Item 6. Selected Financial Data................................................................ 16
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations.. 16
Item 7A. Quantitative and Qualitative Disclosures about Market Risk............................. 16
Item 8. Financial Statements and Supplementary Data............................................ 16
Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure... 16
Item 10. Directors and Executive Officers of the Company........................................ 17
Item 11. Executive Compensation................................................................. 17
Item 12. Security Ownership of Certain Beneficial Owners and Management......................... 17
Item 13. Certain Relationships and Related Transactions......................................... 17
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-k........................ 18
</TABLE>
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PART I
Item 1. Business.
Overview
Capital One Financial Corporation (the "Corporation"), is a holding
company, incorporated in Delaware on July 21, 1994, whose subsidiaries provide
a variety of products and services to consumers using its proprietary
information-based strategy ("IBS"). The Corporation's principal subsidiary,
Capital One Bank (the "Bank"), a limited-purpose Virginia state chartered
credit card bank, offers credit card products. The Bank originally conducted
its operations as a division of Signet Bank, a wholly-owned subsidiary of
Signet Banking Corporation ("Signet")(/1/). Capital One, F.S.B. (the "Savings
Bank"), a federally chartered savings bank, offers consumer lending and
deposit products. Capital One Services, Inc., another subsidiary of the
Corporation, provides various operating, administrative and other services to
the Corporation and its subsidiaries. Unless indicated otherwise, the terms
"Company", "we", "us", and "our" refer to the Corporation and its consolidated
subsidiaries and for periods prior to our separation from Signet Bank, Signet
Bank's credit card division.
We began operations in 1953 as part of Signet Bank, the same year as the
formation of what is now MasterCard International, and we are one of the
oldest continually operating bank card issuers in the United States. The Bank
separated from Signet on November 24, 1994 and became a subsidiary of the
Corporation. As of December 31, 1999, we had 23.7 million customers and $20.2
billion in managed consumer loans outstanding. We are among the ten largest
issuers of Visa and MasterCard credit cards in the United States based on
managed credit card loans outstanding as of December 31, 1999. The success of
our IBS, which we initiated in 1988, in addition to credit card industry
dynamics, has led to our growth in managed credit card loans and accounts.
In June 1996, we established the Savings Bank to expand our product
offerings and our relationship with our cardholders. The Savings Bank
currently takes deposits and offers a variety of credit card products and
installment loans. Through the Savings Bank, we expect to offer multiple
financial products and services to existing cardholders and other households
applying IBS and existing information technology systems.
We offer credit card products outside of the United States through a branch
of the Bank in the United Kingdom and several non-bank subsidiaries. We
currently have foreign operations primarily in the United Kingdom and Canada.
We may also, from time to time, consider establishing our business in
additional foreign jurisdictions as opportunities arise. We also offer various
non-card consumer lending products, automobile financing and
telecommunications services through our subsidiaries both in the United States
and elsewhere.
We use IBS to differentiate among customers based on credit risk, usage and
other characteristics and to match customer characteristics with appropriate
product offerings. IBS involves developing sophisticated models, information
systems, well-trained personnel and a flexible culture to create credit card
or other products and services that address the demands of changing consumer
and competitive markets. By actively testing a wide variety of product and
service features, marketing channels and other aspects of offerings, we design
customized solicitations that are targeted at various credit customer
segments, thereby enhancing customer response levels and maximizing returns on
investment within given underwriting parameters.
We build on information derived from our initial sources with continued
integrated testing and model development to improve the quality, performance
and profitability of our solicitation and account management initiatives. We
apply IBS to all areas of our business, including solicitations, account
management, credit line management, pricing strategies, usage stimulation,
collections, recoveries and account and balance retention.
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(1) Signet Bank and Signet Banking Corporation have since been acquired by
First Union National Bank and First Union Corporation, respectively, as of
November 30, 1997.
1
<PAGE>
Our common stock is listed on the New York Stock Exchange under the symbol
COF. Our principal executive office is located at 2980 Fairview Park Drive,
Suite 1300, Falls Church, Virginia 22042-4525 (telephone number (703) 205-
1000).
Business Segments
We maintain three distinct business segments: lending, telecommunications
and "other." The lending segment is comprised primarily of credit card lending
activities. The telecommunications segment consists primarily of direct
marketing wireless service. The "other" segment consists of various, non-
lending new business initiatives.
Lending
We offer a wide variety of credit card products throughout the United
States and internationally, including the United Kingdom and Canada. Applying
IBS, we customize our products to appeal to different consumer preferences and
needs by combining different product features, including annual percentage
rates, fees and credit limits, rewards programs and other special features. We
constantly test new products to develop packages that appeal to different and
changing consumer preferences. Our customized products include both products
targeted at a range of consumer credit risk profiles, such as low rate cards
and secured cards, as well as products aimed at special consumer interests,
such as affinity, co-brand and student cards. Our pricing strategies are risk-
based; lower risk customers may likely be offered products with more favorable
pricing and we expect these products to yield lower delinquencies and credit
losses. On products offered to many higher risk customers, however, we may
experience higher delinquencies and losses, and we price these products
accordingly. In general, however, IBS allows us to provide appropriate
products to individual consumers with a wide range of credit histories.
Additionally, we have been applying our IBS to other financial and non-
financial products and services. In 1998, we acquired Summit Acceptance
Corporation ("Summit"), an automobile finance lender located and incorporated
in Dallas, Texas. Summit offers loans, secured by automobiles, through dealer
networks throughout the United States. Summit is our platform to test and
apply IBS to the automobile loan market.
We have also expanded our existing operations outside of the United States,
and are currently operating primarily in the United Kingdom and Canada. We
have experienced continuing growth in the number of accounts and loan balances
in our international business with most of our growth coming from our business
in the United Kingdom. To support the continued growth of our United Kingdom
business and any future business in Europe, we opened a new operations center
in Nottingham, England in July 1998 and expanded it in early 1999.
Telecommunications
Through our subsidiary, America One Communications, Inc. ("America One"),
we resell analog and digital wireless services through direct marketing
channels. In 1999, we announced that we would change the focus of our efforts
to market telecommunications services. In the first half of 1999, America
One's primary business, the reselling of analog and digital wireless services
through direct marketing channels, began experiencing significant competitive
pressures in its markets. In response to these changing market conditions, we
have decreased our marketing investment in our core wireless markets and have
been testing wireless products and services in other market segments that are
not being adequately served by the major wireless telecommunications
competitors.
Geographic Diversity
Loan portfolio concentration within a specific geographic region or
demographic portion of the population may be regarded as positive or negative
based upon the current and expected credit characteristics and performance of
the portfolio. Our consumer loan portfolio is geographically diverse. See Note
O to Consolidated Financial Statements on page 68 of the Company's Annual
Report to its stockholders for the year ended December 31, 1999 (the "Annual
Report"), which is incorporated herein by reference.
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Operations
Marketing
IBS is the cornerstone of our marketing strategy, and since its
introduction in 1988 we have steadily increased our marketing efforts. We
generate accounts primarily through direct mail and telemarketing
solicitations, although we also solicit accounts through the internet,
newspaper, magazine, radio and television advertising and location and event
marketing. Many of our solicitations are targeted at potential customers that
have been prescreened for creditworthiness. We track and periodically review
the results of our various solicitation campaigns. In developing our targeting
strategies, we use customer information only in accordance with our privacy
policies and respect for the privacy of our customers and potential customers.
Risk Management
We employ a comprehensive risk management process that integrates all
aspects of an account's life cycle, from origination to closure. We have a
credit policy group that makes marketing and credit policy decisions. This
credit policy group consists of senior management representatives from the
credit operations, risk management, marketing and analysis, and legal units.
This group originates credit policy from the viewpoints of both profitability
and credit risk, based on prescreening criteria, proprietary model development
and usage, as well as reviews of test programs and test results. We review
significant test results before the widespread introduction of a tested policy
or product.
An important element of our risk management process is our sophisticated
screening process to target potential consumers which we have developed since
the introduction of IBS. We intend for our prescreening and underwriting
criteria to identify and avoid potential losses, however, we cannot identify
all potential losses. Management information systems and processes enable
management to monitor the effectiveness of prescreening and underwriting
criteria. We modify our criteria based on the results obtained from this
process.
Credit Operations
Senior management actively manages our credit extension process which is
designed to bring consistency in credit practices and operating efficiencies.
Our scoring technology and verification procedures are highly automated with
limited judgmental review. Our credit evaluation process is based on
proprietary models using, among other things, credit scores developed by
nationally recognized scoring firms which may be tailored to individual
programs. We validate, monitor and maintain these scores as part of IBS. The
scores provide us with a statistically measurable way to make decisions about
applications and to monitor an account throughout its life cycle to adjust
credit lines, pricing and collection policies.
Our prescreened account solicitation process uses information from credit
reporting agencies to identify consumers who are likely to be approved for a
credit card account. We vary the underwriting criteria used to prescreen
potential applicants from time to time in accordance with our established
policies and procedures relating to the operation of our consumer revolving
lending business. We may change such policies from time to time. In order to
establish the amount of the customer's credit line, we analyze, and in some
cases verify, the information on returned applications. We usually offer each
customer whose credit request meets all of the applicable underwriting
criteria a line of credit equal to or in excess of a minimum level we have
established for each product offering. We also may review manually
applications that are rejected by our credit scoring system because of
inconsistencies in application information, inquiries from rejected applicants
or for other reasons. Our credit analysts then have the ability to override
decisions made by the system upon the receipt of additional information from
an applicant or otherwise.
For non-pre-screened solicitations, we generate names of prospective
customers from a variety of sources, including third party list vendors and
our internal sources, and then edit the list using internal and external
sources to ensure quality and accuracy. We approve or decline prospective
customers who respond to a solicitation based on information from both their
application and one or more credit reporting agencies.
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<PAGE>
Account Management
We have found that active account management is necessary in order to
respond to the changing economic environment and cardholder risk, usage and
payment patterns. We apply new credit scores to each account multiple times
each year and new behavioral scores for open accounts each month. We use this
information in account management strategies relating to credit lines,
pricing, usage stimulation, retention and collection. For creditworthy and
profitable accounts, such periodic review may result in more favorable
pricing, higher credit lines or other enhancements which, based on testing,
are likely to increase account usage or the overall profitability of an
account. Conversely, for delinquent or other accounts with significant credit
risk, periodic review may result in an account being reassigned to a higher
risk category and hence not being eligible for credit line increases or, in
certain circumstances, having pricing adjusted upward or the credit line
reduced.
The IBS approach has helped us to develop our retention strategies. We have
developed integrated systems which evaluate account profitability and risk,
test various strategies for cost and effectiveness in retaining cardholders
and assist service representatives in negotiating potential pricing
alternatives. Some of our products, including the introductory interest rate
product and the balance transfer product, have a repricing feature after an
initial period. We have developed methodologies for retaining these accounts
and the balances in these accounts after the expiration of the initial period.
Collection Procedures
We have used IBS to customize our collections strategies and determine the
timing of collection activity based on models designed to predict charge-off
behavior. We generally consider an account delinquent if we have not received
a minimum payment by the accountholder's payment due date. We currently refer
delinquent accounts for contact by phone between seven and 60 days after
contractual delinquency, depending on the accountholder's risk profile. We
design our policies and procedures to encourage accountholders to pay
delinquent amounts; for example, once a delinquent account has re-established
a payment pattern with three consecutive minimum monthly payments, it can be
re-aged as current. Federal guidelines restrict how frequently an account can
be re-aged, renewed or extended. We reserve the right to suspend charging
privileges at any time after an account enters the collections process. We may
also, at our discretion, enter into arrangements with delinquent
accountholders to extend or otherwise change payment schedules.
We charge-off as uncollectible an account (net of collateral) at 180 days
past-due, except with respect to certain installment loans, which we charge-
off as uncollectible at 120 days past-due. In connection with a secured credit
card account, except as set forth below, we apply funds deposited as
collateral to payment on the account shortly before the account is charged off
as uncollectible. With respect to bankrupt customers, we charge-off the
account within 30 days after we receive the bankruptcy petition and, with
respect to secured credit card accounts, we apply funds deposited as
collateral in satisfaction of the account only after the bankruptcy automatic
stay is lifted. We charge-off accounts of deceased customers within 60 days of
receiving proper notice if no estate exists against which a proof of claim can
be filed, no other party remits payments or no other responsible party is
available. We may change our credit evaluation, servicing and charge-off
policies and collection practices over time in accordance with our business
judgment, applicable law and guidelines established by applicable regulatory
authorities.
Technology/Systems
A key part of our strategic focus is the development of flexible, high-
volume systems capable of handling our growth and changes in marketing and
account management strategies. Management believes that the continued
development and integration of these systems is important to our efforts to
reduce our operating costs and maintain a competitive advantage.
We have developed proprietary integrated systems which allow our employees
to manage the large volumes of data collected through the IBS process and to
use such data in our account solicitations, application processing,
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account management and retention strategies. We use this information to
predict consumer behavior and then match prospects to lending products with
various terms and fees. These systems also allow our customer service
representatives to access account specific information when responding to
customer inquiries.
Funding
Our primary methods of funding include loan securitizations, issuing
certificates of deposit, senior notes and other borrowings, and fed funds
purchased from financial institutions. For a discussion of our funding
program, see pages 29-30 and pages 38-39 of the Annual Report under the
respective headings "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Managed Consumer Loan Portfolio" and "--
Funding," which are incorporated herein by reference.
Competition
As a marketer of credit card products, we face intense competition in all
aspects of our business from numerous bank and non-bank providers of financial
services. Many of these companies are substantially larger and have more
resources than we do. We compete with international, national, regional and
local issuers of Visa and MasterCard credit cards. In addition, American
Express, Discover Card, Diner's Club and, to a certain extent, smart cards and
debit cards, represent additional competition in the general purpose credit
card market. In general, customers are attracted to credit card issuers
largely on the basis of price, credit limit and other product features and
customer loyalty is often limited. We believe that IBS allows us to more
effectively compete in both our current and new markets. There can be no
assurance, however, that our ability to market services successfully or to
obtain adequate yield on our loans will not be impacted by the nature of the
competition that now exists or may later develop.
In addition, we face competition in seeking public funding from banks,
savings banks, money market funds and a wide variety of other entities that
take deposits and/or sell debt securities, some of which are publicly traded.
Many of these companies are substantially larger, have more capital and other
resources and have better financial ratings than we do. Accordingly, there can
be no assurance that competition from these other borrowers will not increase
our cost of funds.
Employees
As of December 31, 1999, we employed 14,104 full-time and 239 part-time
employees, which we refer to as "associates." A central part of our philosophy
is to attract and maintain a highly capable staff. We view current associate
relations to be satisfactory. None of our associates are covered under
collective bargaining agreements.
Supervision and Regulation
General
The Bank is a banking corporation chartered under Virginia law and a member
of the Federal Reserve System, the deposits of which are insured by the Bank
Insurance Fund of the Federal Deposit Insurance Corporation (the "FDIC"). The
Bank is subject to comprehensive regulation and periodic examination by the
Bureau of Financial Institutions of the Virginia State Corporation Commission
(the "Bureau of Financial Institutions"), the Federal Reserve Board (the
"Federal Reserve"), the Federal Reserve Bank of Richmond, the FDIC and in the
case of the United Kingdom branch of the Bank, the Financial Services
Authority. The Bank is not a "bank" under the Bank Holding Company Act of
1956, as amended (the "BHCA"), because it (i) engages only in credit card
operations, (ii) does not accept demand deposits or deposits that the
depositor may withdraw by check or similar means for payment to third parties
or others, (iii) does not accept any savings or time deposits of less than
$100,000, other than as permitted as collateral for extensions of credit, (iv)
maintains only one office that accepts deposits and (v) does not engage in the
business of making commercial loans. Due to the Bank's
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status as a limited purpose credit card bank, our non-credit card operations
must be conducted in our other operating subsidiaries.
The Savings Bank is a federal savings bank chartered by the Office of
Thrift Supervision (the "OTS") and is a member of the Federal Home Loan Bank
System. Its deposits are insured by the Savings Association Insurance Fund of
the FDIC. The Savings Bank is subject to comprehensive regulation and periodic
examination by the OTS and the FDIC.
The Corporation is not a bank holding company under the BHCA as a result of
its ownership of the Bank because the Bank is not a "bank" as defined under
the BHCA. If the Bank failed to meet the credit card bank exemption criteria
described above, its status as an insured depository institution would make
the Corporation subject to the provisions of the BHCA, including certain
restrictions as to the types of business activities in which a bank holding
company and its affiliates may engage. Becoming a bank holding company under
the BHCA would affect the Corporation's ability to engage in certain non-
banking businesses. In addition, for purposes of the BHCA, if the Bank failed
to qualify for the credit card bank exemption, any entity that acquired direct
or indirect control of the Bank and also engaged in activities not permitted
for bank holding companies could be required either to discontinue the
impermissible activities or to divest itself of control of the Bank.
As a result of the Corporation's ownership of the Savings Bank, the
Corporation is a unitary savings and loan holding company subject to
regulation by the OTS and the provisions of the Savings and Loan Holding
Company Act. As a unitary savings and loan holding company, the Corporation
generally is not restricted under existing laws as to the types of business
activities in which it may engage so long as the Savings Bank continues to
meet the qualified thrift lender test (the "QTL Test"). If the Corporation
ceased to be a unitary savings and loan holding company as a result of its
acquisition of an additional savings institution, as a result of the failure
of the Savings Bank to meet the QTL Test, or as a result of a change in
control of the Savings Bank, the types of activities that the Corporation and
its non-savings association subsidiaries would be able to engage in would
generally be limited to those eligible for bank holding companies.
Under recently-enacted financial services modernization legislation
(discussed in detail below), bank holding companies may engage in an expanded
range of activities, including the securities and insurance businesses. To do
so, a bank holding company may voluntarily elect to become a new type of
company called a "financial holding company." While these changes are
significant in their impact upon the traditional banking, securities and
insurance industries, the impact upon us is less significant in light of the
fact that we are regulated as a unitary thrift holding company and not as a
bank holding company or a financial holding company. As a result, we may
engage in both the full range of activities authorized for bank or financial
holding companies, as well as additional non-banking activities typically
impermissible for such entities.
While the new financial modernization legislation does not impact the
permissible range of our activities, it does impose some limitations on the
future activities of unitary thrift holding companies. Existing unitary thrift
holding companies such as the Corporation are "grandfathered" with full powers
to continue and expand their current activities. Grandfathered unitary thrift
holding companies, however, may not be acquired by nonfinancial companies and
maintain their grandfathered powers. In addition, if a grandfathered unitary
thrift holding company is acquired by a financial company without such
grandfather rights, it may lose its ability to engage in certain non-banking
activities otherwise ineligible for bank holding companies or financial
holding companies.
The Corporation is also registered as a financial institution holding
company under Virginia law and as such is subject to periodic examination by
Virginia's Bureau of Financial Institutions.
Dividends and Transfers of Funds
The principal source of funds for the Corporation to pay dividends on
stock, make payments on debt securities and meet other obligations is
dividends from its direct and indirect subsidiaries. There are various federal
and Virginia law limitations on the extent to which the Bank and the Savings
Bank can finance or
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otherwise supply funds to the Corporation through dividends, loans or
otherwise. These limitations include minimum regulatory capital requirements,
Federal Reserve, OTS and Virginia law requirements concerning the payment of
dividends out of net profits or surplus, Sections 23A and 23B of the Federal
Reserve Act governing transactions between an insured depository institution
and its affiliates and general federal and Virginia regulatory oversight to
prevent unsafe or unsound practices. In general, federal banking laws prohibit
an insured depository institution, such as the Bank and the Savings Bank, from
making dividend distributions if such distributions are not paid out of
available earnings or would cause the institution to fail to meet applicable
capital adequacy standards. In addition, the Savings Bank is required to give
the OTS at least 30 days' advance notice of any proposed dividend. Under OTS
regulations, other limitations apply to the Savings Bank's ability to pay
dividends, the magnitude of which depends upon the extent to which the Savings
Bank meets its regulatory capital requirements. In addition, under Virginia
law, the Bureau of Financial Institutions may limit the payment of dividends
by the Bank if the Bureau of Financial Institutions determines that such a
limitation would be in the public interest and necessary for the Bank's safety
and soundness.
Capital Adequacy
The Bank and the Savings Bank are currently subject to capital adequacy
guidelines adopted by the Federal Reserve and the OTS, respectively. For a
further discussion of the capital adequacy guidelines, see page 40 of the
Annual Report under the heading "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Capital Adequacy" and Note J to
Consolidated Financial Statements on page 51, which are incorporated herein by
reference.
In June 1999, the Basle Committee on Banking Supervision issued for public
comment through March 31, 2000 a proposal to revise significantly the current
international capital adequacy accord. This proposal seeks to address more
precisely various underlying bank risks, to refine the risk weighting
currently given to various bank credit exposures and to recognize interest
rate and operational risk from a capital perspective. If ultimately adopted,
this proposal may require some banks to increase their current capital levels.
FDICIA
Among other things, the Federal Deposit Insurance Corporation Improvement
Act of 1991 ("FDICIA") requires federal bank regulatory authorities to take
"prompt corrective action" ("PCA") in respect of insured depository
institutions that do not meet minimum capital requirements. FDICIA establishes
five capital ratio levels: well-capitalized, adequately-capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized. The capital categories are determined solely for the
purposes of applying FDICIA's PCA provisions, as discussed below, and such
capital categories may not constitute an accurate representation of the
overall financial condition or prospects of the Bank or the Savings Bank. As
of December 31, 1999, each of the Bank and the Savings Bank met the
requirements for a "well-capitalized" institution. A "well-capitalized"
classification should not necessarily be viewed as describing the condition or
future prospects of a depository institution, including the Bank and the
Savings Bank.
Under FDICIA's PCA system, an insured depository institution in the
"undercapitalized category" must submit a capital restoration plan guaranteed
by its parent company. The liability of the parent company under any such
guarantee is limited to the lesser of 5.00% of the insured depository
institution's assets at the time it became undercapitalized, or the amount
needed to comply with the plan. An insured depository institution in the
undercapitalized category also is subject to limitations in numerous areas
including, but not limited to, asset growth, acquisitions, branching, new
business lines, acceptance of brokered deposits and borrowings from the
Federal Reserve. Progressively more burdensome restrictions are applied to
insured depository institutions in the undercapitalized category that fail to
submit or implement a capital plan and to insured depository institutions that
are in the significantly undercapitalized or critically undercapitalized
categories. In addition, an insured depository institution's primary federal
banking agency is authorized to downgrade the institution's capital category
to the next lower category upon a determination that the institution is in an
unsafe or unsound condition or is engaged in an unsafe or unsound practice. An
unsafe or unsound practice can include receipt by the
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institution of a less than satisfactory rating on its most recent examination
with respect to its capital, asset quality, management, earnings or liquidity.
"Critically undercapitalized" insured depository institutions (which are
defined to include institutions that still have a positive net worth) may not,
beginning 60 days after becoming critically undercapitalized, make any payment
of principal or interest on their subordinated debt (subject to certain
limited exceptions). Thus, in the event an institution became critically
undercapitalized, it would generally be prohibited from making payments on its
subordinated debt securities. In addition, critically undercapitalized
institutions are subject to appointment of a receiver or conservator.
FDICIA also requires the FDIC to implement a system of risk-based premiums
for deposit insurance pursuant to which the premiums paid by a depository
institution will be based on the probability that the FDIC will incur a loss
in respect of such institution. The FDIC has since adopted a system that
imposes insurance premiums based upon a matrix that takes into account an
institution's capital level and supervisory rating.
The Bank and the Savings Bank may accept brokered deposits as part of their
funding. Under FDICIA, only "well-capitalized" and "adequately-capitalized"
institutions may accept brokered deposits. Adequately-capitalized
institutions, however, must first obtain a waiver from the FDIC before
accepting brokered deposits, and such deposits may not pay rates that
significantly exceed the rates paid on deposits of similar maturity from the
institution's normal market area or the national rate on deposits of
comparable maturity, as determined by the FDIC, for deposits from outside the
institution's normal market area.
Liability for Commonly-Controlled Institutions
Under the "cross-guarantee" provision of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989 ("FIRREA"), insured depository
institutions such as the Bank and the Savings Bank may be liable to the FDIC
in respect of any loss or reasonably anticipated loss incurred by the FDIC
resulting from the default of, or FDIC assistance to, any commonly controlled
insured depository institution. The Bank and the Savings Bank are commonly
controlled within the meaning of the FIRREA cross-guarantee provision.
Investment Limitation and Qualified Thrift Lender Test
Federally-chartered savings banks such as the Savings Bank are subject to
certain investment limitations. For example, federal savings banks are not
permitted to make consumer loans (i.e., certain open-end or closed-end loans
for personal, family or household purposes, excluding credit card loans) in
excess of 35% of the savings bank's assets. Federal savings banks are also
required to meet the QTL Test, which generally requires a savings bank to
maintain at least 65% "portfolio assets" (total assets less (i) specified
liquid assets up to 20% of total assets, (ii) intangibles, including goodwill
and (iii) property used to conduct business) in certain "qualified thrift
investments" (residential mortgages and related investments, including certain
mortgage backed and mortgage related investments, small business related
securities, certain state and federal housing investments, education loans and
credit card loans) on a monthly basis in nine out of every 12 months. Failure
to qualify under the QTL Test could subject the Savings Bank to substantial
restrictions on its activities, including the activity restrictions that apply
generally to bank holding companies and their affiliates and potential loss of
grandfathered rights under the Gramm-Leach-Bliley Act. As of December 31,
1999, 81.44 % of the Savings Bank's portfolio assets were held in qualified
thrift investments, and the Savings Bank was in compliance with the QTL Test.
Regulation of Lending Activities
The activities of the Bank and the Savings Bank as consumer lenders also
are subject to extensive regulation under various federal laws including the
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Community Reinvestment Act and the Soldiers' and Sailors'
Civil Relief Act, as well as to various state laws. Regulators are authorized
to impose penalties for violations of these statutes and, in certain
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cases, to order the Bank and the Savings Bank to pay restitution to injured
borrowers. Borrowers may also bring actions for certain violations. Federal
bankruptcy and state debtor relief and collection laws also affect the ability
of the Bank and the Savings Bank to collect outstanding balances owed by
borrowers who seek relief under these statutes.
Year 2000
On October 15, 1998, the Office of the Comptroller of the Currency--
Department of Treasury, the Federal Reserve, the FDIC and the OTS--Department
of Treasury, together published Interagency Guidelines establishing Year 2000
Standards for Safety and Soundness. These were made effective November 2,
1998, by the Federal Reserve (Amendments to Regulation H Membership of State
Banking Institutions in the Federal Reserve System, Appendix D-2--Interagency
Guidelines Establishing Year 2000 Standards for Safety and Soundness) (the
"Standards"). Among other things, the Standards required components and
timetables for the review of mission critical systems for year 2000 readiness,
renovation of internal and external mission critical systems, testing of
mission critical systems, business resumption contingency planning,
remediation contingency planning, customer risk assessment and involvement of
the board of directors and management. Our year 2000 plan is subject to and in
compliance with the Standards. For a further discussion of our preparation for
the year 2000 and the continuing impact of those preparations since January 1,
2000, see page 44 of the Annual Report under the heading "Management's
Discussion and Analysis of Financial Condition and Results of Operations--
Business Outlook--The Year 2000 Issue."
Legislation
On November 12, 1999, President Clinton signed into law the Gramm-Leach-
Bliley Financial Services Modernization Act of 1999 (the "Act"). The principal
purpose of the Act is to permit greater affiliations within the financial
services industry, primarily banking, securities and insurance. The Act
repeals the Glass-Steagall Act, which separated commercial banking from
investment banking, and substantially amends the BHCA, which limited the
ability of bank holding companies to engage in the securities and insurance
businesses. To achieve this purpose, the Act creates a new type of company,
the "financial holding company." While these laws go into effect on March 11,
2000, the Federal Reserve Board is accepting public comment on proposed
implementing regulations until March 27, 2000. While this aspect of the Act is
significant in its impact upon the traditional banking, securities and
insurance industries, the impact of these provisions on us is less significant
in light of our current corporate structure. Because the Corporation is a
unitary thrift holding company and owns a limited-purpose credit card bank, it
is not regulated as a bank holding company. Therefore, we were already able to
engage in the full range of activities authorized by the Act, as well as non-
banking activities not available to financial holding companies. The Act does
impose certain limitations on the transferability of unitary thrift holding
companies. See, "Supervision and Regulation--General".
The Act also contains certain consumer privacy provisions relating to the
use of customer information. These provisions will be implemented by final
regulations that are due on May 12, 2000. Under those regulations, financial
institutions will be required to establish privacy policies regarding the
kinds of customer information they collect and the way they use that
information and provide such information to customers on a regular basis. In
addition, financial institutions will be required to give customers the right
to block the sharing of this information with unaffiliated companies, subject
to certain exceptions. Lastly, financial institutions will be prohibited from
sharing account numbers or access codes with unaffiliated companies for
marketing purposes.
In addition, the Act permits a limited-purpose credit card bank such as the
Bank to establish one or more foreign banking subsidiaries that are not
subject to the business-line limitations credit card banks face domestically.
Therefore, such foreign banking subsidiaries could engage in non-credit-card
lending and could accept retail deposits overseas.
Legislation has also been introduced requiring additional credit card
disclosures and that could otherwise restrict practices of credit card
issuers. Additional proposals have sought to change existing federal
bankruptcy
9
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laws and to expand the privacy protections afforded to customers of financial
institutions. It is unclear at this time whether and in what form any such
legislation will be adopted or, if adopted, what its impact on the Bank, the
Savings Bank or the Corporation would be. Congress may in the future consider
other legislation that would materially affect the banking or credit card
industries.
Privacy
The Act also requires a financial institution to disclose its privacy
policy to customers and consumers, and requires that such customers and
consumers be given a choice (through an opt-out notice) to forbid the sharing
of their nonpublic personal information with nonaffiliated third persons. We
have a written Privacy Statement posted on our web site, which we make
available to all of our customers. Pursuant to that policy, we protect the
security of our customers' information, educate our employees about the
importance of protecting customer privacy and allow our customers to remove
their names from the solicitation lists we use and share with others. We ask
business partners with whom we share such information to abide by our privacy
policy. We are also developing and implementing programs to provide the
required opt-out notice universally. As our regulators establish further
guidelines for addressing customer privacy issues, we may need to amend our
Privacy Statement and adapt our internal procedures.
In addition to adopting federal requirements regarding privacy, the Act
also permits individual states to enact stricter laws relating to the use of
customer information. Many states are expected to consider such proposals
which may impose additional requirements or restrictions on us.
Investment in the Corporation, the Bank and the Savings Bank
Certain acquisitions of capital stock may be subject to regulatory approval
or notice under federal or Virginia law. Investors are responsible for
insuring that they do not, directly or indirectly, acquire shares of capital
stock of the Corporation in excess of the amount which can be acquired without
regulatory approval.
The Bank and the Savings Bank are each "insured depository institutions"
within the meaning of the Change in Bank Control Act. Consequently, federal
law and regulations prohibit any person or company from acquiring control of
the Company without, in most cases, prior written approval of the Federal
Reserve or the OTS, as applicable. Control is conclusively presumed if, among
other things, a person or company acquires more than 25% of any class of
voting stock of the Corporation. A rebuttable presumption of control arises if
a person or company acquires more than 10% of any class of voting stock and is
subject to any of a number of specified "control factors" as set forth in the
applicable regulations.
Although the Bank is not a "bank" within the meaning of Virginia's
reciprocal interstate banking legislation (Chapter 15 of Title 6.1 of the Code
of Virginia), it is a "bank" within the meaning of Chapter 13 of Title 6.1 of
the Code of Virginia governing the acquisition of interests in Virginia
financial institutions (the "Financial Institution Holding Company Act"). The
Financial Institution Holding Company Act prohibits any person or entity from
acquiring, or making any public offer to acquire, control of a Virginia
financial institution or its holding company without making application to,
and receiving prior approval from, the Bureau of Financial Institutions.
Interstate Taxation
Several states have passed legislation which attempts to tax the income
from interstate financial activities, including credit cards, derived from
accounts held by local state residents. Based on the volume of its business in
these states and the nature of the legislation passed to date, we currently
believe that this development will not materially affect our financial
condition. The states may also consider legislation to tax income derived from
transactions conducted through the Internet. We currently solicit accounts and
take account information via the Internet. It is unclear at this time,
however, whether and in what form any such legislation will be adopted or, if
adopted, what its impact on us would be.
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International Regulation
We also face regulation in the foreign jurisdictions where we currently,
and may in the future, operate. Those regulations may be similar to or
substantially different from the regulatory requirements we face in the United
States. In the United Kingdom, we are regulated by the Financial Services
Administration.
In the United Kingdom, we operate through a branch of the Bank (the "UK
Branch"). The UK Branch is regulated by the Financial Services Authority and
the Office of Fair Trading (the "OFT"). The UK Branch is an "authorized
deposit taker" under the Banking Act of 1987 and thus is able to take consumer
deposits in the UK. The UK Branch has also been granted full license by the
OFT to issue consumer credit under the Consumer Credit Act of 1974. Because
the UK Branch is part of the Bank, it is also regulated by the US regulatory
authorities and is subject to all of the regulations and operational
restrictions discussed above.
Risk Factors
This Annual Report on Form 10-K contains forward-looking statements. We
also may make written or oral forward-looking statements in our periodic
reports to the Securities and Exchange Commission on Forms 10-Q and 8-K, in
our annual report to shareholders, in our proxy statements, in our offering
circulars and prospectuses, in press releases and other written materials and
in oral statements made by our officers, directors or employees to third
parties. Statements that are not historical facts, including statements about
our beliefs and expectations, are forward-looking statements. Forward-looking
statements include information relating to growth in earnings per share,
return on equity, growth in managed loans outstanding and customer accounts,
net interest margins, funding costs, operations costs and employment growth,
marketing expense, delinquencies and charge-offs. Forward-looking statements
also include statements using words such as "expect," "anticipate," "intend,"
"plan," "believe," "estimate" or similar expressions. These statements are
based on current plans, estimates and projections, and therefore you should
not place undue reliance on them.
Although we have tried to discuss key factors, please be aware that other
risks may prove to be important in the future. New risks may emerge at any
time and we cannot predict such risks or estimate the extent to which they may
affect our financial performance.
Forward-looking statements are not guarantees of future performance. They
involve risks, uncertainties and assumptions, including the risks discussed
below. Our future performance and actual results may differ materially from
those expressed in these forward-looking statements. Many of the factors that
will determine these results and values are beyond our ability to control or
predict. This section highlights specific risks that could affect us and our
business.
We Face Intense Competition in all of our Markets
We face intense competition from many other providers of credit cards and
other financial products and services. In particular, we compete with
international, national, regional and local bank card issuers, and with other
general purpose credit or charge card issuers. In addition, the recently
enacted Gramm-Leach-Bliley Financial Services Modernization Act of 1999, which
permits greater affiliations between banks, securities firms and insurance
companies may increase competition in the financial services industry,
including in the credit card business. Increased competition has resulted in,
and may continue to cause, a decrease in credit card response rates and
reduced productivity of marketing dollars invested in certain lines of
business. Other credit card companies may compete with us for customers by
offering lower interest rates and fees. Because customers generally choose
credit card issuers based on price (mostly interest rates and fees), credit
limit and other product features, customer loyalty is limited. We may lose
entire accounts, or may lose account balances, to competing card issuers.
In the past, we have faced intense competition primarily in the market for
our low introductory rate credit cards. Recently, however, the competition
with our other credit card products, such as our low fixed-rate cards, secured
cards and other customized cards, has also become more intense. The cost to
acquire new accounts varies along business lines and is expected to rise as we
move beyond the domestic card market. We expect that competition will continue
to grow more intense with respect to all of our products, including our
products in the United Kingdom and Canada.
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Our Accounts and Loan Balances Will Fluctuate
Our accounts and loan balances and the rate at which they grow are affected
by a number of factors, including how we allocate our marketing investment
among different products and the rate at which customers transfer their
accounts and loan balances to competing card issuers. Accounts and loan
balances are also affected by general economic conditions, which may increase
or decrease the amount of spending by customers, their ability to repay their
loans, and other factors beyond our control.
Because we designed our IBS to take advantage of market opportunities, we
cannot forecast how we will spend our marketing funds and on which products.
Likewise, our account and loan balance growth is affected by many factors,
including the ones mentioned above. Our results, therefore, will vary as
marketing investments, accounts and loan balances fluctuate.
It is Difficult to Sustain and Manage Growth
Our growth strategy is threefold. First, we seek to continue to grow our
domestic credit card business. Second, we desire to grow our lending business
internationally, in the United Kingdom, Canada and beyond. Third, we hope to
identify and pursue new business opportunities, both financial and non-
financial. Our management believes that, through IBS, we achieve these
objectives. However, there are a number of factors that can affect our ability
to do so including:
. our ability to retain existing customers and to attract new customers;
. the growth of existing and new account balances;
. the delinquency and charge-off levels of accounts;
. the availability of funding on favorable terms;
. the amount of funds available for marketing to solicit new customers;
. general economic and other factors;
. the legal and regulatory environment;
. a favorable interest rate environment;
. our ability to build or acquire the necessary operational and
organizational infrastructure;
. the ability to manage expenses as we expand; and
. our ability to recruit experienced management and operations personnel.
Our expansion internationally is affected by additional factors such as
limited access to information, differences in cultural attitudes toward
credit, new regulatory and legislative environments and differences from the
historical experience of portfolio performance in the United States and other
countries.
Difficulties or delays in the development, production, testing and
marketing of new products or services will affect the success of such products
or services and can cause losses associated with the costs to develop
unsuccessful products and services. Such difficulties could include:
. failure to implement new product or service programs on time;
. failure of customers to accept these products or services;
. operational difficulties or delays;
. losses arising from the testing of new products or services; and
. legal and other difficulties.
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In addition, our new products and services may not achieve the same
financial results as we have achieved in the past from our credit card
business.
We May Experience Limited Availability of Financing and Variation in our
Funding Costs
Like most credit card companies, our primary source of funding is the
securitization of consumer loans. Securitization transactions involve the sale
of beneficial interests in consumer loan balances. Our ability to use
securitization funding depends on how difficult and expensive such funding is.
Until now, we have completed securitization transactions on terms that we
believe are acceptable. However, securitizations can be affected by many
factors. Economic, legal, regulatory, accounting and tax changes can make
securitization funding more difficult, more expensive or unavailable on any
terms both domestically and internationally, where the securitization of
consumer loans may be on terms more or less favorable than in the United
States. Securitizations may not always be an attractive source of funding for
us, and we may have to seek other more expensive funding sources in the
future.
In general, the amount, type and cost of our financing, including financing
from other financial institutions, the capital markets and deposits, affects
our financial results. A number of factors could make such financing more
difficult, more expensive or unavailable including, but not limited to,
changes within our organization, changes in the activities of our business
partners, changes affecting our investments, interest rate fluctuations and
regulatory changes. In addition, we compete for funding with other banks,
savings banks and similar companies. Some of these institutions are publicly
traded. Many of these institutions are substantially larger, have more capital
and other resources and have better financial ratings than we do. Competition
from these other borrowers may increase our cost of funds. Events that disrupt
capital markets and other factors beyond our control could also make our
funding sources more expensive or unavailable.
We May Experience Increased Delinquencies and Credit Losses
Like other consumer lenders, we face the risk that accounts become
uncollectible because accountholders will not repay their loans. Consumers who
miss payments on their loans often fail to repay them, and consumers who file
for protection under the bankruptcy laws generally do not repay their loans.
