EXHIBIT 10.13
CAPITAL ONE FINANCIAL CORPORATION
1994 DEFERRED COMPENSATION PLAN
CAPITAL ONE FINANCIAL CORPORATION
1994 DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
SECTION 1
Purpose
SECTION 2
Definitions
2.1 Account
2.2 Alternate Payee
2.3 Base Salary
2.4 Beneficiary
2.5 Bonus
2.6 Cash Balance Plan
2.7 Change of Control
2.8 Code
2.9 Committee
2.10 Company
2.11 Compensation
2.12 Deferral Amount
2.13 Director
2.14 Disability
2.15 Distribution
2.16 Distribution Date
2.17 Domestic Relations Order
2.18 Effective Date
2.19 Eligible Employee
2.20 ERISA
2.21 Included Plan
2.22 Participant
2.23 Plan
2.24 Spouse
2.25 Year
SECTION 3
Deferral Amounts and Credits
3.1 Elections
3.2 Elections/Included Plans
3.3 Deferral Percentages
3.4 Accounts
3.5 Vesting of Account
3.6 Interest Credited to the Account
3.7 Certain Transfers
SECTION 4
Payment of Deferred Compensation
4.1 Commencement of Payments
4.2 Early or Delayed Payment
4.3 Payments on Death
4.4 Payments on Termination of Employment
4.5 Elections
4.6 Payment Upon Change on Control
SECTION 5
Amendment or Termination
5.1 Right to Terminate
5.2 Right to Amend
5.3 Assignment by Company
SECTION 6
General Provisions
6.1 No Funding
6.2 ERISA Exemption
6.3 No Contract of Employment
6.4 Withholding Taxes
6.5 Restrictions on Transfer
6.6 Domestic Relations Order/ Alternate Payee
6.7 Administration
6.8 Construction
6.9 Binding Upon Successors and Assigns
6.10 Life Insurance and Funding
6.11 Form of Communication
CAPITAL ONE FINANCIAL CORPORATION
1994 DEFERRED COMPENSATION PLAN
SECTION 1
Purpose
The 1994 Deferred Compensation Plan was adopted by the Board of
Directors of Capital One Financial Corporation on October 28, 1994 for the
benefit of a select group of highly compensated or management employees and the
Capital One Financial Corporation Board of Directors to permit the deferral of
compensation as provided in the Plan.
The Board has determined that the benefits to be paid to Participants
under this Plan constitute reasonable compensation for the services rendered and
to be rendered by such Participants.
SECTION 2
Definitions
Whenever used in the Plan, the following terms shall have the meanings
set forth below unless the context clearly requires a different meaning:
2.1 Account. The book account established by the Company for each
Participant pursuant to Section 3 which shall reflect Deferral Amounts,
transferred credits from an Included Plan and interest equivalents credited
under Section 3.
2.2 Alternate Payee. Any spouse, former spouse, child or other
dependent of a Participant who is recognized by a Domestic Relations Order as
having a right to receive all or a portion of the benefits payable under the
Plan with respect to such Participant.
2.3 Base Salary. The annual rate of compensations due to be paid an
Eligible Employee for services to be rendered, but excluding bonuses, reimbursed
expenses, cash profit sharing and other forms of extraordinary compensation as
determined by the Committee not to be treated as Base Salary for purposes of the
Plan.
2.4 Beneficiary. The person(s) or entity designated by the
Participant to receive his or her benefits under the Plan in a writing filed
with the Company. If the Participant fails to make a designation or if the
person(s) designated do not survive the Participant, the Beneficiary shall be
the person or entity who is to receive benefits otherwise payable to a
Participant under the Cash Balance Plan in the event of the Participant's death.
2.5 Bonus. An amount which an Eligible Employee may become entitled
to receive under a cash incentive program maintained by the Company.
2.6 Cash Balance Plan. The Cash Balance Pension Plan adopted
effective on the first to occur of January 1, 1995 and the Distribution Date.
