Exhibit 1.1
FIFTH THIRD BANCORP
$500,000,000
4.50% Subordinated Notes
Due June 1, 2018
Underwriting Agreement
May 20, 2003
To the Representatives named in Schedule I hereto of the Underwriters named
in Schedule II hereto
Ladies and Gentlemen:
Fifth Third Bancorp, an Ohio corporation ("Fifth Third"), proposes to sell
to the underwriters named in Schedule II hereto (the "Underwriters"), for whom
you are acting as representatives (the "Representatives"), its designated debt
securities named in Schedule I hereto (the "Securities"), in the aggregate
principal amount set forth in such Schedule I. The Securities will be issued
under the indenture referenced in Schedule I hereto (the "Indenture"), between
Fifth Third and the trustee named in Schedule I (the "Trustee").
1. Representations and Warranties. Fifth Third represents and warrants to,
and agrees with, each Underwriter that:
(a) The registration statement (File No. 333-86360) on Form S-3 (the
"registration statement"), including a prospectus which, as supplemented, shall
be used in connection with the sale of the Securities, has been filed with the
Securities and Exchange Commission (the "Commission"), in the form heretofore
delivered to the Representatives. The registration statement, as it may have
been amended prior to the date of this Agreement, has become effective under the
Securities Act of 1933, as amended (the "Act"). (The registration statement, as
amended to the date of this Agreement, is hereinafter referred to as the
"Registration Statement"; such prospectus (which shall be in the form in which
it has been most recently filed, or transmitted for filing, with the Commission
on or before the date of this Agreement, as the same is proposed to be added to
or changed), as supplemented by a prospectus supplement relating to the
Securities, filed or transmitted for filing with the Commission pursuant to Rule
424 under the Act and used in connection with the sale of the Securities, is
hereinafter referred to as the "Prospectus"; and such prospectus supplement is
hereinafter referred to as the "Prospectus Supplement". Any reference herein to
the Registration Statement, a preliminary prospectus, the Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the date of this
Agreement, and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the filing of any
document under the Exchange Act deemed to be incorporated therein by reference
after the date of this Agreement.)
(b) The Registration Statement, at the time it became effective, and any
amendments thereof filed prior to the date hereof, as of their respective
effective dates, conformed in all material respects to the requirements of the
Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the respective rules and regulations of the Commission thereunder; the
Registration Statement and the Prospectus, as of the date of the Prospectus
Supplement, and any amendments thereof and supplements thereto, as of their
respective effective or issue dates, will conform in all material respects to
the requirements of the Act, the Trust Indenture Act and the respective rules
and regulations of the Commission thereunder, and no such document, as of such
respective dates and, in the case of the Prospectus and any amendments thereof
or supplements thereto, as of the Closing Date (as hereinafter defined),
included or will include any untrue statement of a material fact or omitted or
will omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in which they were
made, not misleading, provided that Fifth Third makes no representations or
warranties as to (i) the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or omitted
from the Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to Fifth Third by
or on behalf of any Underwriter specifically for use in connection with the
preparation of the Prospectus or any amendment thereof or supplement thereto.
(c) Each of Fifth Third and its subsidiaries has been duly organized, is
validly existing in good standing under the laws of its jurisdiction of
organization and has all power and authority (corporate and other) necessary to
own or hold its material properties and to conduct its business substantially in
the manner in which it presently conducts such business, and is duly qualified
to do business as a foreign corporation and is in good standing under the laws
of each jurisdiction which requires such qualification, except for failures to
be so qualified or be in good standing that would not reasonably be expected to
have a material adverse effect on the financial condition, stockholders' equity
or results of operations of Fifth Third and its subsidiaries, taken as a whole.
(d) Fifth Third is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the "BHC Act"). Fifth Third and
each of its subsidiaries are in compliance in all material respects with all
laws administered by the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), the Federal Deposit Insurance Corporation ("FDIC") and
any other federal or state bank regulatory authorities (together with the
Federal Reserve Board and the FDIC, the "Bank Regulatory Authorities") with
jurisdiction over Fifth Third and its subsidiaries, except for failures to be so
in compliance that would not reasonably be expected to have a material adverse
effect on the financial condition, stockholders' equity or results of operations
of Fifth Third and its subsidiaries, taken as a whole.
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(e) The deposit accounts of each of the bank subsidiaries of Fifth Third
are insured up to applicable limits by the FDIC and no proceedings for the
termination or revocation of such insurance are pending or, to the knowledge of
Fifth Third, threatened.
(f) The Securities have been duly authorized, and, when issued, delivered
and paid for pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of Fifth Third entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized and, at the Closing Date (as
defined in Section 3 hereof), the Indenture will be duly qualified under the
Trust Indenture Act and will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and the Securities and the Indenture conform
in all material respects to the descriptions thereof in the Prospectus.
