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EXHIBIT 3.1.1
RESTATED CERTIFICATE OF INCORPORATION
OF
CAPITAL ONE FINANCIAL CORPORATION
1. The name of the corporation (which is hereafter referred to as
the Corporation) is "Capital One Financial Corporation".
2. The original Certificate of Incorporation was filed with the
Secretary of State of Delaware on July 21, 1994, under the name of BCD Holdings
Corporation.
3. This Restated Certificate of Incorporation has been duly proposed
by resolutions adopted and declared advisable by the Board of Directors of the
Corporation (the "Board of Directors"), and duly executed and acknowledged by
the proper officers of the Corporation in accordance with the provisions of
Sections 103, 241 and 245 of the General Corporation Law of the State of
Delaware (The "GCL") and, upon filing with the Secretary of State in accordance
with Section 103 shall henceforth supercede the original Certificate of
Incorporation and shall, as it may thereafter be amended in accordance with its
terms and applicable law, be the Certificate of Incorporation of the
Corporation.
4. The text of the Certificate of Incorporation of the Corporation
is hereby amended and restated to read in its entirety as follows:
Article I
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The name of the corporation (which is hereinafter referred to as the
"Corporation") is:
Capital One Financial Corporation
Article II
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The address of the Corporation's registered office in the State of
Delaware is Corporation Service Company, 1013 Centre Road in the City of
Wilmington, County of New Castle. The name of the Corporation's registered agent
at such address is Corporation Service Company.
Article III
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The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the GCL.
Article IV
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(A) Authorized Stock. The Corporation shall be authorized to issue
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350,000,000 shares of capital stock, of which 300,000,000 shares shall be shares
of Common
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Stock, $.01 par value ("Common Stock"), and 50,000,000 shares shall be shares of
Preferred Stock, $.01 par value ("Preferred Stock").
(B) Preferred Stock. Shares of Preferred Stock may be issued from
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time to time in one or more series. The Board of Directors is hereby authorized
to create and provide for the issuance of shares of Preferred Stock in series
and, by filing a certificate pursuant to the applicable law of the State of
Delaware (hereinafter referred to as a "Preferred Stock Designation"), to
establish from time to time the number of shares to be included in each such
series, and to fix the designations, powers, preferences and rights of the
shares of each such series and the qualifications, limitations or restrictions
thereof.
The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
(i) The designation of the series, which may be by distinguishing
number, letter or title.
(ii) The number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the Preferred
Stock Designation) increase or decrease (but not below the number of shares
thereof then outstanding).
(iii) Whether dividends, if any, shall be cumulative or noncumulative
and the dividend rate of the series.
(iv) Dates at which dividends, if any, shall be payable.
(v) The redemption rights and price or prices, if any, for shares
of the series.
(vi) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series.
(vii) The amounts payable on, and the preferences, if any, of shares
of the series in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation.
(viii) Whether the shares of the series shall be convertible into
shares of any other class or series, or any other security, of the
Corporation or any other corporation, and, if so, the specification of such
other class or series of such other security, the conversion price or
prices or rate or rates, any adjustments thereof, the date or dates at
which such shares shall be convertible and all other terms and conditions
upon which such conversion may be made.
(ix) Restrictions on the issuance of shares of the same series or of
any other class or series.
(x) The voting rights, if any, of the holders of shares of the
series.
(xi) Such other powers, preference and relative, participating,
optional and other special rights, and the qualifications, limitations and
restrictions thereof as the Board of Directors shall determine.
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(C) The Common Stock. The Common Stock shall be subject to the
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express terms of the Preferred Stock and any series thereof. Each share of
Common Stock shall have the right to cast one vote for each share for the
election of Directors and on all other matters upon which stockholders are
entitled to vote.