2.7 Change of Control. A "Change of Control" shall mean any of the
following events:
(a) The acquisition, other than from the Company, 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 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, 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 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 immediately prior to, or at
the time of consummation of, the Distribution (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 Distribution Date 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 compromising 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,
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 of
(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, 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 owned
beneficially, directly or indirectly, by all or substantially all of the
individuals and the 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) Neither the sale of Company common stock in an initial public
offering, nor the distribution of Company common stock by Capital One's parent
corporation to its shareholders in a transaction to which Section 355 of the
Internal Revenue Code applies, nor any restructuring of the Company or its Board
of Directors in contemplation of or as the result of either of such events,
shall constitute a Change of Control.
2.8 Code. The Internal Revenue Code of 1986, as amended from time
to time.
2.9 Committee. The Company's Compensation Committee.
2.10 Company. Capital One Financial Corporation and its subsidiary
corporations.
2.11 Compensation. As to a Director, fees (including the annual
retainer and meeting fees) earned by a Director. As to an Eligible Employee, the
earnings paid by the Company for personal services, including incentives,
bonuses, overtime and commissions received in cash. "Compensation" shall be
determined before taking into account any amounts deferred pursuant to an
election under the Plan. "Compensation" shall not include contributions under
any other plan of deferred compensation maintained by the Company (other than
amounts deferred pursuant to section 3.1), and variable pay, and "Compensation"
shall not include special allowances, non-recurring payments or imputed income
(such as amounts paid to an employee during an authorized leave of absence,
moving expenses, car expenses, tuition reimbursement, meal allowances, the cost
of excess group life insurance income includible in taxable income, amounts
received upon the exercise of a stock appreciation right or nonqualified stock
option, or income recognized as a result of a premature disposition of an
incentive stock option, distributions from any nonqualified deferred
compensation plans, payments under an Executive Severance Agreement, and any
other extraordinary form of remuneration) and any additional compensation in any
form received by a Participant on any date following his final period of
employment, all as determined by the Company.
2.12 Deferral Amount. The amounts elected to be withheld from
Compensation (or components of Compensation) and credited from time to time to a
Participant's Account pursuant to 3.1 and Section 3.5.
2.13 Director. Any person serving as a Director of Capital One
Financial Corporation.
2.14 Disability. A condition that entitles the Participant to
disability payments under the terms of the Company's long term disability plan.
2.15 Distribution. 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.
2.16 Distribution Date. The date on which the Distribution occurs.
2.17 Domestic Relations Order. Any judgement, decree or order
(including approval of a property settlement agreement) which relates to the
provision of child support, alimony payments or marital property rights to a
spouse, former spouse, child or other dependent of a Participant made pursuant
to a State domestic relations law (including a community property law).
2.18 Effective Date. The first to occur of January 1, 1995 and the
Distribution Date.
2.19 Eligible Employee. An employee who is approved from time to time
by the Compensation Committee as eligible to participate in either of the
Company's Short- Term or Long -Term Cash Incentive Plans, an employee designated
to participate in a cash incentive plan covering senior management employees, or
an employee whose taxable compensation paid by the Company with respect to the
calendar year preceding the year of determination and each year thereafter
equals or exceeds 300% of the Social Security table wage base.
2.20 ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
2.21 Included Plan. Capital One Financial Corporation Senior Executive
Short-Term Cash Incentive Plan, Capital One Financial Corporation Senior
Executive Long-Term Cash Incentive Plan, and any other cash incentive plan
covering designated senior management employees.
2.22 Participant. An Eligible Employee or Director who elects to defer
compensation under the Plan. Any employee who on the Effective Date is a
Participant in an Included Plan shall be a Participant without regard to whether
the employee is an Eligible Employee.
2.23 Plan. The Capital One Financial Corporation 1994 Deferred
Compensation Plan.
2.24 Spouse. The person who is the Participant's "spouse" as such
term is defined in the Cash Balance Plan.
2.25 Year. A calendar year.
SECTION 3
Deferral Amounts and Credits
3.1 Elections. An Eligible Employee or Director may elect to reduce
his or her Compensation by a designated percentage as provided in Section 3.3 on
such forms and at such times as may be prescribed by the Committee; provided
that, effective January 1, 1996, only elections by Directors who are not
employees of the Company shall be given effect in accordance with this sentence.
3.2 Elections/Included Plans. An election made by a Participant
while a Participant in a plan maintained by Signet Banking Corporation
substantially similar to an Included Plan shall, as to deferrals and credits
under the included Plan in effect immediately before the Effective Date, be
treated as having been made under this Plan, and such election shall remain in
effect until a subsequent election is made pursuant to Section 3.1.
