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Exhibit
10.1
Private &
Confidential
CAPITAL ONE FINANCIAL
CORPORATION
2004 Stock Incentive
Plan
Nonstatutory Stock Option
Agreement
No. of Shares Subject to
Option: 1,661,780
THIS AGREEMENT, dated the 10th of
December, 2007 (the “Date of Grant”), between
CAPITAL ONE FINANCIAL CORPORATION , a Delaware corporation
(the “Company”), and Richard D. Fairbank
(“Optionee”), is made pursuant and subject to the
provisions of the Company’s 2004 Stock Incentive Plan, as
amended and restated, (the “Plan”), and all terms used
herein that are defined in the Plan shall have the same meaning
given them in the Plan unless they are otherwise defined
herein:
W I T N E S S E T H
:
1. Grant of Option . Pursuant and
subject to the terms and conditions of the Plan and of this
Agreement, the Company has granted to Optionee, effective the Date
of Grant, the right and option to purchase from the Company (the
“Option”) all or any part of an aggregate of 1,661,780
shares of Company Stock (the “Option Shares”) at the
purchase price per share of $50.99 (the “Option
Price”), being not less than 100% of the Fair Market Value
per share of the Common Stock on the Date of Grant, such Option to
be exercisable as hereinafter provided. The Option shall be a
nonstatutory option that does not receive favorable tax treatment
under Section 422.
2. Terms and Conditions . The
Option evidenced by this Agreement is subject to the following
terms and conditions:
(a) Expiration Date . The Option
shall expire ten years from the Date of Grant unless earlier
terminated as provided for herein.
(b) Transferability . The Option
is transferable under the following conditions:
(i) Except as provided in the following
sentence, the Option shall be nontransferable except by will or by
the laws of descent and distribution and, during the lifetime of
Optionee, may be exercised only by Optionee, except as provided in
Section 3 below. The Option (or any portion thereof) may be
transferred by the Optionee to (1) the spouse, children, or
grandchildren of Optionee (“Immediate Family Members”),
(2) a trust or trusts for the exclusive benefit of Optionee
and/or such Immediate Family Members, or (3) a partnership in
which Optionee and/or such Immediate Family Members are the only
partners; provided that (a) no consideration is paid to the
Optionee in connection with the transfer, (b) in the event of
a transfer to an individual, the Option is exercisable, during the
original transferee’s lifetime, only by the transferee or by
his or her guardian or legal representative, (c) following
such transfer, Optionee retains no interest or reversion in
the
Capital One
Confidential/Proprietary
Option (or the underlying shares upon
exercise) and has no right to alter or amend the Option or revoke
the transfer, and (d) subsequent transfer of the Option by the
transferee (excluding transfers by will or by the laws of descent
and distribution) is prohibited. Following transfer, the Option
shall continue to be subject to the same terms and conditions as
were applicable to the Option immediately before transfer; provided
that where appropriate, all references in this Agreement to
“Optionee” shall be deemed to refer to the
transferee.
(ii) Following transfer, the Option
shall continue to be subject to the same terms and conditions as
were applicable to the Option immediately before transfer
(including terms and conditions based on the employment status of
Optionee).
(iii) Promptly upon transfer of the
Option, the Optionee shall deliver written notice of the transfer
to the Company’s Human Resources Department at the
Company’s West Creek office, in Richmond, Virginia. That
written notice shall identify the transferee and the effective date
of the transfer.
(iv) If sale to the transferee of the
Company Stock issuable upon exercise of the Option is not
registered under the Securities Act of 1933, as amended, the
Company, in its sole discretion, may condition such sale upon such
terms and requirements as it deems appropriate to comply with
applicable law.
(c) Vesting of Option . Subject
to the provisions of Section 3 below, the Option shall become
exercisable in full for all of the Option Shares on the third
anniversary of the Date of Grant. Notwithstanding the foregoing,
the Option shall become fully exercisable if a Change of Control
occurs or upon death or Disability of Optionee, as such terms are
defined in the Plan.
(d) Method of Exercising and Payment
for Shares . The Option may be exercised by:
(i) Following the procedures for the
exercise of an Option as may be established from time to time by
the Company or its designated agent (the “Procedures”).
The Company will notify Optionee of the Procedures which will
specify (1) any required notification, whether oral or
written, to the Company or its designated agent; (2) the
method for cash payment of the Option Price and any additional
amounts to the Company or its designated agent; (3) if an
Optionee elects to substitute for all or any portion of the cash
payment shares of Company Stock that an Optionee has owned for at
least six months (valued at the Fair Market Value on the exercise
date), the method for delivery of such shares of Company Stock to
the Company or its designated agent; (4) if the Optionee
exercises by means of a so-called “cashless exercise”,
any requirements related to such cashless exercise and (5) any
other requirements, including completion of any required tax or
other forms, which must be completed prior to the exercise of the
Option. The Optionee may contact the Human Resources
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