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As filed with the Securities and Exchange Commission on December 19, 1997
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CAPITAL ONE FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 54-171854
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
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2980 FAIRVIEW PARK DRIVE, SUITE 1300
FALLS CHURCH, VIRGINIA 22042
(Address, including zip code, of
Registrant's principal executive offices)
CAPITAL ONE FINANCIAL CORPORATION
1994 STOCK INCENTIVE PLAN
(Full title of the plan)
Copy to:
JOHN G. FINNERAN, JR., ESQ. D. MICHAEL LEFEVER, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL COVINGTON & BURLING
AND CORPORATE SECRETARY 1201 PENNSYLVANIA AVENUE, N.W.
2980 FAIRVIEW PARK DRIVE, SUITE 1300 WASHINGTON, D.C. 20004
FALLS CHURCH, VIRGINIA 22042 (202) 662-6000
(703) 205-1030
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Security Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Aggregate Registration
Per Unit (2) Offering Price Fee
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Stock Options (1) 502,860 $ 5.85 $2,941,731.00 $8,678.11
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Stock Options (1) 307,013 $12.19 $3,742,488.40 $11,040.34
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(1) Represent options to purchase shares of common stock, $.01 par value
("Common Stock"), of the Registrant issuable under the Registrant's
1994 Stock Incentive Plan (the "Plan") in consideration for the
agreement of a recipient to forgo incentive compensation payments.
The shares of Common Stock issuable upon the exercise of
the Stock Options previously either were registered under
the Securities Act of 1933, as amended, pursuant to Registration
Statement No. 33-86986 (dated December 1, 1994), or will be
registered before the Stock Options are exercised.
(2) Purchase price of the Stock Option registered for sale under the Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, heretofore filed by Capital One Financial
Corporation (the "Registrant") with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated by reference in this Registration Statement, except as
superseded or modified as described herein:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996.
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997, and September 30, 1997.
(c) The Registrant's Current Reports on Form 8-K, dated January 28, 1997,
July 18, 1997, and September 24, 1997.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents. Any statement contained
in any such incorporated document shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained in any other incorporated document subsequently filed (or in this
Registration Statement, with respect to an incorporated document filed prior to
the filing hereof), modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The Board of Directors of the Registrant has approved, under the
Registrant's 1994 Stock Incentive Plan (the "Plan"), a 1997 Special Option
Program (the "Program") under which eligible employees are entitled to elect to
forgo incentive compensation payments and receive in consideration stock
options issued under the Plan (the "Stock Options"). Each Stock Option will
entitle the holder to purchase shares of Common Stock at an exercise price per
share equal to the fair market value (as defined by the Plan) of the Common
Stock on the date of the grant. Each Stock Option will expire on the tenth
anniversary of its date of grant. Upon the termination of employment of the
holder, the Stock Option will be forfeited if not then vested and the Stock
Option will remain exercisable (if vested) only for a period of three months
from the date of termination, except that, in the event of the death of the
holder or the termination of the holder's employment due to disability, the
Stock Option, to the extent that it was exercisable on the date of such death
or termination, shall remain exercisable for a period of one year (but not
beyond the ten-year expiration date of the Stock Option).
Stock Options granted to employees in the "Tier 2" and "Tier 3"
employment levels of the Registrant will vest if the value of the Common Stock
attains a preestablished market price target on or before the third anniversary
of the date of grant, as more fully set forth in the Stock Option agreements.
If the option does not vest as set forth above, it shall terminate on the third
anniversary of the date of grant. Stock Options granted to employees in the
"Tier 4" employment level of the Registrant will vest in full on the third
anniversary of the date of grant. Notwithstanding these normal vesting rules,
unless previously terminated, all employees will become fully vested upon a
Change of Control (as that term is defined in the Plan).
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The grant of the Stock Options is contingent upon approval by the
Registrant's stockholders at their next regularly scheduled annual meeting of
an increase to 10,620,880 (or such lesser number of shares as the Registrant's
Board of Directors determines necessary to accommodate the grant of Stock
Options) in the number of shares of Common Stock reserved for issuance under
the Plan ("Stockholder Approval"). If Stockholder Approval is not obtained,
the grant of the Stock Options shall be null and void.
Generally, the Stock Options are nontransferable except by will or by
the laws of descent and distribution and, during the lifetime of an employee,
may be exercised only by the employee. However, a Tier 2 or Tier 3 employee
may transfer a Stock Option to (i) the spouse, children, or grandchildren of
the Tier 2 or Tier 3 employee ("Immediate Family Members"), (ii) a trust or
trusts for the exclusive benefit of the employee and/or such Immediate Family
Members, or (iii) a partnership in which the employee and/or such Immediate
Family Members are the only partners, provided that: no consideration is paid
to the Tier 2 or Tier 3 employee in connection with the transfer; in the event
of a transfer to an individual, the Stock Option is exercisable, during the
Tier 2 or Tier 3 employee's lifetime, only by the transferee or by his or her
guardian or legal representative; following a transfer, the Tier 2 or Tier 3
employee retains no right or reversion in the Stock Option (or the underlying
Common Stock upon exercise) and has no right to alter or amend the Stock Option
or revoke the transfer; and subsequent transfer of the Stock Option by the
transferee (excluding transfers by will or by the laws of descent and
distribution) is prohibited. Following transfer, a Stock Option generally will
continue to be subject to the same terms and conditions as were applicable to
the Stock Option immediately before transfer.