3.3 Deferral Percentages. The Committee shall provide forms and, when
appropriate, formulate rules governing the making of deferred elections
consistent with the terms of the Plan. Participants may elect Deferral Amounts
in accordance with the following limitations:
(a) A Director may only elect to defer up to 100% of his or her
Compensation;
(b) An Eligible Employee or class of Eligible Employees may elect to
reduce and defer up to such percentage of his or her Compensation as the
Committee may specify. Instead of making a general election applicable to all
his or her Compensation, if the Committee permits, a Participant may make an
election applicable to one or more components of Compensation (such as Base
Salary or Bonuses, for example) and defer such percentage of the component as
the Committee has authorized.
3.4 Accounts. The Company will establish for bookkeeping purposes
only an Account for each Participant and credit to the Account from time to time
as the Compensation is earned the Deferral Amounts elected by the Participant
under the Plan. Amounts deferred by an employee who was a participant in an
Included Plan will be credited to his Account under the Plan, or, if the
employee is eligible and has elected Deferral Amounts, added to his Account. The
Account of a Participant who participated
in the Signet Banking Corporation 1988 Deferred Compensation Plan shall include
the amounts credited to him or her under that plan as of the date of such
Participant's employment by the Company.
3.5 Vesting of Account. Each Participant will be fully vested in
Deferrals credited to his or her Account pursuant to Section 3.1.
3.6 Interest Credited to the Account. Each Participant's Account will
be credited with an interest equivalent in an amount determined from time to
time by the Company. The Company shall have the right to increase or decrease
the applicable interest equivalent rate at any time when it is in the best
interest of the Company to do so. Interest equivalents shall be credited and
compounded monthly.
3.7 Certain Transfers. Effective January 1, 1996, the balance in the
Account of any Eligible Employee shall be transferred, with the consent of the
Eligible Employee, to an account established for the Eligible Employee under the
Capital One Financial Corporation Excess Saving Plan. Following any such
transfer, the Eligible Employee shall not be entitled to any benefit under the
Plan.
SECTION 4
Payment of Deferred Compensation
4.1 Commencement of Payments. When a Participant ceases to render
services to the Company on account of retirement (as such term is used in the
Company's Cash Balance Plan) or Disability, the Participant shall be entitled to
begin to receive within 90 days the balance then credited to his or her Account
in substantially equal monthly payments over the period of months beginning with
the first payment date and ending with the month in which the Participant
attains age 80, unless the Committee authorizes a shorter payment period or a
lump sum payment pursuant to Section 4.5. The amount of the initial installment
shall equal the balance in the Account as of the date of payment, divided by the
number of remaining installments (including the installment being determined).
Thereafter, as of each January 1, the amount of the monthly installments for the
calendar year shall be redetermined by dividing the account by the number of
remaining installments. If the amount credited to the Account is paid in
installments, the undistributed Account and subsequent installments shall be
adjusted as provided in Section 3.6 to reflect interest credited on the amounts
that remain undistributed.
4.2 Early or Delayed Payment. The Committee may in its discretion
authorize the distribution of his or her Account to a Participant who is still
employed by the Company as provided in Section 4.1. A Participant who has
received an early distribution or is receiving a distribution of his or her
Account in installments while still employed shall not be entitled to have
Deferral Amounts credited to an Account for 12 months after the distribution or
series of distributions has been completed. The Committee in is discretion may
delay to a date certain the commencement of payment of
the Account to a Participant whose employment terminates because of retirement,
death or Disability.
4.3 Payments on Death. If a Participant dies prior to the
commencement of payments under Sections 4.1 or 4.2, the Account shall be paid to
his or her Beneficiary in a lump sum within 90 days after the date of death. If
a Participant dies after payments have commenced, any remaining installments
will be paid to the Participant's Beneficiary unless the Participant has elected
that his Beneficiary shall receive a lump sum payment.
4.4 Payments on Termination of Employment. If a Participant
terminates employment with the Company for reasons other that Retirement, death
or Disability, the Participant's Account shall be paid in a lump sum within 90
days of the last day the Participant performed services for the Company.