(D) Vote. Except as otherwise provided in this Certificate of
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Incorporation or in a Preferred Stock Designation, or as may be required by
applicable law, the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes and holders of shares of
Preferred Stock shall not be entitled to receive notice of any meeting of
shareholders at which they are not entitled to vote. Each share of Common Stock
shall have one vote, and the Common Stock shall vote together as a single class.
(E) Record Holders. The Corporation shall be entitled to treat the
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person in whose name any share of its stock is registered as the owner thereof
for all purposes and shall not be bound to recognize any equitable or other
claim to, or interest in, such share on the part of any other person, whether or
not the Corporation shall have notice thereof, except as expressly provided by
applicable law.
Article V
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The Board of Directors is hereby authorized to create and issue,
whether or not in connection with the issuance and sale of any of its stock or
other securities or property, rights entitling the holders thereof to purchase
from the Corporation shares of stock or other securities of the Corporation or
any other corporation, recognizing that, under certain circumstances, the
creation and issuance of such rights could have the effect of discouraging third
parties from seeking, or impairing their ability to seek, to acquire a
significant portion of the outstanding securities of the Corporation, to engage
in any transaction which might result in a change of control of the Corporation
or to enter into any agreement, arrangement or understanding with another party
to accomplish the foregoing or for the purpose of acquiring, holding, voting or
disposing of any securities of the Corporation. The times at which and the terms
upon which such rights are to be issued will be determined by the Board of
Directors and set forth in the contracts or instruments that evidence such
rights. The authority of the Board of Directors with respect to such rights
shall include, but not be limited to, determination of the following:
(A) The initial purchase price per share or other unit of the stock or
other securities or property to be purchased upon exercise of such rights.
(B) Provisions relating to the times at which and the circumstances
under which such rights may be exercised or sold or otherwise transferred,
either together with or separately from, any other stock or other securities of
the Corporation.
(C) Provisions which adjust the number or exercise price of such
rights or amount or nature of the stock or other securities or property
receivable upon exercise of such rights in the event of a combination, split or
recapitalization of any stock of the Corporation, a change in ownership of the
Corporation's stock or other securities or a reorganization, merger,
consolidation, sale of assets or other occurrence relating to the Corporation or
any stock of the Corporation, and provisions restricting the ability of the
Corporation to enter into any such transaction absent an assumption by the other
party or parties thereto of the obligations of the Corporation under such
rights.
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(D) Provisions which deny the holder of a specified percentage of the
outstanding stock or other securities of the Corporation the right to exercise
such rights and/or cause the rights held by such holder to become void.
(E) Provisions which permit the Corporation to redeem or exchange such
rights, which redemption or exchange may be within the sole discretion of the
Board of Directors, if the Board of Directors reserves such right to itself.
(F) The appointment of a rights agent with respect to such rights.
Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of at least 80 percent of
the voting power of the then outstanding Voting Stock (as defined below), voting
together as a single class, shall be required to amend or repeal, or adopt any
provisions inconsistent, with this Article V. For the purposes of this
Certificate of Incorporation, "Voting Stock" shall mean the outstanding shares
of capital stock of the Corporation entitled to vote generally in the election
of Directors.
Article VI
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(A) In furtherance and not in limitation of the powers conferred by
law, the Board of Directors is expressly authorized and empowered:
(i) to adopt, amend or repeal the Bylaws of the Corporation, provided,
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however, that the Bylaws adopted by the Board of Directors under the powers
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hereby conferred may be altered, amended or repealed by the Board of
Directors or by the stockholders having voting power with respect thereto,
provided further than in the case of amendments by stockholders, the
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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, the Bylaws; and
(ii) from time to time to determine whether and to what extent, and at
what times and places, and under what conditions and regulations, the
accounts and books of the Corporation, or any of them, shall be open to
inspection of stockholders; and, except as so determined, or as expressly
provided in this Certificate of Incorporation or in any Preferred Stock
Designation, no stockholder shall have any right to inspect any account,
book or document of the Corporation other than such rights as may be
conferred by law.
(B) The Corporation may in its Bylaws confer powers upon the Board of
Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board of Directors by law.