Under the Plan, in the event of a stock dividend, stock split or
combination of shares, spin-off, recapitalization or merger in which the
Registrant is the surviving corporation or other change in the Registrant's
capital stock, the number and kind of shares subject to the Stock Options, the
exercise price and other relevant provisions of the Stock Options are subject
to appropriate adjustment by the Compensation Committee of the Registrant's
Board of Directors, whose determination is binding on all persons.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
John G. Finneran, Jr., general counsel of the Registrant, who has
rendered the opinion attached hereto as Exhibit 5.1, owns approximately 558
shares of Common Stock acquired under Registrant's 1994 Associate Stock
Purchase Plan, holds options to purchase 159,390 shares of Common Stock issued
under the Plan, and is expected to be a participant in the Program.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the General Corporation Law of the State of
Delaware (the "GCL"), a corporation may indemnify any person who was or is a
party, or is threatened to be made a party, to any action, suit or proceeding
by reason of the fact that he or she is or was a director or officer of such
corporation if such person acted in good faith and in a manner he or she
reasonably believed to be in and not opposed to the best interest of the
corporation and, with respect to a criminal action or proceeding, such person
had no reasonable cause to believe that his or her conduct was unlawful, except
that, in the case of any action or suit by or in the right of the corporation,
no indemnification is permitted if the person shall be adjudged liable to the
corporation other than indemnification for such expenses as a court shall
determine such person is fairly and reasonably entitled to.
Article XI of the Registrant's Restated Certificate of Incorporation
and Section 6.7 of the Registrant's By-laws provide, in general, for mandatory
indemnification of directors and officers to the fullest extent permitted from
time to time by the GCL or any other applicable law, against liability incurred
by them in proceedings instituted or threatened against them by third parties,
or by or on behalf of the Registrant itself, relating to the manner in which
they performed their duties unless they have been guilty of willful misconduct
or of a knowing violation of the criminal law.
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Under Article X of the Registrant's Restated Certificate of
Incorporation, a director of the Registrant is not personally liable to the
Registrant 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 Registrant 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.
The Registrant also maintains a directors and officers insurance
policy generally covering the activities for which such persons are entitled to
indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT DESCRIPTION REFERENCE
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5.1 Opinion of Counsel Filed herewith
23.1 Consent of Counsel Contained in Exhibit 5.1
23.2 Consent of Independent Auditors Filed herewith
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended,
(the "Securities Act").
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) under the
Securities Act if, in the aggregate, the changes in
volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Securities and
Exchange Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered thereby, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered thereby, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the County of Fairfax, Commonwealth of Virginia, on
December 19, 1997.
CAPITAL ONE FINANCIAL CORPORATION
By: /s/ John G. Finneran, Jr.
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John G. Finneran, Jr., Esquire
Corporate Secretary
Each person whose signature appears below constitutes and appoints
James M. Zinn and John G. Finneran, Jr., and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, and in any and all
capacities, to sign any or all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, state securities law
administrators, other governmental authorities, the National Association of
Securities Dealers, Inc, and stock exchanges, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully do or cause to be done
by virtue thereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 19, 1997.
/s/ Richard D. Fairbank Chairman of the Board, Chief Executive Officer,
--------------------------------------------- and Director (Principal Executive Officer)
Richard D. Fairbank
/s/ Nigel W. Morris President and Chief Operating Officer and
--------------------------------------------- Director
Nigel W. Morris
/s/ James M. Zinn Senior Vice President (Principal Financial
--------------------------------------------- Officer and Principal Accounting Officer)
James M. Zinn
/s/ William Ronald Dietz Director
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William Ronald Dietz
/s/ James A. Flick, Jr. Director
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James A. Flick, Jr.
/s/ Patrick W. Gross Director
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Patrick W. Gross
/s/ James V. Kimsey Director
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James V. Kimsey
/s/ Stanley I. Westreich Director
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Stanley I. Westreich
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Exhibit Index
Exhibit Sequential
Number Description Page Number
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5.1 Opinion of Counsel 9
23.2 Consent of Independent Auditors 10
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[CAPITAL ONE LETTERHEAD]
Exhibit 5.1
December 19, 1997
Board of Directors
Capital One Financial Corporation
2980 Fairview Park Drive, Suite 1300
Falls Church, Virginia 22042
Gentlemen:
As the General Counsel of Capital One Financial Corporation
(the "Company"), I have participated in the preparation of a Registration
Statement on Form S-8 to be filed with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended (the "Registration
Statement"), with respect to the offer and sale of stock options of a maximum
aggregate dollar amount of $6,684,219.40 ("Stock Options") exercisable to
purchase shares of Common Stock, par value $.01 per share, of the Company to be
issued pursuant to the Capital One Financial Corporation 1994 Stock Incentive
Plan (the "Plan"). I am familiar with the Registration Statement and have
examined such corporate documents and records, including the Plan, and such
matters of law as I have considered appropriate to enable me to render the
following opinion.
On the basis of the foregoing, I am of the opinion that the
Stock Options, when issued consistent with the terms of the Plan and the
related resolutions of the Board of Directors and the Compensation Committee,
will be binding obligations of the Company enforceable against the Company in
accordance with their terms and conditions.
I hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement and to the reference to me under the caption
"Interests of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
/s/ JOHN G. FINNERAN, JR.
John G. Finneran, Jr., Esq.
General Counsel
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 33- ) pertaining to the 1994 Stock Incentive Plan of Capital
One Financial Corporation of our report dated January 21, 1997, with respect to
the consolidated financial statements of Capital One Financial Corporation
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Washington, D.C.
December 17, 1997
