As filed with the Securities and Exchange Commission on July 25, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________________________________
CAPITAL ONE FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 54-171854
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
2890 Fairview Park Drive, Suite 1300
Falls Church, Virginia 22042
(Address of Principal Executive Offices) (Zip Code)
CAPITAL ONE FINANCIAL CORPORATION
ASSOCIATE SAVINGS PLAN
AS AMENDED AND RESTATED
(Full Title of the Plan)
John G. Finneran, Jr., Esq.
Executive Vice President, General Counsel and Corporate Secretary
2980 Fairview Park Drive, Suite 1300
Falls Church, Virginia 22042
(Name and Address of Agent for Service)
(703) 205-1000
(Telephone Number, Including Area Code, of Agent for Service)
______________________________
Copy to:
Mary E. Alcock
Cleary, Gottlieb, Steen &
Hamilton
One Liberty Plaza
New York, New York 10006
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be to be Offering Price Per Aggregate Offering Registration
Registered Registered Share Price Fee
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Common Stock, par value
$.01 3,000,000 shares (1)(2) $30.275 (3) $90,825,000 (3) $8,355.90 (3)
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(1) Represents the maximum number of shares of common stock of Capital One
Financial Corporation (the "Common Stock") that may be offered and sold
hereunder.
(2) Represents an estimate of the number of shares that will be purchased
with aggregate employee contributions to be made to the Capital One
Financial Corporation Associate Savings Plan, as Amended and Restated
(the "Plan") during the four-year period from July 23, 2002 through
June 30, 2006.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933 with
respect to shares of Common Stock issuable pursuant to the Plan and
based upon the average of the high and low prices of a share of Common
Stock as reported on the New York Stock Exchange on July 24, 2002.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered and sold pursuant to the Plan.
Part I
The information specified in Part I of Form S-8 is not required to be
filed with the Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Note 1 to Part I of Form S-8 and Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"). The information required in the
Section 10(a) prospectus is included in the documents being maintained and
delivered by Capital One Financial Corporation (the "Registrant") as required by
Part I of Form S-8 and by Rule 428 under the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, heretofore filed by the Registrant and the
Plan with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K, dated March 22, 2002,
relating to the fiscal year ended December 31, 2001;
(b) The Plan's Annual Report on Form 11-K, dated June 24, 2002,
relating to the fiscal year ended December 31, 2001;
(c) The Registrant's Current Reports on Form 8-K, filed with the
Commission on January 16, 2002, April 16, 2002, April 23, 2002 and July 16,
2002;
(d) The Registrant's Quarterly Report on Form 10-Q, filed with the
Commission on May 15, 2002; and
(e) The descriptions of the Registrant's Common Stock which are
contained in the registration statements on Form 8-A filed on August 24, 1994
and November 16, 1995 by the Registrant to register such securities under
Section 12 of the Exchange Act, including any amendment or report filed for the
purpose of updating such descriptions.
All documents subsequently filed by the Registrant and the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement 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 such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so
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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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
John G. Finneran, Jr., Esq., Executive Vice President, General Counsel
and Corporate Secretary of the Registrant, who has rendered the opinion attached
hereto as Exhibit 5.1, holds 27,051 shares of Common Stock, vested options to
purchase an additional 131,652 shares of Common Stock issued under the
Registrant's 1994 Stock Incentive Plan and unvested options to purchase an
additional 523,293 shares of Common Stock issued under the Registrant's 1994
Stock Incentive Plan.
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,
civil or criminal, 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 Bylaws 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.
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 which insures the officers and directors of the Registrant from any claim
arising out of an alleged wrongful act by such person in their respective
capacities as officers and directors of the Registrant.
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The Plan provides for indemnification of each member of the committee
responsible for administering the Plan against all costs, expenses and
liabilities, including attorney's fees, incurred in connection with any action,
suit or proceeding instituted against any of them alleging any act of omission
or commission performed while discharging their duties with respect to the Plan,
other than liability incurred as a result of that person's gross negligence or
willful misconduct.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference into
this Registration Statement (numbering corresponds to Exhibit Table in Item 601
of Regulation S-K).