Therefore, the rate of missed payments, or "delinquencies," on our portfolio
of loans, and the rate at which consumers may be expected to file for
bankruptcy, can be used to predict the future rate at which we charge-off our
consumer loans. A high charge-off rate would hurt our financial performance,
the performance of our securitizations and our cost of funds.
Widespread increases in past-due payments and nonpayment are most likely to
occur if the country or a regional area encounters an economic downturn, such
as a recession, but they could also occur for other reasons. For example,
fraud can cause losses. In addition, the age and rate of growth, or
"seasoning," of a consumer loan portfolio also increases the rate of
nonpayment and past-due payments. If we make fewer loans than we have in the
past, the proportion of new loans in our portfolio will decrease and the
delinquency rate and charge-off rate may increase. Therefore, the seasoning of
accounts may require higher loan loss provisions and reserves. This would
reduce our earnings unless offset by other changes.
In addition, we market many of our products to underserved markets, which
may have less experience with credit risk and performance. These markets, in
some cases, also have higher delinquency and charge-off rates. Although we
believe that IBS can help us effectively price these products in relation to
their risk, we may not set high enough fees and rates for these accounts to
offset the higher delinquency and loss rates we may experience.
We Face Risk From Economic Downturns and Social Factors
Delinquencies and credit losses in the credit card industry generally
increase during periods of an economic downturn or recession. Likewise,
consumer demand may decline during an economic downturn or recession.
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Accordingly, an economic downturn or recession (either local or national) can
hurt our financial performance as accountholders default on their loans or
carry lower balances. As we increasingly market our cards internationally, an
economic downturn or recession outside the United States also could hurt our
financial performance. A variety of social factors also may cause changes in
credit card use, payment patterns and the rate of defaults by accountholders.
Social factors include changes in consumer confidence levels, the public's
perception of the use of credit cards and changing attitudes about incurring
debt and the stigma of personal bankruptcy. We believe that we can manage
these risks through our underwriting criteria and product design.
Nevertheless, underwriting criteria and design may not be enough to protect
our growth and profitability during a sustained period of economic downturn or
recession or a material shift in social attitudes.
We Face Risk of Interest Rate Fluctuations
Like other financial institutions, we borrow money from institutions and
depositors in order to lend money to customers. We earn interest on the
consumer loans we make, and pay interest on the deposits and borrowings we use
to fund those loans. The difference between these two interest rates affects
the value of our assets and liabilities. If the rate of interest we pay on our
borrowings increases more than the rate of interest we earn on our loans, our
earnings could fall. Our earnings could also be hurt if the rates on our
consumer loans fall more quickly than those on our borrowings.
We manage the risk of interest rate fluctuations through various financial
instruments and techniques, such as asset/liability matching, interest rate
swaps and similar financial instruments, hedging and other techniques. The
goal is to maintain an interest rate neutral or "matched" position, where
interest rates on loans and borrowings go up or down by the same amount and at
the same time. We cannot, however, always achieve this position at a
reasonable cost. Furthermore, if these techniques become unavailable or
impractical, our earnings could be hurt.
We also manage these risks partly by changing the interest rates we charge
on our customer accounts. The success of repricing accounts to match an
increase or decrease in our borrowing rates depends on the overall product mix
of such accounts, the actual amount of accounts repriced, the rate at which we
are originating new accounts and our ability to retain accounts (and the
related loan balances) after repricing. For example, if we increase the
interest rate we charge on our consumer loan accounts and the accountholders
close their accounts as a result, we won't be able to match our increased
borrowing costs as quickly if at all.
Regulation and Legislation Can Change
Federal and state laws and rules significantly limit the types of
activities in which we engage. For example, federal and state consumer
protection laws and rules limit the manner in which we may offer and extend
credit. From time to time, the United States Congress and the states consider
changing these laws and may enact new laws or amend existing laws to regulate
further the consumer lending industry. Such new laws or rules could limit the
amount of interest or fees we can charge, restrict our ability to collect on
account balances, or materially affect us or the banking or credit card
industries in some other manner. Additional federal and state consumer
protection legislation also could seek to expand the privacy protections
afforded to customers of financial institutions and restrict our ability to
share customer information.
The laws governing bankruptcy and debtor relief also could change, making
it more expensive or more difficult for us to collect from our customers.
Congress currently is considering legislation that would change the existing
federal bankruptcy laws. One intended purpose of this legislation is to
increase the collectibility of unsecured debt, however it is not clear whether
or in what form Congress may adopt this legislation and we cannot predict how
this legislation may affect us.
In addition, the existing laws and rules are complex. If we fail to comply
with them we might not be able to collect our loans in full, or we might be
required to pay damages or penalties to our customers. For these reasons, new
or changes in existing laws or rules could hurt our profits.
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Our Expenses and Other Costs Will Fluctuate
Our expenses and other costs, such as human resources and marketing
expenses, directly affect our earnings results. Many factors can influence the
amount of our expenses, as well has how quickly they grow. As our business
develops, changes or expands, additional expenses can arise from asset
purchases, structural reorganization or a reevaluation of business strategies.
Other factors that can affect expenses include legal and administrative cases
and proceedings, which can be expensive to pursue or defend. In addition,
accounting policies that change can significantly affect how we calculate
expenses and earnings.
Statistical Information
The statistical information required by Item 1 can be found in our Annual
Report, and is incorporated herein by reference, as follows:
<TABLE>
<CAPTION>
Page In The Company's Annual
Report To Its Stockholders For
Guide 3 Disclosure The Year Ended December 31, 1999
------------------ --------------------------------
<S> <C> <C>
I. Distribution of Assets, Liabilities
and Stockholders' Equity;
Interest Rates and Interest
Differential.......................... 30-35
II. Investment Portfolio.................. 55
III. Loan Portfolio........................ 29-30, 35-38, 41, 66
IV. Summary of Loan Loss Experience....... 36-38, 56
V. Deposits.............................. 33, 38-39
VI. Return on Equity and Assets........... 27
VII. Other Borrowings...................... 38-40
</TABLE>
Item 2. Properties
We lease our principal executive office at 2980 Fairview Park Drive, Suite
1300, Falls Church, Virginia. We lease our principal executive office at 2980
Fairview Park Drive, Suite 1300, Falls Church, Virginia, consisting of
approximately 43,400 square feet. The lease commenced January 1, 1995 and we
have exercised an option to extend the lease until February 28, 2005.
We own administrative offices and credit card facilities in Richmond,
Virginia, consisting of approximately 470,000 square feet, from which we
conduct our credit, collections, customer service and other operations. We
also lease additional facilities consisting of an aggregate of approximately
3,311,601 square feet (excluding the principal executive office) from which
credit, collections, customer service and other operations are conducted,
primarily in Virginia, Florida, Texas, Idaho, Washington and the United
Kingdom. We also own a facility in Tampa, Florida, consisting of approximately
118,624 square feet and another facility in Nottingham, Great Britain,
consisting of approximately 267,000 square feet. We expect to lease or
purchase additional facilities in Virginia, Washington and the United Kingdom
consisting of an aggregate of approximately 650,000 square feet in 2000.
Item 3. Legal Proceedings
The information required by Item 3 is included in the Annual Report on
pages 64-65 under the heading "Notes to Consolidated Financial Statements--
Note K--Commitments and Contingencies."
Item 4. Submission of Matters To a Vote of Security Holders
During the fourth quarter of our fiscal year ending December 31, 1999, no
matters were submitted to a vote of our stockholders.
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PART II
Item 5. Market For Company's Common Stock And Related Stockholder Matters.
The information required by Item 5 is included under "Supervision and
Regulation--Dividends and Transfers of Funds" herein and in the Annual Report
on pages 38-40 under the headings "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Funding" and "--Capital
Adequacy," on page 45 under the heading "Selected Quarterly Financial Data"
and on pages 64-65 in Note K to Consolidated Financial Statements, and is
incorporated herein by reference and filed as part of Exhibit 13.
Item 6. Selected Financial Data.
The information required by Item 6 is included in the Annual Report on page
27 under the heading "Selected Financial and Operating Data," and is
incorporated herein by reference and filed as part of Exhibit 13.
Item 7. Management's Discussion And Analysis Of Financial Condition And
Results Of Operations.
The information required by Item 7 is included in the Annual Report on
pages 28-44 under the heading "Management's Discussion and Analysis of
Financial Condition and Results of Operations," and is incorporated herein by
reference and filed as part of Exhibit 13.
Item 7A. Quantitative And Qualitative Disclosures About Market Risk.
The information required by Item 7A is included in the Annual Report on
page 41 under the heading "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Interest Rate Sensitivity," and is
incorporated herein by reference and filed as part of Exhibit 13.
Item 8. Financial Statements And Supplementary Data.
The information required by Item 8 is included in the Annual Report on page
47 under the heading "Report of Independent Auditors," on pages 48-68 under
the headings "Consolidated Balance Sheets," "Consolidated Statements of
Income," "Consolidated Statements of Changes in Stockholders' Equity,"
"Consolidated Statements of Cash Flows" and "Notes to Consolidated Financial
Statements" and on page 45 under the heading "Selected Quarterly Financial
Data," and is incorporated herein by reference and filed as part of
Exhibit 13.
Item 9. Changes In And Disagreements With Accountants On Accounting And
Financial Disclosure.
Not applicable.
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PART III
Item 10. Directors And Executive Officers Of The Company.
The information required by Item 10 is included in the Company's 1999 Proxy
Statement (the "Proxy Statement") on pages 6-8 under the heading "Information
About Our Directors and Executive Officers" and on page 5 under the heading
"Information About Capital One's Common Stock Ownership--Section 16(a)
Beneficial Ownership Reporting Compliance," and is incorporated herein by
reference. The Proxy Statement will be filed with the Securities and Exchange
Commission pursuant to Regulation 14A within 120 days of the end of the
Corporation's 1999 fiscal year.
Item 11. Executive Compensation.
The information required by Item 11 is included in the Proxy Statement on
page 9 under the heading "Information About Our Directors and Executive
Officers--Compensation of the Board," on pages 11-16 under the heading
"Compensation of Executive Officers" and on pages 18-22 under the heading
"Report on Executive Compensation of the Compensation Committee," and is
incorporated herein by reference.
Item 12. Security Ownership Of Certain Beneficial Owners And Management.
The information required by Item 12 is included in the Proxy Statement on
page 4 under the heading "Information About Capital One's Common Stock
Ownership," and is incorporated herein by reference.
Item 13. Certain Relationships And Related Transactions
The information required by Item 13 is included in the Proxy Statement on
page 10 under the heading "Information About Our Directors and Executive
Officers--Related Party Transactions with Directors," and is incorporated
herein by reference.
17
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules And Reports On Form 8-K
(a) (1) The following consolidated financial statements of Capital One
Financial Corporation, included in the Annual Report, are incorporated herein
by reference in Item 8:
Report of Independent Auditors, Ernst & Young LLP
Consolidated Balance Sheets--As of December 31, 1999 and 1998
Consolidated Statements of Income--Years ended December 31, 1999, 1998 and
1997
Consolidated Statements of Changes in Stockholders' Equity--Years ended
December 31, 1999, 1998 and 1997
Consolidated Statements of Cash Flows--Years ended December 31, 1999, 1998
and 1997
Notes to Consolidated Financial Statements
Selected Quarterly Financial Data--As of and for the years ended
December 31, 1999 and 1998
(2) All schedules are omitted since the required information is either not
applicable, not deemed material, or is shown in the respective financial
statements or in notes thereto.
(3) Exhibits:
18
<PAGE>
The following exhibits are incorporated by reference or filed herewith.
References to (i) the "1994 Form 10-K" are to the Company's Annual Report on
Form 10-K for the year ended December 31, 1994; (ii) the "1995 Form 10-K" are
to the Company's Annual Report on Form 10-K for the year ended December 31,
1995; (iii) the "1996 Form 10-K" are to the Company's Annual Report on Form
10-K for the year ended December 31, 1996; (iv) the "1997 Form 10-K" are to
the Company's Annual Report on Form 10-K for the year ended December 31, 1997;
and (v) the "1998 Form 10-K" are to the Company's Annual Report on Form 10-K
for the year ended December 31, 1998.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
3.1 Restated Certificate of Incorporation of Capital One Financial Corporation
(incorporated by reference to Exhibit 3.1 of the 1994 Form 10-K).
3.2 Amended and Restated Bylaws of Capital One Financial Corporation (as amended
November 18, 1999).
4.1 Specimen certificate representing the Common Stock (incorporated by reference to
Exhibit 4.1 of the 1997 Form 10-K).
4.2.1 Rights Agreement dated as of November 16, 1995 between Capital One Financial
Corporation and Mellon Bank, N.A. (incorporated by reference to Exhibit 4.1 of
the Company's Report on Form 8-K, filed November 16, 1995).
4.2.2 Amendment to Rights Agreement dated as of April 29, 1999 between Capital One
Financial Corporation and First Chicago Trust Company of New York, as successor
to Mellon Bank, N.A.
4.3 Amended and Restated Issuing and Paying Agency Agreement dated as of April 30,
1996 between Capital One Bank and Chemical Bank (including exhibits A-1, A-2, A-
3 and A-4 thereto) (incorporated by reference to Exhibit 4.1 of the Company's
quarterly report on Form 10-Q for the period ending June 30, 1996).
4.4 Issuing and Paying Agency Agreement dated as of April 30, 1996 between Capital
One Bank and Chemical Bank (including exhibits A-1 and A-2 thereto)
(incorporated by reference to Exhibit 4.2 of the Company's quarterly report on
Form 10-Q for the period ending June 30, 1996).
4.5.1 Senior Indenture and Form T-1 dated as of November 1, 1996 among Capital One
Financial Corporation and Harris Trust and Savings Bank (incorporated by
reference to Exhibit 4.1 of the Company's Report on Form 8-K, filed November 13,
1996).
4.5.2 Copy of 7.25% Notes Due 2003 (incorporated by reference to Exhibit 4.5.2 of the
1996 Form 10-K).
4.6.1 Declaration of Trust, dated as of January 28, 1997, between Capital One Bank and
The First National Bank of Chicago, as trustee (including the Certificate of
Trust executed by First Chicago Delaware Inc., as Delaware trustee)
(incorporated by reference to Exhibit 4.6.1 of the 1996 Form 10-K).
4.6.2 Copies of Certificates Evidencing Capital Securities (incorporated by reference
to Exhibit 4.6.2 of the 1996 Form 10-K).
4.6.3 Amended and Restated Declaration of Trust, dated as of January 31, 1997, by and
among Capital One Bank, The First National Bank of Chicago and First Chicago
Delaware Inc. (incorporated by reference To Exhibit 4.6.3 of the 1996 Form 10-
K).
4.7 Indenture, dated as of January 31, 1997, between Capital One Bank and The First
National Bank of Chicago (incorporated by reference to Exhibit 4.7 of the 1996
Form 10-K).
4.8 Copy of 7 1/8% Notes due 2008 (incorporated by reference to Exhibit 4.8 of the
1998 Form 10-K).
4.9 Issue and Paying Agency Agreement dated as of October 24, 1997 between Capital
One Bank, Morgan Guaranty Trust Company of New York, London Office, and the
Paying Agents named therein (incorporated by reference to Exhibit 4.9 of the
1998 Form 10-K).
4.10 Copy of 7% Notes due 2006.
</TABLE>
19
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
10.1.1 Amended and Restated Distribution Agreement dated April 30, 1996 among Capital
One Bank and the agents named therein (incorporated by reference to Exhibit 10.1
of the Company's quarterly Report on Form 10-Q for period ending June 30, 1996).
10.1.2 Amendment to Amended and Restated Distribution Agreement dated April 21, 1998
among Capital One Bank and the agents named therein (incorporated by reference
to Exhibit 10.1.1 of the 1998 Form 10-K).
10.1.3 Second Amendment to Amended and Restated Distribution Agreement dated April 30,
1999 among Capital One Bank and the agents named therein.
10.2.1 Distribution Agreement dated April 30, 1996, among Capital One Bank and the
agents named therein (incorporated by reference to Exhibit 10.2 of the Company's
quarterly report on Form 10-Q for period ending June 30, 1996).
10.2.2 Amendment to Distribution Agreement dated April 30, 1998, among Capital One Bank
and the Agents named therein (incorporated by reference to Exhibit 10.2.1 of the
1998 Form 10-K).
10.3* Form of Employment Agreement dated as of January 25, 2000 between Capital One
Financial Corporation and each of Richard D. Fairbank, Nigel W. Morris and John
G. Finneran Jr.
10.4* Capital One Financial Corporation 1999 Non-Employee Directors Stock Incentive
Plan (incorporated by reference to Registrant's Registration Statement on Form
S-8, Commission File No. 333-78635, filed May 17, 1999).
10.5 Intentionally left blank.
10.6* Capital One Financial Corporation 1999 Stock Incentive Plan (incorporated by
reference to Registrant's Registration Statement on Form S-8, Commission File
No. 333-78609, filed May 17, 1999).
10.7* Capital One Financial Corporation 1994 Stock Incentive Plan, as amended.
10.8 Intentionally left blank.
10.9* Form of Change of Control Agreement between Capital One Financial Corporation and
certain of its senior executives (incorporated by reference to Exhibit 10.9 of
the 1998 Form 10-K).
10.10.1* Form of Amendment to Change of Control Agreement between Capital One Financial
Corporation and certain of its senior executives (incorporated by reference to
Exhibit 10.10 of the 1998 Form 10-K).
10.10.2* Amended and Restated Employment Agreement dated as of January 25, 2000 between
Capital One Financial Corporation and certain of its senior executives.
10.11* Capital One Financial Corporation Excess Savings Plan, as amended (incorporated
by reference to Exhibit 10.20 of the 1995 Form 10-K).
10.12* Capital One Financial Corporation Excess Benefit Cash Balance Plan, as amended
(incorporated by Reference to Exhibit 10.21 of the 1995 Form 10-K).
10.13* Capital One Financial Corporation 1994 Deferred Compensation Plan, as amended
(incorporated by Reference to Exhibit 10.22 of the 1995 Form 10-K).
10.14* 1995 Non-Employee Directors Stock Incentive Plan (incorporated by reference to
Registrant's Registration Statement on Form S-8, Commission File No. 33-91790,
filed May 1, 1995).
10.15 Services Agreement dated as of April 1, 1999 by and between D'Arcy Masius Benton
& Bowles USA, Inc. and Capital One Financial Corporation.
10.16 Consulting Agreement dated as of April 5, 1995, by and between Capital One
Financial Corporation and American Management Systems, Inc. (incorporated by
reference to Exhibit 10.33 of the 1995 Form 10-K).
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
10.17.1 Amended and Restated Lease Agreement dated as of October 14, 1998 between First
Security Bank of Utah, N.A., as owner trustee for the COB Real Estate Trust
1995-1, as lessor and Capital One Realty, Inc., as lessee (incorporated by
reference to Exhibit 10.17.1 of the 1998 Form 10-K).
10.17.2 Guaranty dated as of October 14, 1998 from Capital One Bank in favor of First
Security Bank, N.A., as owner trustee for the COB Real Estate Trust 1995-1,
First Union National Bank, as indenture trustee, Lawyers Title Realty Services,
Inc., as deed of trust trustee, and the Note Purchasers, Registered Owners and
LC Issuer referred to therein (incorporated by reference to Exhibit 10.17.2 of
the 1998 Form 10-K).
10.17.3 Amendment to Lease Documents dated as of October 1, 1999 between First Security
Bank of Utah, N.A., as owner trustee for COB Real Estate Trust 1995-1, as lessor
and Capital One Realty, Inc., as lessee.
10.17.4 Amendment to Guaranty dated as of April 1, 1999 between Capital One Bank and
First Security Bank, N.A., as owner trustee for the COB Real Estate Trust 1995-
1, First Union National Bank, as indenture trustee, Lawyers Title Realty
Services, Inc., as deed of trust trustee, and the Note Purchasers, Registered
Owners and LC Issuer referred to therein.
10.18.1 Second Amended and Restated Credit Agreement dated as of May 25, 1999 by and
among Capital One Financial Corporation, Capital One Bank and Capital One,
F.S.B, as original borrowers, and The Chase Manhattan Bank, as administrative
agent and lender and the other lenders named therein.
10.18.2 Amendment to Second Amended and Restated Credit Agreement dated as of December
21, 1999 among Capital One Financial Corporation, Capital One Bank and Capital
One, F.S.B., as original borrowers, and The Chase Manhattan Bank, as
administrative agent.
10.19.1 Revolving Credit Facility Agreement dated as of August 29, 1997 by and among
Capital One Finance Company and Capital One Inc., as original borrowers, Capital
One Financial Corporation, as original guarantor, and the agents and lenders
named therein (incorporated by reference to Exhibit 10.19 of the 1997 Form 10-
K).
10.19.2 Amendment to Revolving Credit Facility agreement dated as of December 21, 1999
between Capital One Finance Company and Capital One Inc., as original borrowers,
Capital One Financial Corporation, as original guarantor, and the agents and
lenders named therein.
10.20 Form of Intellectual Property Protection Agreement dated as of April 29,1999 by
and among Capital One Financial Corporation and certain of its senior
executives.
10.21 Credit Agreement (Capital One Realty, Inc.) dated as of September 3, 1999 between
First Security Bank, N.A. as owner trustee for Capital One Realty Trust 1998-1,
as borrower, and Bank of America, N.A., as administrative agent.
10.22 Lease Agreement (Capital One Realty, Inc.) dated as of September 3, 1999 between
First Security Bank, N.A. as owner trustee for Capital One Realty Trust 1998-1,
as lessor, and Capital One Realty, Inc. as lessee.
10.23 Participation Agreement (Capital One Realty, Inc.) dated as of September 3, 1999
among Capital One Realty, Inc., as construction agent and lessee, Capital One
Bank, as guarantor, First Security Bank, N.A. as owner trustee under the Capital
One Realty Trust 1998-1, and the holders and lenders named therein.
10.24 Credit Agreement (Capital One Services, Inc.) dated as of September 3, 1999
between First Security Bank, N.A. as owner trustee for Capital One Realty Trust
1998-1 as borrower and Bank of America N.A. as administrative agent.
10.25 Lease Agreement (Capital One Services, Inc.) dated as of September 3, 1999
between First Security Bank, N. A. as owner trustee for Capital One Realty Trust
1998-1 as lessor and Capital One Realty, Inc. as lessee.
</TABLE>
21
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
10.26 Participation Agreement (Capital One Services, Inc.) dated as of September 3,
1999 among Capital One Services, Inc. as construction agent as lessee, Capital
One Financial Corporation as guarantor, First Security Bank, N.A. as owner
trustee under the Capital One Realty Trust 1998-1 and the holders and lenders
named therein.
13 The portions of Capital One Financial Corporation's 1999 Annual Report to
Stockholders that are incorporated by reference herein.
21 Subsidiaries of the Company.
23 Consent of Ernst & Young LLP.
27 Financial Data Schedule.
</TABLE>
- --------
* Indicates a management contract or compensation plan or arrangement
required to be filed as an exhibit to this Annual Report on Form 10-K.
(b) Reports on Form 8-K
The Company filed on October 14, 1999 a Current Report on Form 8-K dated
October 14, 1999, Commission File No. 1-13300, enclosing its press release
dated October 14, 1999.
The Company filed on October 29, 1999 a Current Report on Form 8-K dated
October 27, 1999, Commission File No. 1-13300, enclosing its press release
dated October 27, 1999.
22
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company has duly caused this Report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Capital One Financial Corporation
/s/ David M. Willey
By: _________________________________
David M. Willey
Senior Vice President, Corporate
Financial Management
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below by the following persons on behalf of the Company
and in the capacities indicated on the 21st day of March, 2000
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Director, Chairman and March 21, 2000
/s/ Richard D. Fairbank Chief Executive Officer
___________________________________ (Principal Executive
Richard D. Fairbank Officer)
/s/ Nigel W. Morris Director, President and March 21, 2000
___________________________________ Chief Operating Officer
Nigel W. Morris
/s/ David M. Willey Senior Vice President, March 21, 2000
___________________________________ Corporate Financial
David M. Willey Management
(Principal Accounting
and Financial Officer)
/s/ W. Ronald Dietz Director March 21, 2000
___________________________________
W. Ronald Dietz
/s/ James A. Flick, Jr. Director March 21, 2000
___________________________________
James A. Flick, Jr.
/s/ Patrick W. Gross Director March 21, 2000
___________________________________
Patrick W. Gross
/s/ James V. Kimsey Director March 21, 2000
___________________________________
James V. Kimsey
/s/ Stanley I. Westreich Director March 21, 2000
___________________________________
Stanley I. Westreich
</TABLE>
23
<PAGE>
EXHIBITS TO CAPITAL ONE FINANCIAL CORPORATION
ANNUAL REPORT ON FORM 10-K
DATED DECEMBER 31, 1999
Commission File No. 1-13300
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
3.1 Restated Certificate of Incorporation of Capital One Financial Corporation
(incorporated by reference To Exhibit 3.1 of the 1994 Form 10-K).
3.2 Amended and Restated Bylaws of Capital One Financial Corporation (as amended
November 18, 1999).
4.1 Specimen certificate representing the Common Stock (incorporated by reference to
Exhibit 4.1 of the 1997 Form 10-K).
4.2.1 Rights Agreement dated as of November 16, 1995 between Capital One Financial
Corporation and Mellon Bank, N.A. (incorporated by reference to Exhibit 4.1 of
the Company's Report on Form 8-K, filed November 16, 1995).
4.2.2 Amendment to Rights Agreement dated as of April 29, 1999 between Capital One
Financial Corporation and First Chicago Trust Company of New York, as successor
to Mellon Bank, N.A.
4.3 Amended and Restated Issuing and Paying Agency Agreement dated as of April 30,
1996 between Capital One Bank and Chemical Bank (including exhibits A-1, A-2, A-
3 and A-4 thereto) (incorporated by reference to Exhibit 4.1 of the Company's
quarterly report on Form 10-Q for the period ending June 30, 1996).
4.4 Issuing and Paying Agency Agreement dated as of April 30, 1996 between Capital
One Bank and Chemical Bank (including exhibits A-1 and A-2 thereto)
(incorporated by reference to Exhibit 4.2 of the Company's quarterly report on
Form 10-Q for the period ending June 30, 1996).
4.5.1 Senior Indenture and Form T-1 dated as of November 1, 1996 among Capital One
Financial Corporation and Harris Trust and Savings Bank (incorporated by
reference to Exhibit 4.1 of the Company's Report on Form 8-K, filed November 13,
1996).
4.5.2 Copy of 7.25% Notes Due 2003 (incorporated by reference to Exhibit 4.5.2 of the
1996 Form 10-K).
4.6.1 Declaration of Trust, dated as of January 28, 1997, between Capital One Bank and
The First National Bank of Chicago, as trustee (including the Certificate of
Trust executed by First Chicago Delaware Inc., as Delaware trustee)
(incorporated by reference to Exhibit 4.6.1 of the 1996 Form 10-K).
4.6.2 Copies of Certificates Evidencing Capital Securities (incorporated by reference
to Exhibit 4.6.2 of the 1996 Form 10-K).
4.6.3 Amended and Restated Declaration of Trust, dated as of January 31, 1997, by and
among Capital One Bank, The First National Bank of Chicago and First Chicago
Delaware Inc. (incorporated by reference To Exhibit 4.6.3 of the 1996 Form 10-
K).
4.7 Indenture, dated as of January 31, 1997, between Capital One Bank and The First
National Bank of Chicago (incorporated by reference to Exhibit 4.7 of the 1996
Form 10-K).
4.8 Copy of 7 1/8% Notes due 2008 (incorporated by reference to Exhibit 4.8.2 of the
1998 Form 10-K).
4.9 Issue and Paying Agency Agreement dated as of October 24, 1997 between Capital
One Bank, Morgan Guaranty Trust Company of New York, London Office, and the
Paying Agents named Therein (incorporated by reference to Exhibit 4.9 of the
1998 Form 10-K).
4.10 Copy of 7% Notes due 2006.
</TABLE>
24
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
10.1.1 Amended and Restated Distribution Agreement dated April 30, 1996 among Capital
One Bank and the agents named therein (incorporated by reference to Exhibit 10.1
of the Company's quarterly Report on Form 10-Q for period ending June 30, 1996).
10.1.2 Amendment to Amended and Restated Distribution Agreement dated April 21, 1998
among Capital One Bank and the agents named therein (incorporated by reference
to Exhibit 10.1.1 of the 1998 Form 10-K).
10.1.3 Second Amendment to Amended and Restated Distribution Agreement dated April 30,
1999 among Capital One Bank and the agents named therein.
10.2.1 Distribution Agreement dated April 30, 1996, among Capital One Bank and the
agents named therein (incorporated by reference to Exhibit 10.2 of the Company's
quarterly report on Form 10-Q for period ending June 30, 1996).
10.2.2 Amendment to Distribution Agreement dated April 30, 1998, among Capital One Bank
and the Agents named therein (incorporated by reference to Exhibit 10.2.1 of the
1998 Form 10-K).
10.3* Form of Change of Control Employment Agreement dated as of January 25, 2000
between Capital One Financial Corporation and each of Richard D. Fairbank, Nigel
W. Morris and John G. Finneran Jr.
10.4* Capital One Financial Corporation 1999 Non-Employee Directors Stock Incentive
Plan (incorporated by reference to Registrant's Registration Statement on Form
S-8, Commission File No. 333-78635, filed May 17, 1999).
10.5 Intentionally left blank.
10.6* Capital One Financial Corporation 1999 Stock Incentive Plan (incorporated by
reference to Registrant's Registration Statement on Form S-8, Commission File
No. 333-78609, filed May 17, 1999).
10.7* Capital One Financial Corporation 1994 Stock Incentive Plan, as amended.
10.8 Intentionally left blank.
10.9* Form of Change of Control Employment Agreement between Capital One Financial
Corporation and certain of its senior executives (incorporated by reference to
Exhibit 10.9 of the 1998 Form 10-K).
10.10.1* Form of Amendment to Change of Control Employment Agreement between Capital One
Financial Corporation and certain of its senior executives (incorporated by
reference to Exhibit 10.10 of the 1998 Form 10-K).
10.10.2* Amended and Restated Change of Control Employment Agreement dated as of January
25, 2000 between Capital One Financial Corporation and certain of its senior
executives.
10.11* Capital One Financial Corporation Excess Savings Plan, as amended (incorporated
by reference to Exhibit 10.20 of the 1995 Form 10-K).
10.12* Capital One Financial Corporation Excess Benefit Cash Balance Plan, as amended
(incorporated by Reference to Exhibit 10.21 of the 1995 Form 10-K).
10.13* Capital One Financial Corporation 1994 Deferred Compensation Plan, as amended
(incorporated by Reference to Exhibit 10.22 of the 1995 Form 10-K).
10.14* 1995 Non-Employee Directors Stock Incentive Plan (incorporated by reference to
Registrant's Registration Statement on Form S-8, Commission File No. 33-91790,
filed May 1, 1995).
10.15 Services Agreement dated as of April 1, 1999 by and between D'Arcy Masius Benton
& Bowles USA, Inc. and Capital One Financial Corporation.
10.16 Consulting Agreement dated as of April 5, 1995, by and between Capital One
Financial Corporation
and American Management Systems, Inc. (incorporated by reference to Exhibit
10.33 of the 1995
Form 10-K).
</TABLE>
25
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
10.17.1 Amended and Restated Lease Agreement dated as of October 14, 1998 between First
Security Bank of Utah, N.A., as owner trustee for the COB Real Estate Trust
1995-1, as lessor and Capital One Realty, Inc., as lessee (incorporated by
reference to Exhibit 10.17.1 of the 1998 Form 10-K).
10.17.2 Guaranty dated as of October 14, 1998 from Capital One Bank in favor of First
Security Bank, N.A., as owner trustee for the COB Real Estate Trust 1995-1,
First Union National Bank, as indenture trustee, Lawyers Title Realty Services,
Inc., as deed of trust trustee, and the Note Purchasers, Registered Owners and
LC Issuer referred to therein (incorporated by reference to Exhibit 10.17.2 of
the 1998 Form 10-K).
10.17.3 Amendment to Lease Documents dated as of October 1, 1999 between First Security
Bank, N.A., and Val T. Orton, as owner trustees for COB Real Estate Trust 1995-
1, Capital One Bank, Capital One Realty, Inc.and Lawyers Title Realty Services,
Inc.
10.17.4 Amendment to Guaranty dated as of April 1, 1999 between Capital One Bank and
First Security Bank, N.A., and Val T. Orton, as owner trustees for the COB Real
Estate Trust 1995-1.
10.18.1 Second Amended and Restated Credit Agreement dated as of May 25, 1999 by and
among Capital One Financial Corporation, Capital One Bank and Capital One,
F.S.B, as original borrowers, and The Chase Manhattan Bank, as administrative
agent and lender and the other lenders named therein.
10.18.2 Amendment to Second Amended and Restated Credit Agreement dated as of December
21, 1999 among Capital One Financial Corporation, Capital One Bank and Capital
One, F.S.B., as original borrowers, and The Chase Manhattan Bank, as
administrative agent.
10.19.1 Revolving Credit Facility Agreement dated as of August 29, 1997 by and among
Capital One Finance Company and Capital One Inc., as original borrowers, Capital
One Financial Corporation, as Original guarantor, and the agents and lenders
named therein (incorporated by reference to Exhibit 10.19 of the 1997 Form 10-
K).
10.19.2 Amendment to Revolving Credit Facility agreement dated as of December 21, 1999
between Capital One Finance Company. Capital One Inc., Capital One Financial
Corporation, and the agents and lenders named therein.
10.20 Form of Intellectual Property Protection Agreement dated as of April 29,1999 by
and among Capital One Financial Corporation and certain of its senior
executives.
10.21 Credit Agreement (Capital One Realty, Inc.) dated as of September 3, 1999 between
First Security Bank, N.A. as owner trustee for Capital One Realty Trust 1998-1,
as borrower, the lenders party thereto and Bank of America, N.A., as
administrative agent.
10.22 Lease Agreement (Capital One Realty, Inc.) dated as of September 3, 1999 between
First Security Bank, N.A. as owner trustee for Capital One Realty Trust 1998-1,
as lessor, and Capital One Realty, Inc. as lessee.
10.23 Participation Agreement (Capital One Realty, Inc.) dated as of September 3, 1999
among Capital One Realty, Inc., as construction agent and lessee, Capital One
Bank, as guarantor, First Security Bank, N.A. as owner trustee under the Capital
One Realty Trust 1998-1, the holders and lenders named therein, and Bank of
America, N.A. as agent.
10.24 Credit Agreement (Capital One Services, Inc.) dated as of September 3, 1999
between First Security Bank, N.A., as owner trustee for Capital One Realty Trust
1998-1, as borrower, the lenders party thereto and Bank of America N.A. as
administrative agent.
10.25 Lease Agreement (Capital One Services, Inc.) dated as of September 3, 1999
between First Security Bank, N. A., as owner trustee for Capital One Realty
Trust 1998-1, as lessor, and Capital One Services, Inc. as lessee.
</TABLE>
26
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
10.26 Participation Agreement (Capital One Services, Inc.) dated as of September 3,
1999 among Capital One Services, Inc. as construction agent and lessee, Capital
One Financial Corporation, as guarantor, First Security Bank, N.A., as owner
trustee under the Capital One Realty Trust 1998-1, the holders and lenders named
therein, and Bank of America, N.A., as agent.
13 The portions of Capital One Financial Corporation's 1999 Annual Report to
Stockholders that are incorporated by reference herein.
21 Subsidiaries of the Company.
23 Consent of Ernst & Young LLP.
27 Financial Data Schedule.
</TABLE>
- --------
* Indicates a management contract or compensation plan or arrangement
required to be filed as an exhibit to this Annual Report on Form 10-K.
27
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-3.2
<SEQUENCE>2
<DESCRIPTION>AMENDED AND RESTATED BYLAWS OF
CAPITAL ONE FINANCIAL CORPORATION
<TEXT>
<PAGE>
EXHIBIT 3.2
-----------
FORM OF
RESTATED BYLAWS
OF
CAPITAL ONE FINANCIAL CORPORATION
Incorporated under the Laws of the State of Delaware
ARTICLE I
OFFICES AND RECORDS
Section 1.1. Delaware Office. The principal office of Capital One
Financial Corporation (the "Corporation") in the State of Delaware shall be
located in the City of Wilmington, County of New Castle, and the name and
address of its registered agent is Corporation Service Company, 1013 Centre
Road, Wilmington, Delaware.
Section 1.2. Other Offices. The Corporation may have such other offices,
either within or without the State of Delaware, as the Board of Directors may
from time to time designate or as the business of the Corporation may from time
to time require.
Section 1.3. Books and Records. The books and records of the Corporation
may be kept at the Corporation's headquarters in Falls Church, Virginia or at
such other locations outside the State of Delaware as may from time to time be
designated by the Board of Directors.
ARTICLE II
STOCKHOLDERS
Section 2.1. Annual Meeting. The annual meetings of stockholders of the
Corporation shall be held at such place, either within or without the State of
Delaware, and at such time and date as the Board of Directors, by resolution,
shall determine and as set forth in the notice of the meeting. If the Board of
Directors fails so to determine the time, date and place of meeting, the annual
meeting of stockholders shall be held at the registered office of the
Corporation on the first Tuesday in May. If the date of the annual meeting shall
fall upon a legal holiday, the meeting shall be held on the next succeeding
business day. At each annual meeting, the stockholders entitled to vote shall
elect a Board of Directors and they may transact such other corporate business
as shall be stated in the notice of the meeting.
Section 2.2. Special Meeting. Subject to the rights of the holders of any
series of preferred stock, par value $.01 per share, of the Corporation (the
"Preferred Stock") to
<PAGE>
elect additional directors under specified circumstances, special meetings of
the stockholders may be called only by the Chairman of the Board or by the Board
of Directors pursuant to a resolution adopted by a majority of the total number
of directors which the Corporation would have if there were no vacancies (the
"Whole Board").
Section 2.3. Place of Meeting. The Board of Directors may designate the
place of meeting for any meeting of the stockholders. If no designation is made
by the Board of Directors, the place of meeting shall be the principal office of
the Corporation.
Section 2.4. Notice of Meeting. Written or printed notice, stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be prepared and delivered by the Corporation not less
than ten days nor more than sixty days before the date of the meeting, either
personally, or by mail, or otherwise sent electronically as permitted by law,
including via electronic mail or the Internet to each stockholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail with postage thereon prepaid,
addressed to the stockholder at his address as it appears on the stock transfer
books of the Corporation. If sent electronically, such notice shall be deemed to
be delivered when sent in compliance with law and upon the stockholders'
instructions given to the Corporation or its representative. Such further notice
shall be given as may be required by law. Meetings may be held without notice if
all stockholders entitled to vote are present, or if notice is waived by those
not present. Any previously scheduled meeting of the stockholders may be
postponed by resolution of the Board of Directors upon public notice given prior
to the time previously scheduled for such meeting of stockholders.
Section 2.5. Quorum and Adjournment. Except as otherwise provided by law
or by the Certificate of Incorporation, the holders of a majority of the voting
power of the outstanding shares of the Corporation entitled to vote generally in
the election of directors (the "Voting Stock"), represented in person or by
proxy, shall constitute a quorum at a meeting of stockholders, except that when
specified business is to be voted on by a class or series voting as a class, the
holders of a majority of the voting power of the shares of such class or series
shall constitute a quorum for the transaction of such business. The chairman of
the meeting or a majority of the shares of Voting Stock so represented may
adjourn the meeting from time to time, whether or not there is such a quorum
(or, in the case of specified business to be voted on by a class or series, the
chairman or a majority of the shares of such class or series so represented may
adjourn the meeting with respect to such specified business). No notice of the
time and place of adjourned meetings need be given except as required by law.
The stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Section 2.6. Proxies. At all meetings of stockholders, a stockholder may
vote by proxy executed in writing by the stockholder or as may be permitted by
law, or by his duly authorized attorney-in-fact. Such proxy must be filed with
the Secretary of the Corporation or his representative at or before the time of
the meeting.
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Section 2.7. Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders
(a) pursuant to the Corporation's notice of meeting delivered
pursuant to Section 2.4 of these Bylaws, (b) by or at the
direction of the Chairman or the Board of Directors or (c) by any
stockholder of the Corporation who is entitled to vote at the
meeting, who complied with the notice procedures set forth in
clauses (2) and (3) of this paragraph (A) and this Bylaw and who
was a stockholder of record at the time such notice is delivered
to the Secretary of the Corporation.
(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (c) of
paragraph (A)(1) of this Bylaw, the stockholder must have given
timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of
the Corporation not less than seventy days nor more than ninety
days prior to the first anniversary of the preceding year's
annual meeting; provided, however, that (i) in the case of the
Corporation's first annual meeting in 1995 or (ii) in the event
that the date of an annual meeting is advanced by more than
thirty days, or delayed by more than seventy days, from the first
anniversary date of the previous year's annual meeting, notice by
the stockholder to be timely must be so delivered not earlier
than the ninetieth day prior to such annual meeting and not later
than the close of business on the later of the seventieth day
prior to such annual meeting or the tenth day following the day
on which public announcement of the date of such meeting is first
made. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including such person's
written consent to being named in the proxy statement as a
nominee and to serving as a director if elected; (b) as to any
other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be
brought before the meeting, the reasons for
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conducting such business at the meeting and any material interest
in such business of such stockholder and the beneficial owner, if
any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made (i) the name
and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the
class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this Bylaw to the contrary, in the event that the
number of directors to be elected to the Board of Directors of
the Corporation is increased and there is no public announcement
naming all of the nominees for director or specifying the size of
the increased Board of Directors made by the Corporation at least
eighty days prior to the first anniversary of the preceding
year's annual meeting (or, in the event of the Corporation's
first annual meeting in 1995, not later than the close of
business on the tenth day following the day on which public
announcement is made of the meeting and of the nominees proposed
to be nominated), a stockholder's notice required by this Bylaw
shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it
shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business
on the tenth day following the day on which such public
announcement is first made by the Corporation.
(B) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of
meeting pursuant to Section 2.4 of these Bylaws. Nominations of
persons for election to the Board of Directors may be made at a
special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (a) by or at the
direction of the Board of Directors or (b) by any stockholder of the
Corporation who is entitled to vote at the meeting, who complies with
the notice procedures set forth in this Bylaw and who is a stockholder
of record at the time such notice is delivered to the Secretary of the
Corporation. Nominations by stockholders of persons for election to
the Board of Directors may be made at such a special meeting of
stockholders if the stockholder's notice as required by paragraph
(A)(2) of this Bylaw shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the
ninetieth day prior to such special meeting and not later than the
close of business on the later of the seventieth day prior to such
special meeting or the tenth day following the
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day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors
to be elected at such meeting.
(C) General.
(1) Only persons who are nominated in accordance with the procedures
set forth in this Bylaw shall be eligible to serve as director
and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Bylaw. Except as
otherwise provided by law, the Certificate of Incorporation or
these Bylaws, the chairman of the meeting shall have the power
and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made in accordance
with the procedures set forth in this Bylaw and, if any proposed
nomination or business is not in compliance with this Bylaw, to
declare that such defective proposal or nomination shall be
disregarded.
(2) For purposes of this Bylaw, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or
in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Bylaw, a
stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Bylaw. Nothing in this
Bylaw shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
Section 2.8. Procedure for Election of Directors. Election of directors
at all meetings of stockholders at which directors are to be elected shall be by
written ballot, and, except as otherwise set forth in the Certificate of
Incorporation with respect to the right of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances, a
plurality of the votes cast thereat shall elect. Except as otherwise provided by
law, the Certificate of Incorporation or these Bylaws, all matters other than
the election of directors submitted to the stockholders at any meeting shall be
decided by a majority of the votes cast with respect thereto.
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Section 2.9. Inspectors of Elections; Opening and Closing the Polls.
(A) The Board of Directors by resolution shall appoint one or more
inspectors, which inspector or inspectors may include individuals who serve the
Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives of the Corporation, to act at the meeting
and make a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate has been appointed to act, or if all inspectors or alternates who
have been appointed are unable to act at a meeting of stockholders, the chairman
of the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall have the
duties prescribed by the General Corporation Law of the State of Delaware.
(B) The chairman of the meeting shall fix and announce at the meeting the
date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting.
Section 2.10. No Stockholder Action by Written Consent. Subject to the
rights of the holders of any series of Preferred Stock to elect additional
directors under specific circumstances, any action required or permitted to be
taken by the stockholders of the Corporation must be effected at an annual or
special meeting of stockholders of the Corporation and may not be affected by
any consent in writing by such stockholders.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of its Board of Directors. In
addition to the powers and authorities by these Bylaws expressly conferred upon
them, the Board of Directors may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by law or by the Certificate of
Incorporation or by these Bylaws required to be exercised or done by the
stockholders.
Section 3.2. Number, Tenure and Qualifications. Subject to the rights of
the holders of any series of Preferred Stock to elect directors under specified
circumstances, the number of directors shall be fixed from time to time
exclusively pursuant to a resolution adopted by a majority of the Whole Board
but shall consist of not more than seventeen nor less than three directors. The
directors, other than those who may be elected by the holders of any series of
Preferred Stock, shall be divided, with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as
possible, with the term of office of the first class to expire at the 1995
annual meeting of stockholders, the term of office of the second class to expire
at the 1996 annual
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meeting of stockholders and the term of office of the third class to expire at
the 1997 annual meeting of stockholders. Each director shall hold office until
his or her successor shall have been duly elected and qualified. At each annual
meeting of stockholders, commencing with the 1996 annual meeting, (i) directors
elected to succeed those directors whose terms then expire shall be elected for
a term of office to expire at the third succeeding annual meeting of
stockholders after their election, with each director to hold office until his
or her successor shall have been duly elected and qualified, and (ii) if
authorized by a resolution of the Board of Directors, directors may be elected
to fill any vacancy on the Board of Directors, regardless of how such vacancy
shall have been created. In order to be qualified to serve as a director, a
person must (a) not have attained the age of seventy (70) years and (b) either
(i) be an officer or employee of the Corporation and not (A) have voluntarily
resigned from the position or office he held at the time of his election as a
director, (B) have retired or been retired pursuant to the requirements of a
pension, profit sharing, or similar plan or (C) have, at the time of his
election as a director, held a position or office in the Corporation which has
been changed, other than by an upward or expanded promotion or (ii) in the case
of any person who is not an officer or employee of the Corporation, not (A) have
retired from or severed his connection with the organization with which he was
affiliated at the time of his election as a director or (B) have held a position
or office with an organization with which he was affiliated at the time of his
election as a director which has been changed, other than by an upward or
expanded promotion and (C) not have a material conflict of interest with the
Corporation (i) as defined by applicable laws and regulations and (ii) the
existence and materiality of which as may be determined by a majority of the
remaining directors. Whenever any director shall cease to be qualified to serve
as a director his term shall expire, but such director shall continue to serve
until his successor is elected and qualified; provided, however, that no
director's term shall so expire if the Board of Directors shall have waived such
qualification.
Section 3.3. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this Bylaw immediately after,
and at the same place as, each annual meeting of stockholders. The Board of
Directors may, by resolution, provide the time and place for the holding of
additional regular meetings without other notice than such resolution.
Section 3.4. Special Meetings. Special meetings of the Board of Directors
shall be called at the request of the Chairman of the Board, the President or a
majority of the Board of Directors. The person or persons authorized to call
special meetings of the Board of Directors may fix the place and time of the
meetings.
Section 3.5. Notice. Notice of any special meeting shall be given to each
director at his business or residence in writing or by telegram or by telephone
communication. If mailed, such notice shall be deemed adequately delivered when
deposited in the United States mails so addressed, with postage thereon prepaid,
at least five days before such meeting. If by telegram, such notice shall be
deemed adequately delivered when the telegram is delivered to the telegraph
company at least twenty-four hours before such meeting. If by facsimile
transmission, such notice shall be transmitted
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at least twenty-four hours before such meeting. If by telephone, the notice
shall be given at least twelve hours prior to the time set for the meeting.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors need be specified in the notice of
such meeting, except for amendments to these Bylaws as provided under Section
7.1 of Article VII hereof. A meeting may be held at any time without notice if
all the directors are present or if those not present waive notice of the
meeting in writing, either before or after such meeting.
Section 3.6. Quorum. A whole number of directors equal to at least a
majority of the Whole Board shall constitute a quorum for the transaction of the
business, but if at any meeting of the Board of Directors there shall be less
than a quorum present, a majority of the directors present may adjourn the
meeting from time to time without further notice. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors. The directors present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough directors to leave less than a quorum.
Section 3.7. Vacancies. Subject to the rights of the holders of any
series of Preferred Stock to elect additional directors under specified
circumstances, and unless the Board of Directors otherwise determines, vacancies
resulting from death, resignation, retirement, disqualification, removal from
office or other cause, and newly created directorships resulting from any
increase in the authorized number of directors, may be filled only by the
affirmative vote of a majority of the remaining directors, though less than a
quorum of the Board of Directors, and directors so chosen shall hold office for
a term expiring at the annual meeting of stockholders at which the term of
office of the class to which they have been elected expires and until such
director's successor shall have been duly elected and qualified. No decrease in
the number of authorized directors constituting the Whole Board shall shorten
the term of any incumbent director.
Section 3.8. Committees. The Board of Directors may from time to time, by
resolution passed by a majority of the Whole Board, designate one or more
committees, each committee to consist of one or more directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it, except
as otherwise provided by law. Unless the resolution of the Board of Directors
expressly so provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock. Any such committee may
adopt rules governing the method of calling and time and place of holding its
meetings. Unless otherwise provided by the Board of Directors, a majority of any
such committee may adopt rules governing the method of calling and time and
place of holding its meetings. Unless otherwise provided by the Board of
Directors, a majority of any such committee (or the member thereof, if only one)
shall constitute a quorum for the transaction of business, and the vote of a
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majority of the members of such committee present at a meeting at which a quorum
is present shall be the act of such committee. Each such committee shall keep a
record of its acts and proceedings and shall report thereon to the Board of
Directors whenever requested so to do. Any or all members of any such committee
may be removed, with or without cause, by resolution of the Board of Directors,
passed by a majority of the Whole Board.
Section 3.9. Removal. Subject to the rights of the holders of any series
of Preferred Stock to elect additional directors under specified circumstances,
any director, or the entire Board of Directors, may be removed from office at
any time, but only for cause and only by the affirmative vote of the holders of
at least 80 percent of the voting power of the then outstanding Voting Stock,
voting together as a single class.
ARTICLE IV
OFFICERS
Section 4.1. Elected Officers. The elected officers of the Corporation
shall be a Chairman of the Board, a President, a Secretary, a Treasurer, and
such other officers as the Board of Directors from time to time may deem proper.
The Chairman of the Board shall be chosen from the directors. All officers
chosen by the Board of Directors shall each have such powers and duties as
generally pertain to their respective offices, subject to the specific
provisions of this Article IV. Such officers shall also have powers and duties
as from time to time may be conferred by the Board of Directors or by any
committee thereof.
Section 4.2. Election and Term of Office. The elected officers of the
Corporation shall be elected annually by the Board of Directors at the regular
meeting of the Board of Directors held after each annual meeting of the
stockholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as convenient. Subject to Section
4.7 of these Bylaws, each officer shall hold office until his successor shall
have been duly elected and shall have qualified or until his death or until he
shall resign.
Section 4.3. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the stockholders and of the Board of Directors. The
Chairman of the Board shall be responsible for the general management of the
affairs of the Corporation and shall perform all duties incidental to his office
which may be required by law and all such other duties as are properly required
of him by the Board of Directors. Except where by law the signature of the
President is required, the Chairman of the Board shall possess the same power as
the President to sign all certificates, contracts, and other instruments of the
Corporation which may be authorized by the Board of Directors. He shall make
reports to the Board of Directors and the stockholders, and shall perform all
such other duties as are properly required of him by the Board of Directors. He
shall see
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that all orders and resolutions of the Board of Directors and of any committee
thereof are carried into effect.
Section 4.4. President. The President shall act in a general executive
capacity and shall assist the Chairman of the Board in the administration and
operation of the Corporation's business and general supervision of its policies
and affairs. The President shall, in the absence of or because of the inability
to act of the Chairman of the Board, perform all duties of the Chairman of the
Board and preside at all meetings of stockholders and of the Board of Directors.
The President may sign, alone or with the Secretary, or an Assistant Secretary,
or any other proper officer of the Corporation authorized by the Board of
Directors, certificates, contracts, and other instruments of the Corporation as
authorized by the Board of Directors.
Section 4.5. Secretary. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors and all other notices
required by law or by these Bylaws, and in case of his absence or refusal or
neglect so to do, any such notice may be given by any person thereunto directed
by the Chairman of the Board or the President, or by the Board of Directors,
upon whose request the meeting is called as provided in these Bylaws. The
Secretary shall record all the proceedings of the meetings of the Board of
Directors, any committees thereof and the stockholders of the Corporation in a
book to be kept for that purpose, and shall perform such other duties as may be
assigned to him by the Board of Directors, the Chairman of the Board or the
President. The Secretary shall have the custody of the seal of the Corporation
and shall affix the same to all instruments requiring it, when authorized by the
Board of Directors, the Chairman of the Board or the President, and attest to
the same.
Section 4.6. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the Corporation. The Treasurer
shall deposit all moneys and other valuables in the name and to the credit of
the Corporation in such depositaries as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, the Chairman of the Board, or the President,
taking proper vouchers for such disbursements. The Treasurer shall render to the
Chairman of the Board, the President and the Board of Directors, whenever
requested, an account of all his transactions as Treasurer and of the financial
condition of the Corporation. If required by the Board of Directors, the
Treasurer shall give the Corporation a bond for the faithful discharge of his
duties in such amount and with such surety as the Board of Directors shall
prescribe.
Section 4.7. Removal. Any officer elected by the Board of Directors may
be removed by a majority of the members of the Whole Board whenever, in their
judgment, the best interests of the Corporation would be served thereby. No
elected officer shall have any contractual rights against the Corporation for
compensation by virtue of such election beyond the date of the election of his
successor, his death, his resignation or his removal, whichever event shall
first occur, except as otherwise provided in an employment contract or an
employee plan.
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Section 4.8. Vacancies. A newly created office and a vacancy in any
office because of death, resignation, or removal may be filled by the Board of
Directors for the unexpired portion of the term at any meeting of the Board of
Directors.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
Section 5.1. Stock Certificates and Transfers.
(A) The interest of each stockholder of the Corporation shall be evidenced
by certificates for shares of stock in such form as the appropriate officers of
the Corporation may from time to time prescribe. The shares of the stock of the
Corporation shall be transferred on the books of the Corporation by the holder
thereof in person or by his attorney, upon surrender for cancellation of
certificates for the same number of shares, with an assignment and power of
transfer endorsed thereon or attached thereto, duly executed, with such proof of
the authenticity of the signature as the Corporation or its agents may
reasonably require.
(B) The certificates of stock shall be signed, countersigned and
registered in such manner as the Board of Directors may by resolution prescribe,
which resolution may permit all or any of the signatures on such certificates to
be in facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1. Fiscal Year. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
Section 6.2 Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by the law and its Certificate
of Incorporation.
Section 6.3. Seal. The corporate seal of the Corporation shall be
determined by resolution of the Board of Directors. Said seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise imprinted upon the subject document or paper.
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Section 6.4. Waiver of Notice. Whenever any notice is required to be
given to any stockholder or director of the Corporation under the provisions of
the General Corporation Law of the State of Delaware, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice. Neither the business to be transacted at, nor the purpose of, any
annual or special meeting of the stockholders or of the Board of Directors need
be specified in any waiver of notice of such meeting.
Section 6.5. Audits. The accounts, books and records of the Corporation
shall be audited upon the conclusion of each fiscal year by an independent
certified public accountant selected by the Board of Directors, and it shall be
the duty of the Board of Directors to cause such audit to be made annually.
Section 6.6. Resignations. Any director or any officer, whether elected
or appointed, may resign at any time by serving written notice of such
resignation on the Chairman of the Board, the President or the Secretary, and
such resignation shall be deemed to be effective as of the close of business on
the date said notice is received by the Chairman of the Board, the President, or
the Secretary or at such later date as is stated therein. No formal action shall
be required of the Board of Directors or the stockholders to make any such
resignation effective.
Section 6.7. Indemnification and Insurance.
(A) Each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit, or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she or a person of whom he or she is the legal
representative is or was a director, officer or employee of the Corporation or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of any other corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including, without
limitation, attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that except as provided in paragraph (B) of Section 6.7 of this Bylaw
with respect to proceedings seeking to enforce rights to indemnification, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person
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only if such proceeding (or part thereof) initiated by such person was
authorized by the Board of Directors of the Corporation.
(B) If a claim under paragraph (A) of this Bylaw is not paid in full by
the Corporation within thirty days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the General
Corporation Law of the State of Delaware for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law of the
State of Delaware, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel or stockholders) that the claimant
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
(C) Following any "change in control" of the Corporation of the type
required to be reported under Item 1 of Form 8-K promulgated under the Exchange
Act, any determination as to entitlement to indemnification shall be made by
independent legal counsel selected by the claimant which independent legal
counsel shall be retained by the Board of Directors on behalf of the
Corporation.
(D) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Bylaw 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, Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
(E) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware.
(F) The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and rights to be paid by
the Corporation the expenses incurred in defending any proceeding in advance of
its final
-13-
<PAGE>
disposition, to any agent of the Corporation to the fullest extent of the
provisions of this Bylaw with respect to the indemnification and advancement of
expenses of directors, officers and employees of the Corporation.
(G) The right to indemnification conferred in this Bylaw shall be a
contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if the General Corporation Law of the State
of Delaware requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Bylaw or otherwise.
(H) Any amendment or repeal of this Article VI shall not adversely affect
any right or protection existing hereunder in respect of any act or omission
occurring prior to such amendment or repeal.
ARTICLE VII
AMENDMENTS
Section 7.1. Amendments. These Bylaws may be amended, added to, rescinded
or repealed at any meeting of the Board of Directors or of the stockholders,
provided notice of the proposed change was given in the notice of the meeting
and, in the case of a meeting of the Board of Directors, in a notice given no
less than twenty-four hours prior to the meeting; provided, however, that, in
the case of amendments by stockholders, notwithstanding any other provisions of
these Bylaws or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the stock required by law, the Certificate of
Incorporation or these Bylaws, the affirmative vote of the holders of at least
80 percent of the voting power of the then outstanding Voting Stock, voting
together as a single class, shall be required to alter, amend or repeal any
provision of these Bylaws.
-14-
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.2.2
<SEQUENCE>3
<DESCRIPTION>AMENDMENT TO RIGHTS AGREEMENT
<TEXT>
<PAGE>
EXHIBIT 4.2.2
-------------
AMENDMENT NUMBER 1 TO RIGHTS AGREEMENT
--------------------------------------
Amendment Number 1 to Rights Agreement, dated as of April 29, 1999
("Amendment"), between Capital One Financial Corporation, a Delaware corporation
(the "Company"), and First Chicago Trust Company of New York, as successor to
Mellon Bank, N.A. (the "Rights Agent").
WITNESSETH:
WHEREAS, on November 16, 1995, the Board of Directors of the Company
authorized and declared a dividend of one Right for each share of Common Stock
outstanding at the close of business on November 29, 1995 (the "Record Date")
and authorized the issuance of one Right with respect to each share of Common
Stock that shall become outstanding between the Record Date and the earlier of
the Distribution Date and the Expiration Date;
WHEREAS, each Right entitles the holder to purchase one one-hundredth of a
Preferred Share upon the terms and subject to the conditions set forth in the
Rights Agreement, dated as of November 16, 1995 (the "Rights Agreement"),
between the Company and the Rights Agent; and
WHEREAS, on April 29, 1999, the Board of Directors of the Company resolved
to amend the Rights Agreement as hereinafter set forth in accordance with
Section 27 of the Rights Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereto agree as follows:
Section 1. Certain Definitions. All capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Rights Agreement.
Section 2. Amendments. (a) The Rights Agreement is hereby amended as
follows:
(i) Section 7(b) of the Rights Agreement is amended and restated in its
entirety as follows: "(b) The purchase price for the exercise of a Right shall
be $600, shall be subject to adjustment from time to time as provided in
Sections 11 and 13 hereof, and shall be payable in lawful money of the United
States of America in accordance with paragraph (c) below (the "Purchase
Price")."
(ii) Section 11(p) of the Rights Agreement is amended and restated in its
entirety as follows: "(p) Notwithstanding anything in this Agreement to the
contrary, in the event that the Company shall, at any time after the date of
this Agreement and prior to the Distribution Date, (i) declare any dividend on
the outstanding shares of Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock, (iii) combine or consolidate
the outstanding shares of Common Stock into a smaller number of shares, or (iv)
effect a reclassification of the outstanding shares of Common Stock, except as
<PAGE>
otherwise provided in Section 7(e), the number of one one-hundredths of
Preferred Shares so purchasable after such event upon proper exercise of each
Right and the Purchase Price per Right after such event shall be determined by
multiplying the number of one one-hundredths of Preferred Shares so purchasable
immediately prior to such event or the Purchase Price in effect immediately
prior to such event, as the case may be, by a fraction, the numerator of which
shall be the total number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which shall be the total number of
shares of Common Stock outstanding immediately following such event. The
adjustments provided for in this Section 11(p) shall be made successively
whenever such a dividend is declared or paid or such a subdivision, combination
or consolidation is effected. If an event occurs which would require an
adjustment under Section 11(a)(ii) and this Section 11(p), the adjustments
provided for in this Section 11(p) shall be in addition and prior to any
adjustment required pursuant to Section 11(a)(ii)."
(b) Except as expressly set forth in Section 2(a) hereof, the Rights
Agreement shall remain in full force and effect without alteration or
modification.
Section 3. Governing Law. This Amendment shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such state applicable
to contracts to be made and performed entirely within such state.
Section 4. Counterparts. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
Section 5. Descriptive Headings. Descriptive headings of the several
Sections of this Amendment are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed in accordance with the Rights Agreement and their respective
corporate seals to be hereunto affixed and attested, all as of the date and the
year first above written.
CAPITAL ONE FINANCIAL CORPORATION
By /s/ John G. Finneran, Jr.
----------------------------------
Name: John G. Finneran, Jr.
Title: Senior Vice President, General Counsel
and Corporate Secretary
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By /s/ Frederick T. Meyers
----------------------------------
Name: Frederick T. Meyers
Title: Assistant Vice President
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.10
<SEQUENCE>4
<DESCRIPTION>COPY OF 7% NOTES DUE 2006
<TEXT>
<PAGE>
EXHIBIT 4.10
------------
[Face of Note]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY OR ANY SUCCESSOR DEPOSITARY
APPOINTED AS SUCH PURSUANT TO THE SENIOR INDENTURE (THE "DEPOSITARY") TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
SUCH A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS
THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR
ITS NOMINEE OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR ITS NOMINEE, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.
CUSIP No. 14040HAE5
No. R-___ $225,000,000
CAPITAL ONE FINANCIAL CORPORATION
7 1/4% NOTES DUE 2006
Capital One Financial Corporation, a corporation duly organized and
existing under the laws of Delaware (the "Company"), for value received, hereby
promises to pay to Cede & Co. or registered assigns the principal sum of TWO
HUNDRED TWENTY-FIVE MILLION United States Dollars at the Company's office or
agency for said purpose in the Borough of Manhattan, The City of New York, on
May 1, 2006 in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts, and to pay interest semi-annually in arrears on May 1 and November 1 of
each year (each an "interest payment date"), commencing November 1, 1999, on
said principal sum in like coin or currency at the rate per annum set forth
above at said office or agency from April 28, 1999 or from the most recent May 1
or November 1, as the case may be, to which interest on the Securities has been
paid or duly provided for, until payment of said principal sum has been made or
duly provided for; provided that, unless this Security is a Security issued in
--------
global form (a "Global Security"), interest may be paid, at the option of the
company, by mailing a check therefor payable to the Holder entitled thereto at
his last address as it appears on the Security Register. The interest so
payable will be paid to the Person in whose name this Global Security (or one or
more Predecessor Securities) is registered at the close of business on the April
15 or
<PAGE>
October 15, as the case may be, next preceding such interest payment date,
unless the Company shall default in the payment of interest due on such interest
payment date after taking into account any applicable grace period, in which
case such defaulted interest shall be paid as set forth in the Senior Indenture.
Notwithstanding the foregoing, as long as this Security is a Global Security,
the Company shall pay or cause to be paid the principal of, and interest on,
this Security to the Holder hereof or a single nominee of the Holder, or, at the
option of the Company, to such other Persons as the Holder hereof may designate,
by wire transfer of immediately available funds on the date such payments are
due.
Reference is made to the further provisions set forth on the reverse
hereof. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Security shall not be valid or obligatory until the certificate
of authentication hereon shall have been duly signed by the Trustee acting under
the Senior Indenture.
<PAGE>
3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: April 28, 1999
CAPITAL ONE FINANCIAL CORPORATION
By: /s/ Susanna K. Tisa
-----------------------------------
Name: Susanna K. Tisa
Title: Director of Capital Markets
[CORPORATE SEAL] Attest By: /s/ John G. Finneran, Jr.
-----------------------------
Name: John G. Finneran, Jr.
Title: Corporate Secretary
This is one of the Securities issued under the within-mentioned Senior
Indenture.
Dated: April 28, 1999
HARRIS TRUST AND SAVINGS BANK
By: /s/ D.G. Donovan
---------------------------
Authorized Officer
<PAGE>
[Reverse of Note]
Capital One Financial Corporation
7 1/4% Notes Due 2006
This Security is one of a duly authorized issue of debt securities of
the Company, of the series hereinafter specified, all issued or to be issued
under an Indenture, dated as of November 1, 1996 (the "Senior Indenture"), and
duly executed and delivered by the Company to Harris Trust and Savings Bank, as
trustee (hereinafter, the "Trustee"), to which reference to the Senior Indenture
is hereby made for a description of the respective rights and duties thereunder
of the Trustee, the Company and the Holders of the Securities. This Security is
one of a series designated as the "7 1/4% Notes due 2006" of the Company
(hereinafter called the "Notes"), issued under the Senior Indenture and limited
in aggregate principal amount to $225,000,000.
Neither the Senior Indenture nor the Notes limit or otherwise restrict
the amount of indebtedness which may be incurred or other securities which may
be issued by the Company. The Notes issued under the Senior Indenture will be
direct, unsecured obligations of the Company and will mature on May 1, 2006.
The Notes rank on parity with all other unsecured, unsubordinated indebtedness
of the Company.
The Notes will bear interest at the rate of 7 1/4% per annum.
The Notes are not redeemable prior to maturity.
The Notes are not entitled to any sinking fund.
In case an Event of Default shall have occurred and be continuing with
respect to the Notes, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Senior Indenture. The Senior
Indenture provides that in certain circumstances such declaration and its
consequences may be waived by the Holders of a majority in aggregate principal
amount of the Notes then Outstanding. However, any such consent or waiver by
the Holder shall not affect any subsequent default or impair any right
consequent thereon.
The Senior Indenture permits the Company and the Trustee, without the
consent of the Holders of the Notes for certain situations and with the consent
of not less than two-thirds of the Holders in aggregate principal amount of the
Outstanding Notes in other situations, to execute supplemental indentures adding
to, modifying or changing various provisions to the Senior Indenture; provided
--------
that no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall (i) change the Stated Maturity of
the principal of, or any installment of interest on the Notes, or reduce the
principal amount thereof or
<PAGE>
2
the interest thereon, or change the place or currency of payment of principal
of, or interest on, the Notes, or impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof, or change
the Company's obligation to pay additional amounts (except as otherwise
contemplated in the Senior Indenture); (ii) reduce the percentage in principal
amount of the Outstanding Notes, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of the Senior Indenture or
certain defaults hereunder and their consequence) provided for in the Senior
Indenture; or (iii) modify any of the provisions of Sections 902, 513 or 1008 of
the Senior Indenture, except to increase any such percentage or provide that
certain other provisions of the Senior Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected thereby.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1005, 1006 or 1007 of the
Senior Indenture, if before the time for such compliance, the Holders of at
least a majority in principal amount of the Outstanding Notes, by act of such
Holders, either shall waive such compliance in such instance or generally shall
have waived compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
No reference herein to the Senior Indenture and no provision of this
Note or of the Senior Indenture shall alter or impair the obligations of the
Company, which are absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Note at the place, at the respective times, at the
rate and in the coin and currency herein prescribed.
The Notes are issuable in registered form without coupons in
denominations of $1,000 and any multiple thereof.
At the office or agency of the Company referred to on the face hereof
and in the manner and subject to the limitations provided in the Senior
Indenture, the Notes may be exchanged for a like aggregate principal amount of
Notes of other authorized denominations.
Upon due presentment for registration of transfer of the Notes at the
above-mentioned office or agency of the Company, a new Note or Notes of
authorized denominations, for a like aggregate principal amount, will be issued
to the transferee as provided in the Senior Indenture. No service charge shall
be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
Prior to due presentation of this Note for registration of transfer,
the Company, the Trustee, and any authorized agent of the Company or the
Trustee, may deem and treat the Holder hereof as the absolute owner of the Note
(whether or not this Note shall be overdue and made by
<PAGE>
3
anyone other than the Company or the Trustee or any authorized agent of the
Company or the Trustee), for the purpose of receiving payment of, or on account
of, the principal hereof and, subject to the provisions on the face hereof,
interest hereon and for all other purposes, and neither the Company nor the
Trustee nor any authorized agent of the Company or the Trustee shall be affected
by any notice to the contrary.
No recourse shall be had for the payment of the principal of, or the
interest on, this Note, for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Senior Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
---------------------------------------------------------------------
STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH
- -----------------------------------------------------------------------------
THE LAWS OF SAID STATE, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW.
- ---------------------------------------------------------------------------
All terms used in this Note (and not otherwise defined in this Note)
that are defined in the Senior Indenture shall have the meanings assigned to
them in the Senior Indenture.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.3
<SEQUENCE>5
<DESCRIPTION>2ND AMENDMENT TO RESTATED DIST. AGREEMENT
<TEXT>
<PAGE>
EXHIBIT 10.1.3
--------------
Capital One Bank
Senior and Subordinated Bank Notes
Due From 30 Days to 30 Years From Date of Issue
SECOND AMENDMENT TO AMENDED AND RESTATED
DISTRIBUTION AGREEMENT DATED APRIL 30, 1996
April 30, 1999
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
SALOMON SMITH BARNEY INC.
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower, 11/th/ Floor
New York, New York 10281-1311
Ladies and Gentlemen:
Capital One Bank, a banking association chartered under the laws of the
Commonwealth of Virginia (the "Bank"), desires to amend the Amended and Restated
Distribution Agreement, dated April 30, 1996, as amended by the Amendment to the
Amended and Restated Distribution Agreement, dated April 21, 1998, entered into
with respect to the distribution of the Bank's Senior and Subordinated Bank
Notes due from 30 days to 30 years from date of issue (the "Notes"), and made
between the Bank and the Agents party thereto (which agreement, as amended from
time to time, is herein referred to as the "Distribution Agreement") in the
following manner:
Section 1. Amendments to the Distribution Agreement.
----------------------------------------
The Distribution Agreement is hereby amended as follows:
<PAGE>
(a) The words "or, otherwise make available through electronic media
(provided that Bank shall notify the Agents of such availability)"
shall be inserted after the words "as promptly as reasonably
practicable after such reports become publicly available" on line 6 of
clause (e) of Section 4 of the Distribution Agreement.
Section 2. Representations and Warranties.
------------------------------
The Bank hereby repeats and reaffirms the representations and warranties
contained in Section 2 of the Distribution Agreement, with the same force and
effect as though such representations and warranties had been made as of the
date hereof, provided that all references in such representations and warranties
to (i) the Distribution Agreement shall refer to the Distribution Agreement as
amended by this Amendment, (ii) the Offering Circular shall refer to the
Offering Circular dated April 30, 1999, (iii) the Letters of Representation
shall refer to the Short-Term and Medium-Term Letters of Representation dated
April 30, 1997, and (iv) the Call Reports shall refer to the Call Reports
beginning with and including the Call Report for the period ended December 31,
1996.
Section 3. Governing Law.
-------------
This Amendment shall be governed by and construed and interpreted in
accordance with the laws of the State of New York.
Section 4. Severability of Provisions.
--------------------------
Any provision of this Amendment which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section 5. Captions.
--------
The captions in this Amendment are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
[Remainder of this page intentionally left blank]
2
<PAGE>
If the foregoing is agreeable to you, please sign and return to the Bank a
counterpart hereof, whereupon this instrument along with all counterparts will
become a binding agreement between each of the Agents and the Bank in accordance
with its terms.
Very truly yours,
CAPITAL ONE BANK
By: /s/ Susanna K. Tisa
---------------------------
Name: Susanna K. Tisa
Title: Director of Capital Markets
CONFIRMED AND ACCEPTED,
As of the date first written above:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: /s/
--------------------------------
Name:
Title:
CHASE SECURITIES INC.
By: /s/
--------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Julie A. Keogh
--------------------------------
Name: Julie A. Keogh
Title: Authorized Signatory
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
By: /s/
--------------------------------
Name:
Title:
3
<PAGE>
LEHMAN BROTHERS INC.
By: /s/ Kyle Miller
--------------------------------
Name: Kyle Miller
Title: Senior Vice President
J.P. MORGAN SECURITIES INC.
By: /s/
--------------------------------
Name:
Title:
NATIONSBANC MONTGOMERY SECURITIES LLC
By: /s/
--------------------------------
Name:
Title:
SALOMON SMITH BARNEY INC.
By: /s/ Martha D. Bailey
--------------------------------
Name: Martha D. Bailey
Title: First Vice President
4
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.1.3
<SEQUENCE>6
<DESCRIPTION>FORM OF CHANGE OF CONTROL EMPLOYMENT AGREEMENT
<TEXT>
<PAGE>
Exhibit 10.3
------------
Capital One Financial Corporation
---------------------------------
Amended and Restated Change of Control Employment Agreement
-------------------------------------
Each of the following executive officers of Capital One Financial Corporation
has entered into an Amended and Restated Change of Control Employment Agreement
in the form filed herewith:
Richard D. Fairbank
Nigel W. Morris
John G. Finneran, Jr.
<PAGE>
CAPITAL ONE FINANCIAL CORPORATION
---------------------------------
___________________
AMENDED AND RESTATED CHANGE OF CONTROL EMPLOYMENT AGREEMENT
-----------------------------------------------------------
AGREEMENT by and between CAPITAL ONE FINANCIAL CORPORATION, a Delaware
corporation (the "Company") and ___________________ (the "Executive"), dated as
of the 25/th/ day of January, 2000.
The Board of Directors of the Company (the "Board") has determined that it
is in the best interests of the Company and its shareholders to assure that the
Company will have the continued dedication of the Executive, notwithstanding the
possibility, threat or occurrence of a Change of Control (as defined below) of
the Company. The Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control and to encourage the
Executive's full attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control, and to provide the
Executive with compensation and benefits arrangements upon a Change of Control
which ensure that the compensation and benefits expectations of the Executive
will be satisfied and which are competitive with those of other corporations.
Therefore, in order to accomplish these objectives, the Board has caused the
Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
-------------------
(a) The "Effective Date" shall be the first date during the "Change
of Control Period" (as defined in Section 1(b)) on which a Change of
Control occurs. Anything in this Agreement to the contrary notwithstanding,
if the Executive's employment with the Company is terminated or the terms
and conditions of the Executive's employment are adversely changed in a
manner which would constitute grounds for a termination of employment by
the Executive for Good Reason prior to the date on which a Change of
Control occurs, and it is reasonably demonstrated that such termination of
employment or
-2-
<PAGE>
adverse change (i) was at the request of a third party who has taken steps
reasonably calculated to effect the Change of Control or (ii) otherwise
arose within 12 months of and in connection with or anticipation of the
Change of Control, then for all purposes of this Agreement the "Effective
Date" shall mean the date immediately prior to the date of such termination
of employment or adverse change.
(b) The "Change of Control Period" is the period commencing on the
date hereof and ending on the third anniversary of such date; provided,
however, that commencing on the date one year after the date hereof, and on
each annual anniversary of such date (such date and each annual anniversary
thereof is hereinafter referred to as the "Renewal Date"), the Change of
Control Period shall be automatically extended so as to terminate three
years from such Renewal Date, unless at least 60 days prior to the Renewal
Date the Company shall give notice to the Executive that the Change of
Control Period shall not be so extended.
2. Change of Control. For the purpose of this Agreement, a "Change of
-----------------
Control" shall mean:
(a) The acquisition by 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")) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% (or, if
such shares are purchased from the Company, 40%) or more of either (i) the
then outstanding shares of common stock of the Company (the "Outstanding
Company Common Stock") 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 "Company Voting Securities"), provided,
--------
however, that any acquisition by (x) the Company or any of its
-------
subsidiaries, or any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its subsidiaries or (y) any corporation
with respect to which, immediately following such acquisition, more than
60% 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 entitled to vote generally in the election
of directors is then beneficially owned, directly or indirectly, in the
aggregate by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Company
-3-
<PAGE>
Common Stock and Company Voting Securities immediately prior to such
acquisition in substantially the same proportion as their ownership,
immediately prior to such acquisition, of the Outstanding Company Common
Stock and Company Voting Securities, as the case may be, shall not
constitute a Change of Control; or
(b) Individuals who constitute the Board as of the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a majority
of the Board, provided that any individual becoming a director subsequent
to the date hereof whose appointment to fill a vacancy or to fill a new
Board position or 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 is in
connection with an actual or threatened election contest relating to the
election of the Directors of the Company (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act); or
(c) Approval by the shareholders of the Company of a reorganization,
merger or consolidation (a "Business Combination"), in each case, with
respect to which all or substantially all of the individuals and entities
who were the respective beneficial owners of the Outstanding Company Common
Stock and Company Voting Securities immediately prior to such Business
Combination do not in the aggregate, immediately following such Business
Combination, beneficially own, directly or indirectly, more than 60% of,
respectively, 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 such Business Combination in substantially the
same proportion as their ownership immediately prior to such Business
Combination of the Outstanding Company Common Stock and Company Voting
Securities, as the case may be; or
(d) (i) a complete liquidation or dissolution of the Company or (ii)
sale or other disposition of all or substantially all of the assets of the
Company other than to a corporation with respect to which, immediately
following such sale or disposition, more than 60% of, respectively, the
then outstanding shares of common stock and the
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<PAGE>
combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors is then beneficially owned,
directly or indirectly, in the aggregate by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Company Voting Securities
immediately prior to such sale or disposition in substantially the same
proportion as their ownership of the Outstanding Company Common Stock and
Company Voting Securities, as the case may be, immediately prior to such
sale or disposition.
(e) Notwithstanding the foregoing, a Change of Control shall not
occur with respect to the Executive by reason of any event which would
otherwise constitute a Change of Control if, immediately after the
occurrence of such event, individuals including such Executive who were
executive officers of the Company immediately prior to the occurrence of
such event, own, directly or indirectly, on a fully diluted basis, (i) 15%
or more of the then outstanding shares of common stock of the Company or
any acquiror or successor to substantially all of the business of the
Company or (ii) 15% or more of the combined voting power of the then
outstanding voting securities of the Company or any acquiror or successor
to substantially all of the business of the Company entitled to vote
generally in the election of directors.