(g) Fifth Third has all corporate power and authority necessary to execute
and deliver this Agreement, the Indenture and the Securities and to perform its
obligations hereunder and thereunder; the execution, delivery and performance of
this Agreement, the Indenture and the Securities by Fifth Third and compliance
with the provisions hereof and thereof by Fifth Third will not constitute a
breach of or default under, the Articles of Incorporation or Code of Regulations
of Fifth Third or any of its subsidiaries, or any material agreement, indenture
or other instrument to which Fifth Third or any of its subsidiaries is a party,
or, to the best of Fifth Third's knowledge, any law, order, rule, regulation or
decree of any court, governmental agency or authority located in the United
States having jurisdiction over Fifth Third or any of its subsidiaries or any
property of Fifth Third or any of its subsidiaries, which breach or default
would be reasonably likely to have a material adverse effect on the financial
condition, stockholders' equity or results of operations of Fifth Third and its
subsidiaries, taken as a whole or on the ability of Fifth Third to perform its
obligations hereunder or its obligations under the Indenture or the Securities;
and, no consent, authorization or order of, or filing or registration with, any
court or governmental agency or authority is required for the execution,
delivery and performance of this Agreement, the Indenture and the Securities by
Fifth Third except such as have been made or obtained or will be made or
obtained on or before the Closing Date (as defined in Section 3) and except such
as may be required under applicable state securities or "blue sky" laws.
(h) Neither Fifth Third nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus, except
for losses or interferences that would not reasonably be expected to have a
material adverse effect on the financial condition, stockholders' equity or
results of operations of Fifth Third and its subsidiaries, taken as a whole;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
change in the capital stock or long-term debt of Fifth Third or any of its
subsidiaries or any material adverse change, or any development that is
reasonably likely to result in a prospective material adverse change, in or
affecting the general affairs, management, financial position, stockholders'
equity
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or results of operations of Fifth Third and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus.
(i) Fifth Third has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of Fifth Third have
been duly and validly authorized and issued and are fully paid and
non-assessable.
(j) Neither Fifth Third nor any of its subsidiaries is in violation or
default of (i) any of its Articles of Incorporation, Code of Regulations,
By-laws or other constitutive documents, (ii) the performance or observance of
any material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound or (iii) any statute, law, rule, regulation, judgment, order or decree of
any court, regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over Fifth Third, its subsidiaries or any
of its and its subsidiaries properties, as applicable, except, in the case of
clause (ii), for violations or defaults that would not reasonably be expected to
have a material adverse effect on the financial condition, stockholders' equity
or results of operations of Fifth Third and its subsidiaries, taken as a whole.
(k) Fifth Third has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof and
has paid all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is currently being
contested in good faith.
(l) Fifth Third is not subject to any order of the Federal Reserve Board
which, as of the date hereof, prohibits the payment of dividends by any of its
subsidiaries.
(m) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which Fifth Third or any of its subsidiaries
is a party or of which any property of Fifth Third or any of its subsidiaries is
the subject which would individually or in the aggregate reasonably be expected
to have a material adverse effect on the financial condition, stockholders'
equity or results of operations of Fifth Third and its subsidiaries, taken as a
whole, or on the ability of Fifth Third to perform its obligations hereunder or
its obligations under the Indenture or the Securities; and, to the best of Fifth
Third's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(n) Fifth Third is not and, after giving effect to the offering and sale
of the Securities, will not be an "investment company", as such term is defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(o) Deloitte & Touche LLP, who have certified certain financial statements
of Fifth Third and its subsidiaries, are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder.
(p) Fifth Third has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-14 and 15d-14 under the Exchange
Act) that (A) are designed to ensure that material information relating to Fifth
Third, including its consolidated subsidiaries, is
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made known to Fifth Third's Chief Executive Officer and its Chief Financial
Officer by others within those entities, particularly during the periods in
which the filings made by Fifth Third with the Commission which it may make
under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act are being prepared,
(B) have been evaluated for effectiveness as of a date within 90 days prior to
the filing of Fifth Third's most recent Annual Report filed with the Commission
and (C) are effective to perform the functions for which they were established.
The accountants and the Audit Committee of the Board of Directors have
been advised of (x) any significant deficiencies in the design or operation of
internal controls which could adversely affect the Fifth Third's ability to
record, process, summarize, and report financial data and (y) any fraud, whether
or not material, that involves management or other employees who have a role in
the Fifth Third's internal controls; any material weaknesses in internal
controls have been identified for the accountants; and since the date of the
most recent evaluation of such disclosure controls and procedures, there have
been no significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, Fifth Third agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from Fifth Third, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and Fifth Third (such date and time of delivery of and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of Fifth
Third in the manner and type of funds specified in Schedule I. Certificates for
the Securities shall be registered in such names and in such denominations as
the Representatives may request not less than one full business day in advance
of the Closing Date.