Exhibit No. Document
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4.1 Capital One Financial Corporation Associate Savings
Plan, as Amended and Restated
4.2 Amended and Restated Certificate of Incorporation of
the Registrant
4.3 Certificate of Amendment to Restated Certificate of
Incorporation of the Registrant
4.4 Amended and Restated Bylaws of the Registrant
5.1 Opinion of John G. Finneran, Jr., General Counsel of
the Registrant, regarding the validity of the
securities being registered
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of John G. Finneran, Jr., General Counsel of
the Registrant (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
Pursuant to Item 8(b) of Part II of Form S-8, the undersigned
Registrant hereby undertakes that it has, both in the past and currently,
submitted the Plan to the Internal Revenue Service (the "IRS") in a timely
manner and it has in the past, and will currently make all changes required by
the IRS in order to qualify the Plan.
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:
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(i) To include any prospectus required by Section
10(a)(3) of 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 the prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20 percent
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 this
Registration Statement or any material change to such information in
this Registration Statement; 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 Commission by the
Registrant pursuant to Section 13 or 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 therein, 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 being 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 15(d) of the Exchange
Act that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, 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 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
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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, as amended,
Capital One Financial Corporation 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 or amendment thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Commonwealth of
Virginia, on the 23rd day of July, 2002.
CAPITAL ONE FINANCIAL CORPORATION
By: /s/ John G. Finneran, Jr.
--------------------------------
John G. Finneran, Jr., Esq.
Executive Vice President, General
Counsel and Corporate Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David M. Willey, John G. Finneran, Jr.,
Esq. and Frank R. Borchert, III, Esq. and each of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stand, in any and all capacities, to sign any
and all amendments (including post-effective 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, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done as fully and to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act, as amended, this
Registration Statement or amendment thereto has been signed below by the
following persons in the capacities indicated below on the 23rd day of July,
2002.
SIGNATURE TITLE
/s/ Richard D. Fairbank Director, Chairman and Chief Executive Officer
------------------------------ (Principal Executive Officer)
Richard D. Fairbank
/s/ Nigel W. Morris Director, President and Chief Operating Officer
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Nigel W. Morris
/s/ David M. Willey Executive Vice President and Chief Financial
------------------------------ Officer
David M. Willey (Principal Accounting and Financial
Officer)
/s/ W. Ronald Dietz Director
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W. 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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Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have 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 July 23, 2002.
CAPITAL ONE FINANCIAL CORPORATION
ASSOCIATE SAVINGS PLAN, AS AMENDED AND
RESTATED
By /s/ John G. Finneran, Jr.
---------------------------------
John G. Finneran, Jr. on behalf of
the Benefits Committee
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EXHIBIT INDEX
Exhibit Description Method of Filing
Number
4.1 Capital One Financial Corporation Associate Savings Plan, Filed herewith
as Amended and Restated
4.2 Amended and Restated Certificate of Incorporation of the Filed as Exhibit 3.1
Registrant to the Registrant's
Annual Report on Form
10-K, for the year
ending December 31,
1994 (File No. 1-
13300) and
incorporated herein by
reference
4.3 Certificate of Amendment to Restated Certificate of Filed as Exhibit 3.1.2
Incorporation of the Registrant to the Registrant's
Report on Form 8-K,
filed January 16, 2001
(File No. 1-13300)
4.4 Amended and Restated Bylaws of the Registrant Filed as Exhibit 3.2
to the Registrant's
Annual Report on Form
10-K, as amended, for
the year ending
December 31, 1999
(File No.1-13300) and
incorporated herein by
reference
5.1 Opinion of John G. Finneran, Jr., General Counsel of the Filed herewith
Registrant, regarding the validity of the securities being
registered
23.1 Consent of Ernst & Young LLP, Independent Auditors Filed herewith
23.2 Consent of John G. Finneran, Jr., General Counsel of the Filed herewith
Registrant (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page) Filed herewith
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