Notwithstanding anything contained in this Certificate of Incorporation to the
contrary, 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 amend or repeal, or adopt any provision inconsistent
with, subparagraph (i) of paragraph (A) of this Article VI.
Article VII
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Subject to the rights of the holders of any series of Preferred Stock
to elect additional directors under specific circumstances or to consent to
specific actions taken by the
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Corporation, any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing in lieu of a meeting of such stockholders. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote 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 amend or repeal,
or adopt any provision inconsistent with, this Article VII.
Article VIII
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(A) Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specific circumstances, the number of
directors of the Corporation shall be fixed by the Bylaws of the Corporation and
may be increased or decreased from time to time in such a manner as may be
prescribed by the Bylaws.
(B) Unless and except to the extent that the Bylaws of the Corporation
shall so require, the election of directors of the Corporation need not be by
written ballot.
(C) The directors, other than those who may be elected by the holders
of any series of Preferred Stock, shall be divided into three classes as nearly
equal in number as possible, and designated as Class I, Class II and Class III.
Class I directors shall be initially elected for a term expiring at the 1995
annual meeting of stockholders, Class II directors shall be initially elected
for a term expiring at the 1996 annual meeting of stockholders, and Class III
directors shall be initially elected for a term expiring at the 1997 annual
meeting of stockholders. Members of each class shall hold office until their
successors are elected and qualified. At each succeeding annual meeting of the
stockholders of the Corporation, the successors of the class of directors whose
term expires at that meeting shall be elected by a plurality vote of all votes
cast at such meeting to hold office for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election, and
until their successors are elected and qualified.
(D) Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specific circumstances, any director
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.
(E) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, 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 amend or repeal, or adopt any
provision inconsistent with, this Article VIII.
ARTICLE IX
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Section 1. Vote Required for Certain Business Combinations.
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(A) Higher Vote for Certain Business Combinations. In addition to any
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affirmative vote required by law or this Certificate of Incorporation and except
as otherwise expressly provided in Section 2 of this Article IX:
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(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested Stockholder (as
hereinafter defined) or (b) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation
would be, an Affiliate (as hereinafter defined) of an Interested
Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder, including all Affiliates of the Interested
Stockholder, of any assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value (as hereinafter defined) of $10,000,000 or
more; or
(iii) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder, including all
Affiliates of the Interested Stockholder, in exchange for cash, securities
or other property (or a combination thereof) having an aggregate Fair
Market Value of $10,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliates of an Interested Stockholder; or
(v) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not an Interested Stockholder is a party thereto)
which has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary which are
directly or indirectly owned by any Interested Stockholder or one or more
Affiliates of the Interested Stockholder;
shall require the affirmative vote of the holders of at least 75% of the voting
power of the then outstanding Voting Stock, voting together as a single class,
including the affirmative vote of the holders of at least 75% of the voting
power of the then outstanding Voting Stock not owned directly or indirectly by
any Interested Stockholder or any Affiliate of any Interested Stockholder. Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage may be permitted by law or in any
agreement with any national securities exchange or otherwise.
(B) Definition of "Business Combination." The term "Business
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Combination" as used in this Article IX shall mean any transaction described in
any one or more of clauses (i) through (v) of paragraph (A) of this Section 1.
Section 2. When Higher Vote is Not Required. The Provision of
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Section 1 of this Article IX shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law or any other provision of this Restated Certificate
of Incorporation, if the conditions specified in either of the following
paragraphs (A) or (B) are met:
(A) Approval by Continuing Directors The Business Combination
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shall have been approved by a majority of the Continuing Directors (as
hereinafter defined).
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(B) Price and Procedure Requirements. All of the following
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conditions shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value as
hereinafter defined as of the date of the consummation of the Business
Combination of consideration other than cash, to be received per share by
holders of Common Stock in such Business Combination, shall be at least
equal to the highest of the following:
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder for any shares of Common Stock
acquired by it (1) within the two-year period immediately prior to the
first public announcement of the proposal of such Business Combination
(the "Announcement Date"), or (2) in the transaction in which it
became an interested Stockholder, whichever is higher.