4.5 Elections. Instead of receiving distribution of the Account in
installments upon retirement or disability as provided in Section 4.1, the
Committee may, if requested by a Participant, authorize a shorter period of
payment or a lump sum payment. The request for a shorter period of payment or a
lump sum payment shall be (a) subject to the consent of the Committee, (b) made
in writing to the Committee at least one year prior to the date payments would
commence or payment would be made, and (c) irrevocable once made.
4.6 Payment Upon Change of Control. Notwithstanding any other
provision of the Plan to the contrary, and unless the Eligible Employee made and
filed with the Company as soon as practicable after first becoming a
Participant, but in any event not later than six months before the occurrence of
a Change of Control, an irrevocable election to defer receipt of payment of his
Account to his retirement or earlier termination of employment if a Change of
Control occurs, the Company shall pay to such Participant, Beneficiary or
Alternate Payee of the Participant within 30 days of a Change of Control a lump
sum in cash in an amount equal to the amount credited to his or her Account as
of the Change of Control.
SECTION 5
Amendment or Termination
5.1 Right to Terminate. The Board may, in its sole discretion,
terminate this Plan at any time. If the Plan is terminated, each Participant,
former Participant or Beneficiary whose benefits are not in pay status shall be
entitled to (a) begin to receive installment payments as provided, in Section 4,
or (b) receive a single lump sum payment equal to the balance in his Account
(including the unpaid balance in the Account of a Participant whose benefits are
in pay status), as determined by the Company. The single lump sum payment shall
be made as soon as practicable (but not later than 60 days) following the date
the Plan is terminated and shall be in lieu of any other benefit which may be
payable to the Participant, former Participant or Beneficiary under the Plan.
5.2 Right to Amend. The Board may, in its sole discretion, amend this
Plan in any way, provided no amendment shall adversely affect the rights of a
Participant, former Participant or Beneficiary with respect to amounts credited
to a Participant's, former Participant's or Beneficiary's Account as of the date
of the amendment.
5.3 Assignment by Company. The Company has the unconditional right to
assign its responsibilities and obligations under this Plan to a successor or
other entity without notice to Participants, Beneficiaries or Alternate Payees.
SECTION 6
General Provisions
6.1 No Funding. Nothing contained in this Plan shall require an
Employer to segregate any assets from their general funds, or to create any
trusts, or to make any special deposits for any amounts to be paid to any
Participant, former Participant or Beneficiary. Participants, former
Participants and any Beneficiary of a Participant shall not have any right,
title or interest in or to any specific funds or property of any Employer, and
their interest shall be those of a general creditor.
6.2 ERISA Exemption. The Plan is an unfunded plan of deferred
compensation covering a select group of management or highly compensated
employees, intended to be exempt from the participation, vesting, funding and
fiduciary provisions of ERISA pursuant to Sections 201(2), 301(a)(3) and
401(a)(1) of that statute.
6.3 No Contract of Employment. The existence of this Plan does not
constitute a contract for continued employment between an Eligible Executive or
a Participant and his Employer.
6.4 Withholding Taxes. All payments under this Plan shall be
subject to and net of an amount sufficient to satisfy all federal, state or
local withholding tax requirements.
6.5 Restrictions on Transfer. Any benefits to which a Participant,
his Beneficiary or Alternate Payee may become entitled under this Plan are not
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, or encumbrance, and any attempt to do so is void. Benefits are not
subject to attachment or legal process for the debts, contracts, liabilities,
engagements or torts of a Participant, his Beneficiary or Alternate Payee. This
Plan does not give a Participant, his Beneficiary or Alternate Payee any
interest, lien, or claim against any specific assets of the Company.
Participants and their Beneficiaries have only the rights of general creditors
of the Company.
6.6 Domestic Relations Order/Alternate Payee.
(a) Notwithstanding the provisions of Section 6.5, an Alternate Payee
shall be entitled to receive a benefit under the Plan, computed by reference to
the Participant's benefit in accordance with the terms of the Domestic Relations
Order, at the time and in
the manner benefits begin to be paid or are paid to the Participant. If the
Alternate Payee predeceases the Participant before payments begin to be paid or
are paid to the Participant, the Alternate Payee's interest in the Plan shall
begin to be paid or shall be paid (i) at the time and in the manner the
Alternate Payee would have received or began to receive payment had the
Alternate Payee survived, and (ii) if not inconsistent with the terms of the
Domestic Relations Order, to the person or persons designated by the Alternate
Payee in a writing filed with and acknowledged by the Company, or, if no writing
has been filed or if the person or persons designated predeceases the Alternate
Payee, to the legal representative of the Alternate Payee.