Fifth Third agrees to have the Securities available for inspection,
checking and packaging in New York, New York, on the business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale as set forth in the
Prospectus.
5. Agreements. Fifth Third agrees with the several Underwriters that:
(a) Fifth Third will cause the Prospectus to be filed, or transmitted for
filing, with the Commission pursuant to Rule 424 under the Act and will promptly
advise the Representatives when the Prospectus has been so filed or transmitted
for filing, and, prior to the termination of the offering of the Securities to
which such Prospectus relates, also will promptly advise the Representatives (i)
when any amendment to the Registration Statement has become effective or any
further supplement to the Prospectus has been so filed or transmitted for
filing, (ii) of any
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request by the Commission for any amendment of the Registration Statement or the
Prospectus or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose,
and (iv) of the receipt by Fifth Third of any notification with respect to the
suspension of the qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. Fifth Third
will use its reasonable best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as reasonably possible the withdrawal
thereof. For so long as a prospectus relating to the Securities is required to
be delivered under the Act, Fifth Third will not file or transmit for filing any
amendment to the Registration Statement or supplement to the Prospectus which
relates to the Securities unless Fifth Third has furnished you or counsel for
the Underwriters a copy for your review prior to filing or transmission for
filing.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or supplement the
Prospectus in connection with the sale of the Securities to comply with the Act
or the rules and regulations of the Commission thereunder, promptly after
becoming aware thereof, Fifth Third will notify the Representatives or counsel
for the Underwriters and, upon their or its reasonable request, prepare and file
or transmit for filing with the Commission an amendment or supplement which will
correct such statement or omission or effect such compliance, and prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance.
(c) Fifth Third will make generally available to its security holders and
to the Representatives as soon as practicable, but not later than 45 days after
the end of the 12-month period beginning at the end of the fiscal quarter of
Fifth Third during which the filing, or transmission for filing, of the
Prospectus pursuant to Rule 424 under the Act occurs (except not later than 90
days after the end of such period if such quarter is the last fiscal quarter),
an earnings statement (which need not be audited) of Fifth Third and its
subsidiaries, covering such 12-month period, which will satisfy the provisions
of Section 11(a) of the Act.
(d) Fifth Third will use its best efforts to furnish in New York City to
each of the Underwriters prior to 10:00 a.m., New York City time, on the New
York business day next succeeding the date of this Agreement and from time to
time, as many copies of the Prospectus, each related preliminary prospectus
supplement and all amendments of and supplements to such documents as may be
reasonably requested.
(e) Fifth Third will pay all expenses incident to the performance of its
obligations under this Agreement, and will pay the expenses of printing and
filing all documents relating to the offering and mailing and delivering such to
Underwriters and dealers, any filing fee incident to any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities, all expenses in connection with the qualification of the Securities
for offering and sale under state securities laws (including the fees and
disbursements of counsel to
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the Underwriters in connection with such qualification and the preparation of
the Blue Sky and legal investment surveys), any taxes payable in connection with
the sale and delivery of the Securities by Fifth Third to the Underwriters, and
any fees charged for rating the Securities.
(f) Fifth Third will use its reasonable best efforts to arrange for the
qualification of the Securities for sale under the laws of such jurisdictions as
the Representatives may designate and to maintain such qualifications in effect
so long as required for the distribution of the Securities; provided that Fifth
Third shall not be required to qualify to do business in any jurisdiction where
it is not now qualified or to take any action which would subject it to general
or unlimited service of process in any jurisdiction where it is not now so
subject.
(g) During the period beginning from the date of this Agreement and
continuing until the Closing Date or such longer period as may be agreed to by
Fifth Third and set forth in Schedule I hereto relating to the Securities, Fifth
Third will not offer, sell, contract to sell or otherwise dispose of any of its
debt securities which mature more than one year after the Closing Date and which
are substantially similar to the Securities without the prior written consent of
the Representatives.
(h) Fifth Third will file promptly all reports and any definitive proxy or
information statements required to be filed by Fifth Third with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the offering or sale
of such Securities.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of Fifth Third contained herein
as of the date hereof and the Closing Date, to the accuracy of the statements of
Fifth Third made in any certificates pursuant to the provisions hereof, to the
performance by Fifth Third of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted and be pending or have been threatened as of the Closing Date;
and all requests for additional information on the part of the Commission shall
have been complied with.