(b) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested Stockholder
became an Interested Stockholder, whichever is higher, and
(c) (if applicable) the price per share equal to the Fair Market
Value per share of Common Stock determined pursuant to paragraph (B)
(i) (b) above, multiplied by the ratio of (1) the highest per share
price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Stockholder for any
shares of Common Stock acquired by it within the two-year period
immediately prior to the Announcement Date to (2) the Fair Market
Value per share of Common Stock on the first day in such two-year
period upon which the Interested Stockholder acquired any shares of
Common Stock.
(ii) The aggregate amount of the cash and the Fair Market Value as of
the date of the consummation of the Business Combination of consideration
other than cash to be received per share by holders of shares of any other
class, other than Common Stock or Excluded Preferred Stock (as hereinafter
defined), of outstanding Voting Stock shall be at least equal to the
highest of the following (it being intended that the requirements of this
paragraph (B) (ii) shall be required to be met with respect to every such
class of outstanding Voting Stock whether or not the Interested Stockholder
has previously acquired any shares of a particular class of Voting Stock):
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder for any shares of such class of
Voting Stock acquired by it (1) within the two-year period immediately
prior to the Announcement Date, or (2) in the transaction in which it
became an Interested Stockholder, whichever is higher.
(b) (if applicable) the highest preferential amount per share to
which the holders of shares of such class of Voting Stock are entitled
in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation.
(c) the Fair Market per share of such class of Voting Stock on
the Announcement Date or on the Determination Date, whichever is
higher, and
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(d) (if applicable) the price per share equal to the Fair
Market Value per share of such class of Voting Stock determined
pursuant to paragraph (B) (ii) (c) above multiplied by the ratio of
(1) the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by the Interested
Stockholder for any shares of such class of Voting Stock acquired by
it within the two-year period immediately prior to the Announcement
Date to (2) the Fair Market Value per share of such class of Voting
Stock on the first date in such two-year period upon which the
Interest Stockholder acquired any shares of such class of Voting
Stock.
(iii) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock and other than
Excluded Preferred Stock) shall be in cash or in the same form as the
Interested Stockholder has previously paid for shares of any class of
Voting Stock with varying forms of consideration, the form of consideration
of such class of Voting Stock shall either be cash or the form used to
acquire the largest number of shares of such class of Voting Stock
previously acquired by it.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination; (a)
there shall have been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not cumulative) on any
outstanding preferred stock, except as approved by a majority of the
Continuing Directors; (b) there shall have been no reduction in the annual
rate of dividends paid on the Common Stock (except as necessary to reflect
any subdivision of the Common Stock), except as approved by a majority of
the Continuing Directors; (c) there shall have been an increase in the
annual rate of dividends is necessary fully to reflect any recapitalization
(including any reverse stock split), reorganization or any similar
reorganization which has the effect of reducing the number of outstanding
shares of the Common Stock, unless the failure so to increase such annual
rate is approved by a majority of the Continuing Directors; and (d) such
Interested Stockholder shall not have become the Beneficial Owner of any
additional Voting Stock except as part of the transaction which results in
such Interested Stockholder becoming an Interested Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a shareholder),
of any loans, advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantages provided by the Corporation,
whether in anticipation or in connection with such Business Combination or
otherwise.
(vi) A proxy or information statement describing the proposed
Business Combination and complying with the requirement of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (or any
subsequent provisions replacing such Act, rules or regulations) shall be
mailed to stockholders of the Corporation at least thirty (30) days prior
to the consummation of such Business Combination (whether or not such proxy
or information statement is required to be mailed pursuant to such Act or
subsequent provisions).
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Section 3. Certain Definitions. For purposes of this Article IX.