3. Employment Period. The Company hereby agrees to continue the
-----------------
Executive in its employ, and the Executive hereby agrees to remain in the employ
of the Company, for the period commencing on the Effective Date and ending on
the third anniversary of such date (the "Employment Period").
4. Terms of Employment.
-------------------
(a) Position and Duties.
-------------------
(i) During the Employment Period, (A) the Executive's position
(including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be at least commensurate
in all material respects with the most significant of those held,
exercised and assigned at any time during the 90-day period
immediately preceding the Effective Date and (B) the Executive's
services shall be performed at the location where the Executive was
employed immediately preceding the Effective Date or any office or
location less than 35 miles from such location.
-5-
<PAGE>
(ii) During the Employment Period, and excluding any periods of
vacation, sabbatical, and sick or similar leave to which the Executive
is entitled, the Executive agrees to devote reasonable attention and
time during normal business hours to the business and affairs of the
Company and, to the extent necessary to discharge the responsibilities
assigned to the Executive hereunder, to use the Executive's reasonable
best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a
violation of this Agreement for the Executive to (A) serve on
corporate, civic or charitable boards or committees, (B) deliver
lectures, fulfill speaking engagements or teach at educational
institutions and (C) manage personal investments, so long as such
activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and agreed
that to the extent that any such activities have been conducted by the
Executive prior to the Effective Date, the continued conduct of such
activities (or the conduct of activities similar in nature and scope
thereto) subsequent to the Effective Date shall not thereafter be
deemed to interfere with the performance of the Executive's
responsibilities to the Company.
(b) Compensation.
------------
(i) Base Salary. During the Employment Period, the Executive
-----------
shall receive an annual base salary ("Annual Base Salary"), which
shall be paid at a monthly rate, at least equal to twelve times the
highest monthly base salary paid or payable, including by reason of
deferral and before any reduction for the amount of such annual base
salary which the Executive may have agreed to forgo in exchange for
the receipt of stock options from the Company, to the Executive by the
Company and its affiliated companies in respect of the twelve-month
period immediately preceding the month in which the Effective Date
occurs. During the Employment Period, the Annual Base Salary shall be
reviewed at least annually and shall be increased at any time and from
time to time as shall be substantially consistent with increases in
base salary awarded in the ordinary course of business to other peer
executives of the Company and its affiliated
-6-
<PAGE>
companies. Any increase in Annual Base Salary shall not serve to limit
or reduce any other obligation to the Executive under this Agreement.
Annual Base Salary shall not be reduced after any such increase and
the term Annual Base Salary as utilized in this Agreement shall refer
to Annual Base Salary as so increased. As used in this Agreement, the
term "affiliated companies" includes any company controlled by,
controlling or under common control with the Company. Any payments of
the Executive's Annual Base Salary made under this Section 4(b)(i) may
be reduced to the extent provided in an election made by the Executive
to forgo any or all base salary otherwise payable in exchange for the
receipt of stock options from the Company. The Company shall maintain
an account (the "Stock Option Purchase Account"), the balance of
which, as of any date, shall be equal to the aggregate dollar amount
of base salary and bonuses that the Executive has agreed to forgo in
exchange for the receipt of such stock options, less the amount of
such base salary or bonuses or other compensation (including amounts
payable upon termination of employment) actually forgone.
(ii) Annual Bonus. In addition to any Annual Base Salary payable
------------
as hereinabove provided, the Executive shall be awarded, for each
fiscal year beginning or ending during the Employment Period, an
annual bonus (the "Annual Bonus") in cash at least equal to the sum of
the target award under the Company's Executive Annual Cash Incentive
Plan and any other target awards under any other similar annual
incentive plans (or if no such target award is designated under the
Company's Executive Annual Cash Incentive Plan or any similar plan,
the midpoint between the high and low bonus payable to the Executive
under such plan); provided, however, that such target or midpoint, as
-------- -------
the case may be, shall not be less than such target or midpoint under
such plans in the year immediately preceding the Change of Control
(the "Recent Annual Bonus"). Each such Annual Bonus shall be paid no
later than the end of the third month of the fiscal year next
following the fiscal year for which the Annual Bonus is awarded,
unless the Executive shall elect to defer the receipt of such Annual
Bonus. Any payments of the Executive's Annual Bonus made under this
Section 4(b)(ii) may be reduced to the extent provided in an election
made by the
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<PAGE>
Executive to forgo any or all bonus amounts otherwise payable in
exchange for the receipt of stock options from the Company.
(iii) Incentive, Savings and Retirement Plans. In addition to
---------------------------------------
any Annual Base Salary and Annual Bonus payable as hereinabove
provided, the Executive shall be entitled to participate during the
Employment Period in all incentive, profit-sharing, savings and
retirement plans, practices, policies and programs (including any
stock-based plans) applicable generally to other peer executives of
the Company and its affiliated companies, but in no event shall such
plans, practices, policies and programs provide the Executive with
incentive, savings and retirement benefit opportunities (including
under any stock-based plans), in each case, less favorable, in the
aggregate, except as required to comply with statutory requirements of
general application which limit the level of benefit opportunity, than
(A) the most favorable of those provided by the Company and its
affiliated companies for the Executive under such plans, practices,
policies and programs as in effect at any time during the 90-day
period immediately preceding the Effective Date or (B) if more
favorable to the Executive, those provided at any time after the
Effective Date to other peer executives of the Company and its
affiliated companies; provided that no award shall be granted or
contributions made under any such plan, practice, policy or program to
the extent the Executive has made an election to forgo awards or
contributions under such plan, practice, policy or program of the
Company in exchange for the receipt of stock options from the Company;
and provided further that any effect on the Executive's participation
or benefit level resulting from the Executive's not receiving an
Annual Base Salary as a result of an election made by the Executive to
forgo any or all base salary otherwise payable in exchange for the
receipt of stock options from the Company shall be governed by the
terms of those plans, practices, policies and programs of general
applicability.
(iv) Welfare Benefit Plans. During the Employment Period, the
---------------------
Executive and/or the Executive's family, as the case may be, shall be
eligible for participation in and shall receive all benefits under
welfare benefit plans, practices, policies and programs provided by
the Company and its affiliated
-8-
<PAGE>
companies (including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life, group life,
split-dollar life insurance, accidental death and travel accident
insurance plans and programs) to the extent generally applicable to
other peer executives of the Company and its affiliated companies, but
in no event shall such plans, practices, policies and programs provide
the Executive with benefits which are less favorable, in the
aggregate, than (x) the most favorable of such plans, practices,
policies and programs in effect for the Executive at any time during
the 90-day period immediately preceding the Effective Date or (y) if
more favorable to the Executive, those provided at any time after the
Effective Date generally to other peer executives of the Company and
its affiliated companies.
(v) Expenses. During the Employment Period, the Executive
--------
shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the most
favorable policies, practices and procedures of the Company and its
affiliated companies in effect for the Executive at any time during
the 90-day period immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and
its affiliated companies.
(vi) Fringe Benefits. During the Employment Period, the
---------------
Executive shall be entitled to fringe benefits in accordance with the
most favorable plans, practices, programs and policies of the Company
and its affiliated companies in effect for the Executive at any time
during the 90-day period immediately preceding the Effective Date or,
if more favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and
its affiliated companies.
(vii) Office and Support Staff. During the Employment Period,
------------------------
the Executive shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to exclusive personal
secretarial and other assistance, at least equal to the most favorable
of the foregoing provided to the Executive by the Company and its
affiliated companies at any time during the 90-day period
-9-
<PAGE>
immediately preceding the Effective Date or, if more favorable to the
Executive, as provided generally at any time thereafter with respect
to other peer executives of the Company and its affiliated companies.
(viii) Vacation and Other Paid Leave. During the Employment
-----------------------------
Period, the Executive shall be entitled to paid vacation and other
paid leave in accordance with the most favorable plans, policies,
programs and practices of the Company and its affiliated companies as
in effect at any time during the 90-day period immediately preceding
the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies; provided that
such vacation or other leave may not be paid vacation or paid leave to
the extent provided in an election made by the Executive to forgo any
or all base salary otherwise payable in exchange for the receipt of
stock options from the Company.
5. Termination of Employment.
-------------------------
(a) Death or Disability. The Executive's employment shall terminate
-------------------
automatically upon the Executive's death during the Employment Period. If
the Company determines in good faith that the Disability of the Executive
has occurred during the Employment Period (pursuant to the definition of
Disability set forth below), it may give to the Executive written notice in
accordance with Section 13(b) of this Agreement of its intention to
terminate the Executive's employment. In such event, the Executive's
employment with the Company shall terminate effective on the 30th day after
receipt of such notice by the Executive (the "Disability Effective Date"),
provided that, within the 30 days after such receipt, the Executive shall
not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" means the absence of the Executive
from the Executive's duties with the Company on a full-time basis for 180
consecutive business days as a result of incapacity due to mental or
physical illness which is determined to be total and permanent by a
physician selected by the Company or its insurers and acceptable to the
Executive or the Executive's legal representative (such agreement as to
acceptability not to be withheld unreasonably).
(b) Cause. The Company may terminate the Executive's employment
-----
during the Employment Period for Cause. For purposes of this Agreement,
"Cause" means (i) an
-10-
<PAGE>
action taken by the Executive involving willful and wanton malfeasance
involving specifically a wholly wrongful and unlawful act, or (ii) the
Executive being convicted of a felony.
(c) Good Reason. The Executive's employment may be terminated during
-----------
the Employment Period by the Executive for Good Reason. For purposes of
this Agreement, "Good Reason" means:
(i) The assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 4(a) of this Agreement, or
any other action by the Company which results in a diminution in such
position, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive;
(ii) Any failure by the Company to comply with any of the
provisions of Section 4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and
which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(iii) The Company's requiring the Executive to be based at any
office or location other than that described in Section 4(a)(i)(B)
hereof;
(iv) Any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(v) Any failure by the Company to comply with and satisfy
Section 11(c) of this Agreement.
For purposes of this Agreement, any good faith determination of Good
Reason made by the Executive shall be conclusive. Anything in this Agreement to
the contrary notwithstanding, a termination by the Executive for any reason
during the 30-day period immediately following the first anniversary of the
Effective Date shall be deemed to be a termination for Good Reason for all
purposes of this Agreement.
(d) Notice of Termination. Any termination by the Company for Cause
---------------------
or by the Executive for Good Reason shall be communicated by Notice of
Termination to the
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<PAGE>
other party hereto given in accordance with Section 13(b) of this
Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in
this Agreement relied upon, (ii) to the extent applicable sets forth in
reasonable detail the facts and circumstances claimed to provide a basis
for termination of the Executive's employment under the provision so
indicated and (iii) if the Date of Termination (as defined below) is other
than the date of receipt of such notice, specifies the termination date
(which date shall be not more than fifteen days after the giving of such
notice). In the case of a termination of the Executive's employment for
Cause, a Notice of Termination shall include a copy of a resolution duly
adopted by the affirmative vote of not less than two-thirds of the entire
membership of the Board at a meeting of the Board called and held for the
purpose (after reasonable notice to the Executive and reasonable
opportunity for the Executive, together with the Executive's counsel, to be
heard before the Board prior to such vote), finding that in the good faith
opinion of the Board the Executive was guilty of conduct constituting
Cause. No purported termination of the Executive's employment for Cause
shall be effective without a Notice of Termination. The failure by the
Executive to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason shall not waive
any right of the Executive hereunder or preclude the Executive from
asserting such fact or circumstance in enforcing the Executive's rights
hereunder.
(e) Date of Termination. "Date of Termination" means the date of
-------------------
receipt of the Notice of Termination or any later date specified therein,
as the case may be; provided, however, that (i) if the Executive's
employment is terminated by the Company other than for Cause or Disability,
the Date of Termination shall be the date on which the Company notifies the
Executive of such termination and (ii) if the Executive's employment is
terminated by reason of death or Disability, the Date of Termination shall
be the date of death of the Executive or the Disability Effective Date, as
the case may be.
(f) Transition Period. "Transition Period" means the period
-----------------
commencing on the Date of Termination and ending on the thirty-six month
anniversary of the Date of Termination.
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<PAGE>
6. Obligations of the Company upon Termination.
-------------------------------------------
(a) Death. If the Executive's employment is terminated by reason of
-----
the Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal
representatives under this Agreement, other than the following obligations:
(i) payment of the Executive's Annual Base Salary through the Date of
Termination to the extent not theretofore paid, (ii) payment of the product
of (x) the greater of (A) the annual bonus paid or payable, including by
reason of deferral and before any reduction for the amount of such bonus
which the Executive may have agreed to forgo in exchange for the receipt of
stock options from the Company (and annualized for any fiscal year
consisting of less than twelve full months or for which the Executive has
been employed for less than twelve full months), for the most recently
completed fiscal year and (B) the Recent Annual Bonus (such greater amount
hereafter referred to as the "Highest Annual Bonus") and (y) a fraction,
the numerator of which is the number of days in the current fiscal year
through the Date of Termination, and the denominator of which is 365 and
(iii) payment of any bonus earned or accrued by the Executive for the most
recently completed fiscal year prior to the Date of Termination and not yet
paid by the Company, any payment of any compensation previously deferred by
the Executive (together with any accrued interest thereon) and not yet paid
by the Company and any pay for vacation and sabbatical earned but not yet
taken (the amounts described in paragraphs (i), (ii) and (iii) are
hereafter referred to as "Accrued Obligations"). The amount of the
Company's payment obligations under paragraphs (i), (ii) and (iii) of the
Accrued Obligations shall be reduced by the amount of any such Annual Base
Salary or Annual Bonus, respectively, that the Executive had elected to
forgo in exchange for the receipt of stock options from the Company (the
"Net Accrued Obligations"). All Net Accrued Obligations shall be paid to
the Executive's estate or beneficiary, as applicable, in a lump sum in cash
within 30 days of the Date of Termination. In addition, the Executive's
estate or designated beneficiaries shall be entitled to receive the
Executive's Annual Base Salary for the balance of the Employment Period;
provided that such payments of Annual Base Salary shall be reduced to the
extent provided in an election made by the Executive to forgo any or all
base salary otherwise payable in exchange for the receipt of stock options
from the Company; and provided
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<PAGE>
further that such payments of Annual Base Salary shall be reduced by any
survivor benefits paid to the Executive's estate or designated beneficiary
under the Company's Cash Balance Pension Plan (the "Pension Plan").
Anything in this Agreement to the contrary notwithstanding, the Executive's
estate and family shall be entitled to receive benefits at least equal to
the most favorable benefits provided generally by the Company and any of
its affiliated companies to the estates and surviving families of peer
executives of the Company and such affiliated companies under such plans,
programs, practices and policies relating to death benefits, if any, as in
effect generally with respect to other peer executives and their estates
and families at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive and/or the
Executive's family, as in effect on the date of the Executive's death
generally with respect to other peer executives of the Company and its
affiliated companies and their families; provided that this sentence shall
not apply to benefits under any incentive, profit-sharing, savings and
retirement plans, practices, policies and programs (including any stock-
based plans) to the extent the Executive has made an election to forgo
awards or contributions under such plan, practice, policy or program of the
Company in exchange for the receipt of stock options from the Company.
(b) Disability. If the Executive's employment is terminated by
----------
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive,
other than for Net Accrued Obligations. All Net Accrued Obligations shall
be paid to the Executive in a lump sum in cash within 30 days of the Date
of Termination. In addition, the Executive shall be entitled to receive the
Executive's Annual Base Salary for the balance of the Employment Period;
provided that such payments of Annual Base Salary shall be reduced to the
extent provided in an election made by the Executive to forgo any or all
base salary otherwise payable in exchange for the receipt of stock options
from the Company; and provided further that such payments of Annual Base
Salary shall be reduced by any benefits paid to the Executive under the
Company's disability plans. Anything in this Agreement to the contrary
notwithstanding, the Executive shall be entitled after the Disability
Effective Date to receive disability and other benefits at least equal to
the most favorable of those generally provided by the Company and its
affiliated companies to disabled executives
-14-
<PAGE>
and/or their families in accordance with such plans, programs, practices
and policies relating to disability, if any, as in effect generally with
respect to other peer executives and their families at any time during the
90-day period immediately preceding the Effective Date or, if more
favorable to the Executive and/or the Executive's family, as in effect at
any time thereafter generally with respect to other peer executives of the
Company and its affiliated companies and their families; provided that this
sentence shall not apply to benefits under any incentive, profit-sharing,
savings and retirement plans, practices, policies and programs (including
any stock-based plans) to the extent the Executive has made an election to
forgo awards or contributions under such plan, practice, policy or program
of the Company in exchange for the receipt of stock options from the
Company.
(c) Cause; Other than for Good Reason. If the Executive's employment
---------------------------------
shall be terminated for Cause during the Employment Period, this Agreement
shall terminate without further obligations to the Executive other than the
obligation to pay to the Executive Annual Base Salary through the Date of
Termination, plus the amount of any bonus earned or accrued by the
Executive for the most recently completed fiscal year prior to the Date of
Termination and any compensation previously deferred by the Executive, in
each case to the extent theretofore unpaid. The amount of the Company's
payment of such Annual Base Salary shall be reduced by the amount of any
such Annual Base Salary that the Executive has elected to forgo in exchange
for the receipt of stock options from the Company. If the Executive
terminates employment during the Employment Period other than for Good
Reason, this Agreement shall terminate without further obligations to the
Executive, other than for Net Accrued Obligations. All applicable amounts
due to the Executive pursuant to this Section 6(c) shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of Termination.
(d) Good Reason; Other Than for Cause or Disability. If, during the
-----------------------------------------------
Employment Period, the Company shall terminate the Executive's employment
other than for Cause or Disability, or if the Executive shall terminate
employment under this Agreement for Good Reason:
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<PAGE>
(i) The Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the
following amounts:
(A) All Net Accrued Obligations; and
(B) The product of (x) three and (y) the sum of (i) Annual
Base Salary and (ii) the Highest Annual Bonus; and
(C) an amount equal to any unvested account balance in any
defined contribution plan, and any supplemental and excess
retirement plans with respect thereto, that would have vested had
the Executive's employment with the Company continued for the
duration of the Transition Period; and
(D) an amount equal to the contributions and accrued
earnings that would have been made under any defined contribution
plan, and any supplemental and excess retirement plans with
respect thereto, had the Executive's employment with the Company
continued for the duration of the Transition Period and had the
Executive contributed to such plans at the highest rate permitted
by such plans, calculated assuming that the terms of such plans
are no less favorable than those in effect during the 90-day
period immediately prior to the Effective Date, or if more
favorable to the Executive, those in effect generally at any time
thereafter with respect to such plans for other peer executives
of the Company and its affiliated companies; and
(ii) For the remainder of the Employment Period, or such longer
period as any plan, program, practice or policy may provide, the
Company shall continue benefits to the Executive and/or the
Executive's family at least equal to those which would have been
provided to them in accordance with the plans, programs, practices and
policies described in Section 4(b)(iv) of this Agreement if the
Executive's employment had not been terminated in accordance with the
most favorable plans, practices, programs or policies of the Company
and its affiliated companies applicable generally to other peer
executives and their families during the 90-day period immediately
preceding the Effective Date or, if more favorable
-16-
<PAGE>
to the Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its affiliated
companies and their families. For purposes of determining eligibility
of the Executive for retiree benefits pursuant to such plans,
practices, programs and policies, the Executive shall be considered to
have remained employed for the duration of the Employment Period and
to have retired on the last day of such period. In lieu of the
benefits provided for in this Section 6(d)(ii), the Executive may
elect within 60 days of the Date of Termination to be paid an amount
in cash equal to the present value of such benefits on an after-tax
basis. In determining present value, a discount rate equal to the
federal mid-term rate under Section 1274(d) of the Internal Revenue
Code of 1986, as amended (the "Code") shall be utilized. The right to
continued benefits granted to the Executive and/or his family pursuant
to this Section 6(d)(ii) shall be in addition to any right of
continued coverage under any of the plans, programs, practices and
policies described in Section 4(b)(iv) of this Agreement which the
Executive and/or his family may be entitled to under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA") upon any loss of
coverage under such plans, programs, practices and policies.
The amount payable by the Company to the Executive pursuant to Section
6(d)(i)(B) above will be reduced by any remaining balance in the Stock Option
Purchase Account; provided that such reduction will not be made to the extent
that the remaining balance is paid to the Company pursuant to any other
repayment provision in any other agreement.
7. Non-exclusivity of Rights. Except as otherwise specifically provided
-------------------------
in this Agreement, nothing in this Agreement shall prevent or limit the
Executive's continuing or future participation in any benefit, bonus, incentive
or other plans, programs, policies or practices, provided by the Company or any
of its affiliated companies and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the Executive may have
under any other agreements with the Company or any of its affiliated companies.
Amounts which are vested benefits or which the Executive is otherwise entitled
to receive under any plan, policy, practice or program of the Company or any of
its affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program except as
explicitly modified by this Agreement.
-17-
<PAGE>
8. Full Settlement. The Company's obligation to make the payments
---------------
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of, and no amounts
earned by the Executive at such other employment or otherwise shall reduce, the
amounts payable to the Executive under any of the provisions of this Agreement.
The Company agrees to pay, to the full extent permitted by law, all legal fees
and expenses which the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Executive or others of
the validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any
contest by the Executive about the amount of any payment pursuant to Section 9
of this Agreement), plus in each case interest at the applicable federal rate
provided for in Section 7872(f)(2) of the Code.
9. Certain Additional Payments by the Company.
------------------------------------------
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by the
Company to or for the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (a "Payment"), would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together with
any such interest and penalties, are hereinafter collectively referred to
as the "Excise Tax"), then the Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after
payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any
income taxes and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 9(c), all determinations
required to be made under this Section 9, including whether a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the
assumptions not specified herein to be used in arriving at such
determinations, shall be made by the Company's certified public accounting
firm immediately prior to the Effective Date (the "Accounting Firm"). Such
-18-
<PAGE>
determination shall be made within fifteen business days after request
therefor by notice from the Executive or the Company to such firm and to
the other party hereto. In making such determination with respect to any
matter which is uncertain, the Accounting Firm shall adopt the position
which it believes more likely than not would be adopted by the Internal
Revenue Service. The Accounting Firm shall provide detailed supporting
calculations with respect to its determination both to the Company and the
Executive within such fifteen business day period. All fees and expenses of
the Accounting Firm under this Section 9(b) shall be borne solely by the
Company. The initial Gross-Up Payment, if any, as determined pursuant to
this Section 9(b), shall be paid by the Company to the Executive within
five days of the receipt of the Accounting Firm's determination. If the
Accounting Firm determines that no Excise Tax is payable by the Executive,
it shall furnish the Executive with a written opinion that failure to
report the Excise Tax on the Executive's applicable federal income tax
return would not result in the imposition of a negligence or similar
penalty. Any determination by the Accounting Firm shall be final, binding
and conclusive upon the Company and the Executive, except as provided in
the following sentences of this Section 9(b). As a result of uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-
Up Payments which will not have been made by the Company should have been
made ("Underpayment") or that Gross-Up Payments which have been made by the
Company should not have been made ("Excess Gross-Up Payment"), consistent
with the calculations required to be made hereunder. Either party hereto
can request a redetermination by the Accounting Firm. An Underpayment can
result from a claim by the Internal Revenue Service or from a determination
by the Accounting Firm. In the event that the Internal Revenue Service
makes a claim and the Company exhausts its remedies pursuant to Section
9(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall promptly determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly
paid by the Company to or for the benefit of the Executive. In the event
that the Accounting Firm determines that an Underpayment has occurred, the
Accounting Firm shall promptly determine the amount of the Underpayment,
which shall be promptly paid by the Company to or for the benefit of the
-19-
<PAGE>
Executive. An Excess Gross-Up Payment can result from a determination by
the Internal Revenue Service or the Accounting Firm. If the Accounting Firm
makes an Excess Gross-Up Payment determination, it must furnish the
Executive with a written opinion that the basis for its determination would
be accepted by the Internal Revenue Service and that the Executive has a
right to a refund of taxes or credit against taxes with respect to the
Excess Gross-Up Payment. The Executive shall promptly repay to the Company
an amount equal to the reduction in aggregate taxes due by the Executive
resulting from such determination by the Internal Revenue Service or the
Accounting Firm, provided that the Executive shall only be required to
repay any portion of such amount that had been paid to the Internal Revenue
Service to the extent that and when the Executive receives a refund from
the Internal Revenue Service (or is entitled and able to utilize such
amount as a credit against other taxes due).
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment
by the Company of a Gross-Up Payment. Such notification shall be given as
soon as practicable but no later than ten business days after the Executive
is informed in writing of such claim and shall apprise the Company of the
nature of such claim and the date on which such claim is requested to be
paid. The Executive shall not pay such claim prior to the expiration of the
30-day period following the date on which the Executive gives such notice
to the Company (or such shorter period ending on the date that any payment
of taxes with respect to such claim is due). If the Company notifies the
Executive in writing prior to the expiration of such period that it desires
to contest such claim, the Executive shall:
(i) Give the Company any information reasonably requested by
the Company relating to such claim,
(ii) Take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company,
(iii) Cooperate with the Company in good faith in order
effectively to contest such claim, and
-20-
<PAGE>
(iv) Permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any taxes, including, without limitation, any Excise Tax or
income tax, including interest and penalties with respect thereto, imposed as a
result of such representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 9(c), the Company shall
control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forgo any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim and
may, at its sole option, either direct the Executive to pay the tax claimed and
sue for a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if the
Company directs the Executive to pay such claim and sue for a refund, the
Company shall advance the amount of such payment to the Executive, on an
interest-free basis and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any taxes, including, without limitation, any Excise Tax
or income tax, including interest or penalties with respect thereto, imposed
with respect to such advance or with respect to any imputed income with respect
to such advance; and further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the Executive
with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Company's control of the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 9(c), the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject
to the Company's complying with the requirements of Section 9(c)) promptly
pay to the Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto).
-21-
<PAGE>
If, after the receipt by the Executive of an amount advanced by the Company
pursuant to Section 9(c), a determination is made that the Executive shall
not be entitled to any refund with respect to such claim and the Company
does not notify the Executive in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be paid.
10. Confidential Information. The Executive shall hold in a fiduciary
------------------------
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by the Executive
during the Executive's employment by the Company or any of its affiliated
companies and which shall not be or become public knowledge (other than by acts
by the Executive or representatives of the Executive in violation of this
Agreement). After termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of the Company,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it. In no event shall an asserted
violation of the provisions of this Section 10 constitute a basis for deferring
or withholding any amounts otherwise payable to the Executive under this
Agreement.
11. Successors.
----------
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its business
and/or
-22-
<PAGE>
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
12. Funding. This Agreement constitutes an unfunded, unsecured obligation
-------
of the Company and any payments made hereunder shall be made from the general
assets of the Company. However, the Company has established a trust pursuant to
a trust agreement and shall make contributions to such trust in accordance with
the terms and conditions of such trust agreement for the purpose of assisting
the Company in meeting its payment obligations under this Agreement.
13. Miscellaneous.
-------------
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by
the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
-------------------
To the address shown on the Company's records for tax reporting
purposes.
If to the Company:
-----------------
Capital One Financial Corporation
2980 Fairview Park Drive
Falls Church, Virginia 22042
Attention: Officer-in-Charge,
Human Resources Division
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
-23-
<PAGE>
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's failure to insist upon strict compliance with any
provision hereof or the failure to assert any right the Executive may have
hereunder, including, without limitation, the right to terminate employment
for Good Reason pursuant to Section 5(c)(i)-(v), shall not be deemed to be
a waiver of such provision or right or any other provision or right
thereof.
(f) This Agreement contains the entire understanding of the Company
and the Executive with respect to the subject matter hereof and supercedes
in its entirety any prior Change of Control Agreement by and between the
Company and the Executive. Until the Effective Date, subject to the terms
of any other employment agreement between the Executive and the Company,
the Executive shall continue to be an "employee at will".
-24-
<PAGE>
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization from its Board of Directors, the
Company has caused these presents to be executed in its name on its behalf,
all as of the day and year first above written.
_____________________________________
CAPITAL ONE FINANCIAL CORPORATION
By __________________________________
-25-
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.7
<SEQUENCE>7
<DESCRIPTION>CAP ONE FINANCIAL 94 STOCK INCENTIVE PLAN
<TEXT>
<PAGE>
Exhibit 10.7
------------
CAPITAL ONE FINANCIAL CORPORATION
1994 STOCK INCENTIVE PLAN
(As Amended November 18, 1999)
1. Purpose. The purpose of the Capital One Financial Corporation 1994
Stock Incentive Plan (the "Plan") is to further the long term stability and
financial success of Capital One Financial Corporation (the "Company") by
attracting and retaining key employees of the Company through the use of stock
incentives. It is believed that ownership of Company Stock will stimulate the
efforts of those employees of the Company upon whose judgment and interest the
Company is and will be largely dependent for the successful conduct of its
business. It is also believed that Awards granted to such employees under this
Plan will strengthen their desire to remain with the Company and will further
the identification of those employees' interests with those of the Company's
shareholders. The Plan was adopted by the Board of Directors and approved by the
Company's sole shareholder on October 28, 1994.
The Plan is intended to satisfy the requirements of Securities and Exchange
Commission Rule 16b-3 ("Rule 16b-3").
2. Definitions. As used in the Plan, the following terms have the
meanings indicated:
(a) "Award" means, collectively, the award of an Option, Stock
Appreciation Right, Restricted Stock or Incentive Stock under the Plan.
(b) "Board" means the board of directors of the Company.
<PAGE>
(c) "Change of Control" means:
(i) The acquisition by an 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")) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 20% (or, if such shares are purchased from the Company, 40%) or
more of either (A) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (B) the combined
voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Company
Voting Securities"), provided, however, that any acquisition by (x)
-------- -------
the Company or any of its subsidiaries, or any employee benefit plan
(or related trust) sponsored or maintained by the Company or any of
its subsidiaries or (y) any corporation with respect to which,
immediately following such acquisition, more than 60% 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 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 Stock and Company Voting Securities
immediately prior to such acquisition in substantially the same
proportion as their ownership, immediately prior to such acquisition,
of the
2
<PAGE>
Outstanding Company Common Stock and Company Voting Securities, as the
case may be, shall not constitute a Change of Control; or
(ii) Individuals who constitute the Board as of September 1,
1995 (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board, provided that any individual becoming a
director subsequent to September 1, 1995 whose appointment to fill a
vacancy or to fill a new Board position or whose 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 is in connection with an actual or
threatened election contest relating to the election of the Directors
of the Company (as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act); or
(iii) Approval by the shareholders of the Company of a
reorganization, merger or consolidation (a "Business Combination"), in
each case, with respect to which all or substantially all of the
individuals and entities who were the respective beneficial owners of
the Outstanding Company Common Stock and Company Voting Securities
immediately prior to such Business Combination do not in the
aggregate, immediately following such Business Combination,
beneficially own, directly or indirectly, more than 60% of,
respectively, 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,
3
<PAGE>
as the case may be, of the corporation resulting from such Business
Combination in substantially the same proportion as their ownership
immediately prior to such Business Combination of the Outstanding
Company Common Stock and Company Voting Securities, as the case may
be; or
(iv) (A) a complete liquidation or dissolution of the Company or
(B) sale or other disposition of all or substantially all of the
assets of the Company other than to a corporation with respect to
which, immediately following such sale or disposition, more than 60%
of, respectively, 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 is then
beneficially owned, directly or indirectly, in the aggregate by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common
Stock and Company Voting Securities immediately prior to such sale or
disposition in substantially the same proportion as their ownership of
the Outstanding Company Common Stock and Company Voting Securities, as
the case may be, immediately prior to such sale or disposition.
(v) Neither the sale of Company common stock in an initial
public offering, nor the distribution of Company common stock by
Capital One Financial Corporation's parent corporation to its
shareholders in a transaction to which Section 355 of the Internal
Revenue Code applies, nor any restructuring of the
4
<PAGE>
Company or its Board of Directors in contemplation of or as the result
of either of such events, shall constitute a Change of Control.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Company" means Capital One Financial Corporation, a Delaware
corporation.
(f) "Company Stock" means Common Stock of the Company. If the par
value of the Company Stock is changed, or in the event of a change in the
capital structure of the Company (as provided in Section 15), the shares
resulting from such a change shall be deemed to be Company Stock within the
meaning of the Plan.
(g) "Date of Grant" means the date on which an Award is granted by
the Committee or such later date specified by the Committee as the date as
of which the Award is to be effective.
(h) "Disability" or "Disabled" means, as to an Incentive Stock
Option, a Disability within the meaning of Code section 22(e)(3). As to all
other Awards, the Committee shall determine whether a Disability exists and
such determination shall be conclusive.
(i) "Distribution" means the distribution of the Company's common
stock to shareholders of the Company's parent corporation in a transaction
to which Code Section 355 applies.
(j) "Distribution Date" means the date on which the Distribution
occurs.
(k) "Fair Market Value" means, on the date shares of the Company
Stock are offered in an initial public offering, the offering price, and on
any given date thereafter,
5
<PAGE>
the average of the high and low price on such date as reported on The New
York Stock Exchange-Composite Transactions Tape. In the absence of any such
sale, fair market value means the average of the highest bid and lowest
asked prices of a share of Company Stock on such date as reported by such
source. In the absence of such average or if shares of Company Stock are no
longer traded on The New York Stock Exchange, the fair market value shall
be determined by the Committee using any reasonable method in good faith.
(l) "Incentive Stock" means Company Stock awarded when performance
goals are achieved pursuant to an incentive plan as provided in Section 9.
(m) "Incentive Stock Option" means an Option intended to meet the
requirements of, and qualify for favorable Federal income tax treatment
under, Code section 422.
(n) "Insider" means a person subject to Section 16(b) of the
Securities Exchange Act of 1934.
(o) "Nonstatutory Stock Option" means an Option, which does not meet
the requirements of Code section 422, or even if meeting the requirements
of Code section 422, is not intended to be an Incentive Stock Option and is
so designated.
(p) "Option" means a right to purchase Company Stock granted under
the Plan, at a price determined in accordance with the Plan.
(q) "Parent" means, with respect to any corporation, a "parent
corporation" of that corporation within the meaning of Code section 424(e).
(r) "Participant" means any employee who receives an Award under the
Plan.
6
<PAGE>
(s) "Reload Feature" means a feature of an Option described in an
employee's stock option agreement that provides for the automatic grant of
a Reload Option in accordance with the provisions described in Section
10(d).
(t) "Reload Option" means an Option granted to an employee equal to
the number of shares of already owned Company Stock delivered by the
employee to exercise an Option described in Section 10(d).
(u) "Restricted Stock" means Company Stock awarded upon the terms and
subject to the restrictions set forth in Section 8.
(v) "Restricted Stock Award" means an award of Restricted Stock
granted under the Plan.
(w) "Rule 16b-3" means Rule 16b-3 of the Securities Exchange Act of
1934. A reference in the Plan to Rule 16b-3 shall include a reference to
any corresponding rule (or number redesignation) of any amendments to Rule
16b-3 enacted after the effective date of the Plan's adoption.
(x) "Stock Appreciation Right" means a right granted under the Plan
to receive from the Company amounts in cash or shares of Company Stock upon
the surrender of an Option.
(y) "Stock Option Committee" or "Committee" means the committee
appointed by the Board as described under Section 16.
(z) "Subsidiary" means, with respect to any corporation, a
"subsidiary corporation" of that corporation within the meaning of Code
section 424(f).
7
<PAGE>
(aa) "10% Shareholder" means a person who owns, directly or
indirectly, stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company or any Parent or Subsidiary of
the Company. Indirect ownership of stock shall be determined in accordance
with Code section 424(d).
3. General. The following types of Awards may be granted under the Plan:
Options, Stock Appreciation Rights, Restricted Stock or Incentive Stock. Options
granted under the Plan may be Incentive Stock Options or Nonstatutory Stock
Options.
4. Stock. Subject to Section 15 of the Plan, there shall be reserved for
issuance under the Plan an aggregate of 43,112,640 shares of Company Stock, of
which 41,612,640 shares (the "Existing Reserve") may be used for the grant of
any Award and 1,500,000 shares (the "New Reserve") may be used for the grant of
any Award except Incentive Stock Options, which shall be authorized, but
unissued shares. Shares granted under the Plan that expire or otherwise
terminate unexercised and shares forfeited pursuant to restrictions on
Restricted Stock or Incentive Stock may again be subjected to an Award under the
Plan. The Committee is expressly authorized to make an Award to a Participant
conditioned upon the surrender for cancellation of an existing Award. For
purposes of determining the number of shares that are available for Awards under
the Plan, such number shall include the number of shares surrendered by an
optionee or retained by the Company in payment of federal and state income tax
withholding liabilities upon exercise of a Nonstatutory Stock Option or a Stock
Appreciation Right.
5. Eligibility.
(a) Any employee of the Company (or Parent or Subsidiary of the
Company) who, in the judgment of the Committee has contributed or can be
expected to contribute to the
8
<PAGE>
profits or growth of the Company (or Parent or Subsidiary) shall be eligible to
receive Awards under the Plan. Directors of the Company who are employees and
are not members of the Committee are eligible to participate in the Plan. The
Committee shall have the power and complete discretion, as provided in Section
16, to select eligible employees to receive Awards and to determine for each
employee the terms and conditions, the nature of the award and the number of
shares to be allocated to each employee as part of each Award.
(b) The grant of an Award shall not obligate the Company or any
Parent or Subsidiary of the Company to pay an employee any particular amount of
remuneration, to continue the employment of the employee after the grant or to
make further grants to the employee at any time thereafter.
6. Stock Options.
(a) Whenever the Committee deems it appropriate to grant Options,
notice shall be given to the eligible employee stating the number of shares for
which Options are granted, the Option price per share, whether the Options are
Incentive Stock Options or Nonstatutory Stock Options, the extent to which Stock
Appreciation Rights are granted (as provided in Section 7), and the conditions
to which the grant and exercise of the Options are subject. This notice shall
constitute the stock option agreement between the Company and the eligible
employee.
(b) The exercise price of shares of Company Stock covered by an
Option shall be not less than 100% of the Fair Market Value of such shares on
the Date of Grant. If the employee is a 10% Shareholder and the Option is an
Incentive Stock Option, the exercise price shall be not less than 110% of the
Fair Market Value of such shares on the Date of Grant.
9
<PAGE>
(c) Options may be exercised in whole or in part at such times as may
be specified by the Committee in the employee's stock option agreement; provided
that the exercise provisions for Incentive Stock Options shall in all events not
be more liberal than the following provisions:
(i) No Incentive Stock Option may be exercised after the first
to occur of (x) ten years (or, in the case of an Incentive Stock
Option granted to a 10% Shareholder, five years) from the Date of
Grant, (y) three months from the employee's retirement or termination
of employment with the Company and its Parent and Subsidiary
corporations for reasons other than Disability or death, or (z) one
year from the employee's termination of employment on account of
Disability or death.
(ii) Except as otherwise provided in this paragraph, no Incentive
Stock Option may be exercised unless the employee is employed by the
Company or a Parent or Subsidiary of the Company at the time of the
exercise (or was so employed not more than three months before the
time of the exercise) and has been employed by the Company or a Parent
or Subsidiary of the Company at all times since the Date of Grant. If
an employee's employment is
10
<PAGE>
terminated other than by reason of his Disability or death at a time
when the employee holds an Incentive Stock Option that is exercisable
(in whole or in part), the employee may exercise any or all of the
exercisable portion of the Incentive Stock Option (to the extent
exercisable on the date of termination) within three months after the
employee's termination of employment. If an employee's employment is
terminated by reason of his Disability at a time when the employee
holds an Incentive Stock Option that is exercisable (in whole or in
part), the employee may exercise any or all of the exercisable portion
of the Incentive Stock Option (to the extent exercisable on the date
of Disability) within one year after the employee's termination of
employment. If an employee's employment is terminated by reason of his
death at a time when the employee holds an Incentive Stock Option that
is exercisable (in whole or in part), the Incentive Stock Option may
be exercised (to the extent exercisable on the date of death) within
one year after the employee's death by the person to whom the
employee's rights under the Incentive Stock Option shall have passed
by will or by the laws of descent and distribution.
