Item 3.03 Material Modification to Rights of Security Holders.
On June 10, 2021, Capital One Financial Corporation (the "Company") issued and
sold 1,000,000 shares of the Company's 3.950% Fixed Rate Reset Non-Cumulative
Perpetual Preferred Stock, Series M, $0.01 par value (the "Series M Preferred
Stock"), with a liquidation preference of $1,000 per share. The Company filed a
Certificate of Designations (the "Certificate of Designations") with the
Secretary of State of the State of Delaware, establishing the voting rights,
powers, preferences and privileges, and the relative, participating, optional or
other rights, and the qualifications, limitations or restrictions thereof, of
the Series M Preferred Stock on June 9, 2021.
Under the terms of the Series M Preferred Stock, the ability of the Company to
pay dividends on, make distributions with respect to, or to repurchase, redeem
or acquire its common stock or any preferred stock ranking on parity with or
junior to the Series M Preferred Stock, is subject to restrictions in the event
that the Company does not declare and either pay or set aside a sum sufficient
for payment of dividends on the Series M Preferred Stock for the immediately
preceding dividend period.
The description of the terms of the Series M Preferred Stock is qualified in its
entirety by reference to the Certificate of Designations, which is included as
Exhibit 3.1 to this Current Report on Form 8-K and is incorporated by reference
herein.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
The Certificate of Designations became effective upon filing with the Secretary
of State of the State of Delaware and it amends the Company's Restated
Certificate of Incorporation. The terms of the Series M Preferred Stock are more
fully described in Item 3.03 of this Current Report on Form 8-K and the
Certificate of Designations which is included as Exhibit 3.1 to this Current
Report on Form 8-K, both of which are incorporated by reference herein.
Item 8.01 Other Events.
On June 7, 2021, the Company entered into an Underwriting Agreement (the
"Underwriting Agreement") with Barclays Capital Inc., Citigroup Global Markets
Inc., Credit Suisse Securities (USA) LLC, Morgan Stanley & Co. LLC and Capital
One Securities, Inc., as the representatives of the several underwriters named
therein (collectively, the "Underwriters"), pursuant to which the Company agreed
to issue and sell to the Underwriters 1,000,000 shares of the Series M Preferred
Stock.
The Underwriting Agreement contains customary representations, warranties and
agreements of the Company, conditions to closing, indemnification rights and
obligations of the parties, and termination provisions. Under the terms of the
Underwriting Agreement, the Company agreed to indemnify the Underwriters against
certain specified types of liabilities, including liabilities under the
Securities Act of 1933, as amended, and to contribute to payments the
Underwriters may be required to make in respect of these liabilities.
The net proceeds of the offering of the 1,000,000 shares were approximately
$987.7 million, after deducting underwriting commissions and estimated offering
expenses. The offering was made pursuant to the prospectus supplement dated June
7, 2021 and the accompanying prospectus dated March 12, 2021, filed with the
Securities and Exchange Commission pursuant to the Company's effective
registration statement on Form S-3 (File No. 333-254191) (the "Registration
Statement"). The following documents are being filed with this Current Report on
Form 8-K and are incorporated by reference into the Registration Statement: (a)
the Underwriting Agreement, (b) the Certificate of Designations and (c) a
validity opinion with respect to the Series M Preferred Stock.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No. Description of Exhibit
1.1 Underwriting Agreement, dated June 7, 2021
3.1 Certificate of Designations of Fixed Rate Reset Non-Cumulative Perpetual
Preferred Stock, Series M, dated June 9, 2021
5.1 Opinion of Davis Polk & Wardwell LLP
23.1 Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)
104 The cover page from this Current Report on Form 8-K, formatted in Inline
XBRL
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