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(A) "Person" shall mean any individual, firm, corporation or other
entity.
(B) "Interested Stockholder" shall mean any Person (other than the
Corporation or any Subsidiary) who or which:
(i) itself, or along with its Affiliates, is the Beneficial Owner
directly or indirectly, of more than 5% of the then outstanding Voting
Stock; or
(ii) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was itself, or
along with its Affiliates, the Beneficial Owner, directly or indirectly, of
5% or more of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any Voting
Stock which was at any time within the two-year period immediately prior to
the date in question beneficially owned by any Interested Stockholder, if
such assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
provided, however, that Signet Banking Corporation and its Affiliates shall not
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be deemed an Interested Stockholder as long as they continue to control more
than a majority of the outstanding Voting Stock.
(C) "Beneficial Owner" shall have the meaning ascribed to such term
in Rule 13d-3 of the General Rules and Regulations of the Securities Exchange
Act of 1934, as in effect July 1, 1994. In addition, a Person shall be the
"Beneficial Owner" of any Voting Stock which such Person or any of its
Affiliates or Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (b) the right to
vote pursuant to any agreement, arrangement or understanding (but neither such
person nor any such Affiliate or Associate shall be deemed to be the Beneficial
Owner of any shares of Voting Stock solely by reason of a revocable proxy
granted for a particular meeting of stockholders, pursuant to a public
solicitation of proxies for such meeting, and with respect to which shares
neither such Person nor any such Affiliate or Associate is otherwise deemed the
Beneficial Owner).
(D) For the purpose of determining whether a Person is an
Interested Stockholder pursuant to paragraph (B) of this section 3, the number
of shares of Voting Stock deemed to be outstanding shall include shares deemed
owned through application of paragraph (C) of this Section 3 but shall not
include any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding or upon exercise of conversion rights,
warrants or options or otherwise.
(E) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as in effect on July 1, 1994.
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(F) "Subsidiary" shall mean any corporation of which a majority of
any share of equity security is owned, directly or indirectly, by the
Corporation, provided, however, that for the purposes of the definition of
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Interested Stockholder set forth in paragraph (B) of this Section 3, the term
"Subsidiary" shall mean only a corporation of which a majority of each share of
equity security is owned, directly or indirectly, by the Corporation.
(G) "Continuing Director" shall mean any member of the Board of
Directors who is unaffiliated with the Interested Stockholder and was a member
of the Board of Directors prior to the time that the Interested Stockholder
became an Interested Stockholder, and any director who is thereafter chosen to
fill any vacancy on the Board of Directors or who is elected and who, in either
event, is unaffiliated with the Interested Stockholder and in connection with
his or her initial assumption of office is recommended for appointment or
election by a majority of Continuing Directors then on the Board.
(H) "Fair Market Value" shall mean (i) in the case of stock, the
highest closing sale price during the 30-day period immediately preceding the
date in question of a share of such stock on the Composite Tape for New York
Stock Exchange listed stocks, or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange or, if such stock is not listed on such
exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such is listed, or, if such stock
is not listed on any such exchange, the highest closing bid quotation with
respect to a share of such stock during the 60-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use in its stead, or if no such
quotations are available, the fair market value on the date in question of a
share of such stock as determined by the Board of Directors in accordance with
Section 4 of this Article IX, and (ii) in the case of property on the date in
question as determined by the Board of Directors in accordance with Section 4 of
this Article IX.
(I) In the event of any Business Combination in which the Corporation
survives, the phrase "other considerations to be received" as used in paragraphs
(B) (i) and (ii) of Section 2 of this Article IX shall include the shares of
Common Stock and/or the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
(J) "Excluded Preferred Stock" means any series of Preferred Stock
with respect to which a majority of the Continuing Directors have approved a
Preferred Stock Designation creating such series that expressly provides that
the provisions of this Article IX shall not apply.