(iii) An Incentive Stock Option by its terms, shall be
exercisable in any calendar year only to the extent that the aggregate
Fair Market Value (determined at the Date of Grant) of the Company
Stock with respect to which incentive stock options are exercisable
for the first time during the calendar year does not exceed $100,000
(the "Limitation Amount"). Incentive Stock Options granted under the
Plan and similar incentive options granted after 1986 under all other
plans of the Company and any Parent or Subsidiary of the Company shall
be aggregated for purposes of determining whether the Limitation
Amount has been exceeded. The Board may impose such conditions as it
deems appropriate on an Incentive Stock Option to ensure that the
foregoing requirement is met. If Incentive Stock Options that first
become exercisable in a calendar year exceed the Limitation
11
<PAGE>
Amount, the excess Options will be treated as Nonstatutory Stock
Options to the extent permitted by law.
(d) The Committee may, in its discretion, grant Options which by
their terms become fully exercisable upon a Change of Control, notwithstanding
other conditions on exercisability in the stock option agreement.
(e) The maximum number of shares with respect to which Nonstatutory
Options or Stock Appreciation Rights may be granted in any calendar year to an
employee eligible to participate in the Plan is as follows: the Chief Executive
Officer, 1,500,000; each of the next four most highly compensated employees,
1,000,000; each other eligible employee, 500,000.
(f) The Committee may, in its discretion, grant Options containing or
amend Options previously granted to provide for a Reload Feature subject to the
limitations of Section 10(d).
(g) Notwithstanding paragraph (c) above, the Committee may, in its
discretion, amend a previously granted Incentive Stock Option to provide for
more liberal exercise provisions; provided however if the Incentive Stock Option
as amended no longer meets the requirements of Code section 422, and as a result
such Option no longer qualifies for favorable Federal income tax treatment under
Code section 422, the amendments shall not become effective without the written
consent of the Participant and provided further that no Incentive Stock Option
may be exercised after ten (10) years (or, in the case of an Incentive Stock
Option granted to a 10% Shareholder, five (5) years) from the Date of Grant.
12
<PAGE>
7. Stock Appreciation Rights.
(a) Whenever the Committee deems it appropriate, Stock Appreciation
Rights may be granted in connection with all or any part of an Incentive Stock
Option. At the discretion of the Committee, Stock Appreciation Rights may also
be granted in connection with all or any part of a Nonstatutory Stock Option,
either concurrently with the grant of the Nonstatutory Stock Option or at any
time thereafter during the term of the Nonstatutory Stock Option. The following
provisions apply to all Stock Appreciation Rights that are granted in connection
with Options:
(i) Stock Appreciation Rights shall entitle the employee, upon
exercise of all or any part of the Stock Appreciation Rights, to
surrender to the Company unexercised that portion of the underlying
Option relating to the same number of shares of Company Stock as is
covered by the Stock Appreciation Rights (or the portion of the Stock
Appreciation Rights so exercised) and to receive in exchange from the
Company an amount in cash or shares of Company Stock (as provided in
the Stock Appreciation Right) equal to the excess of (x) the Fair
Market Value on the date of exercise of the Company Stock covered by
the surrendered portion of the underlying Option over (y) the exercise
price of the Company Stock covered by the surrendered portion of the
underlying Option. The Committee may limit the amount that the
employee will be entitled to receive upon exercise of the Stock
Appreciation Right.
13
<PAGE>
(ii) Upon the exercise of a Stock Appreciation Right and
surrender of the related portion of the underlying Option, the Option,
to the extent surrendered, shall not thereafter be exercisable.
(iii) Subject to any further conditions upon exercise imposed by
the Committee, a Stock Appreciation Right issued in tandem with an
Option shall be exercisable only to the extent that the related Option
is exercisable and shall expire no later than the date on which the
related Option expires.
(iv) A Stock Appreciation Right may only be exercised at a time
when the Fair Market Value of the Company Stock covered by the Stock
Appreciation Right exceeds the exercise price of the Company Stock
covered by the underlying Option.
(b) The manner in which the Company's obligation arising upon the
exercise of a Stock Appreciation Right shall be paid shall be determined by the
Committee and shall be set forth in the employee's Option or the related Stock
Appreciation Rights agreement. The Committee may provide for payment in Company
Stock or cash, or a fixed combination of Company Stock or cash, or the Committee
may reserve the right to determine the manner of payment at the time the Stock
Appreciation Right is exercised. Shares of Company Stock issued upon the
exercise of a Stock Appreciation Right shall be valued at their Fair Market
Value on the date of exercise.
8. Restricted Stock Awards.
(a) Whenever the Committee deems it appropriate to grant a Restricted
Stock Award, notice shall be given to the Participant stating the number of
shares of Restricted Stock
14
<PAGE>
for which the Restricted Stock Award is granted and the terms and conditions to
which the Restricted Stock Award is subject. This notice, when accepted in
writing by the Participant shall become an award agreement between the Company
and the Participant and certificates representing the shares shall be issued and
delivered to the Participant. A Restricted Stock Award may be made by the
Committee in its discretion without cash consideration.
(b) Restricted Stock issued pursuant to the Plan shall be subject to
the following restrictions:
(i) Unless otherwise provided by the Committee, Restricted
Stock may not be sold, assigned, transferred or disposed of within a
six-month period beginning on the Date of Grant.
(ii) None of such shares may be sold, assigned, transferred,
pledged, hypothecated, or otherwise encumbered or disposed of until
the restrictions on such shares shall have lapsed or shall have been
removed pursuant to paragraph (d) or (e) below.
(iii) If a Participant ceases to be employed by the Company or a
Parent or Subsidiary of the Company, the Participant shall forfeit to
the Company any shares of Restricted Stock, the restrictions on which
shall not have lapsed or shall not have been removed pursuant to
paragraph (d) or (e) below, on the date such Participant ceases to be
so employed.
(c) Upon the acceptance by a Participant of a Restricted Stock Award,
such Participant shall, subject to the restrictions set forth in paragraph
(b) above, have all the rights of a shareholder with respect to the shares
of Restricted Stock
15
<PAGE>
Award, including, but not limited to, the right to vote such shares of
Restricted Stock and the right to receive all dividends and other distributions
paid thereon. Certificates representing Restricted Stock shall bear a legend
referring to the restrictions set forth in the Plan and the Participant's award
agreement.
(d) The Committee shall establish as to each Restricted Stock Award
the terms and conditions upon which the restrictions set forth in paragraph (b)
above shall lapse. Such terms and conditions may include, without limitation,
the passage of time, the meeting of performance goals, the lapsing of such
restrictions as a result of the Disability, death or retirement of the
Participant, or the occurrence of a Change of Control.
(e) Notwithstanding the forfeiture provisions of paragraph (b)(iii)
above, the Committee may at any time, in its sole discretion, accelerate the
time at which any or all restrictions will lapse or remove any and all such
restrictions.
(f) Each Participant shall agree at the time his Restricted Stock
Award is granted, and as a condition thereof, to pay to the Company, or make
arrangements satisfactory to the Company regarding the payment to the Company
of, the aggregate amount of any Federal, state or local taxes of any kind
required by law to be withheld with respect to the shares of Restricted Stock
subject to the Restricted Stock Award. Until such amount has been paid or
arrangements satisfactory to the Company have been made, no stock certificate
free of a legend reflecting the restrictions set forth in paragraph (b) above
shall be issued to such Participant.
(g) The Company may place on any certificate representing Company
Stock issued in connection with an Incentive Award any legend deemed desirable
by the Company's
16
<PAGE>
counsel to comply with Federal or state securities laws, and the Company may
require a customary written indication of the Participant's investment intent.
9. Incentive Stock Awards.
(a) Incentive Stock may be issued pursuant to the Plan in connection with
incentive programs established from time to time by the Committee when
performance criteria established by the Committee as part of the incentive
program have been achieved. If the objectives established by the Committee as a
prerequisite to the receipt of Incentive Stock have not been achieved, no stock
will be issued, except as provided in (c). A Participant eligible for the
receipt or issuance of incentive shares will have no rights as a stockholder
before actual receipt of the Incentive Stock.
(b) Whenever the Committee deems it appropriate, the Committee may
establish an incentive program and notify Participants of their participation in
and the terms of the incentive program. More than one incentive program may be
established by the Committee and they may operate concurrently or for varied
periods of time and a Participant may be permitted to participate in more than
one incentive program at the same time. Incentive Stock will be issued only
subject to the incentive program and the Plan and consistent with meeting the
performance goals set by the Committee. Incentive Stock may be issued without
cash consideration.
(c) The Committee may provide in the incentive program, or subsequently,
that Incentive Stock will be issued if a Change of Control occurs even though
the performance goals set by the Committee have not been met.
17
<PAGE>
(d) A Participant's interest in an incentive program may not be sold,
assigned, transferred, pledged, hypothecated, or otherwise encumbered.
(e) Each Participant shall agree as a condition of his participation in
an incentive program and the receipt of Incentive Stock, to pay to the Company,
or make arrangements satisfactory to the Company regarding the payment to the
Company of, the aggregate amount of any Federal, state or local taxes of any
kind required by law to be withheld with respect to the shares of Incentive
Stock received. Until such amount has been paid or arrangements satisfactory to
the Company have been made, no stock certificate free of a legend reflecting the
restrictions set forth in paragraph (b) above shall be issued to such
Participant.
(f) The Company may place on any certificate representing Company Stock
issued in connection with an Incentive Award any legend deemed desirable by the
Company's counsel to comply with Federal or state securities laws, and the
Company may require a customary written indication of the Participant's
investment intent.
10. Method of Exercise of Options and Stock Appreciation Rights.
(a) Options and Stock Appreciation Rights may be exercised by the
employee giving written notice of the exercise to the Company, stating the
number of shares the employee has elected to purchase under the Option or the
number of Stock Appreciation Rights he has elected to exercise. In the case of
the purchase of shares under an Option, such notice shall be effective only if
accompanied by the exercise price in full in cash; provided that if the terms of
an Option so permit, the employee may (i) deliver Company Stock that the
Participant has owned for at least six (6) months (valued at Fair Market Value
on the date of exercise) in satisfaction of all or any part of the exercise
price, (ii) deliver a properly executed exercise notice together with
18
<PAGE>
irrevocable instructions to a broker to promptly deliver to the Company the
amount of the sale or loan proceeds to pay the exercise price, or (iii) deliver
an interest bearing promissory note, payable to the Company, in payment of all
or part of the exercise price together with such collateral as may be required
by the Committee at the time of exercise. The interest rate under any such
promissory note shall be equal to the minimum interest rate required at the time
to avoid imputed interest to the Participant under the Code.
(b) Options and Stock Appreciation Rights may also be exercised by the
employee in accordance with any other method or methods of exercise as may be
approved from time to time by the Committee;
(c) The Company may place on any certificate representing Company Stock
issued upon the exercise of an Option or Stock Appreciation Right any legend
deemed desirable by the Company's counsel to comply with Federal or state
securities laws, and the Company may require of the employee a customary written
indication of his investment intent. Until the employee has made any required
payment, including any applicable Federal, state and local withholding taxes,
and has had issued to him a certificate for the shares of Company Stock
acquired, he shall possess no shareholder rights with respect to the shares.
(d) If an employee exercises an Option that has a Reload Feature by
delivering already owned shares of Company Stock, the employee shall
automatically be granted a Reload Option. The Reload Option shall be subject to
the following provisions:
(i) The Reload Option shall cover the number of shares of Company
Stock delivered by the employee to the Company to exercise the Option with
the Reload Feature;
19
<PAGE>
(ii) The Reload Option will not have a Reload Feature;
(iii) The exercise price of shares of Company Stock covered by a
Reload Option shall be 100% of the Fair Market Value of such shares on
the date the employee delivers shares of Company Stock to the Company to
exercise the Option that has a Reload Feature;
(iv) The Reload Option shall be subject to the same restrictions on
exercisability as those imposed on the underlying Option (possessing the
Reload Feature);
(v) The Reload Option shall not be exercisable until the expiration
of any retention holding period imposed on the disposition of any shares
of Company Stock covered by the underlying Option (possessing the Reload
Feature).
The Committee may, in its discretion, cause the Company to place on any
certificate representing Company Stock issued to a Participant upon the exercise
of an underlying Option (possessing a Reload Feature as evidenced by the stock
option agreement for such Option) delivered pursuant to this subsection (d), a
legend restricting the sale or other disposition of such Company Stock.
(e) Notwithstanding anything herein to the contrary, Awards shall always
be granted and exercised in such a manner as to conform to the provisions of
Rule 16b-3, or any replacement rule adopted, as the same now exists or may, from
time to time, be amended.
11. Applicable Withholding Taxes. As an alternative to making a cash payment
to the Company to satisfy tax withholding obligations, the Committee may
establish procedures permitting the Participant to elect to (a) deliver shares
of already owned Company Stock or (b)
20
<PAGE>
have the Company retain that number of shares of Company Stock that would
satisfy all or a specified portion of the Federal, state and local tax
liabilities of the Participant arising in the year the Award becomes subject to
tax. Any such election shall be made only in accordance with procedures
established by the Committee.
12. Transferability of Awards and Options. To the extent required by the
Code, Awards, by their terms, shall not be transferable by the Participant
except by will or by the laws of descent and distribution and shall be
exercisable, during the Participant's lifetime, only by the Participant or by
his guardian or legal representative. The Committee is expressly authorized, in
its discretion, to provide that all or a portion of a Nonstatutory Stock Option
or Stock Appreciation Right may be granted to a Participant upon terms that
permit transfer of the Nonstatutory Stock Option or Stock Appreciation Right in
a form and manner determined by the Committee.
13. Effective Date of the Plan. This Plan having been adopted by the
Company's Board and approved by the Company's sole shareholder shall be
effective on October 28, 1994. Until the requirements of any applicable federal
and state securities laws have been met, no Option or Stock Appreciation Right
shall be exercisable and no award of Restricted Stock or Incentive Stock shall
be made.
14. Termination, Modification, Change. If not sooner terminated by the
Board, this Plan shall terminate at the close of business on October 27, 2004.
No Awards shall be made under the Plan after its termination. The Board may
terminate the Plan or may amend the Plan in such respects as it shall deem
advisable; provided, that, if and to the extent required by the Code, no change
shall be made that materially increases the total number of shares of Company
Stock
21
<PAGE>
reserved for issuance pursuant to Awards granted under the Plan (except pursuant
to Section 15), materially expands the class of persons eligible to receive
Awards, or materially increases the benefits accruing to Participants under the
Plan, unless such change is authorized by the shareholders of the Company.
Notwithstanding the foregoing, the Board may amend the Plan and unilaterally
amend Awards as it deems appropriate to ensure compliance with Rule 16b-3 and to
cause Incentive Stock Options to meet the requirements of the Code and
regulations thereunder. Except as provided in the preceding sentence, a
termination or amendment of the Plan shall not, without the consent of the
Participant, detrimentally affect a Participant's rights under an Award
previously granted to him.
15. Change in Capital Structure.
(a) In the event of a stock dividend, stock split or combination of
shares, spin-off, recapitalization or merger in which the Company is the
surviving corporation or other change in the Company's capital stock (including,
but not limited to, the creation or issuance to shareholders generally of
rights, options or warrants for the purchase of common stock or preferred stock
of the Company), the number and kind of shares of stock or securities of the
Company to be subject to the Plan and to Awards then outstanding or to be
granted under the Plan, the maximum number of shares or securities which may be
delivered under the Plan, the exercise price and other relevant provisions shall
be appropriately adjusted by the Committee, whose determination shall be binding
on all persons. If the adjustment would produce fractional shares with respect
to any unexercised Option, the Committee may adjust appropriately the number of
shares covered by the Option so as to eliminate the fractional shares.
22
<PAGE>
(b) If the Company is a party to a consolidation or a merger in which the
Company is not the surviving corporation, a transaction that results in the
acquisition of substantially all of the Company's outstanding stock by a single
person or entity, or a sale or transfer of substantially all of the Company's
assets, the Committee may take such actions with respect to outstanding
Incentive Awards as the Committee deems appropriate.
(c) Notwithstanding anything in the Plan to the contrary, the Committee
may take the foregoing actions without the consent of any Participant, and the
Committee's determination shall be conclusive and binding on all persons for all
purposes.
16. Administration of the Plan. The Plan shall be administered by the
Committee consisting solely of two or more nonemployee directors of the Company
(within the meaning of Rule 16b-3), who shall be appointed by the Board. The
Committee shall have general authority to impose any limitation or condition
upon an Award the Committee deems appropriate to achieve the objectives of the
Award and the Plan and, in addition, and without limitation and in addition to
powers set forth elsewhere in the Plan, shall have the following specific
authority:
(a) The Committee shall have the power and complete discretion to
determine (i) which eligible employees shall receive an Award and the nature
of the Award, (ii) the number of shares of Company Stock to be covered by each
Award, (iii) whether Options shall be Incentive Stock Options or Nonstatutory
Stock Options, (iv) when, whether and to what extent Stock Appreciation Rights
shall be granted in connection with Options, (v) whether to include a Reload
Feature in an Option and to impose limitations on the use of shares acquired
through the exercise of a Reload Option to exercise Options, (vi) the fair
market value of Company Stock, (vii) the time or times when an Award shall be
granted,
23
<PAGE>
(viii) whether an Award shall become vested over a period of time and when
it shall be fully vested, (ix) conditions relating to the length of time
before disposition of Company Stock received in connection with an Award is
permitted, (x) the terms and conditions on which restrictions upon
Restricted Stock shall lapse, (xi) whether to accelerate the time of
receipt of Incentive Stock or the time when any or all restrictions with
respect to Restricted Stock will lapse or be removed, (xii) the terms of
incentive programs, performance criteria and other factors relevant to the
issuance of Incentive Stock or the lapse of restrictions on Restricted
Stock, (xiii) when Options and Stock Appreciation Rights may be exercised,
(xiv) whether a Disability exists, (xv) the manner in which payment will be
made upon the exercise of Options or Stock Appreciation Rights, (xvi)
whether to approve a Participant's election (x) to deliver shares of
already owned Company Stock to satisfy tax liabilities arising upon the
exercise of a Nonstatutory Stock Option or Stock Appreciation Right or (y)
to have the Company withhold from the shares to be issued upon the exercise
or receipt of an Award that number of shares necessary to satisfy tax
liabilities arising from such exercise or receipt, (xvii) notice provisions
relating to the sale of Company Stock acquired under the Plan, and (xviii)
any additional requirements relating to Awards that the Committee deems
appropriate. Notwithstanding the foregoing, no "tandem stock options"
(where two stock options are issued together and the exercise of one option
affects the right to exercise the other option) may be issued in connection
with Incentive Stock Options. The Committee shall also have the power to
amend the terms of previously granted Awards so long as the terms as
amended are consistent with the terms of the Plan and provided that the
consent of the Participant is
24
<PAGE>
obtained with respect to any amendment that would be detrimental to him,
except that such consent will not be required if such amendment is for the
purpose of complying with Rule 16b-3 or any requirement of the Code
applicable to the Award.
(b) The Committee may adopt rules and regulations for carrying out the
Plan. The interpretation and construction of any provision of the Plan by
the Committee shall be final and conclusive. The Committee may consult with
counsel, who may be counsel to the Company, and shall not incur any
liability for any action taken in good faith in reliance upon the advice of
counsel.
(c) A majority of the members of the Committee shall constitute a
quorum, and all actions of the Committee shall be taken by a majority of
the members present. Any action may be taken by a written instrument signed
by all of the members, and any action so taken shall be fully effective as
if it had been taken at a meeting.
(d) The Board of Directors from time to time may appoint members
previously appointed and may fill vacancies, however caused, in the
Committee.
17. Notice. All notices and other communications required or permitted to
be given under this Plan shall be in writing and shall be deemed to have been
duly given if delivered as follows: (a) if to the Company - delivery shall be
made personally or by first class mail, postage prepaid at its principal
business address to the attention of the Company's Director of Human Resources;
and (b) if to any Participant - personally, including by delivery through the
Company's internal electronic system with a return receipt requested or
interoffice mail system, or by first class mail, postage prepaid, at the last
known address of the Participant known to the sender at the time the notice or
other communication is sent.
25
<PAGE>
18. Interpretation. The terms of this Plan are subject to all present and
future regulations and rulings of the Secretary of the Treasury or his delegate
relating to the qualification of Incentive Stock Options under the Code. If any
provision of the Plan conflicts with any such regulation or ruling, then that
provision of the Plan shall be void and of no effect.
19. Foreign Equity Incentive Plans. The Committee may authorize any
foreign Subsidiary or any foreign unincorporated division of the Company or of a
Subsidiary to adopt a plan for granting Awards (a "Foreign Equity Incentive
Plan"). All Awards granted under a Foreign Equity Incentive Plan shall be
treated as grants under this Plan. A Foreign Equity Incentive Plan shall have
such terms as the Committee permits; provided that such terms are not
inconsistent with the provisions of this Plan; and provided further that such
terms may be more restrictive than those in this Plan. Awards granted under a
Foreign Equity Incentive Plan shall be governed by the terms of this Plan except
to the extent that the terms of the Foreign Equity Incentive Plan are more
restrictive than the terms of this Plan, in which case such terms of the Foreign
Equity Incentive Plan shall control.
20. Substitute Award. The Committee may make a grant of an Award to an
employee of another corporation who becomes an employee of the Company (or
Parent or Subsidiary of the Company) by reason of a corporate merger,
consolidation, acquisition of stock or property, reorganization, liquidation or
similar transaction involving the Company (or Parent or Subsidiary of the
Company) in substitution for any award made by such corporation. The terms and
conditions of the substitute Award may vary from the terms and conditions
required by the Plan and from those of the substituted award. The Committee
shall prescribe the provisions of the substitute Award.
26
<PAGE>
21. Provisions Applicable to French Employees. Notwithstanding any other
provision of the Plan to the contrary, the following provisions shall apply to
Options granted to any employee who is employed by a French company or who works
primarily in France (hereinafter collectively referred to as a "French
Employee").
(a) Notwithstanding anything to the contrary herein, whether a
Disability exists for a French Employee shall be determined in accordance with
French law.
(b) Notwithstanding the provisions of Section 3 herein, only Options
may be granted to French Employees to the exclusion of any other type of Awards.
Moreover, Options granted under the Plan to French Employees may be Nonstatutory
Stock Options only.
(c) Notwithstanding anything to the contrary herein, no Option shall
be granted to any French Employee who holds more than ten percent of the
Company's capital as of the Date of Grant.
(d) Notwithstanding the provisions of Section 4 herein, (i) at no time
shall the number of shares underlying Options granted to French Employees but
not exercised exceed one-third of the total number of shares of Company Stock
issued and outstanding, and (ii) the Committee shall not make an Award to any
French Employee conditioned upon the surrender for cancellation of an existing
Award.
(e) Notwithstanding the provisions of Section 6(b) herein, all Options
granted to French Employees shall be granted at an exercise price per share
equal to the greater of (i) the Fair Market Value per share of Company Stock as
of the Date of Grant and (ii) 80% of the average Fair Market Value per share of
Company Stock for the 20 trading days preceding the Date of Grant.
27
<PAGE>
(f) Notwithstanding anything to the contrary herein, in respect of a
Participant who is a French Employee, upon such French Employee's death, the
vested portion of such Participant's Option shall remain exercisable for a six-
month period after the date of his death and shall be exercisable by his heirs,
provided his heirs agree to comply with and be bound by the Plan and the
employee's stock option agreement, if applicable.
(g) Notwithstanding anything to the contrary herein, in respect of a
Participant who is a French Employee, the method of exercise shall comply with
applicable French law.
(h) Notwithstanding the provisions of Section 12 herein, no Option
granted to a French Employee shall be transferable except as provided in
paragraph (f) above.
(i) Notwithstanding the provisions of Section 14 herein, no Options
shall be granted to any French Employee under the Plan five years after the
later of (i) the date the Company's shareholders initially approved the Plan or
(ii) the date on which the Plan has been subsequently re-authorized, in its
original form or as amended from time to time by the Board, by the Company's
shareholders.
(j) Notwithstanding anything to the contrary herein, no portion of any
Option granted to a French Employee shall become exercisable before the second
anniversary of the Date of Grant. Moreover, notwithstanding anything to the
contrary herein, no share of the Company Stock received pursuant to the exercise
of an Option by a French Employee may be sold for a three-year period after the
date the Option is exercised, unless (i) such sale occurs on or after the fifth
anniversary of the Option's Date of Grant; (ii) the Optionee is dismissed or
retired from the Company (to the extent that the Optionee has exercised Options
at least three months prior to notice of such dismissal or retirement); (iii)
the Optionee's dies or terminates due to
28
<PAGE>
disability. The stock option agreements with respect to French Employees shall
reflect these restrictions and may provide that if the Optionee sells shares in
breach of the foregoing restrictions, he or she shall be responsible for his or
her share of any taxes or social charges arising from such sale.
(k) Notwithstanding anything to the contrary herein, the Company shall
not amend or terminate all or a portion of an Option granted to any French
Employee without the consent of such French Employee.
(l) Notwithstanding the provisions of Section 15 herein, any
adjustment made to any Option granted to a French Employee shall comply with
applicable French law.
29
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.10.2
<SEQUENCE>8
<DESCRIPTION>AMENDED & RESTATED CHANGE OF CONTROL AGREEMENT
<TEXT>
<PAGE>
EXHIBIT 10.10.2
---------------
Capital One Financial Corporation
---------------------------------
Amended and Restated Change of Control Employment Agreement
--------------------------------------
Each of the following executive officers of Capital One Financial Corporation
has entered into an Amended and Restated Change of Control Employment Agreement
in the form filed herewith:
Marjorie M. Connelly
Matthew J. Cooper
Dennis H. Liberson
William J. McDonald
Peter Schnall
Michael Shrader
David M. Willey
<PAGE>
CAPITAL ONE FINANCIAL CORPORATION
---------------------------------
[ ]
___________________
AMENDED AND RESTATED CHANGE OF CONTROL EMPLOYMENT AGREEMENT
-----------------------------------------------------------
AGREEMENT by and between CAPITAL ONE FINANCIAL CORPORATION, a Delaware
corporation (the "Company"), and ________________(the "Executive"), dated as of
the 25/th/ day of January, 2000.
The Board of Directors of the Company (the "Board") has determined that it
is in the best interests of the Company and its shareholders to assure that the
Company will have the continued dedication of the Executive, notwithstanding the
possibility, threat or occurrence of a Change of Control (as defined below) of
the Company. The Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control and to encourage the
Executive's full attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control, and to provide the
Executive with compensation and benefits arrangements upon a Change of Control
which ensure that the compensation and benefits expectations of the Executive
will be satisfied and which are competitive with those of other corporations.
Therefore, in order to accomplish these objectives, the Board has caused the
Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
-------------------
(a) The "Effective Date" shall be the first date during the "Change
of Control Period" (as defined in Section 1(b)) on which a Change of
Control occurs. Anything in this Agreement to the contrary notwithstanding,
if the Executive's employment with the Company is terminated or the terms
and conditions of the Executive's employment are adversely changed in a
manner which would constitute grounds for a termination of
-2-
<PAGE>
employment by the Executive for Good Reason prior to the date on which a
Change of Control occurs, and it is reasonably demonstrated that such
termination of employment or adverse change (i) was at the request of a
third party who has taken steps reasonably calculated to effect the Change
of Control or (ii) otherwise arose within 12 months of and in connection
with or anticipation of the Change of Control, then for all purposes of
this Agreement the "Effective Date" shall mean the date immediately prior
to the date of such termination of employment or adverse change.
(b) The "Change of Control Period" is the period commencing on the
date hereof and ending on the third anniversary of such date; provided,
however, that commencing on the date one year after the date hereof, and on
each annual anniversary of such date (such date and each annual anniversary
thereof is hereinafter referred to as the "Renewal Date"), the Change of
Control Period shall be automatically extended so as to terminate three
years from such Renewal Date, unless at least 60 days prior to the Renewal
Date the Company shall give notice to the Executive that the Change of
Control Period shall not be so extended.
2. Change of Control. For the purpose of this Agreement, a "Change of
-----------------
Control" shall mean:
(a) The acquisition by 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")) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% (or, if
such shares are purchased from the Company, 40%) or more of either (i) the
then outstanding shares of common stock of the Company (the "Outstanding
Company Common Stock") 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 "Company Voting Securities"), provided,
--------
however, that any acquisition by (x) the Company or any of its
-------
subsidiaries, or any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its subsidiaries
-3-
<PAGE>
or (y) any corporation with respect to which, immediately following such
acquisition, more than 60% 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 entitled to vote
generally in the election of directors is then beneficially owned, directly
or indirectly, in the aggregate by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Company Voting Securities
immediately prior to such acquisition in substantially the same proportion
as their ownership, immediately prior to such acquisition, of the
Outstanding Company Common Stock and Company Voting Securities, as the case
may be, shall not constitute a Change of Control; or
(b) Individuals who constitute the Board as of the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a majority
of the Board, provided that any individual becoming a director subsequent
to the date hereof whose appointment to fill a vacancy or to fill a new
Board position or 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 is in
connection with an actual or threatened election contest relating to the
election of the Directors of the Company (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act); or
(c) Approval by the shareholders of the Company of a reorganization,
merger or consolidation (a "Business Combination"), in each case, with
respect to which all or substantially all of the individuals and entities
who were the respective beneficial owners of the Outstanding Company Common
Stock and Company Voting Securities immediately prior to such Business
Combination do not in the aggregate, immediately following such Business
Combination, beneficially own, directly or indirectly, more than
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60% of, respectively, 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 such Business Combination in substantially the
same proportion as their ownership immediately prior to such Business
Combination of the Outstanding Company Common Stock and Company Voting
Securities, as the case may be; or
(d) (i) a complete liquidation or dissolution of the Company or (ii)
sale or other disposition of all or substantially all of the assets of the
Company other than to a corporation with respect to which, immediately
following such sale or disposition, more than 60% of, respectively, 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 is then beneficially owned, directly or indirectly,
in the aggregate by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Company Voting Securities immediately prior to
such sale or disposition in substantially the same proportion as their
ownership of the Outstanding Company Common Stock and Company Voting
Securities, as the case may be, immediately prior to such sale or
disposition.
(e) Notwithstanding the foregoing, a Change of Control shall not occur
with respect to the Executive by reason of any event which would otherwise
constitute a Change of Control if, immediately after the occurrence of such
event, individuals including such Executive who were executive officers of
the Company immediately prior to the occurrence of such event, own,
directly or indirectly, on a fully diluted basis, (i) 15% or more of the
then outstanding shares of common stock of the Company or any acquiror or
successor to substantially all of the business of the Company or (ii) 15%
or more of the combined voting power of the then outstanding voting
securities of the Company or any acquiror or successor to substantially all
of the business of the Company entitled to vote generally in the election
of directors.
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3. Employment Period. The Company hereby agrees to continue the Executive
-----------------
in its employ, and the Executive hereby agrees to remain in the employ of the
Company, for the period commencing on the Effective Date and ending on the
second anniversary of such date (the "Employment Period").
4. Terms of Employment.
-------------------
(a) Position and Duties.
-------------------
(i) During the Employment Period, (A) the Executive's position
(including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be at least commensurate
in all material respects with the most significant of those held,
exercised and assigned at any time during the 90-day period
immediately preceding the Effective Date and (B) the Executive's
services shall be performed at the location where the Executive was
employed immediately preceding the Effective Date or any office or
location less than 35 miles from such location.
(ii) During the Employment Period, and excluding any periods of
vacation, sabbatical and sick or similar leave to which the Executive
is entitled, the Executive agrees to devote reasonable attention and
time during normal business hours to the business and affairs of the
Company and, to the extent necessary to discharge the responsibilities
assigned to the Executive hereunder, to use the Executive's reasonable
best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a
violation of this Agreement for the Executive to (A) serve on
corporate, civic or charitable boards or committees, (B) deliver
lectures, fulfill speaking engagements or teach at educational
institutions and (C) manage personal investments, so long as such
activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and agreed
that to the extent that any such
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<PAGE>
activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the
Effective Date shall not thereafter be deemed to interfere with the
performance of the Executive's responsibilities to the Company.
(b) Compensation.
------------
(i) Base Salary. During the Employment Period, the Executive
-----------
shall receive an annual base salary ("Annual Base Salary"), which
shall be paid at a monthly rate, at least equal to twelve times the
highest monthly base salary paid or payable, including by reason of
deferral and before any reduction for the amount of such annual base
salary which the Executive may have agreed to forgo in exchange for
the receipt of stock options from the Company, to the Executive by the
Company and its affiliated companies in respect of the twelve-month
period immediately preceding the month in which the Effective Date
occurs. During the Employment Period, the Annual Base Salary shall be
reviewed at least annually and shall be increased at any time and from
time to time as shall be substantially consistent with increases in
base salary awarded in the ordinary course of business to other peer
executives of the Company and its affiliated companies. Any increase
in Annual Base Salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. Annual Base Salary
shall not be reduced after any such increase and the term Annual Base
Salary as utilized in this Agreement shall refer to Annual Base Salary
as so increased. As used in this Agreement, the term "affiliated
companies" includes any company controlled by, controlling or under
common control with the Company. Any payments of the Executive's
Annual Base Salary made under this Section 4(b)(i) may be reduced to
the extent provided in an election made by the Executive to forgo any
or all base salary otherwise payable in exchange for the receipt of
stock
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<PAGE>
options from the Company. The Company shall maintain an account (the
"Stock Option Purchase Account"), the balance of which, as of any
date, shall be equal to the aggregate dollar amount of base salary and
bonuses that the Executive has agreed to forgo in exchange for the
receipt of such stock options, less the amount of such base salary or
bonuses or other compensation (including amounts payable upon
termination of employment) actually forgone.
(ii) Annual Bonus. In addition to any Annual Base Salary payable
------------
as hereinabove provided, the Executive shall be awarded, for each
fiscal year beginning or ending during the Employment Period, an
annual bonus (the "Annual Bonus") in cash at least equal to the sum of
the target award under the Company's Executive Annual Cash Incentive
Plan and any other target awards under any other similar annual
incentive plans (or, if no such target award is designated under the
Company's Executive Annual Cash Incentive Plan or any similar plan,
the midpoint between the high and low bonus payable to the Executive
under such plan); provided, however, that such target or midpoint, as
-------- -------
the case may be, shall not be less than such target or midpoint under
such plans in the year immediately preceding the Change of Control
(the "Recent Annual Bonus"). Each such Annual Bonus shall be paid no
later than the end of the third month of the fiscal year next
following the fiscal year for which the Annual Bonus is awarded,
unless the Executive shall elect to defer the receipt of such Annual
Bonus. Any payments of the Executive's Annual Bonus made under this
Section 4(b)(ii) may be reduced to the extent provided in an election
made by the Executive to forgo any or all bonus amounts otherwise
payable in exchange for the receipt of stock options from the Company.
(iii) Incentive, Savings and Retirement Plans. In addition to
---------------------------------------
any Annual Base Salary and Annual Bonus payable as hereinabove
provided, the Executive shall be entitled to participate during the
Employment Period in all
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<PAGE>
incentive, profit-sharing, savings and retirement plans, practices,
policies and programs (including any stock-based plans) applicable
generally to other peer executives of the Company and its affiliated
companies, but in no event shall such plans, practices, policies and
programs provide the Executive with incentive, savings and retirement
benefit opportunities (including under any stock-based plans), in each
case, less favorable, in the aggregate, except as required to comply
with statutory requirements of general application which limit the
level of benefit opportunity, than (A) the most favorable of those
provided by the Company and its affiliated companies for the Executive
under such plans, practices, policies and programs as in effect at any
time during the 90-day period immediately preceding the Effective Date
or (B) if more favorable to the Executive, those provided at any time
after the Effective Date to other peer executives of the Company and
its affiliated companies; provided that no award shall be granted or
contributions made under any such plan, practice, policy or program to
the extent the Executive has made an election to forgo awards or
contributions under such plan, practice, policy or program of the
Company in exchange for the receipt of stock options from the Company;
and provided further that any effect on the Executive's participation
or benefit level resulting from the Executive's not receiving an
Annual Base Salary as a result of an election made by the Executive to
forgo any or all base salary otherwise payable in exchange for the
receipt of stock options from the Company shall be governed by the
terms of those plans, practices, policies and programs of general
applicability.
(iv) Welfare Benefit Plans. During the Employment Period, the
---------------------
Executive and/or the Executive's family, as the case may be, shall be
eligible for participation in and shall receive all benefits under
welfare benefit plans, practices, policies and programs provided by
the Company and its affiliated companies (including, without
limitation, medical, prescription, dental, disability,
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<PAGE>
salary continuance, employee life, group life, split-dollar life
insurance, accidental death and travel accident insurance plans and
programs) to the extent generally applicable to other peer executives
of the Company and its affiliated companies, but in no event shall
such plans, practices, policies and programs provide the Executive
with benefits which are less favorable, in the aggregate, than (x) the
most favorable of such plans, practices, policies and programs in
effect for the Executive at any time during the 90-day period
immediately preceding the Effective Date or (y) if more favorable to
the Executive, those provided at any time after the Effective Date
generally to other peer executives of the Company and its affiliated
companies.
(v) Expenses. During the Employment Period, the Executive shall
--------
be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the most
favorable policies, practices and procedures of the Company and its
affiliated companies in effect for the Executive at any time during
the 90-day period immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and
its affiliated companies.
(vi) Fringe Benefits. During the Employment Period, the
---------------
Executive shall be entitled to fringe benefits in accordance with the
most favorable plans, practices, programs and policies of the Company
and its affiliated companies in effect for the Executive at any time
during the 90-day period immediately preceding the Effective Date or,
if more favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and
its affiliated companies.
(vii) Office and Support Staff. During the Employment Period,
------------------------
the Executive shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to personal secretarial
and other assistance, at least
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<PAGE>
equal to the most favorable of the foregoing provided to the Executive
by the Company and its affiliated companies at any time during the 90-
day period immediately preceding the Effective Date or, if more
favorable to the Executive, as provided generally at any time
thereafter with respect to other peer executives of the Company and
its affiliated companies.
(viii) Vacation and Other Paid Leave. During the Employment
-----------------------------
Period, the Executive shall be entitled to paid vacation and other
paid leave in accordance with the most favorable plans, policies,
programs and practices of the Company and its affiliated companies as
in effect at any time during the 90-day period immediately preceding
the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies; provided that
such vacation or other leave may not be paid vacation or paid leave to
the extent provided in an election made by the Executive to forgo any
or all base salary otherwise payable in exchange for the receipt of
stock options from the Company.
5. Termination of Employment.
-------------------------
(a) Death or Disability. The Executive's employment shall terminate
-------------------
automatically upon the Executive's death during the Employment Period. If
the Company determines in good faith that the Disability of the Executive
has occurred during the Employment Period (pursuant to the definition of
Disability set forth below), it may give to the Executive written notice in
accordance with Section 13(b) of this Agreement of its intention to
terminate the Executive's employment. In such event, the Executive's
employment with the Company shall terminate effective on the 30th day after
receipt of such notice by the Executive (the "Disability Effective Date"),
provided that, within the 30 days after such receipt, the Executive shall
not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" means the absence of the Executive
from the Executive's duties with the Company on a
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<PAGE>
full-time basis for 180 consecutive business days as a result of incapacity
due to mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative (such
agreement as to acceptability not to be withheld unreasonably).