(b) The Domestic Relations Order shall clearly specify (i) the name
and last known mailing address of the Participant and the name and mailing
address of each Alternate Payee covered by the order, (ii) the amount or
percentage of the Participant's benefit to be paid by the Plan to each Alternate
Payee, or the manner in which such amount or percentage is to be determined, and
(iii) any limitation on the number of payments or period to which such order
applies. The Company shall not be required to make payments to an Alternate
Payee pursuant to a Domestic Relations Order that requires the Plan to (i)
provide any type or form of benefit, or payment option, not otherwise provided
under the Plan, (ii) provide increased benefits (determined on the basis of
actuarial value), or (iii) pay benefits to an Alternate payee otherwise required
to be paid to another Alternate Payee under an order previously determined to be
a Domestic Relations Order.
(c) The Company shall have the right to delay any payment of a
benefit under the Plan to an Alternate Payee for up to 180 days if necessary to
determine whether the Domestic Relations Order complies with the provisions of
this section.
(d) If an Alternate Payee cannot be located after a diligent search
has been conducted , the interest of the Alternate Payee can be forfeited at the
discretion of the Company at any time after a two-year period and restored to
the Participant on such conditions and terms as the Company shall determine.
6.7 Administration.
(a) This Plan shall administered by the Committee. The Committee
shall interpret the Plan, establish regulations to further the purposes of the
Plan and take any other action necessary to the proper operation of the Plan.
Prior to paying any benefit under the Plan, the Committee may require the
Participant, former Participant or Beneficiary to provide such information or
material as the Committee, in its sole discretion, shall deem necessary for it
to make any determination it may be required to make under the Plan. The
Committee may withhold payment of any benefit under the Plan until it receives
all such information and material and is reasonably satisfied of its correctness
and genuineness.
(b) The Committee shall provide adequate notice in writing to any
Participant, former Participant, beneficiary or contingent beneficiary whose
claim for benefits under
the Plan has been denied, setting forth the specific reasons for such denial. A
reasonable opportunity shall be afforded to any such member, former Participant
or Beneficiary for a full and fair review by the Committee of its decision
denying the claim. The Committee's decision on any such review shall be final
and binding on the Participant, former Participant or Beneficiary and all other
interested persons.
(c) All acts and decisions of the Committee shall be final and
binding upon each Participant, former Participant and Beneficiary and employees
of the Employer.
(d) The committee may appoint an administrator and delegate its
administrative and fiduciary responsibilities to such administrator.
6.8 Construction. For construction, one gender includes the other,
and the singular and plural include each other where the meaning would be
appropriate. This Plan is construed in accordance with the laws of the State of
Delaware, except to the extent that the laws of the United States of America
have superseded those laws. The headings in this Plan have been inserted for
convenience of reference only and are to be ignored in any construction of the
provision. If a provision of this Plan is not valid, that invalidity does not
affect the remaining provisions.
6.9 Binding Upon Successors and Assigns. The provisions of the Plan
shall be binding upon the Participant and the Company and their successors,
assigns, heirs, executors and beneficiaries.
6.10 Life Insurance and Funding. The Company in its discretion may
apply for and procure as owner and for its own benefit insurance of the life of
the Participant, in such amounts and in such forms as the Company may choose.
The Participant shall have no interest whatsoever in any such policy or
policies, but, as a condition of participation and at the request of the
Company, the Participant shall submit to medical examinations and supply such
information and execute such documents as may be required by the insurance
company or companies to whom the Company has applied for insurance.
6.11 Form of Communication. Any election, application, claim, notice
or other communication required or permitted to be made by a Participant shall
be in writing and in such form as the Committee shall prescribe. Such
communication shall be effective upon mailing, if sent by first class mail,
postage pre-paid, and addressed to the Company's office at 2980 Fairview Park
Drive, Falls Church, Virginia 22043.