Section 4. The Continuing Directors of the Corporation shall have the
power and duty to determine for the purposes of this Article IX on the basis of
information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article IX, including, without limitation, (i)
whether a Person is an Interested Stockholder, (ii) the number of shares of
Voting Stock beneficially owned by any Person, (iii) whether a Person is an
Affiliate or Associate of another. (iv) whether the applicable conditions set
forth in paragraph (B) of Section 2 of this Article IX have been met with
respect to any Business Combination, (v) the Fair Market Value of stock or other
property in accordance with paragraph (H) of Section 3 of this Article IX and
(vi) whether the assets which are the subject of any Business Combination have,
or the consideration to be received for the issuance or transfer of Securities
by the Corporation or any Subsidiary in any Business Combination has, an
aggregate Fair Market Value of $10,000,000 or more.
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Section 5. No Effect on Fiduciary Obligations of Interested
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Stockholders. Nothing Contained in this Article IX shall be construed to relieve
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any Interested Stockholder from any fiduciary obligation imposed by law.
Section 6. Amendment, Repeal, etc. Notwithstanding any other
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provisions of this Certificate of Incorporation or the Bylaws of the Corporation
(and notwithstanding the fact that a lesser percentage may be permitted by law,
this Certificate of Incorporation or the Bylaws of the Corporation), but in
addition to any affirmative vote of the holders of any particular class of
Voting Stock required by law or this Certificate of Incorporation, the
affirmative vote of the holders of 80% of the voting power of the shares of the
then outstanding Voting Stock voting together as a single class, including the
affirmative vote of the holders of 80% of the voting power of the then
outstanding Voting Stock not owned directly or indirectly by any Interested
Stockholder or any Affiliate of any Interested Stockholder, shall be required to
amend or repeal, or adopt any provisions inconsistent with, this Article IX of
this Certificate of Incorporation.
Article X
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A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
Article XI
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Each person who is or was or had agreed to become a director or
officer of the Corporation, or each such person who is or was serving or who had
agreed to serve at the request of the Board of Directors or an officer of the
Corporation as an employee or agent of the Corporation or as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise (including the heirs, executor, administrators or
estate of such person), shall be indemnified by the Corporation, in accordance
with the Bylaws of the Corporation, to the fullest extent permitted from time to
time by the GCL 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) or any other applicable laws
as presently or hereafter in effect. Without limiting the generality or the
effect of the foregoing, the Corporation may enter into one or more agreements
with any person which provide for indemnification greater or different than that
provided in this Article XI. Any amendment or repeal of this Article XI 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 XII
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Except as may be expressly provided in this Certificate of
Incorporation, the Corporation reserves the right at any time from time to time
to amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, or a Preferred Stock Designation, and any other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted, in the manner now or hereafter prescribed herein or by law;
and all rights,
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preferences and privileges of whatsoever nature conferred upon stockholders,
directors or any other persons whomsoever by and pursuant to this Certificate
of Incorporation in its present form or as hereafter amended are granted
subject to the right reserved in this Article XII; provided, however, that any
-------- ------
amendment or repeal of Article X or Article XI of this Certificate of
Incorporation shall not adversely affect any right or protection existing
hereunder in respect of any act or omission occurring prior to such amendment or
repeal; and provided further that no Preferred Stock Designation shall be
--------
amended after the issuance of any shares of the series of Preferred stock
created thereby, except in accordance with the terms of such Preferred Stock
Designation and the requirements of applicable law.
IN WITNESS WHEREOF, said Capital One Financial Corporation has caused
this Certificate of Incorporation to be signed by its President and attested by
its Secretary and has caused its corporate seal to be hereunto affixed this
9/th/ day of November, 1994.
----- --------
Capital One Financial Corporation
/s/ Nigel W. Morris
By: _______________________________
Nigel W. Morris
Name: _____________________________
President and Chief Operating Officer
Title: _____________________________________
/s/ Andrew T. Moore, Jr.
Attest: ________________________
Corporate Secretary
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