(b) Cause. The Company may terminate the Executive's employment
-----
during the Employment Period for Cause. For purposes of this Agreement,
"Cause" means (i) an action taken by the Executive involving willful and
wanton malfeasance involving specifically a wholly wrongful and unlawful
act, or (ii) the Executive being convicted of a felony.
(c) Good Reason. The Executive's employment may be terminated during
-----------
the Employment Period by the Executive for Good Reason. For purposes of
this Agreement, "Good Reason" means:
(i) The assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 4(a) of this Agreement, or
any other action by the Company which results in a diminution in such
position, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive;
(ii) Any failure by the Company to comply with any of the
provisions of Section 4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and
which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(iii) The Company's requiring the Executive to be based at any
office or location other than that described in Section 4(a)(i)(B)
hereof;
(iv) Any purported termination by the Company of the Executive's
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<PAGE>
employment otherwise than as expressly permitted by this Agreement; or
(v) Any failure by the Company to comply with and satisfy Section
11(c) of this Agreement.
(d) Notice of Termination. Any termination by the Company for Cause
---------------------
or by the Executive for Good Reason shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section
13(b) of this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent
applicable sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment
under the provision so indicated and (iii) if the Date of Termination (as
defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than fifteen days after
the giving of such notice). In the case of a termination of the
Executive's employment for Cause, a Notice of Termination shall include a
copy of a resolution duly adopted by the affirmative vote of not less than
two-thirds of the entire membership of the Board at a meeting of the Board
called and held for the purpose (after reasonable notice to the Executive
and reasonable opportunity for the Executive, together with the Executive's
counsel, to be heard before the Board prior to such vote), finding that in
the good faith opinion of the Board the Executive was guilty of conduct
constituting Cause. No purported termination of the Executive's employment
for Cause shall be effective without a Notice of Termination. The failure
by the Executive to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason shall not waive
any right of the Executive hereunder or preclude the Executive from
asserting such fact or circumstance in enforcing the Executive's rights
hereunder.
(e) Date of Termination. "Date of Termination" means the date of
-------------------
receipt of the Notice of Termination or any later date specified therein,
as the case may be; provided, however, that (i) if the Executive's
employment is terminated by the Company
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<PAGE>
other than for Cause or Disability, the Date of Termination shall be the
date on which the Company notifies the Executive of such termination and
(ii) if the Executive's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of the
Executive or the Disability Effective Date, as the case may be.
(f) Transition Period. "Transition Period" means the period
-----------------
commencing on the Date of Termination and ending on the twenty-four month
anniversary of the Date of Termination.
6. Obligations of the Company upon Termination.
-------------------------------------------
(a) Death. If the Executive's employment is terminated by reason of
-----
the Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal
representatives under this Agreement, other than the following obligations:
(i) payment of the Executive's Annual Base Salary through the Date of
Termination to the extent not theretofore paid, (ii) payment of the product
of (x) the greater of (A) the annual bonus paid or payable, including by
reason of deferral and before any reduction for the amount of such bonus
which the Executive may have agreed to forgo in exchange for the receipt of
stock options from the Company (and annualized for any fiscal year
consisting of less than twelve full months or for which the Executive has
been employed for less than twelve full months), for the most recently
completed fiscal year and (B) the Recent Annual Bonus (such greater amount
hereafter referred to as the "Highest Annual Bonus") and (y) a fraction,
the numerator of which is the number of days in the current fiscal year
through the Date of Termination, and the denominator of which is 365 and
(iii) payment of any bonus earned or accrued by the Executive for the most
recently completed fiscal year prior to the Date of Termination and not yet
paid by the Company, any payment of any compensation previously deferred by
the Executive (together with any accrued interest thereon) and not yet paid
by the Company and any pay for vacation and sabbatical earned but not yet
taken (the amounts described in paragraphs (i), (ii) and (iii) are
hereafter referred to as "Accrued
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<PAGE>
Obligations"). The amount of the Company's payment obligations under
paragraphs (i), (ii) and (iii) of the Accrued Obligations shall be reduced
by the amount of any such Annual Base Salary or Annual Bonus, respectively,
that the Executive had elected to forgo in exchange for the receipt of
stock options from the Company (the "Net Accrued Obligations"). All Net
Accrued Obligations shall be paid to the Executive's estate or beneficiary,
as applicable, in a lump sum in cash within 30 days of the Date of
Termination. Anything in this Agreement to the contrary notwithstanding,
the Executive's estate and family shall be entitled to receive benefits at
least equal to the most favorable benefits provided generally by the
Company and any of its affiliated companies to the estates and surviving
families of peer executives of the Company and such affiliated companies
under such plans, programs, practices and policies relating to death
benefits, if any, as in effect generally with respect to other peer
executives and their estates and families at any time during the 90-day
period immediately preceding the Effective Date or, if more favorable to
the Executive and/or the Executive's family, as in effect on the date of
the Executive's death generally with respect to other peer executives of
the Company and its affiliated companies and their families; provided that
this sentence shall not apply to benefits under any incentive, profit-
sharing, savings and retirement plans, practices, policies and programs
(including any stock-based plans) to the extent the Executive has made an
election to forgo awards or contributions under such plan, practice, policy
or program of the Company in exchange for the receipt of stock options from
the Company.
(b) Disability. If the Executive's employment is terminated by reason
----------
of the Executive's Disability during the Employment Period, this Agreement
shall terminate without further obligations to the Executive, other than
for Net Accrued Obligations. All Net Accrued Obligations shall be paid to
the Executive in a lump sum in cash within 30 days of the Date of
Termination. Anything in this Agreement to the contrary notwithstanding,
the Executive shall be entitled after the Disability Effective Date to
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<PAGE>
receive disability and other benefits at least equal to the most favorable
of those generally provided by the Company and its affiliated companies to
disabled executives and/or their families in accordance with such plans,
programs, practices and policies relating to disability, if any, as in
effect generally with respect to other peer executives and their families
at any time during the 90-day period immediately preceding the Effective
Date or, if more favorable to the Executive and/or the Executive's family,
as in effect at any time thereafter generally with respect to other peer
executives of the Company and its affiliated companies and their families;
provided that this sentence shall not apply to benefits under any
incentive, profit-sharing, savings and retirement plans, practices,
policies and programs (including any stock-based plans) to the extent the
Executive has made an election to forgo awards or contributions under such
plan, practice, policy or program of the Company in exchange for the
receipt of stock options from the Company.
(c) Cause; Other than for Good Reason. If the Executive's employment
---------------------------------
shall be terminated for Cause during the Employment Period, this Agreement
shall terminate without further obligations to the Executive other than the
obligation to pay to the Executive Annual Base Salary through the Date of
Termination plus the amount of any bonus earned or accrued by the Executive
for the most recently completed fiscal year prior to the Date of
Termination and any compensation previously deferred by the Executive, in
each case to the extent theretofore unpaid. The amount of the Company's
payment of such Annual Base Salary shall be reduced by the amount of any
such Annual Base Salary that the Executive has elected to forgo in exchange
for the receipt of stock options from the Company. If the Executive
terminates employment during the Employment Period other than for Good
Reason, this Agreement shall terminate without further obligations to the
Executive, other than for Net Accrued Obligations. All applicable amounts
due to the Executive pursuant to this Section 6(c) shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of Termination.
(d) Good Reason; Other Than for Cause or Disability. If, during the
-----------------------------------------------
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<PAGE>
Employment Period, the Company shall terminate the Executive's employment
other than for Cause or Disability, or if the Executive shall terminate
employment under this Agreement for Good Reason:
(i) The Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the
following amounts:
(A) All Net Accrued Obligations; and
(B) The product of (x) two and (y) the sum of (i) Annual
Base Salary and (ii) the Highest Annual Bonus; and
(C) an amount equal to any unvested account balance in any
defined contribution plan, and any supplemental and excess
retirement plans with respect thereto, that would have vested had
the Executive's employment with the Company continued for the
duration of the Transition Period;
(D) an amount equal to the contributions and accrued
earnings that would have been made under any defined contribution
plan, and any supplemental and excess retirement plans with
respect thereto, had the Executive's employment with the Company
continued for the duration of the Transition Period and had the
Executive contributed to such plans at the highest rate permitted
by such plans, calculated assuming that the terms of such plans
are no less favorable than those in effect during the 90-day
period immediately prior to the Effective Date, or if more
favorable to the Executive, those in effect generally at any time
thereafter with respect to such plans for other peer executives
of the Company and its affiliated companies; and
(ii) For the duration of the Transition Period, or such longer
period as any plan, program, practice or policy may provide, the
Company shall continue
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<PAGE>
benefits to the Executive and/or the Executive's family at least equal
to those which would have been provided to them in accordance with the
plans, programs, practices and policies described in Section 4(b)(iv)
of this Agreement if the Executive's employment had not been
terminated in accordance with the most favorable plans, practices,
programs or policies of the Company and its affiliated companies
applicable generally to other peer executives and their families
during the 90-day period immediately preceding the Effective Date or,
if more favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and
its affiliated companies and their families. For purposes of
determining eligibility of the Executive for retiree benefits pursuant
to such plans, practices, programs and policies, the Executive shall
be considered to have remained employed for the duration of the
Transition Period and to have retired on the last day of such period.
In lieu of the benefits provided for in this Section 6(d)(ii), the
Executive may elect within 60 days of the Date of Termination to be
paid an amount in cash equal to the present value of such benefits on
an after-tax basis. In determining present value, a discount rate
equal to the federal mid-term rate under Section 1274(d) of the
Internal Revenue Code of 1986, as amended (the "Code") shall be
utilized. The right to continued benefits granted to the Executive
and/or his family pursuant to this Section 6(d)(ii) shall be in
addition to any right of continued coverage under any of the plans,
programs, practices and policies described in Section 4(b)(iv) of this
Agreement which the Executive and/or his family may be entitled to
under the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA") upon any loss of coverage under such plans, programs,
practices and policies; and
(iii) The Company shall provide the Executive with outplacement
services (including office support and secretarial services), from a
vendor determined by the Company, at a cost not to exceed $30,000.
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<PAGE>
The amount payable by the Company to the Executive pursuant to Section
6(d)(i)(B) above will be reduced by any remaining balance in the Stock
Option Purchase Account; provided that such reduction will not be made to
the extent that the remaining balance is paid to the Company pursuant to
any other repayment provision in any other agreement.
7. Non-exclusivity of Rights. Except as otherwise specifically provided
-------------------------
in this Agreement, nothing in this Agreement shall prevent or limit the
Executive's continuing or future participation in any benefit, bonus, incentive
or other plans, programs, policies or practices, provided by the Company or any
of its affiliated companies and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the Executive may have
under any other agreements with the Company or any of its affiliated companies.
Amounts which are vested benefits or which the Executive is otherwise entitled
to receive under any plan, policy, practice or program of the Company or any of
its affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program except as
explicitly modified by this Agreement.
8. Full Settlement. The Company's obligation to make the payments
---------------
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of, and no amounts
earned by the Executive at such other employment or otherwise shall reduce, the
amounts payable to the Executive under any of the provisions of this Agreement.
The Company agrees to pay, to the full extent permitted by law, all legal fees
and expenses which the Executive may reasonably incur as a result of any contest
in which there is a reasonable basis for the claims or defenses asserted by the
Executive and such claims and defenses are asserted by the Executive in good
faith (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of
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<PAGE>
any payment pursuant to Section 9 of this Agreement), plus in each case interest
at the applicable federal rate provided for in Section 7872(f)(2) of the Code;
provided, however, that the Company shall not be obligated to pay any such fees
and expenses, and the Executive shall be obligated to return any such fees and
expenses that were advanced, if a court of competent jurisdiction determines
that the Executive was terminated for Cause.
9. Certain Additional Payments by the Company.
------------------------------------------
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by the
Company to or for the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (a "Payment"), would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together with
any such interest and penalties, are hereinafter collectively referred to
as the "Excise Tax"), then the Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after
payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any
income taxes and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 9(c), all determinations
required to be made under this Section 9, including whether a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the
assumptions not specified herein to be used in arriving at such
determinations, shall be made by the Company's certified public accounting
firm immediately prior to the Effective Date (the "Accounting Firm"). Such
determination shall be made within fifteen business days after request
therefor by notice from the Executive or the Company to such firm and to
the other party hereto. In making such determination with respect to any
matter which is uncertain, the Accounting Firm shall adopt the position
which it believes more likely than not would be adopted by the
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Internal Revenue Service. The Accounting Firm shall provide detailed
supporting calculations with respect to its determination both to the
Company and the Executive within such fifteen business day period. All fees
and expenses of the Accounting Firm under this Section 9(b) shall be borne
solely by the Company. The initial Gross-Up Payment, if any, as determined
pursuant to this Section 9(b), shall be paid by the Company to the
Executive within five days of the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall furnish the Executive with a written
opinion that failure to report the Excise Tax on the Executive's applicable
federal income tax return would not result in the imposition of a
negligence or similar penalty. Any determination by the Accounting Firm
shall be final, binding and conclusive upon the Company and the Executive,
except as provided in the following sentences of this Section 9(b). As a
result of uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the
Company should have been made ("Underpayment") or that Gross-Up Payments
which have been made by the Company should not have been made ("Excess
Gross-Up Payment"), consistent with the calculations required to be made
hereunder. Either party hereto can request a redetermination by the
Accounting Firm. An Underpayment can result from a claim by the Internal
Revenue Service or from a determination by the Accounting Firm. In the
event that the Internal Revenue Service makes a claim and the Company
exhausts its remedies pursuant to Section 9(c) and the Executive thereafter
is required to make a payment of any Excise Tax, the Accounting Firm shall
promptly determine the amount of the Underpayment that has occurred and any
such Underpayment shall be promptly paid by the Company to or for the
benefit of the Executive. In the event that the Accounting Firm determines
that an Underpayment has occurred, the Accounting Firm shall promptly
determine the amount of the Underpayment, which shall be promptly paid by
the Company to or for the benefit of the
-21-
<PAGE>
Executive. An Excess Gross-Up Payment can result from a determination by
the Internal Revenue Service or the Accounting Firm. If the Accounting
Firm makes an Excess Gross-Up Payment determination, it must furnish the
Executive with a written opinion that the basis for its determination would
be accepted by the Internal Revenue Service and that the Executive has a
right to a refund of taxes or credit against taxes with respect to the
Excess Gross-Up Payment. The Executive shall promptly repay to the Company
an amount equal to the reduction in aggregate taxes due by the Executive
resulting from such determination by the Internal Revenue Service or the
Accounting Firm, provided that the Executive shall only be required to
repay any portion of such amount that had been paid to the Internal Revenue
Service to the extent that and when the Executive receives a refund from
the Internal Revenue Service (or is entitled and able to utilize such
amount as a credit against other taxes due).
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment
by the Company of a Gross-Up Payment. Such notification shall be given as
soon as practicable but no later than ten business days after the Executive
is informed in writing of such claim and shall apprise the Company of the
nature of such claim and the date on which such claim is requested to be
paid. The Executive shall not pay such claim prior to the expiration of
the 30-day period following the date on which the Executive gives such
notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Company
notifies the Executive in writing prior to the expiration of such period
that it desires to contest such claim, the Executive shall:
(i) Give the Company any information reasonably requested by the
Company relating to such claim,
(ii) Take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an
-22-
<PAGE>
attorney reasonably selected by the Company,
(iii) Cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) Permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any taxes, including, without
limitation, any Excise Tax or income tax, including interest and penalties
with respect thereto, imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing
provisions of this Section 9(c), the Company shall control all proceedings
taken in connection with such contest and, at its sole option, may pursue
or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at
its sole option, either direct the Executive to pay the tax claimed and sue
for a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Company shall determine; provided, however,
that if the Company directs the Executive to pay such claim and sue for a
refund, the Company shall advance the amount of such payment to the
Executive, on an interest-free basis and shall indemnify and hold the
Executive harmless, on an after-tax basis, from any taxes, including,
without limitation, any Excise Tax or income tax, including interest or
penalties with respect thereto, imposed with respect to such advance or
with respect to any imputed income with respect to such advance; and
further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to
which such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control
-23-
<PAGE>
of the contest shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the Executive shall be entitled to
settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 9(c), the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject
to the Company's complying with the requirements of Section 9(c)) promptly
pay to the Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Executive of an amount advanced by the Company pursuant to
Section 9(c), a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Company does not
notify the Executive in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such determination, then
such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount
of Gross-Up Payment required to be paid.
(e) Payments or distributions by the Company to or for the benefit of
the Executive pursuant to any "incentive stock options" (within the meaning
of Section 422 of the Code) granted to the Executive which are vested as of
the date hereof shall be "Excluded Payments." In the event that Payments
which include Excluded Payments are subject to Excise Tax, the
determinations made pursuant to Section 9(b) above shall be calculated with
respect to all Payments (including any Excluded Payments), but any
resulting Gross-Up Payment required to be made by the Company shall be
reduced by the product of the Gross-Up Payment multiplied by a fraction the
numerator of which is the Excluded Payments and the denominator of which is
all Payments (including the Excluded Payments).
10. Confidential Information. The Executive shall hold in a fiduciary
------------------------
capacity for the
-24-
<PAGE>
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its affiliated companies, and their respective
businesses, which shall have been obtained by the Executive during the
Executive's employment by the Company or any of its affiliated companies and
which shall not be or become public knowledge (other than by acts by the
Executive or representatives of the Executive in violation of this Agreement).
After termination of the Executive's employment with the Company, the Executive
shall not, without the prior written consent of the Company, communicate or
divulge any such information, knowledge or data to anyone other than the Company
and those designated by it. In no event shall an asserted violation of the
provisions of this Section 10 constitute a basis for deferring or withholding
any amounts otherwise payable to the Executive under this Agreement. The
obligations of this Section 10 are in addition to and do not supersede any other
confidentiality obligations of the Executive to the Company.
11. Successors.
----------
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
-25-
<PAGE>
12. Funding. This Agreement constitutes an unfunded, unsecured obligation
-------
of the Company and any payments made hereunder shall be made from the general
assets of the Company. However, the Company has established a trust pursuant to
a trust agreement and shall make contributions to such trust in accordance with
the terms and conditions of such trust agreement for the purpose of assisting
the Company in meeting its payment obligations under this Agreement.
13. Miscellaneous.
-------------
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may
not be amended or modified otherwise than by a written agreement executed
by the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
--------------------
To the address shown on the Company's records for tax reporting
purposes.
If to the Company:
-----------------
Capital One Financial Corporation
2980 Fairview Park Drive
Falls Church, Virginia 22042
Attention: Officer-in-Charge,
Human Resources Division
or to such other address as either party shall have furnished to the other
in writing in accordance herewith. Notice and communications shall be
effective when actually
-26-
<PAGE>
received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's failure to insist upon strict compliance with any
provision hereof or the failure to assert any right the Executive may have
hereunder, including, without limitation, the right to terminate employment
for Good Reason pursuant to Section 5(c)(i)-(v), shall not be deemed to be
a waiver of such provision or right or any other provision or right
thereof.
(f) This Agreement contains the entire understanding of the Company
and the Executive with respect to the subject matter hereof and supercedes
in its entirety any prior Change of Control Agreement by and between the
Company and the Executive. Until the Effective Date, subject to the terms
of any other employment agreement between the Executive and the Company,
the Executive shall continue to be an "employee at will".
-27-
<PAGE>
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
_________________________________
CAPITAL ONE FINANCIAL CORPORATION
By: ____________________________
-28-
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.15
<SEQUENCE>9
<DESCRIPTION>SERVICES AGREEMENT
<TEXT>
<PAGE>
Exhibit 10.15
-------------
SERVICES AGREEMENT
DARCY MASIUS BENTON & BOWLES, INC.
& CAPITAL ONE FINANCIAL CORPORATION
AGREEMENT dated as of April 1, 1999 by and between D'Arcy Masius Benton &
Bowles USA, Inc. (DMB&B or Agency), a wholly owned subsidiary of The MacManus
Group, Inc. (TMG), with offices located at 1675 Broadway, New York, New York
10019, and Capital One Financial Corporation (Client), with offices located at
2980 Fairview Park Drive, Falls Church, Virginia 22042.
WHEREAS, Agency has been retained to provide services to Client on a non-
exclusive, worldwide basis; and
WHEREAS, the parties wish to enter into this Agreement setting forth the
terms of such relationship.
NOW, THEREFORE, the parties agree as follows:
1. SCOPE OF AGENCY SERVICES
------------------------
Agency will provide Client the basic services described on Schedule 1 to this
Agreement. It is understood that certain services hereunder may be provided by
other TMG operating companies specifically including without limitation, Clarion
Marketing & Communications, Inc., Blue Marble Advanced Communications, Inc.,
MediaVest Worldwide, Inc., and Bromley, Aguilar & Associates.
In addition to such basic services, Agency is prepared to provide a variety of
special services to Client through Agency's facilities or the facilities of
other companies within The MacManus Group organization, as further described
below. Compensation and other terms and conditions for such special services
will be agreed upon in advance by the parties per Appendix I. Such special
services may include but are not limited to items listed on Schedule 2 and/or
Appendix I to this Agreement.
It is further agreed that DMB&B and other TMG operating companies will be the
preferred/first choice advertising agency for the development of Global Brand
Advertising, Local Brand Advertising, and Local Recruitment Advertising by all
Capital One operating companies around the world, as defined in Appendix I.
2. TERM OF THIS AGREEMENT
----------------------
This Agreement shall be effective as of April 1, 1999, and shall continue
through March 31, 2000. This Agreement shall thereafter automatically renew for
successive periods of one year each, unless this Agreement is terminated under
Section 8 below.
3. AFFILIATED COMPANIES
--------------------
1
<PAGE>
Client recognizes that Agency has available to it the integrated resources of
other affiliated companies within The MacManus Group organization, and that it
may use such affiliated companies in the completion of certain production
projects and for other services. A partial list of such affiliated companies is
set forth in Schedule 3 to this Agreement. Client agrees to the involvement of
such companies so long as their prices and quality, which are the basis of any
charge to Client, are approved in advance by Client.
In the event such affiliated companies are used by Client, it is understood that
such services are incremental to the basic services (defined in Appendix I)
under this Agreement, and that compensation for such services will be based on
the scope of the assignment and in accordance with the prevailing compensation
practices as established by that organization and mutually agreed by all the
parties.
Except as set forth herein or otherwise disclosed to Client, Agency will have no
financial interest in any supplier of media services or advertising materials
which will be the basis of any charge to Client. In addition, Agency will
immediately disclose its ownership interest, if any, in any literary or artistic
properties, or radio or television programming which are the basis of any charge
to Client.
4. AGENCY COMPENSATION
-------------------
Agency's compensation for the basic services described above will be as set
forth in Appendix I to this Agreement.
5. BILLING AND PAYMENT POLICY
--------------------------
Agency's invoices will be rendered and shall be payable in accordance with
Agency's billing and payment policy, which is described in Appendix III to this
Agreement. Agency reserves the right to change such billing and payment terms in
the case of a delinquency in Client's payments or other circumstances which
Agency reasonably believes may affect Client's ability to pay Agency's
compensation and costs as they become due, provided that in the event Agency
does so change the billing and payment terms, Client shall have the right to
terminate this agreement upon 30 days written notice to Agency given within 30
days following such change.
6. RATE AND OTHER ADJUSTMENTS
--------------------------
(1) Discounts
---------
The exact amount of each cash discount allowed to Agency by media and
suppliers for prompt payment will be allowed to Client provided
payment is made to Agency in accordance with the cash discount terms
stated on Agency's invoices and provided that there is no overdue
indebtedness owing by Client to Agency at the time of payment.
(2) Short Rates
-----------
If Agency purchases media space or time for Client in a medium having
a schedule of graduated rates, and Client uses less space or time than
contracted, Client agrees to pay Agency the difference, if any,
between the rate billed and the rate actually earned, in accordance
with such rate payments Agency may be obligated to make.
(3) Lower Rates Earned
------------------
2
<PAGE>
If with respect to any such media purchases Client uses more space or
time than contracted, Agency shall refund any excess (plus
commissions, if any) Client may have paid in accordance with such
refunds made to Agency by media.
(4) Post Termination Rate Adjustments
---------------------------------
Upon termination of this Agreement, Agency will, after expiration of
the applicable termination notice period referred to below, receive
its share of commission, if any, on short-rate bills and will add back
its share of commission, if any, to refunds made by media by reason of
the earning of a lower rate.
7. INDEMNIFICATION
---------------
A. Client's Indemnity to Agency
----------------------------
Client shall be responsible for the accuracy, completeness and
propriety of information concerning its organization, products,
competitor's products and services which Client furnishes to Agency in
connection with the performance of this Agreement. Accordingly, Client
agrees to defend and indemnify Agency against any claim, damage, loss
or expense, including reasonable attorney's fees and costs, that
Agency may sustain as the result of any claim, suit or proceeding
brought or threatened against Agency (i) based on any advertising or
materials that Agency creates, produces or places for Client and which
Client approves before its publication, broadcast or distribution (but
excluding any claims covered by Agency's indemnity under paragraph
7.B. below); (ii) based on any information or materials supplied to
Agency by or through Client in connection with Agency's services
hereunder; (iii) arising out of the nature or use of Client's products
or services; or (iv) relating to risks which have been brought to
Client's attention by Agency where Client has elected to proceed.
Client also agrees to indemnify Agency against any loss Agency may
sustain resulting from any claim, suit or proceeding made or brought
against Agency for use of any Agency-produced commercials by Client's
representatives or by anyone else who obtained the materials from
Client when such claim, suit or proceeding arises out of Agency's
obligations under the applicable union codes or contracts relating to
the production of commercials.
B. Agency's Indemnity to Client
----------------------------
Agency shall defend and indemnify Client against any claim, damage,
loss or expense, including reasonable attorney's fees and costs Client
may sustain as the result of any claim, suit or proceeding brought or
threatened against Client arising out of advertising or materials
prepared by Agency hereunder and pertaining to libel, slander,
defamation, infringement of title, slogan, trademark, trade dress,
service mark or service name, copyright infringement, invasion of
privacy, piracy and/or plagiarism or misappropriation of ideas under
implied contract, except to the extent that such claims arise from
information or materials provided by or through Client.
C. Cooperation and Settlement
--------------------------
3
<PAGE>
Upon the assertion of any claim or the commencement of any suit or
proceeding against an indemnitee by any third party that may give rise
to liability of an indemnitor hereunder, the indemnitee shall promptly
notify the indemnitor of the existence of such claim and shall give
the indemnitor reasonable opportunity to defend and/or settle the
claim at its own expense and with counsel of its own selection.
Indemnitee shall at all times have the right to participate fully in
such defense at its own expense, and the indemnitee shall not be
obligated, without its consent, to participate in any settlement which
it reasonably believes would have an adverse effect on its business.
The indemnitee shall make available to the indemnitor all books and
records relating to the claim, and the parties agree to render to each
other such assistance as may reasonably be requested in order to
insure a proper and adequate defense. An indemnitee shall not make any
settlement of any claims which might give rise to liability of an
indemnitor hereunder without the prior written consent of the
indemnitor.
D. Survival of Indemnity
---------------------
The provisions of this paragraph 7 shall survive the termination of
this Agreement.
E. Third Party Subpoenas
---------------------
In the event either party becomes subject to third party subpoenas for
documents or testimony in connection with any lawsuit or investigation
involving the other party's business or affairs, which lawsuit or
investigation is not otherwise covered by the indemnification
provisions above, such other party will be responsible for reimbursing
the first party's reasonable out of pocket costs incurred in complying
with such subpoenas, including its reasonable attorneys fees and
expenses.
8. TERMINATION
-----------
A. Term
----
Either party at its sole election may terminate this Agreement for any
reason without penalty upon not less than 90 days written notice, but
in no event may this Agreement be terminated by Client or Agency prior
to March 31, 2000.
Notwithstanding the foregoing, in the event either party is in breach
or default of any material term of this Agreement, and said breach or
default continues unremedied for a period of twenty (20) days after
such party's receipt of written notice from the other party specifying
the grounds of such breach or default, then in addition to all other
rights and remedies at law or in equity, the other party will have the
right to terminate this Agreement immediately upon written notice to
the breaching/defaulting party.
In addition, either party may terminate this Agreement immediately
upon written notice to the other party in the event such other party
(1) makes an assignment for the benefit of creditors; or (2) admits in
writing its inability to pay its debts as such debts come due; or (3)
makes any voluntary filing for bankruptcy protection; or (4) becomes
subject to any involuntary bankruptcy proceedings, which proceedings
are acquiesced to or not dismissed within thirty (30) days.
4
<PAGE>
B. Responsibilities and Compensation through Termination
-----------------------------------------------------
Except as hereafter provided in this paragraph 8B., the rights, duties
and responsibilities of the parties shall continue throughout the
applicable termination notice period described in paragraph 8A. above,
including Agency's right to receive, as the case may be, (i) Agency's
fee compensation for each calendar month (or pro-rata portion thereof
for any partial calendar month) occurring during the first 60 days of
such notice period and thereafter on the basis of actual hours
rendered on Client's account and (ii) commission compensation for
advertisements in any print media whose closing dates fall within such
notice period, and in any TV, radio, internet or other broadcast media
whose date of broadcast or transmission falls within such notice
period.
In any case, promptly following its receipt of notice of termination
from Client, Agency will work with Client to wind down and transition
the servicing of Client's account. In connection therewith, Agency
will begin to make appropriate reductions in staffing provided that
Client will not be charged for the time of Agency staff incurred on
behalf of any other Client of Agency. Accordingly, while Agency will
continue to render such services as reasonably directed by Client,
Client recognizes that during the applicable termination notice period
the level of services to Client's account is likely to be reduced from
the level of services theretofore provided under this Agreement.
C. Non-Cancelable Contracts; Talent Contracts
------------------------------------------
Any non-cancelable contract or commitment made on Client's
authorization, and still existing at the expiration of this Agreement,
shall be carried to completion by Agency and paid for by Client unless
mutually agreed in writing to the contrary, in accordance with the
provisions of this Agreement. Any materials or services Agency has
committed to purchase for Client (or any uncompleted work previously
approved by Client either specifically or as part of a plan) shall be
paid for by Client and Agency shall receive applicable compensation.
Any contract Agency has entered into with talent to perform in
Client's advertising shall, simultaneously on the effective date of
such termination, be automatically assigned to Client and Client shall
assume all of the rights and obligations under the contract and Agency
shall be relieved of any further responsibility or liability. Client
shall indemnify Agency against any expense or loss that Agency may
incur as a result of a claim by talent or a third party arising after
the assignment of the contract.
D. Transfer and Ownership
----------------------
Upon the termination of this Agreement, Agency shall return, transfer,
assign and make available to Client, or its representative, all
property and materials in Agency's possession or control provided to
Agency by Client. Also upon termination of this Agreement, Agency
shall transfer, assign and make available to Client, or its
5
<PAGE>
representative, all property and materials in Agency's possession or
control created by Agency for Client, provided that Client has paid
for such property and materials.
Agency will also cooperate in transferring, with approval of third
parties in interest, all reservations, contracts and arrangements with
advertising media or others for advertising time or space or materials
yet to be used, and all related rights and claims, upon being duly
released from such obligations.
As between Client and Agency, Client shall own all rights including,
without limitation, all intellectual property rights, to any
advertising or materials which are produced for Client by Agency prior
to the effective termination of this Agreement. In this regard, Agency
shall proceed promptly upon Client's approval to complete production
of any such materials during the applicable termination notice period.
Agency agrees to take all steps and to execute such documents as may
be requested by Client from time to time, and at Client's expense to
protect or record Client's interests in such materials.
Agency agrees that Client shall retain all right, title and interest
in and to its intellectual property, including, without limitation,
its copyrightable material, trademarks, service marks and trade dress,
and that all use of such intellectual property shall inure to the
benefit of the Client.
As soon as the same is agreed upon by Agency and Client, an incentive
compensation arrangement for Agency will be added to this Agreement as
Appendix 1.
If this Agreement is terminated by either party, all references to
incentive compensation arrangements in Appendix 1 will be prorated by
the percentage of the applicable term of the Agreement elapsed at that
time.
9. GENERAL PROVISIONS
------------------
A. Protection of Client's Property
-------------------------------
Agency shall take the utmost care and appropriate precautions to
safeguard Client's property and information entrusted to Agency's
custody or control.
B. Right to Modify Plans
---------------------
Client reserves the right to modify, reject, cancel or stop any and
all plans, schedules, or work in process. In such event Agency shall
immediately take proper steps to carry out Client's instructions. In
turn, Client agrees to assume Agency's liability for all authorized
commitments; to reimburse Agency for all expenses incurred; to pay
Agency any related service charges in accordance with the provisions
of this Agreement; and to indemnify Agency for all claims and actions
by third parties for damages and expenses that result from carrying
out Client's instructions.
C. Failure of Media and Suppliers
------------------------------
6
<PAGE>
Agency shall endeavor to guard against any loss to Client as the
result of the failure of media or suppliers to properly execute their
commitments; but Agency will not be responsible for their failure.
D. Agent for Disclosed Principal; Media Purchases
----------------------------------------------
Agency shall act as Client's agent with regard to the purchase of
materials and production services hereunder, excluding the purchase of
media time or space. All media will be purchased by Agency as
principal.
E. Services to Client's Designees
------------------------------
Should Client request Agency to make purchases for or render services
to third parties (such as representatives and distributors), Client
and the third party shall be jointly and severally liable to Agency
even though Agency may render invoices to, or in the name of, the
third party.
F. Dealings With Third Parties
---------------------------
Agency will contract, as agent for Client, for third-party purchases
necessary for the preparation and production of Client's advertising
and promotion work only in the event Agency does not have the
personnel and/or facilities to perform such services and only upon the
prior approval of Client. Such service costs shall be clearly
identified on Agency estimate sheets and billing statements. Unless
authorization is obtained from Client, Agency shall not contract with
any third party.
G. Access
------
Agency's records specifically pertaining to the services provided
hereunder and rebilled to Client (excluding agency payroll and
administrative records) shall be available to inspection by Client's
authorized representative during normal business hours at those
locations where they are regularly maintained, following reasonable
advance written notice to Agency.
H. Notice
------
All notices which either party is required or may desire to give the
other party hereunder shall be sufficiently given if delivered in
person or sent by registered or certified mail, or by prepaid
overnight courier, addressed as follows:
If to Capital One:
Capital One Financial Corporation
2980 Fairview Park Drive
Falls Church, VA 22042
Attention: David Wurfel
If to DMB&B: D'Arcy Masius Benton & Bowles USA, Inc.
7
<PAGE>
1675 Broadway
New York, NY 10019
Attention: John F.P. Farrell
And a copy to:
The MacManus Group, Inc.
1675 Broadway
New York, NY 10019
Attention: Craig D. Brown
Or to such other address as shall be furnished in writing by any such
party and such notice shall be deemed to have been given when
delivered by hand or courier, or three days after being mailed.
I. Entire Agreement
----------------
This Agreement constitutes the entire agreement with respect to the
subject matter hereof, and may only be modified or amended in writing
signed by the party to be charged.
J. Confidentiality
---------------
See Appendix IV, hereby incorporated in this Agreement by this
reference. It is Agency's responsibility to ensure that all of its
affiliates doing work hereunder are made aware of Appendix IV.
K. International Advertising
-------------------------
It is the intent of both parties that the terms and understandings of
this Agreement apply to the relationship existing between the parties
in all countries throughout the world, subject to local law, custom
and practices; and that both parties agree to incorporate these
understandings to the extent possible and appropriate into individual,
local country agreements as and where required by law. It is also
agreed that this Agreement supercedes all prior agreements between the
parties; and that this Agreement takes preeminence in the event of a
dispute between local, non-U.S. practices and/or agreements.
L. Insurance
---------
Agency, at its own cost and expense, during the term of this
Agreement, will continuously maintain in force a standard advertising
liability policy (the "Policy") that provides coverage for Agency and
Client in a minimum amount of ten million ($10,000,000) dollars with a
deductible of not more than $5,000,000, for any loss resulting from
the conduct of Agency or from the creation or publication of
advertising pursuant to this Agreement.
M. Compliance with Laws Relating to Employers
------------------------------------------
8
<PAGE>
Agency will comply, during this Agreement and at Agency's own expense,
with all applicable federal, state and local laws, rules and
regulations governing the preparation and publication of advertising
and with all applicable provisions of the Workers' Compensations laws,
Unemployment Compensation laws, the Federal Social Security Law, the
Fair Labor Standard Act, and all other federal, state and local laws
and regulations which may be applicable to Agency as employer.
N. Severability
------------
Whenever possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
deemed restated to reflect the original intentions of the parties as
nearly as possible in accordance with applicable law, and, if capable
of substantial performance, the remaining provisions of this Agreement
shall be enforced as if this Agreement was entered into without the
invalid provision.
O. Captions
--------
The captions used in this Agreement are for convenience and reference
only and do not constitute a part of this Agreement and will not be
deemed to limit, characterize or in any way affect any provision of
the Agreement, and all provisions of this Agreement will be enforced
and construed as if no caption had been used in this Agreement.
P. Attorney's Fees
---------------
In the event that any action or proceeding is brought in connection
with this Agreement, the prevailing party shall be entitled to recover
its costs and reasonable attorney's fees.
Q. Applicable Law; Jurisdiction
----------------------------
This Agreement shall be governed in accordance with the laws of the
State of New York applicable to contracts made and performed entirely
in that state. Each party submits to the exclusive jurisdiction of
the federal and state courts located in the State of New York with
respect to any action or proceeding relating to this Agreement.
Accepted for: Accepted for:
Capital One Financial Corporation D'Arcy Masius Benton & Bowles USA, Inc.
And its operating companies
/s/ William J. McDonald /s/ John F.P. Farrell
- ---------------------------------- ----------------------------------------
SVP Brand Management John F.P. Farrell
9
<PAGE>
________________________________ ________________________________________
(Date) (Date)
10
<PAGE>
SCHEDULE 1
SCOPE OF SERVICES
-----------------
Overall
- -------
. DMB&B and other TMG operating companies will be the preferred/first choice
advertising and communications agency for those activities assigned to them
and will provide all of the services customarily performed by a full
service global advertising and communications agency as needed and
appropriate under the circumstances and compensation level, for such
designated products and services as may be assigned to it from time to time
and for which the Agency is compensated by Client. Agency will also assist
to Client in the formulation of marketing plans, including advertising
concepts.
Account Service
- ---------------
. All time spent by the account group, like:
- Provision of general advertising and marketing consultation, including
reasonable familiarization and constant updating of business, product
performance and distribution.
- Briefing, progress and presentation of advertising plans and concepts.
- Day-to-day liaison, contact reports, status reports, timetables,
estimates, advertising budget control.
- Liaison with and supervision of outside suppliers (PR, direct marketing,
promotion agencies, etc.)
- Management of the execution of approved advertising concepts and the
distribution of such advertisements to the media.
Account Planning
- ----------------
. All time spent by the planner, like:
- Analysis of marketing and advertising research data.
- Desk research on competitive advertising data (but not cost of
subscribing to this data).
- Competitive monitoring, media and creative.
- Development of advertising strategies (with Account Service).
- Design, commissioning and supervision of local research.
- Provision of information on local market developments in new product
launches, marketing and advertising issues.
Creative
- --------
. All time spent by the creative department, like:
- Development of all international/regional and local communication
concepts and associated materials, including copy and layouts.
- Adaptation of international creative work into local material for all
markets as appropriate for all media.
11
<PAGE>
- Creative input on extensions of the international concept, when
required, into trade communication below the line material, promotions,
p.o.s. material, etc. to ensure consistency with main advertising
message. (Execution of these specific materials is not included in this
Agreement.)
- Liaison and comments on all below-the-line work which needs to be
produced by outside suppliers, to ensure consistency with main
advertising messages.
. Creative development test and analysis of research results.
Media
- -----
. All time spent by the media department, like:
- Planning and preparation of all media, including overall strategy
estimated costs, media selection, spaces, spot lengths, timing,
circulation, viewership details and schedules performance.
Production/Traffic
- ------------------
. All time spent by Production/Traffic department, like:
- Obtaining government, broadcast, legal approvals.
- Progress and control of international adaptation work and preparation of
production materials for local use.
- Progress and control of creative development, origination and production
of locally prepared ads.
- Negotiation, purchase and supervision of photography, art and mechanical
work for print and broadcast.
- Preparation of production estimates per Client approval and maintaining
records of all costs.
12
<PAGE>
SCHEDULE 2
LIST OF SPECIAL SERVICES
------------------------
In addition to the Basic Services listed in Schedule 1, Agency is prepared to
provide a variety of special services to Client through Agency's own facilities
or those of other companies within TMG's organization. Compensation and other
material terms and conditions for these special services will be as described in
Appendix I. Such services may include without limitation:
A. Creation and/or production of sales, promotional and collateral materials
such as point-of-sale materials, leaflets, inserts, catalogues, brochures
and other similar material.
B. Direct marketing services, including the creation and production of direct
mail and direct response advertising, and the placement, insertion or
distribution of those materials.
C. Public relation services, including the preparation of publicity releases,
employee publications, news films, speeches, seminars, radio scripts, and
television programs.
D. Staging and conducting sales and other company meetings and designing and
preparing exhibits for trade and industry shows.
E. Designs of labels and packaging.
F. New product concept and development work; line extensions.
G. Creation, production and placement of yellow pages advertisements.
H. Recruitment advertising.
I. Interactive and electronic (on-line) media.
13
<PAGE>
SCHEDULE 3
LIST OF AFFILIATES
The following is a partial listing of companies that are subsidiaries,
affiliates, or operational divisions or departments of The MacManus Group, Inc.,
and may be used as a subcontractor for certain materials and services:
(i) Advista - multimedia advertising and marketing software
(ii) Dialogue Works - direct marketing
(iii) Ayer PR - public relations
(iv) Blue Marble Advanced Communications, Inc. - interactive and
electronic marketing
(v) Bromley, Aguilar & Associates - Hispanic advertising
(vi) Clarion - direct marketing, collateral, promotion and event
marketing
(vii) N.W. Ayer & Partners - full service advertising agency
(viii) DMB&B Yellow Pages - for placement of Yellow Page advertising and
listings
(ix) DMB&B Interactive - interactive marketing
(x) Highway One - full service advertising agency
(xi) Intergroup Marketing & Promotion, Inc. - promotion and business
communication services
(xii) Internal stat department - provide stats
(xiii) Manning, Selvage & Lee, Inc. - publicity and public relations
(xiv) MediaVest (including TeleVest) - media planning and purchasing,
network, syndication, cable buying
(xv) Medicus Group International, Inc. - health care advertising
(xvi) Plugged In Studios - art studio, audio-visual studio
(xvii) Sounds & Images - audio visual
(xviii) Talent Payment Service, Inc. - coordination of payments to
performing talent
14
<PAGE>
Where used as a subcontractor, partner, or on a direct basis it is understood
that such services, unless specified in this agreement to the contrary, are
incremental to the general agency agreement and that compensation for such
services will be based on the scope of the assignment and in accordance with the
prevailing compensation practices as established by that organization and
mutually agreed by all parties.
Except for the preceding, Agency has no financial interest in, nor is it the
subject of any financial interest of, any supplier of media services or
advertising materials which will be the basis of a charge to Client.
No officer, director, or employee of any supplier (which is not a subsidiary or
affiliated company of Agency) of media services or advertising materials which
is the basis of a charge to Client, has any financial interest in its Agency.
Agency will immediately disclose its ownership interest, if any, in any literary
or artistic properties, or radio or television programming which are the basis
of any charge to Client.
15
<PAGE>
APPENDIX I
Agency Compensation
A. DESCRIPTION
The Agency will be compensated via a combination of fees and commissions as
described below.
B. CLASSIFICATIONS
All TMG services provided to Capital One will be classified into one of the
following classifications for purposes of agency compensation:
1. Core Brand Strategic Services
2. Advertising & Communications Services
3. Marketing & Communications Services
4. Media Services
5. Interactive Services
6. Hispanic Services
7. United Kingdom Marketing & Communications Services
8. Public Relations
C. DEFINITIONS
1. Core Brand Strategic Services
. Senior, multi-disciplined consulting resources to partner with senior
Capital One executives.
. Strategic brand consulting, development and review of marketing
strategies across all consumer disciplines.
. A component of the base fee.
2. Advertising & Communications Services
. Centered in New York (Credit cards/ Cross sell/ New business) and St.
Louis (Telecommunications/New business).
. All inclusive fee, including production services. Levels of dedicated
resource and resultant ability to handle volumes of work differentiate
limited scope and full services proposals.
. Strategic work, planning and analysis, concept development and creative
supervision and execution for North America.
. A component of the base fee.
3. Marketing & Communications Services
. Retained service resource within Clarion (Direct Marketing) and Highway
One (Youth Marketing).
. Strategic planning and conceptual project development included in
retainer.
. A component of the base fee.
. Project execution outside of base core fee will be compensated on a
project fee basis.
. Production services compensated by commission mark-up on production
costs.
16
<PAGE>
4. Media Services
. Centered in New York ( MediaVest) and established as a dedicated full
time resource.
. Media planning and analysis compensated as a component of the base
fee.
. Media buying compensated by commission on gross media spending.
5. Interactive Services
. Led by Blue Marble.
. Fee for consulting on all aspects of interactive marketing - strategy
, media, concept development, sponsorship opportunities, etc.
. Execution/production services to be charged separately on a project by
project basis.
6. Hispanic Services
. Led by Bromley & Associates.
. Full service, integrated Hispanic marketing team.
. Specific scope of services and fee to be separately documented and
agreed.
7. United Kingdom Marketing & Communications Services
. Led by IMP London (supported by all specialists' disciplines within the
DMB&B UK Group).
. Specific scope of services and fee to be separately documented and
agreed.
8. Public Relations
. Led by MS&L.
. Project based remuneration.
. Specific scope of services and fee to be separately documented
agreed.
D. COMPENSATION Beginning May 1, 1999
1. Base Fee
. $7,697,000 per calendar year - calculated in accordance with Appendix
II.
. Invoiced in twelve (12) equal monthly installments beginning May 1,
1999.
. Fee to cover the following services provided in North America only:
- Core Brand Strategic Services
- Advertising & Communications Services
- Marketing & Communication Services
- Media Services
. Eight months after the date of this Agreement or four months before
the end of the current contract year and on the anniversary of same
thereafter, Agency will propose an estimated fee for the next account
year, according to the following formula:
a. Agency will estimate the amount of Agency direct staffing to be
expended in the next year in servicing Client's account based
upon Agency's past history of service to Client and upon review
of the upcoming advertising and marketing plans and programs
contemplated or approved by Client. In order to estimate the
staffing to be expended, Agency will provide a break down by
direct staffing person, time and total cost to be allocated to
Client's account.
17
<PAGE>
b. The proposed next year's fee is subject to Client's written
approval. In the event a fee is not agreed upon prior to the
beginning of the applicable date, a constructive fee in the amount
of 1/12 of the prior year's fee will be due the first month of such
year and each succeeding month, with retroactive adjustment when
the negotiated fee is finalized.
2. Project fees
. Specific scope of services and fee to be separately documented and
agreed, including:
- Interactive Services
- Hispanic Services
- United Kingdom Marketing & Communications Services
- Public Relations
. Invoiced in equal monthly installments until project completion.
. If Client asks Agency to begin work on project and later cancels
project, Client agrees to cover Agency labor costs incurred to
cancellation, as well as those costs required to wind-down work.
Additionally, Client will reimburse Agency for all expended out-of-
pocket costs associated with the project.
3. Media Commissions
. Network Television - 1.50% of net
. Network Radio - 1.75% of net
. Syndication/Cable - 2.00% of net
. Spot Television - 4.00% of net
. Spot Radio - 4.00% of net
. Out of Home - 5.00% of net
. Print - Newspaper and Trade - 2.50% of net
. Print - Consumer Magazines - 1.50% of net
. Direct Response Media - 5.00% of net
3. Production Commissions -- billed net
4. Incentive Compensation - See Appendix V (TBD)
E. BILLABLE THIRD PARTY COSTS
1. All third party costs are billable and managed accordingly by Agency.
. Agency will bill Client at Agency's cost (without markup or profit)
for reasonable expenditures incurred for artwork, engraving,
electrotyping, typography, translations and all other materials
involved in the mechanical production of advertising, radio and
television production and all their associated costs, talent, music,
photographs, testimonials and all other advertising adjuncts,
including expenditures in connection with acquiring authorization for
the use of the names or photographs of individuals.
. Comprehensive layouts and typesetting required by Client, finished
art, mechanical past-ups and tightly rendered storyboards shall be
approved by Client in advance and shall be billed to Client at
Agency's cost (without markup or profit). Notwithstanding the
foregoing, Agency shall not charge Client for rough/concept layouts
except for those specific third-party charges which Client shall have
approved in advance.
18
<PAGE>
2. Additional Considerations
. Production jobs estimated on a "Quote Basis" with a 10% contingency
arrangement Agency will not exceed estimated costs by more than 10%
without Client's written approval. Production costs for local
adaptations
a. Production costs for local adaptations of global work (including
translations, dubs, chromalins, talent, etc.) will be invoiced at
net cost to the Client locally.
. Billable travel
a. On creative production jobs, limited to three persons.
b. On research jobs, limited to one person.
c. Travel guidelines reasonably consistent with Client staff travel
policies - see Appendix VI. Agency will be responsible for ensuring
that all Agency affiliates servicing Client's account are aware of
Client's travel guidelines.
F. BILLING AND PAYMENT PROTOCOLS
1. See Appendix III
G. REPORTS
1. From time to time Client may request Agency to participate in , and Agency
will use its best efforts to participate in, a periodic Agency
performance evaluation with respect to (1) Agency's servicing of Client's
account, (2) Agency's economics in servicing Client's account, (3) the
working relationship between Agency and Client, and (4) the
implementation of this Agreement.
2. Within sixty (60) days after the end of the first one hundred and eighty
(180) days of operating under this Agreement, within sixty (60) days
after the end of each thereafter and promptly upon termination of this
Agreement, Agency will provide Client with a written monitoring report
setting forth the status of projects commenced, under preparation and
concluded, and Agency's direct staffing time devoted to Client's account.
Agency represents to Client that Agency collects actual direct staffing
time from its staff on a weekly basis.
3. At any reasonable time during the life of this Agreement and for one year
thereafter, and upon reasonable prior notice to Agency, Client may
examine and make reasonable copies of Agency's files and records
pertaining to Client's advertising ( not including individual
compensation information). The agency will provide Capital One with a
certification issued by the Agency's independent auditing firm at Capital
One's expense (not to exceed $10,000), verifying the accuracy of the
OverHead rate.
19
<PAGE>
APPENDIX II
- -----------
Capital One Fee Schedule: May 1999 - April 2000
-----------------------------------------------
Base/Core Fee:
May: $ 641,500
June: $ 641,500
July: $ 641,500
August: $ 641,500
September: $ 641,500
October: $ 641,500
November: $ 641,500
December: $ 641,500
January $ 641,500
February $ 641,500
March $ 641,500
April $ 641,500
Total for Contract Period: $7,698,000
Incremental Fees:
The following formulas will be followed for calculating fees that are
incremental to the Base/Core Fee:
For retainer work: Cost of staff plus 132% OverHead (includng benefits) plus
20% profit margin
For project work: Cost of staff plus 144% OverHead (including benefits) plus
20% profit margin
Incentive Compensation:
TBD
20
<PAGE>
APPENDIX III
- ------------
U.S. Billing/Payment Policy:
- ----------------------------
(All other country billing/payment practices per local custom and practice)
A. TMG billing and payment policy is intended to provide for receipt of Client
monies in sufficient time for the agency to pay third parties in accordance
with their payment terms.
<TABLE>
<CAPTION>
Category (if applicable) Billing Basis Billing Date(s) Due Date(s)
- ------------------------- ------------- --------------- -----------
<S> <C> <C> <C>
1. Network and Spot Contracted Schedule 25/th/ of month 24/th/ of following month
Radio-Television
2. Magazines Contracted Schedule 25/th/ of prior month 15/th/ of following month
of insertion
3. Newspaper Contracted Schedule 25/th/ of month 15/th/ of following month
4. Out-of-home Contracted Schedule 25/th/ of month 15/th/ of following month
5. All Other Media Contracted Schedule 25/th/ of month 15/th/ of following month
6. Advertising Production:
a. Pre-Funding 100% pre-billed Beg of month 15 days following
b. Talent Residuals Progress Billing 25/th/ of month 15/th/ of following month
c. Research 100% of Quote 25/th/ of month 15/th/ of following month
Exceptions and/or additions, if any, approved by Capital One will be as separately agreed.
7. Local Adaptation of Global Progress Billing 25/th/ of month 15/th/ of following month
Advertising Production
8. Advertising Service Fee Appendix II 1st of month 10 days following
9. Other Service Fees As agreed per project 25/th/ of month 15/th/ of following month
</TABLE>
21
<PAGE>
B. TMG reserves the right to charge interest at the rate of 5% per annum on
any monies owing more than 30 days from the invoice date, or to change its
billing and payment terms in the case of delinquency in Client payments to
TMG or other circumstances which TMG reasonably believes may affect
Client's ability to pay TMG compensation and costs as they become due,
including direct payment by Client to third parties, at TMG's discretion.
22
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.17.3
<SEQUENCE>10
<DESCRIPTION>AMENDMENT TO LEASE DOCUMENT
<TEXT>
<PAGE>
EXHIBIT 10.17.3
---------------
Prepared By:
Hirschler, Fleischer, Weinberg, Cox & Allen
P.O. Box 500
Richmond, VA 23218-0500
FIRST AMENDMENT
TO
AMENDED AND RESTATED LEASE AGREEMENT, AMENDMENT TO LEASE AND LANDLORD'S
CONSENT AGREEMENT TO GROUND LEASE AND VIRGINIA LEASE SUPPLEMENT, MEMORANDUM
OF AMENDED AND RESTATED LEASE AGREEMENT AND REMEDIES
(the "Amendment to Lease Documents")
THIS AMENDMENT TO LEASE DOCUMENTS (hereinafter called the "Amendment") is made
as of the 1st day of October, 1999, by and among FIRST SECURITY BANK, N.A., not
-------------------------
individually, but solely in his capacity as Owner Trustee ("First Security")
under the COB Real Estate Trust 1995-1, as amended and restated by that certain
Amended and Restated Trust Agreement dated as of October 14, 1998, and Val T.
ORTON, not individually, but solely in his capacity as Owner Trustee (the
- -----
"Individual Trustee") under COB Real Estate Trust 1995-1, as amended and
restated by that certain Amended and Restated Trust Agreement dated as of
October 14, 1998 ("the Trust") [for purposes of indexing grantors]; CAPITAL ONE
-----------
BANK, a Virginia corporation ("Capital One") [for purposes of indexing a
- ----
grantor]; CAPITAL ONE REALTY, INC., a Delaware corporation ("Capital Realty")
------------------------
[for purposes of indexing a grantor]; and LAWYERS TITLE REALTY SERVICES, INC., a
-----------------------------------
Virginia corporation ("Lawyers Title") [for purposes of indexing a grantee].
W I T N E S S E T H:
RECITALS
- --------
A. Individual Trustee owns the fee simple estate in those two parcels
of land with improvements thereon located east of Cox Road and north of Nuckols
Road in Henrico County, Virginia, commonly known as the Knolls Office Building
containing 9.735 acres (the "Knolls Office Building Parcel") and the Operations
Center containing 17.9856 acres (the "Operations Center Parcel"), [together, the
"Trust Property"]
B. Individual Trustee is the ground lessee of that certain parcel of
land located east of Cox Road, north of Nuckols Road and adjacent to the Trust
Property in Henrico County, Virginia, consisting of Parcel A containing 16.8499
acres and Parcel B
<PAGE>
containing 0.0378 acres, commonly known as Knolls Two Phase Three (the "Capital
One Property"), pursuant to that certain Ground Lease dated June 21, 1996, (a
short form Memorandum of which was recorded in the Clerk's Office of the Circuit
Court of Henrico County, Virginia (the "Clerk's Office"), in Deed Book 2657, at
Page 1311), as amended by unrecorded Amendment to Lease and Landlord's Consent
Agreement to Ground Lease dated as of October 14, 1998, and by Amendment to
Ground Lease and Memorandum of Lease dated as of October 14, 1998, recorded in
the Clerk's Office in Deed Book 2865, at Page 21 (collectively, the "Ground
Lease"), between Capital One Bank, as lessor and the Individual Trustee, as
lessee.
The Trust Property and the Capital One Property are collectively referred to as
the "Property".
C. Capital Realty holds a leasehold interest in the Property pursuant
to that certain Amended and Restated Lease Agreement dated as of October 14,
1998, as supplemented by that certain Virginia Lease Supplement, Memorandum of
Amended and Restated Lease Agreement and Remedies dated as of October 14, 1998,
recorded in the Clerk's Office in Deed Book 2865, at Page 179 (collectively, the
"Lease Documents"), by which the Individual Trustee, as landlord, leased the
Property to Capital Realty, as tenant. As security for the performance by
Capital Realty of its obligations under the Lease, Capital One executed and
delivered to the Owner Trustees its Guaranty dated as of October 14, 1998 (the
"Guaranty");
D. Capital Realty is constructing an addition consisting of a kitchen
facility (the "Addition"), to the existing improvements located on the Knolls
Office Building Parcel. Capital Realty has filed an amended plan of development
for the Addition which plan provides for an adjustment to a portion of the
common boundary line of the Knolls Office Building Parcel and the Operations
Center Parcel. The adjustment of the common boundary line will result in an
increase of 0.087 acre to the Knolls Office Building Parcel and a decrease of
0.087 acre to the Operations Center Parcel. The 0.087 acre is more
particularly described in Exhibit A hereto and is hereinafter referred to as the
"Additional Adjustment Parcel".
E. The parties hereto now desire to amend the legal descriptions of the
Knolls Office Building Parcel and the Operations Center Parcel with respect to
the Additional Adjustment Parcel.
F. All capitalized terms not defined herein shall have the same
meanings as set forth in the Lease Documents.
<PAGE>
AMENDMENT
- ---------
FOR and in consideration of the foregoing of the foregoing premises, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. The legal description for the Knolls Office Building Parcel set forth
in Schedule A to each of the Lease Documents is deleted in its entirety and the
legal description set forth on Exhibit A hereto is substituted therefor.
2. The legal description for the Operations Center Parcel set forth in
Schedule A to each of the Lease Documents is deleted in its entirety and the
legal description set forth on Exhibit B hereto is substituted therefor
3. Except to the extent modified and amended hereby, each of the Lease
Documents remain valid, binding and in full force and effect, and each of the
parties hereto ratifies and confirms the same.
4. First Security, as an Owner Trustee under the Trust, joins herein for
the sole purpose of acknowledging and consenting to the amendment accomplished
herein.
5. Capital One, as guarantor under the Guaranty joins herein for sole
purpose of acknowledging the amendment accomplished herein.
6. Capital Realty, as lessor under the Lease, joins herein for the sole
purpose of acknowledging the amendment accomplished herein.
7. This Amendment may be executed in counterpart, each of which shall be
deemed an original but all of which shall constitute one and the same document.
[SIGNATURE PAGES FOLLOW]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute this Amendment on their respective behalves.
FIRST SECURITY BANK, N.A.,
not individually but solely in its capacity
as owner trustee under that certain Amended
and Restated Trust Agreement dated as of
October 14, 1998
By: /s/ Val T. Orton (SEAL)
-----------------------------------
Name: Val T. Orton
Title: Vice President
STATE OF ________________________
City/County of _____________________, to-wit:
The foregoing instrument was acknowledged before me this _____ day of
________________, 1999, by First Security Bank, N.A., a ________________, as
Owner Trustee under the COB Real Estate Trust 1995-1 as amended by that certain
Amended and Restated Trust Agreement dated as of October 14, 1998, on behalf of
said trust.
My commission expires:
/s/
----------------------------------
Notary Public
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute this Amendment on their respective behalves.
/s/ Val T. Orton (SEAL)
--------------------------------
Val T. Orton, not individually, but solely
as Owner Trustee under the COB Real
Estate Trust 1995-1, as amended by that
certain Amended and Restated Trust
Agreement dated as of October 14, 1998
STATE OF UTAH
City/County of _____________________, to-wit:
The foregoing instrument was acknowledged before me this _____ day of
________________, 1999, by Val T. Orton, not individually, but solely as Owner
Trustee under the COB Real Estate Trust 1995-1 as amended by that certain
Amended and Restated Trust Agreement dated as of October 14, 1998, on behalf of
said trust.
My commission expires:
/s/
----------------------------------
Notary Public
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute this Amendment on their respective behalves.
CAPITAL ONE BANK,
a Virginia corporation
By: /s/ Stephen Linehan (SEAL)
--------------------------------
Name: Stephen Linehan
Title: Manager, Corporate Funding
COMMONWEALTH OF VIRGINIA
City/County of ___________________, to-wit:
The foregoing instrument was acknowledged before me this _____ day of
____________________, 1999, by __________________________________, the duly
authorized ____________________________ of Capital One Bank, a Virginia
corporation, on behalf of said corporation.
My commission expires:
/s/
----------------------------------
Notary Public
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute this Amendment on their respective behalves.
CAPITAL ONE REALTY, INC.,
a Delaware corporation
By: /s/ Stephen Linehan (SEAL)
-----------------------------
Name: Stephen Linehan
Title: Manager, Corporate Funding
COMMONWEALTH OF VIRGINIA
City/County of ___________________, to-wit:
The foregoing instrument was acknowledged before me this _____ day of
____________________, 1999, by __________________________________, the duly
authorized ____________________________ of Capital One Realty, Inc., a Delaware
corporation, on behalf of said corporation.
My commission expires:
/s/
----------------------------------
Notary Public
<PAGE>
EXHIBIT A
---------
PARCEL 1
KNOLLS OFFICE BUILDING
LEGAL DESCRIPTION
Tract 1
- -------
ALL that certain lot, piece or parcel of land, together with all
improvements thereon and appurtenances thereunto belonging, situated, lying and
being in the Three Chopt District, Henrico County, Virginia, more particularly
described as follows:
Situated, lying, and being in the Three Chopt District of Henrico
County, Virginia, and being more particularly described as follows:
BEGINNING at a nail set on the east line of Cox Road, said point being
621.74 feet from the east line of North Park Drive;
Thence along a curve to the left having a radius of 730.00 feet and an
arc length of 129.55 feet, being subtended by a chord of North 19 53' 21" East
for a distance of 129.38 feet to a rod set;
Thence North 14 48' 18" East for a distance of 540.93 feet to a nail
set;
Thence along a curve to the right having a radius of 40.00 feet and an
arc length of 39.27 feet, being subtended by a chord of North 42 55' 50" East
for a distance of 37.71 feet to a rod set;
Thence along a curve to the left having a radius of 50.00 feet and an
arc length of 148.20 feet, being subtended by a chord of North 13 51' 31" West
for a distance of 99.61 feet to a brick nail found;
Thence North 14 48' 18" East for a distance of 38.09 feet to a brick
nail found;
Thence South 82 00' 00" East for a distance of 591.56 feet to a point;
Thence South 14 48' 18" West for a distance of 620.88 feet to a rod
set;
Thence South 82 18' 18" West for a distance of 195.14 feet to a rod
set;
Thence South 32 00' 21" West for a distance of 120.34 feet to a nail
set;
Thence South 82 18' 18" West for a distance of 268.63 feet to a rod
set;
Thence North 67 13' 29" West for a distance of 105.83 feet to a nail
set; and being the point of beginning.
Said property contains 9.735 acres more or less.
<PAGE>
Tract 2
- -------
ALL that certain lot, piece or parcel of land, together with all improvements
thereon and appurtenances thereto belonging, situated, lying and being in the
Three Chopt District, Henrico County, Virginia, containing 0.087 acre and being
more fully shown and described on that certain plat prepared by Foster & Miller,
P.C., dated July 14, 1999, entitled "COMPILED PLAT OF 0.087 ACRE LOCATED EAST OF
COX ROAD, THREE CHOPT DISTRICT, HENRICO COUNTY, VIRGINIA", a copy of which plat
is attached hereto and incorporated herein by reference.
<PAGE>
EXHIBIT B
---------
PARCEL 2
OPERATIONS CENTER
LEGAL DESCRIPTION
ALL that certain lot, piece or parcel of land, together with all
improvements thereon and appurtenances thereunto belonging, situated, lying and
being in the Three Chopt District, Henrico County, Virginia, more particularly
described as follows:
BEGINNING at a 1/2" rod set, said 1/2" rod being North 74 50' 33" West
153.65 feet from the western line of Fort McHenry Parkway; thence North 74 50'
33" West 704.14 feet to a 1/2" rod set; thence North 07 41' 23" West 54.36 feet
to a 1/2" rod set; thence North 22 04' 50" West 30.17 feet to a 1/2" rod set;
thence North 14 48' 18" East 1060.88 feet to 5/8" rod found; thence North 84 04'
51" East 547.01 feet to a nail found; thence South 04 57' 26" West 1353.08 feet
to the 1/2" rod set and point and place of beginning, containing 783,452.2
square feet or 17.9856 acres
LESS AND EXCEPT the tract of land containing 0.087 acre described as Tract 2 of
Parcel 1 in Schedule A hereto.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.17.4
<SEQUENCE>11
<DESCRIPTION>AMENDMENT TO GUARANTY
<TEXT>
<PAGE>
EXHIBIT 10.17.4
---------------
AMENDMENT NO. 1 dated as of April 1, 1999 between:
CAPITAL ONE BANK, a Virginia banking corporation duly organized and validly
existing under the laws of the State of Virginia (the "Guarantor"); and
---------
FIRST SECURITY BANK, N.A., a national banking association having an address
at 79 South Main Street, Salt Lake City, Utah 84111, and Val T. Orton, not
individually but solely in their capacities as owner trustee (the "Owner
Trustee") of the Capital One Bank Real Estate Trust 1995-1 (the "Lessor").
The Guarantor has executed a Guaranty dated as of October 14, 1998 (the
"Guaranty") in favor of the Lessor and the Obligees defined therein.
The Guarantor has requested that the Lessor agree and the required Obligees
consent, and the Lessor and the required Obligees are willing, to amend Section
3.1(b) of the Guaranty, all on the terms and conditions of this Amendment.
Accordingly, in consideration of the premises and the mutual agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. Terms used but not defined herein shall have the
-----------
respective meanings ascribed to such terms in the Guaranty.
Section 2. Amendment. Subject to the satisfaction of the conditions to
---------
effectiveness specified in Section 4 hereof, but with effect on and after the
date hereof, the Guaranty shall be amended as follows:
(a) Section 3.1(b) of the Guaranty shall be deleted in its entirety and the
following paragraph shall be substituted therefor:
"(b) Annual Statements - within 120 days after the end of each
-----------------
fiscal year of the Guarantor, copies of
(i) a consolidated report of condition of the Guarantor and
its Subsidiaries as at the end of such year,
(ii) consolidated reports of income and changes in equity
capital and cash flows of the Guarantor and its
Subsidiaries, for such year,
<PAGE>
(iii) a consolidated report of the condition of the Parent
and its Subsidiaries, which requirement may be
satisfied by providing the documents required by
Section 3(c), and
(iv) consolidated reports of income and changes in equity
capital and cash flows of the Parent and its
Subsidiaries, which requirement may be satisfied by
providing the documents required by Section 3(c),
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied, in the case of subparagraphs (iii) and
(iv) above,
(1) by an opinion thereon of independent public accountants
of recognized national standing, which opinion shall
state that such financial statements present fairly, in
all material respects, the financial position of the
companies being reported upon and their results of
operations and cash flows and have been prepared in
conformity with GAAP, and that the examination of such
accountants in connection with such financial
statements has been made in accordance with generally
accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the
circumstances, and
(2) a certificate of such accountants stating that they
have reviewed this Guaranty and stating further
whether, in making their audit, they have become aware
of any condition or event that then constitutes a Lease
Default or a Lease Event of Default, and, if they are
aware that any such condition or event then exists,
specifying the nature and period of the existence
thereof (it being understood that such accountants
shall not be liable, directly or indirectly, for any
failure to obtain knowledge of any Lease Default or
Lease Event of Default unless such accountants should
have obtained knowledge thereof in making an audit in
accordance with generally accepted auditing standards
or did not make such an audit);"
Section 3. Representations and Warranties. The Guarantor represents and
------------------------------
warrants to the Lessor that (a) this Amendment has been duly and validly
executed and delivered by the Guarantor and constitutes the Guarantor's legal,
valid binding obligation, enforceable against the Guarantor in accordance with
its terms, and (b) no Lease Default or Lease Event of Default has occurred and
is continuing. It shall be a Lease Event of Default for all purposes of the
Guaranty, as amended hereby, if any representation, warranty or certification
made by the Guarantor in this Amendment shall
<PAGE>
prove to have been false or misleading as of the time made or furnished in any
material respect.
Section 4. Conditions To Effectiveness. The amendment to the Guaranty set
---------------------------
forth in Section 2 hereof shall become effective, as of the date hereof, upon
the receipt by the Guarantor and the Lessor of this Amendment, duly executed and
delivered by the parties hereto, and consented to by the Obligees as required by
Section 6.5 of the Guaranty.
Section 5. Documents Otherwise Unchanged. Except as herein provided, the
-----------------------------
Guaranty shall remain unchanged and in full force and effect, and each reference
to the Guaranty and words of similar import in the Guaranty, as amended hereby,
and in the other Operative Documents to which the Guarantor is a party shall be
a reference to the Guaranty as amended hereby and as the same may be further
amended, supplemented and otherwise modified and in effect from time to time.
Section 6. Counterparts. This Amendment may be executed in any number of
------------
counterparts, each of which shall be identical and all of which, when taken
together, shall constitute one and the same instrument, and any of the parties
hereto may execute this Amendment by signing any such counterpart manually or by
facsimile.
Section 7. Expenses. Without limiting its obligations under the Guaranty,
--------
the Guarantor agrees to pay, on demand, all reasonable out-of-pocket costs and
expenses of the Lessor and the Obligees (including legal fees and disbursements)
incurred in connection with the negotiation, preparation, execution and delivery
of this Amendment.
Section 8. Binding Effect. This Amendment shall be binding upon and inure
--------------
to the benefit of the parties hereto and their respective successors and
assigns.
Section 9. Governing Law. This Amendment shall be governed by, and
-------------
construed in accordance with, the law of the State of New York.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written.
GUARANTOR
---------
CAPITAL ONE BANK
/s/ Stephen Linehan
By:-----------------------------------
Name: Stephen Linehan
Title: Manager, Corporate Funding
LESSOR
------
FIRST SECURITY BANK, N.A., as Owner Trustee
/s/ Val T. Orton
By:-----------------------------------
Name: Val T. Orton
Title: Vice President
/s/ Val T. Orton
--------------------------------------
Val T. Orton, as Owner Trustee
Consented hereto by:
OBLIGEES
--------
AMERICAN GENERAL ANNUITY
INSURANCE COMPANY
ALL AMERICAN LIFE INSURANCE COMPANY
AMERICAN GENERAL LIFE INSURANCE
COMPANY OF NEW YORK
<PAGE>
AMERICAN GENERAL ASSURANCE COMPANY
/S/
By:____________________________
Name:
Title:
LIFE REASSURANCE CORPORATION OF
AMERICA
/S/
By:___________________________
Name:
Title:
SUNAMERICA LIFE INSURANCE COMPANY
/S/
By:___________________________
Name:
Title:
J. ROMEO & CO.
/S/
By:___________________________
Name:
Title:
GENERAL AMERICAN LIFE INSURANCE
COMPANY
/S/
By:___________________________
Name:
Title:
<PAGE>
AMERICAN INVESTORS LIFE INSURANCE
COMPANY
/S/
By:___________________________
Name:
Title:
RELIASTAR UNITED SERVICES LIFE
INSURANCE COMPANY
/S/
By:_____________________________
Name:
Title:
RELIASTAR LIFE INSURANCE COMPANY
/S/
By:___________________________
Name:
Title:
NORTHERN LIFE INSURANCE COMPANY
/S/
By:___________________________
Name:
Title:
COVA FINANCIAL SERVICES LIFE
INSURANCE COMPANY
/S/
By:___________________________
Name:
Title:
<PAGE>
HARE & CO.
/S/
By:___________________________
Name:
Title:
AUSA LIFE INSURANCE COMPANY, INC.
/S/
By:___________________________
Name:
Title:
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.18.1
<SEQUENCE>12
<DESCRIPTION>SECOND AMENDMENT & RESTATED CREDIT AGREEMENT
<TEXT>
<PAGE>
Exhibit 10.18.1
---------------
[EXECUTION
COUNTERPART]
CAPITAL ONE FINANCIAL CORPORATION
CAPITAL ONE BANK
CAPITAL ONE, F.S.B.
-------
$1,200,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 25, 1999
(Originally dated as of November 17, 1995,
and amended and restated as of November 25, 1996)
-------
NATIONSBANK, N.A.
DEUTSCHE BANK AG
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
as Syndication Agents
CHASE SECURITIES INC.
as Book Manager and Lead Arranger
THE CHASE MANHATTAN BANK
as Administrative Agent
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. Definitions and Accounting Matters................................................................................ 1
1.01 Certain Defined Terms.............................................................................................. 1
1.02 Accounting Terms and Determinations................................................................................ 22
1.03 Tranches, Currencies and Types of Loans............................................................................ 23
1.04 EMU................................................................................................................ 23
SECTION 2. Commitments, Loans, and Prepayments............................................................................... 25
2.01 Syndicated Loans................................................................................................... 25
2.02 Borrowings of Syndicated Loans..................................................................................... 27
2.03 Money Market Loans................................................................................................. 27
2.04 Changes of Commitments............................................................................................. 32
2.05 Fees............................................................................................................... 33
2.06 Lending Offices.................................................................................................... 34
2.07 Several Obligations; Remedies Independent.......................................................................... 34
2.08 Evidence of Debt................................................................................................... 35
2.09 Prepayments........................................................................................................ 35
2.10 Extension of Commitment Termination Date........................................................................... 36
2.11 Increases in Commitments........................................................................................... 38
2.12 Undertaking of COB................................................................................................. 40
SECTION 3. Payments of Principal and Interest................................................................................ 41
3.01 Repayment of Loans................................................................................................. 42
3.02 Interest........................................................................................................... 42
SECTION 4. Payments; Pro Rata Treatment; Computations; Etc................................................................... 42
4.01 Payments........................................................................................................... 42
4.02 Pro Rata Treatment................................................................................................. 44
4.03 Computations....................................................................................................... 44
4.04 Minimum Amounts.................................................................................................... 44
4.05 Certain Notices.................................................................................................... 45
4.06 Non-Receipt of Funds by the Administrative Agent................................................................... 46
4.07 Sharing of Payments, Etc........................................................................................... 46
SECTION 5. Yield Protection, Etc............................................................................................. 48
5.01 Additional Costs................................................................................................... 48
5.02 Limitation on Types of Loans....................................................................................... 50
5.03 Illegality; Agreed Alternative Currencies.......................................................................... 50
5.04 Treatment of Affected Loans........................................................................................ 51
5.05 Compensation....................................................................................................... 51
5.06 U.S. Taxes......................................................................................................... 52
</TABLE>
Credit Agreement
----------------
<PAGE>
-ii-
<TABLE>
<S> <C>
5.07 Replacement of Lenders............................................................................................. 54
SECTION 6. Conditions Precedent.............................................................................................. 54
6.01 Conditions to Effectiveness........................................................................................ 54
6.02 Initial and Subsequent Loans....................................................................................... 56
SECTION 7. Representations and Warranties.................................................................................... 56
7.01 Corporate Existence................................................................................................ 56
7.02 Financial Condition................................................................................................ 57
7.03 Litigation......................................................................................................... 57
7.04 No Breach.......................................................................................................... 57
7.05 Action............................................................................................................. 57
7.06 Approvals.......................................................................................................... 58
7.07 Use of Credit...................................................................................................... 58
7.08 ERISA.............................................................................................................. 58
7.09 Taxes.............................................................................................................. 58
7.10 Investment Company Act............................................................................................. 58
7.11 Public Utility Holding Company Act................................................................................. 58
7.12 Environmental Matters.............................................................................................. 59
7.13 True and Complete Disclosure....................................................................................... 59
7.14 Year 2000.......................................................................................................... 59
SECTION 8. Covenants......................................................................................................... 60
8.01 Financial Statements Etc........................................................................................... 60
8.02 Litigation......................................................................................................... 64
8.03 Existence, Etc..................................................................................................... 64
8.04 Insurance.......................................................................................................... 65
8.05 Prohibition of Fundamental Changes................................................................................. 65
8.06 Limitation on Liens................................................................................................ 66
8.07 Financial Covenants................................................................................................ 67
8.08 Regulatory Capital................................................................................................. 68
8.09 Lines of Business.................................................................................................. 68
8.10 Use of Proceeds.................................................................................................... 68
SECTION 9. Events of Default................................................................................................. 69
SECTION 10. The Administrative Agent......................................................................................... 72
10.01 Appointment, Powers and Immunities................................................................................ 72
10.02 Reliance by Administrative Agent.................................................................................. 73
10.03 Defaults.......................................................................................................... 73
10.04 Rights as a Lender................................................................................................ 73
10.05 Indemnification................................................................................................... 74
10.06 Non-Reliance on Administrative Agent and Other Lenders............................................................ 74
10.07 Failure to Act.................................................................................................... 75
</TABLE>
Credit Agreement
----------------
<PAGE>
-iii-
<TABLE>
<S> <C>
10.08 Resignation or Removal of Administrative Agent.................................................................... 75
10.09 Co-Agents; Etc.................................................................................................... 75
SECTION 11. Miscellaneous.................................................................................................... 75
11.01 Waiver............................................................................................................ 75
11.02 Notices........................................................................................................... 75
11.03 Expenses, Etc..................................................................................................... 76
11.04 Amendments, Etc................................................................................................... 77
11.05 Successors and Assigns............................................................................................ 78
11.06 Assignments and Participations.................................................................................... 78
11.07 Survival.......................................................................................................... 80
11.08 Captions.......................................................................................................... 81
11.09 Counterparts...................................................................................................... 81
11.10 Governing Law; Submission to Jurisdiction......................................................................... 81
11.11 Waiver of Jury Trial.............................................................................................. 81
11.12 Treatment of Certain Information; Confidentiality................................................................. 81
</TABLE>
SCHEDULE 2.01 -- Commitments
SCHEDULE 7.03 -- Certain Litigation
EXHIBIT A-1 -- Form of Tranche A-($) Note
EXHIBIT A-2 -- Form of Tranche A-(MC) Note
EXHIBIT A-3 -- Form of Tranche B-($) Note
EXHIBIT A-4 -- Form of Tranche B-(MC) Note
EXHIBIT A-5 -- Form of Money Market Note
EXHIBIT B-1 -- Form of Opinion of McGuire, Woods, Battle & Boothe, special
counsel to the Borrowers
EXHIBIT B-2 -- Form of Opinion of John G. Finneran, Jr., Esq., counsel to the
Borrowers
EXHIBIT C -- Form of Opinion of Milbank, Tweed, Hadley & McCloy LLP,
special New York counsel to Chase
EXHIBIT D -- Form of Notice of Borrowing of Syndicated Loans
EXHIBIT E -- Form of Money Market Quote Request
EXHIBIT F -- Form of Money Market Quote
EXHIBIT G -- Form of Confidentiality Agreement
EXHIBIT H -- Form of Assignment and Acceptance
EXHIBIT I -- Form of Commitment Increase Letter
EXHIBIT J -- Form of Drawing Certificate
Credit Agreement
----------------
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 25, 1999
among:
CAPITAL ONE FINANCIAL CORPORATION, a corporation organized under the
laws of the State of Delaware ("COFC");
----
CAPITAL ONE BANK, a bank organized under the laws of the Commonwealth
of Virginia ("COB");
---
CAPITAL ONE, F.S.B., a Federal savings bank organized under the laws
of the United States of America ("FSB"; each of COFC, COB and FSB is herein
---
referred to as a "Borrower" and, collectively, as the "Borrowers");
-------- ---------
each lender that is a signatory hereto identified under the caption
"LENDERS" on the signature pages hereto and each lender that becomes a
"Lender" after the date hereof pursuant to Section 11.06(b) hereof
(individually, a "Lender" and, collectively, the "Lenders"); and
------ -------
THE CHASE MANHATTAN BANK, as agent for the Lenders (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
--------------------
COFC, COB, FSB, certain Lenders and the Administrative Agent are party
to an Amended and Restated Credit Agreement dated as of November 25, 1996 (as
modified and supplemented and in effect immediately prior to the Restatement
Effective Date referred to below, the "Existing Credit Agreement"). The
-------------------------
Borrowers have requested that the Lenders and the Administrative Agent agree to
amend and restate the Existing Credit Agreement, and the Lenders and the
Administrative Agent are willing to amend and restate the Existing Credit
Agreement, all as provided herein.
Accordingly, the parties hereto agree to amend and restate the
Existing Credit Agreement so that, as amended and restated, it reads in its
entirety as provided herein.
SECTION 1. Definitions and Accounting Matters.
----------------------------------
1.01 Certain Defined Terms. As used herein, the following terms shall
---------------------
have the following meanings (all terms defined in this Section 1.01 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and vice versa):
---- -----
"Administrative Agent's Account" shall mean (a) in respect of (i)
------------------------------
Dollars, the account of the Administrative Agent most recently designated by the
Administrative Agent for such purpose by notice to the Lenders, (ii) Canadian
Dollars, account number 219-442-1 maintained by Chase with Royal Bank of Canada,
Toronto, Ontario, Canada, (iii) Pounds Sterling, Chase Manhattan International
Limited CHAPS sort code 40-52-06, (iv) French Francs, account number 6001600037
maintained by Chase with Chase Manhattan Bank AG, Frankfurt Branch, Frankfurt,
Germany, (v) Deutschemarks, account number 6001600037 maintained by Chase with
The Chase Manhattan Bank AG, Frankfurt
Credit Agreement
----------------
<PAGE>
-2-
Branch, Frankfurt Germany, (vi) Euros, account number 6001600037 maintained by
Chase with The Chase Manhattan Bank AG, Frankfurt Branch, Frankfurt Germany,
(vii) Japanese Yen, account number 3401211523550 maintained by Chase with The
Chase Manhattan Bank, Tokyo Branch, Tokyo, Japan and (viii) Swiss Francs,
account number PO 120487 maintained by Chase with Swiss Bank Corporation,
Zurich, Switzerland or (b) any other account in respect of any Alternative
Currency as the Administrative Agent shall designate in a notice to the
Borrowers and the Lenders.
"Administrative Questionnaire" shall mean an Administrative
----------------------------
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" shall mean, with respect to any specified Person, any
---------
other Person that directly or indirectly controls, or is under common control
with, or is controlled by, the specified Person. As used in this definition,
"control" (including, with its correlative meanings, "controlled by" and "under
------- ------------- -----
common control with") shall mean possession, directly or indirectly, of power to
- -------------------
direct or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by contract
or otherwise). Notwithstanding the foregoing, (a) no individual shall be an
Affiliate of a specified Person solely by reason of his or her being a director,
officer or employee of such specified Person or any of its Subsidiaries and (b)
a Person and its Subsidiaries shall not be Affiliates of one another.
"Agreed Alternative Currency" shall mean at any time any of Canadian
---------------------------
Dollars, Euros, French Francs, Deutschemarks, Japanese Yen, Pounds Sterling and
Swiss Francs, so long as at such time, (a) such currency is dealt with in the
London interbank deposit market, (b) such currency is freely transferable and
convertible into Dollars in the London foreign exchange market and (c) no
central bank or other governmental authorization in the country of issue of such
currency is required to permit use of such currency by any Lender for making any
Loan hereunder and/or to permit the relevant Borrower to borrow and repay the
principal thereof and to pay the interest thereon, unless such authorization has
been obtained.
"Alternative Currency" shall mean at any time any Agreed Alternative
--------------------
Currency and any other currency (other than Dollars) so long as at such time,
(a) such currency is dealt with in the London interbank deposit market, (b) such
currency is freely transferable and convertible into Dollars in the London
foreign exchange market and (c) no central bank or other governmental
authorization in the country of issue of such currency is required to permit use
of such currency by any Lender for making any Loan hereunder and/or to permit
the relevant Borrower to borrow and repay the principal thereof and to pay the
interest thereon, unless such authorization has been obtained.
"Applicable Borrower" shall mean (a) with respect to any Commitment,
-------------------
Loan or Note relating to Tranche A-($) or Tranche A-(MC), COB or FSB and (b)
with respect to any Commitment, Loan or Note relating to Tranche B-($) or
Tranche B-(MC), COFC, COB or FSB.
Credit Agreement
----------------
<PAGE>
-3-
"Applicable Facility Fee Percentage", "Applicable Margin" with respect
---------------------------------- -----------------
to Eurocurrency Loans and "Applicable Utilization Fee Percentage" shall mean,
-------------------------------------
for any day, the respective rate per annum set forth in the table below opposite
the Rating Level prevailing on such day under the caption "Applicable Facility
Fee Percentage", "Applicable Margin" or "Applicable Utilization Fee Percentage",
as the case may be:
================================================================================
Applicable
Rating Level Applicable Facility Applicable Utilization Fee
Fee Percentage Margin Percentage
- --------------------------------------------------------------------------------
Rating Level 1 0.125% 0.225% 0.050%
- --------------------------------------------------------------------------------
Rating Level 2 0.150% 0.350% 0.100%
- --------------------------------------------------------------------------------
Rating Level 3 0.175% 0.450% 0.125%
- --------------------------------------------------------------------------------
Rating Level 4 0.250% 0.750% 0.250%
- --------------------------------------------------------------------------------
Rating Level 5 0.375% 1.125% 0.500%
================================================================================
Each change in the Applicable Facility Fee Percentage, Applicable Margin with
respect to Eurocurrency Loans and the Applicable Utilization Fee Percentage
resulting from a change in the Debt Rating shall become effective on the date of
announcement or publication by the respective Rating Agencies of a change in the
Debt Rating or, in the absence of such announcement or publication, on the
effective date of such change. The "Applicable Margin" with respect to Base
-----------------
Rate Loans shall mean, for any day, 0%.
With respect to any facility fee, utilization fee or interest payable
under Sections 2.05(a), 2.05(b) and 3.02 hereof:
(a) the Applicable Facility Fee Percentage, Applicable Margin and
Applicable Utilization Fee Percentage with respect to Tranche A-($) or
Tranche A-(MC) shall be computed solely by reference to the Rating Level of
COB;
(b) the Applicable Facility Fee Percentage with respect to Tranche B-
($) or Tranche B-(MC) on any date of determination shall be computed by
reference to the Rating Level of the Borrower that results in the accrual
on such day under Section 2.05(a) hereof of the greatest amount of facility
fee; and
(c) with respect to any utilization fee or interest payable by any
Borrower under Tranche B-($) or Tranche B-(MC), the Applicable Utilization
Fee Percentage and
Credit Agreement
----------------
<PAGE>
-4-
Applicable Margin shall be computed by reference to the Rating Level of
such Borrower.
"Applicable Lending Office" shall mean, for each Lender and for each
-------------------------
Type and Currency of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type and Currency of Loan in its
Administrative Questionnaire or such other office of such Lender (or of an
affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrowers as the office by which its Loans of such
Type and Currency are to be made and maintained.
"Assignment and Acceptance" shall mean an assignment and acceptance
-------------------------
entered into by a Lender and an assignee (with the consent of any Person whose
consent is required by Section 11.06(b) hereof), and accepted by the
Administrative Agent, in the form of Exhibit H or any other form approved by the
Administrative Agent.
"Average", as used in Section 2.05 hereof with respect to the
-------
aggregate outstanding principal amount of any Loans or the aggregate amount of
any Commitments, shall mean, for any Computation Period, the average aggregate
outstanding principal amount of such Loans or the average aggregate amount of
such Commitments, as the case may be, over such Computation Period (excluding
the last day of such Computation Period).
"Bank Regulatory Authority" shall mean the Board of Governors of the
-------------------------
Federal Reserve System, the Comptroller of the Currency, the Federal Deposit
Insurance Corporation and all other relevant bank regulatory authorities
(including, without limitation, relevant state bank regulatory authorities).
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978, as
---------------
amended from time to time.
"Base Rate" shall mean, for any day, a rate per annum equal to the
---------
higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
----
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Syndicated Loans that bear interest at
---------------
rates based upon the Base Rate.
"Basic Documents" shall mean this Agreement and the Notes.
---------------
"Basle Accord" shall mean the proposals for risk-based capital
------------
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
"Business Day" shall mean any day (a) on which commercial banks are
------------
not
Credit Agreement
----------------
<PAGE>
-5-
authorized or required to close in New York City, (b) if such day relates to
the giving of notices or quotes in connection with a LIBOR Auction in respect of
a Loan denominated in Dollars or to a borrowing of, a payment or prepayment of
principal of or interest on, or the Interest Period for, a Eurocurrency Loan or
a LIBOR Market Loan denominated in Dollars or a notice by a Borrower with
respect to any such borrowing, payment, prepayment or Interest Period, that is
also a day on which dealings in Dollar deposits are carried out in the London
interbank market, (c) if such day relates to the giving of notices or quotes in
connection with a LIBOR Auction in respect of a Loan denominated in an
Alternative Currency other than the Euro or to a borrowing of, a payment or
prepayment of principal of or interest on, or the Interest Period for, a
Eurocurrency Loan or a LIBOR Market Loan denominated in an Alternative Currency
other than the Euro or a notice by a Borrower with respect to any such
borrowing, payment, prepayment or Interest Period, that is also a day on which
commercial banks and foreign exchange markets settle payments in the Principal
Financial Center for the Currency in which such Loan is denominated and (d) if
such day relates to the giving of notices or quotes in connection with a LIBOR
Auction in respect of a Loan denominated in Euros or to a borrowing of, a
payment or prepayment of principal of or interest on, or the Interest Period
for, a Eurocurrency Loan or a LIBOR Market Loan denominated in Euros, or a
notice by a Borrower with respect to any such borrowing, payment, prepayment or
Interest Period, that is also a TARGET Business Day on which commercial banks
are generally open for business in London, New York City and Frankfurt and in
any other Principal Financial Center as the Administrative Agent shall from time
to time determine for this purpose.
"Canadian Dollars" shall mean lawful money of Her Majesty in Right of
----------------
Canada.
"Capital Lease Obligations" shall mean, for any Person, all
-------------------------
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Chase" shall mean The Chase Manhattan Bank, in its individual
-----
capacity and not in its capacity as Administrative Agent.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
----
time to time.
"COFC Cumulative Equity Proceeds" shall mean, as of any date of
-------------------------------
determination, the aggregate amount of all cash received on or prior to such
date of determination by COFC and its Subsidiaries in respect of any Equity
Issuance effected after March 31, 1999, net of reasonable expenses incurred by
COFC and its Subsidiaries in connection therewith.
"COFC Cumulative Net Income" shall mean, as of any date of
--------------------------
determination, the aggregate net operating income of COFC and its consolidated
Subsidiaries (determined on a
Credit Agreement
----------------
<PAGE>
-6-
consolidated basis without duplication in accordance with GAAP) for each fiscal
quarter of COFC (a) commencing with the fiscal quarter ended June 30, 1999 and
(b) ending with the fiscal quarter most recently ended on or prior to such date
of determination; provided that COFC Cumulative Net Income shall be determined
--------
exclusive of any fiscal quarter of COFC for which the net operating income of
COFC and its consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP) is less than zero.
"Commitment" shall mean a Tranche A-($) Commitment, Tranche A-(MC)
----------
Commitment, Tranche B-($) Commitment or Tranche B-(MC) Commitment.
"Commitment Increase Date" shall have the meaning assigned to such
------------------------
term in Section 2.11(b) hereof.
"Commitment Increase Letter" shall have the meaning assigned to such
--------------------------
term in Section 2.11(b) hereof.
"Commitment Termination Date" shall mean a Tranche A-($) Commitment
---------------------------
Termination Date, Tranche A-(MC) Commitment Termination Date, Tranche B-($)
Commitment Termination Date or Tranche B-(MC) Commitment Termination Date.
"Computation Period" shall mean, with respect to any utilization fee
------------------
payable under Section 2.05 hereof, (a) the period from and including the date
hereof to and including the first day on which such utilization fee is payable
under Section 2.05(c) hereof and (b) thereafter, each period from and including
the last day of the immediately preceding Computation Period to and including
the next succeeding day on which such utilization fee is payable under Section
2.05(c) hereof.
"Currency" shall mean Dollars or any Alternative Currency.
--------
"Debt Rating" shall mean, as of any date of determination thereof and
-----------
with respect to any Borrower, the ratings most recently published by the Rating
Agencies relating to the unsecured, unsupported senior long-term debt
obligations of such Borrower; provided that (a) the Debt Rating on any date of
--------
determination with respect to FSB shall be deemed to be the Debt Rating on such
date applicable to COB, (b) if a rating is not at any time assigned by a Rating
Agency to the unsecured, unsupported senior long-term debt obligations of COFC,
the rating assigned to such obligations by such Rating Agency shall be deemed to
be one rating subcategory below the rating assigned by such Rating Agency to the
unsecured, unsupported senior long-term debt obligations of COB and (c) if a
rating is not at any time assigned by at least two Rating Agencies to the
unsecured, unsupported senior long-term debt obligations of COB, the Debt Rating
of COB will be deemed to fall in Rating Level 5.
"Default" shall mean an Event of Default or an event that with notice
-------
or lapse of time or both would become an Event of Default.
"Defaulting Lender" shall have the meaning assigned to such term in
-----------------
Credit Agreement
----------------
<PAGE>
-7-
Section 11.04 hereof.
"Delinquency Ratio" shall mean, on any date and with respect to any
-----------------
Borrower, the ratio of (a) all Past Due Receivables with respect to such
Borrower on such date to (b) the aggregate amount of all Managed Receivables
with respect to such Borrower on such date; provided that "Delinquency Ratio"
--------
shall mean, on any date with respect to FSB, the ratio (computed with respect to
COB and FSB on a combined basis, but without any intercompany eliminations) of
(i) all Past Due Receivables of COB and FSB on such date to (ii) the aggregate
amount of all Managed Receivables of COB and FSB on such date.
"Deutschemarks" shall mean lawful money of the Federal Republic of
-------------
Germany.
"Dollar Equivalent" shall mean, with respect to any Loan denominated
-----------------
in an Alternative Currency, the amount of Dollars that would be required to
purchase the amount of the Alternative Currency of such Loan on the date such
Loan is requested (or, in the case of Money Market Loans, the date of the
related Money Market Quote Request) or (with respect to any determination made
under Section 2.01(f) hereof) on the date of any borrowing referred to in said
Section, based upon the arithmetic mean (rounded upwards, if necessary, to the
nearest 1/100 of 1%), as determined by the Administrative Agent, of the spot
selling rate at which the Reference Lenders offer to sell such Alternative
Currency for Dollars in the London foreign exchange market at approximately
11:00 a.m. London time for delivery two Business Days later (or, in the case of
any Loan denominated in Canadian Dollars, one Business Day later).
"Dollars" and "$" shall mean lawful money of the United States of
------- -
America.
"Double Leverage Ratio" shall mean, on any date, the ratio of (a) the
---------------------
sum of (i) Intangibles with respect to COFC on such date plus (ii) the aggregate
----
investment of COFC on such date in the capital stock of its Subsidiaries as
reported pursuant to Section 8.01(a) or 8.01(b) hereof (including COFC's
interest in undistributed earnings of its Subsidiaries), to (b) Net Worth on
--
such date.
"EMU" means Economic and Monetary Union as contemplated in the Treaty
---
on European Union, as amended and in effect from time to time.
"EMU Legislation" means legislative measures of the European Council
---------------
(including without limitation European Council regulations) for the introduction
of, changeover to or operation of a single or unified European currency (whether
known as the euro or otherwise), being in part the implementation of the third
stage of EMU.
"Environmental Laws" shall mean any and all present and future
------------------
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes into the indoor or outdoor environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling
Credit Agreement
----------------
<PAGE>
-8-
of pollutants, contaminants, chemicals or toxic or hazardous substances or
wastes.
"Equity Issuance" shall mean (a) any issuance or sale by COFC or any
---------------
of its Subsidiaries of (i) any of its capital stock, (ii) any warrants or
options exercisable in respect of its capital stock (other than any warrants or
options issued to directors, officers or employees of COFC or any of its
Subsidiaries pursuant to employee benefit plans established in the ordinary
course of business and any capital stock of COFC issued upon the exercise of
such warrants or options) or (iii) any other security or instrument representing
an equity interest (or the right to obtain any equity interest) in COFC or any
of its Subsidiaries or (b) the receipt by COFC or any of its Subsidiaries from
any Person not a shareholder of COFC of any capital contribution (whether or not
evidenced by any equity security issued by the recipient of such contribution);
provided that Equity Issuance shall not include (i) any such issuance or sale by
- --------
any Subsidiary of COFC to COFC or any Wholly Owned Subsidiary of COFC or (ii)
any capital contribution by COFC or any Wholly Owned Subsidiary of COFC to any
Subsidiary of COFC.
"ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business that
---------------
is a member of any group of organizations (i) described in Section 414(b) or (c)
of the Code of which any Borrower is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which any
Borrower is a member.
"Euro" means the single currency of Participating Member States of the
----
European Union.
"Euro Unit" means the currency unit of the Euro.
---------
"Eurocurrency Loans" shall mean Syndicated Loans that bear interest at
------------------
rates based on rates referred to in the definition of "Fixed Base Rate" in this
Section 1.01.
"Eurocurrency Rate" shall mean, for any Eurocurrency Loan for the
-----------------
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to
the Fixed Base Rate for such Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to such term in
----------------
Section 9 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended from time to time.
"Excluded Representations" shall mean the representations and
------------------------
warranties made
Credit Agreement
----------------
<PAGE>
-9-
in (a) the last sentence of Section 7.02 hereof and (b) Section 7.03 hereof (but
only insofar as the representation and warranty in Section 7.03 hereof relates
to proceedings that could have a Material Adverse Effect of the type referred to
clause (a) of the definition thereof in this Section 1.01, but not of the type
referred to in clause (b), (c), (d) or (e) of the definition thereof in this
Section 1.01).
"Existing Credit Agreement" shall have the meaning set forth in the
-------------------------
introduction hereto.
"FDIA" shall mean the Federal Deposit Insurance Act, as amended from
----
time to time.
"Federal Funds Rate" shall mean, for any day, the rate per annum
------------------
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for which such rate is to
--------
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to Chase on such Business Day on such
transactions as determined by the Administrative Agent.
"Final Maturity Date" shall mean May 24, 2003; provided that if such
------------------- --------
day is not a Business Day, the Final Maturity Date shall be the immediately
preceding Business Day.
"Fixed Base Rate" shall mean, with respect to any Fixed Rate Loan
---------------
denominated in any Currency for the Interest Period therefor, the rate for
deposits in such Currency for a period comparable to such Interest Period which
appears on Telerate Page 3740 (if such Currency is Australian Dollars, Canadian
Dollars, French Francs, Italian Lira or Spanish Pesetas) or on Telerate Page
3750 (otherwise) as of 11:00 a.m., London time, on the day that is two London
Banking Days preceding the first day of such Interest Period; provided that, if
--------
such rate does not appear on the relevant Telerate Page, the "Fixed Base Rate"
shall be the arithmetic mean (rounded upwards, if necessary, to the nearest 1/16
of 1%), as determined by the Administrative Agent, of the rates per annum quoted
by the respective Reference Lenders at approximately 11:00 a.m. London time (or
as soon thereafter as practicable) on the day that is two London Banking Days
prior to (or in the case of a Fixed Rate Loan denominated in Euros, on such
other date as is customary in the relevant interbank market) the first day of
such Interest Period for the offering by the respective Reference Lenders to
leading banks in the London interbank market of deposits denominated in such
Currency having a term comparable to such Interest Period and in an amount
comparable to the principal amount of such Fixed Rate Loan to be made by the
respective Reference Lenders. If any Reference Lender is not participating in
any Fixed Rate Loans during the Interest Period therefor, the Fixed Base Rate
for such Loans for such Interest Period shall be determined by reference to the
amount of such Loans that such
Credit Agreement
----------------
<PAGE>
-10-
Reference Lender would have made or had outstanding had it been participating in
such Loan; provided that in the case of any LIBOR Market Loan, the Fixed Base
--------
Rate for such Loan shall be determined with reference to deposits of $25,000,000
(or its equivalent in any Alternative Currency). If any Reference Lender does
not timely furnish such information for determination of any Fixed Base Rate,
the Administrative Agent shall determine such Fixed Base Rate on the basis of
the information timely furnished by the remaining Reference Lenders.
"Fixed Rate Loans" shall mean Eurocurrency Loans and, for the purposes
----------------
of the definition of "Fixed Base Rate" in this Section 1.01 and in Section 5
hereof, LIBOR Market Loans.
"Foreign Currency Equivalent" shall mean, with respect to any amount
---------------------------
in Dollars, the amount of any Alternative Currency that could be purchased with
such amount of Dollars using the reciprocal of the foreign exchange rate(s)
specified in the definition of the term "Dollar Equivalent", as determined by
the Administrative Agent.
"French Francs" shall mean lawful money of the Republic of France.
-------------
"GAAP" shall mean generally accepted accounting principles in the
----
United States of America applied on a basis consistent with those that, in
accordance with the second sentence of Section 1.02(a) hereof, are to be used in
making the calculations for purposes of determining compliance with this
Agreement.
"Guarantee" shall mean a guarantee, an endorsement, a contingent
---------
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) Property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used as a verb shall
--------- ----------
have a correlative meaning.
"Indebtedness" shall mean, for any Person: (a) obligations created,
------------
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business so long as such trade accounts
payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the
Credit Agreement
----------------
<PAGE>
-11-
respective indebtedness so secured has been assumed by such Person; (d) non-
contingent obligations of such Person (and, for the purposes of Sections 8.06
and 9(b) hereof, all contingent obligations of such Person) in respect of
letters of credit, bankers' acceptances or similar instruments issued or
accepted by banks and other financial institutions for account of such Person;
(e) Capital Lease Obligations of such Person; and (f) Indebtedness of others
Guaranteed by such Person.
"Insured Subsidiary" shall mean any insured depositary institution (as
------------------
defined in 12 U.S.C. (S)1813(c) (or any successor provision), as amended, re-
enacted or redesignated from time to time), that is controlled (within the
meaning of 12 U.S.C. (S)1841 (or any successor provision), as amended, re-
enacted or redesignated from time to time) by a Borrower.
"Intangibles" shall mean, as at any date and with respect to any
-----------
Borrower, the aggregate amount (to the extent reflected in determining the
consolidated stockholders' equity of such Borrower and its consolidated
Subsidiaries) of (a) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of assets of a going concern business made
within 12 months after the acquisition of such business) subsequent to September
30, 1996 in the book value of any asset by such Borrower or any of its
consolidated Subsidiaries, (b) all Investments in unconsolidated Subsidiaries
and all equity investments in Persons that are not Subsidiaries and (c) all
unamortized debt discount and expense, unamortized deferred charges, goodwill,
patents, trademarks, service marks, trade names, anticipated future benefit of
tax loss carry-forwards, copyrights, organization or developmental expenses and
other intangible assets.
"Interest Period" shall mean:
---------------
(a) with respect to any Eurocurrency Loan, each period commencing on
the date such Eurocurrency Loan is made and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as a Borrower may select as provided in Section 4.05 hereof,
except that each Interest Period that commences on the last Business Day of
a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end
on the last Business Day of the appropriate subsequent calendar month;
(b) with respect to any Set Rate Loan, the period commencing on the
date such Set Rate Loan is made and ending on any Business Day not less
than seven days thereafter, as a Borrower may select as provided in Section
2.03(b) hereof;
(c) with respect to any LIBOR Market Loan, the period commencing on
the date such LIBOR Market Loan is made and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as a Borrower may select as provided in Section 2.03(b) hereof,
except that each Interest Period that commences on the last Business Day of
a calendar month (or any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end
on the last Business Day of the appropriate subsequent calendar month; and
Credit Agreement
----------------
<PAGE>
-12-
(d) with respect to any Base Rate Loan, the period commencing on the
date such Base Rate Loan is made and ending on the earlier of the first
Quarterly Date thereafter and the Commitment Termination Date for the
Tranche under which such Loan is made.
Notwithstanding the foregoing: (i) if any Interest Period for any Loan would
otherwise end after the Commitment Termination Date for the Tranche under which
such Loan is made, such Interest Period shall end on such Commitment Termination
Date; (ii) each Interest Period that would otherwise end on a day that is not a
Business Day shall end on the next succeeding Business Day (or, in the case of
an Interest Period for a Eurocurrency Loan or a LIBOR Market Loan, if such next
succeeding Business Day falls in the next succeeding calendar month, on the next
preceding Business Day); (iii) except as provided in clause (v) below, no
Interest Period for any Loan (other than a Base Rate Loan or a Set Rate Loan)
shall have a duration of less than one month and, if the Interest Period for any
Eurocurrency or LIBOR Market Loan would otherwise be a shorter period, such Loan
shall not be available hereunder for such period; (iv) no Borrower may select an
Interest Period for a Loan in any Alternative Currency which would extend beyond
the date on which such Alternative Currency ceases to be legal tender in its
respective country; and (v) if each Lender shall have notified the
Administrative Agent that the requested Interest Period is available (but
subject to the foregoing clauses (i) and (ii)), a Eurocurrency Loan or LIBOR
Market Loan may be made available for a specified Interest Period of less than
one month or for an Interest Period of nine or 12 months; provided that no Loan
--------
shall be made to FSB with an Interest Period in excess of six months.
"Investment" shall mean, for any Person: (a) the acquisition (whether
----------
for cash, Property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of any securities
at a time when such securities are not owned by the Person entering into such
sale); (b) the making of any deposit with, or advance, loan or other extension
of credit to, any other Person (including the purchase of Property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such Property to such Person), but excluding any such advance, loan or
extension of credit having a term not exceeding 90 days arising in connection
with the sale of inventory or supplies by such Person in the ordinary course of
business; or (c) the entering into of any Guarantee of, or other contingent
obligation with respect to, Indebtedness or other liability of any other Person
and (without duplication) any amount committed to be advanced, lent or extended
to such Person.
"Japanese Yen" shall mean lawful money of Japan.
------------
"Leverage Ratio" shall mean, on any date and with respect to any
--------------
Borrower, the ratio of (a) the sum (determined for such Borrower and its
consolidated Subsidiaries on a consolidated basis without duplication in
accordance with GAAP) of (i) the aggregate amount of Indebtedness outstanding on
such date (not including non-brokered deposit liabilities incurred by FSB or COB
in the ordinary course of business) minus (ii) the aggregate amount of all on-
-----
Credit Agreement
----------------
<PAGE>
-13-
balance sheet loans held for securitization on such date to (b) Tangible Net
Worth with respect to such Borrower on such date.
"LIBO Margin" shall have the meaning assigned to such term in Section
-----------
2.03(c)(ii)(C) hereof.
"LIBOR Auction" shall mean a solicitation of Money Market Quotes
-------------
setting forth LIBO Margins based on the Eurocurrency Rate pursuant to Section
2.03 hereof.
"LIBOR Market Loans" shall mean Money Market Loans the interest rates
------------------
on which are determined on the basis of Eurocurrency Rates pursuant to a LIBOR
Auction.
"Lien" shall mean, with respect to any Property, any mortgage, lien,
----
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any Property that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement (other than an operating lease)
relating to such Property.
"Loans" shall mean Syndicated Loans and Money Market Loans.
-----
"Local Time" shall mean, with respect to any Loan denominated in or
----------
any payment to be made in any Currency, the local time in the Principal
Financial Center for the Currency in which such Loan is denominated or such
payment is to be made.
"London Banking Day" shall mean any day on which commercial banks are
------------------
open for business (including dealings in foreign exchange and foreign currency
deposits) in London, England.
"Majority Lenders" shall mean, subject to the last paragraph of
----------------
Section 11.04 hereof, Lenders having more than 50% of the aggregate amount of
the Commitments or, if the Commitments shall have terminated, Lenders holding
more than 50% of the aggregate unpaid principal amount of the Loans.
"Majority Tranche Lenders" with respect to any Tranche shall mean,
------------------------
subject to the last paragraph of Section 11.04 hereof, Lenders having more than
50% of the aggregate amount of the Commitments under such Tranche or, if the
Commitments under such Tranche shall have terminated, Lenders holding more than
50% of the aggregate unpaid principal amount of the Loans under such Tranche.
"Majority Tranche B Lenders" shall mean the Majority Tranche Lenders
--------------------------
with respect to Tranche B-($) and Majority Tranche Lenders with respect to
Tranche B-(MC).
"Managed Receivables" shall mean, on any date and with respect to any
-------------------
Borrower, the sum for such Borrower and its consolidated Subsidiaries
(determined on a
Credit Agreement
----------------
<PAGE>
-14-
consolidated basis without duplication in accordance with GAAP) of (a) all on-
balance sheet credit card loans and other finance receivables plus (b) all on-
----
sheet credit card loans and other finance receivables held for securitization
plus (c) all securitized credit card loans and other finance provided that, as
- ---- --------
the term "Managed Receivables" is used in definition of "Tier 1 Capital to
Managed Receivables Ratio", clauses (a), (b) and (c) above shall be determined
exclusive of securitized non-revolving finance receivables.
"Margin Stock" shall mean "margin stock" within the meaning of
------------
Regulations T, U and X.
"Material Adverse Effect" shall mean, with respect to a Borrower, a
-----------------------
material adverse effect on (a) the Property, business, operations, financial
condition, prospects or capitalization of such Borrower and its Subsidiaries
taken as a whole, (b) the ability of such Borrower to perform its obligations
under the Basic Documents, (c) the validity or enforceability of the obligations
of such Borrower under the Basic Documents, (d) the rights and remedies of the
Lenders and the Administrative Agent against such Borrower under the Basic
Documents or (e) the timely payment of the principal of or interest on the Loans
or other amounts payable by such Borrower in connection therewith.
"Money Market Borrowing" shall have the meaning assigned to such term
----------------------
to such term in Section 2.03(b) hereof.
"Money Market Loan Limit" shall have the meaning assigned to such term
-----------------------
in Section 2.03(c)(ii) hereof.
"Money Market Loans" shall mean the loans provided for by Section
------------------
2.03 hereof.
"Money Market Notes" shall mean any promissory notes in substantially
------------------
the form of Exhibit A-5 hereto issued pursuant to Section 2.08(d) hereof, and
all promissory notes delivered in substitution or exchange therefor, in each
case as the same shall be modified and supplemented and in effect from time to
time.
"Money Market Quote" shall mean an offer in accordance with Section
------------------
2.03(c) hereof by a Lender to make a Money Market Loan with one single specified
interest rate.
"Money Market Quote Request" shall have the meaning assigned to such
--------------------------
term in Section 2.03(b) hereof.
"Multiemployer Plan" shall mean a multiemployer plan defined as such
------------------
in Section 3(37) of ERISA to which contributions have been made by any Borrower
or any ERISA Affiliate and that is covered by Title IV of ERISA.
"National Currency Unit" means a fraction or multiple of one Euro Unit
----------------------
expressed in units of the former national currency of any Participating Member
State.
Credit Agreement
----------------
<PAGE>
-15-
"Net Worth" shall mean, on any date , the consolidated stockholders'
---------
equity of COFC and its consolidated Subsidiaries, all determined as of such date
on a consolidated basis without duplication in accordance with GAAP.
"Notes" shall mean the Syndicated Notes and the Money Market Notes.
-----
"Participating Member State" means each country so described in any
--------------------------
EMU Legislation.
"Past-Due Receivables" shall mean, on any date with respect to any
--------------------
Borrower, the sum (determined with respect to such Borrower and its Subsidiaries
on a consolidated basis without duplication in accordance with GAAP) of (a) all
Managed Receivables the minimum payments on which are at least 90 days overdue
on such date plus (b) all other non-performing assets; provided that, Managed
---- --------
Receivables that are credit card loans, whether or not at least 90 days overdue,
shall not constitute "Past-Due Receivables" to the extent of any cash balance of
the account debtor on such loan on deposit with the creditor (but only to the
extent such creditor is entitled under an agreement governing such credit card
loan to set-off such cash balances against the obligations of the account debtor
under such loan and to the extent such cash balances are not subject to any
other set-off or deduction by such creditor or any of its affiliates against a
matured obligation owing by such debtor).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
----
entity succeeding to any or all of its functions under ERISA.
"Person" shall mean any individual, corporation, company, voluntary
------
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"Plan" shall mean an employee benefit or other plan established or
----
maintained by any Borrower or any ERISA Affiliate and that is covered by Title
IV of ERISA, other than a Multiemployer Plan.
"Post-Default Rate" shall mean a rate per annum equal to 2% plus the
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Base Rate as in effect from time to time plus the Applicable Margin for Base
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Rate Loans, provided that, with respect to principal of a Eurocurrency Loan or a
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Money Market Loan that shall become due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise) on a day other
than the last day of the Interest Period therefor, the "Post-Default Rate" shall
be, for the period from and including such due date to but excluding the last
day of such Interest Period, 2% plus the interest rate for such Loan as provided
----
in Section 3.02 hereof and, thereafter, the rate provided for above in this
definition.
"Pounds Sterling" shall mean lawful money of England.
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"Prime Rate" shall mean the rate of interest from time to time
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announced by Chase at the Principal Office as its prime commercial lending rate.
Credit Agreement
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<PAGE>
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"Principal Financial Center" shall mean (a) in the case of each
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Currency identified in Section 1.4(a)(i)(A) of the 1991 ISDA Definitions (as
amended and supplemented by the 1998 Supplement to the 1991 ISDA Definitions and
the 1998 ISDA Euro Definitions) published by the International Swaps and
Derivatives Association, Inc., the financial center identified in said Section
opposite such Currency and (b) in the case of any other Currency, the principal
financial center of the country that issues such Currency, as determined by the
Administrative Agent.
"Principal Office" shall mean the principal office of Chase, located
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on the date hereof at 270 Park Avenue, New York, New York 10017.
"Property" shall mean any right or interest in or to property of any
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kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Quarterly Dates" shall mean the last Business Day of March, June,
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September and December in each year, the first of which shall be the first such
day after the date hereof.
"Rating Agencies" shall mean Moody's Investors Service, Inc., Standard
---------------
& Poor's Ratings Services and Fitch Investors Service, L.P. or, in each case,
any successor nationally recognized statistical rating organization.
"Rating Levels" shall mean, on any date of determination, (a) Rating
-------------
Level 1 if the Debt Rating by at least two Rating Agencies is at least equal to
"Baa1" or higher or "BBB+" or higher, (b) Rating Level 2 if the Debt Rating by
at least two Rating Agencies is at least equal to "Baa2" or "BBB", but does not
fall within Rating Level 1, (c) Rating Level 3 if the Debt Rating by at least
two Rating Agencies is at least equal to "Baa3" or "BBB-", but does not fall
within Rating Level 1 or Rating Level 2, (d) Rating Level 4 if the Debt Rating
by at least two Rating Agencies is at least equal to "Ba1" or "BB+", but does
not fall within Rating Level 1, Rating Level 2 or Rating Level 3 and (e) Rating
Level 5 if none of the foregoing is applicable. If the Debt Rating of any Rating
Agency is below the Debt Rating of each of the two other Rating Agencies, the
"Rating Level" will be determined without regard to the Debt Rating of such
Rating Agency.
"Receivables" means, with respect to any Borrower, any amount owing,
-----------
from time to time, with respect to a credit card, consumer revolving or consumer
installment loan account, home equity line of credit or residential mortgage
loan account or other consumer receivable owned by such Borrower, including,
without limitation, amounts owing for payment of goods and services, cash
advances, convenience checks, annual membership fees, finance charges, late
charges, credit insurance premiums and cash advance fees and fees relating to
additional consumer products, and any other receivables arising out of financing
transactions by such Borrower; provided that the term "Receivables" shall not
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include any of the foregoing that is subject to a securitization effected in the
ordinary course of business.
"Reference Lenders" shall mean Chase, Morgan Guaranty Trust Company of
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New York and Nationsbank, N.A. (or their respective Applicable Lending Offices,
as the case may be).
Credit Agreement
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<PAGE>
-17-
"Regulations A, D, T, U and X" shall mean, respectively, Regulations
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A, D, T, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"Regulatory Change" shall mean, with respect to any Lender, any change
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after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Lender of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"Requisite Lenders" shall mean Majority Tranche Lenders with respect
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to Tranche A-($), Majority Tranche Lenders with respect to Tranche A-(MC),
Majority Tranche Lenders with respect to Tranche B-($) and Majority Tranche
Lenders with respect to Tranche B-(MC).
"Reserve Requirement" shall mean, for the Interest Period for any
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Eurocurrency Loan or LIBOR Market Loan, the average maximum rate at which
reserves (including, without limitation, any marginal, supplemental or emergency
reserves) are required to be maintained during such Interest Period under
Regulation D by member banks of the Federal Reserve System in New York City with
deposits exceeding one billion Dollars against "Eurocurrency liabilities" (as
such term is used in Regulation D). Without limiting the effect of the
foregoing, the Reserve Requirement shall include any other reserves required to
be maintained by such member banks by reason of any Regulatory Change with
respect to (i) any category of liabilities that includes deposits by reference
to which the Fixed Base Rate for Eurocurrency Loans or LIBOR Market Loans (as
the case may be) is to be determined as provided in the definition of "Fixed
Base Rate" in this Section 1.01 or (ii) any category of extensions of credit or
other assets that includes Eurocurrency Loans or LIBOR Market Loans.
"Restatement Effective Date" shall mean the first date on which all
--------------------------
of the conditions set forth in Section 6.01 hereof shall have been satisfied or
waived by the Lenders and the Administrative Agent.
"Restricted Shares" means, with respect to any Borrower, shares of
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stock of or other ownership interests in such Borrower or any Subsidiary thereof
engaged primarily in the extension of consumer credit to third parties or
securitizations of receivables related to such extension of consumer credit,
excluding without limitation any such ownership interests of any Borrower in
America One Communications, Inc.
"Risk Adjusted Assets" shall mean, on any date and with respect to any
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Borrower, the amount, for such Borrower and its consolidated Subsidiaries
(determined on a consolidated basis) on such date, of "weighted risk assets",
within the meaning given to such term in the Capital Adequacy Guidelines for
State Member Banks published by the Board of Governors of
Credit Agreement