(b) Fifth Third shall have furnished to the Representatives a certificate,
dated the Closing Date, of Fifth Third, signed by the principal financial or
accounting officer of Fifth Third, to the effect that, to the best of his
knowledge after reasonable investigation:
(i) The representations and warranties of Fifth Third in this
Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date and Fifth Third has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted and are pending or have been threatened as of such date;
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(iii) Since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change in
the financial position, results of operations, cash flows or prospects
relating thereto of Fifth Third and its subsidiaries consolidated, except
as set forth in or contemplated by the Prospectus; and
(iv) Since the date of this Agreement, (A) no downgrading has
occurred in the rating accorded Fifth Third's unsecured debt securities or
preferred stock as described in Section 6(i)(1) and (B) no announcement
has been made with respect to any rating accorded Fifth Third's unsecured
debt securities or preferred stock as described in Section 6(i)(2).
(c) Fifth Third shall have furnished to the Underwriters the opinion,
dated the Closing Date, of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Executive Vice President,
General Counsel and Secretary of Fifth Third, to the effect that:
(i) Each of Fifth Third and Fifth Third Bank has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Ohio, with corporate power and authority
under such laws to own its material properties and to conduct its business
substantially as described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws
of each jurisdiction which requires such qualification, except for
failures to be so qualified or be in good standing that would not
reasonably be expected to have a material adverse effect on the financial
condition, stockholders' equity or results of operations of Fifth Third
and its subsidiaries, taken as a whole, and Fifth Third is duly registered
as a bank holding company under the Bank Holding Company Act of 1956, as
amended.
(ii) The Indenture has been duly authorized, executed and delivered
by Fifth Third; the Securities have been duly authorized, executed,
authenticated, issued and delivered; and the Indenture and the Securities
conform in all material respects to the descriptions thereof in the
Prospectus as amended or supplemented.
(iii) Fifth Third has all corporate power and authority necessary to
execute and deliver this Agreement, the Indenture and the Securities, and
to perform its obligations hereunder and thereunder; this Agreement has
been duly authorized, executed and delivered by Fifth Third; the
execution, delivery and performance of this Agreement, the Indenture, and
the Securities by Fifth Third and compliance with the provisions hereof
and thereof by Fifth Third will not constitute a breach of or default
under, the Articles of Incorporation or Code of Regulations of Fifth
Third, or any material agreement, indenture or other instrument known to
such counsel to which Fifth Third or any of its subsidiaries is a party,
or, to the best of such counsel's knowledge, any law, order, rule,
regulation or decree of any court, governmental agency or authority
located in the United States having jurisdiction over Fifth Third or any
of its subsidiaries or any property of Fifth Third or any of its
subsidiaries, which breach or default would be reasonably likely to have a
material adverse effect on the financial condition, stockholders' equity
or results of operations of Fifth Third and its subsidiaries taken as a
whole or on the ability of Fifth Third to perform its obligations
hereunder or its obligations under the Indenture or the Securities; and no
consent, authorization or order of, or filing or registration with, any
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court or governmental agency is required for the execution, delivery and
performance of this Agreement, the Indenture or the Securities by Fifth
Third except such as may be required under applicable state securities or
"blue sky" laws or as have been duly made or obtained.
(iv) The Registration Statement has become effective under the Act,
and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or
threatened under the Act, and each part of the Registration Statement,
when such part became effective, any amendments thereof filed prior to the
date of this Agreement, as of their respective effective dates, and the
Registration Statement and the Prospectus, as of the date of the
Prospectus Supplement, and each amendment thereof or supplement thereto,
as of their respective effective or issue dates, appeared on their face to
be appropriately responsive in all material respects to the requirements
of the Act, the Trust Indenture Act and the respective rules and
regulations of the Commission thereunder; it being understood that such
counsel need express no opinion as to the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of the Trustee or as to the financial
statements or other financial data contained in any part of the
Registration Statement or the Prospectus.
(v) The statements included in the Prospectus under the heading
"Regulatory Considerations" and the statements incorporated by reference
in the Prospectus from Fifth Third's most recent Annual Report on Form
10-K under the heading "Regulation and Supervision," in each case, insofar
as such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of such
legal matters, agreements, documents or proceedings.
In rendering such opinion or opinions, such counsel may rely (A) as
to matters involving the application of laws of the State of New York,
upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, subject to all the
limitations and qualifications set forth in such opinion, and (B) as to
certain other matters, on certificates of responsible officers of Fifth
Third, public officials and others deemed by such counsel to be
responsible.
(vi) Such counsel shall confirm that, to the best of such counsel's
knowledge and other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which Fifth Third or any of
its subsidiaries is a party or of which any property of Fifth Third or any
of its subsidiaries is the subject which would individually or in the
aggregate reasonably be expected to have a material adverse effect on the
financial condition, stockholders' equity or results of operations of
Fifth Third and its subsidiaries, taken as a whole, or on the ability of
Fifth Third to perform its obligations hereunder or its obligations under
the Indenture or the Securities; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
In addition, such counsel shall confirm that such counsel has no reason to
believe that any part of the Registration Statement, when such part became
effective, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of the date of
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the Prospectus Supplement, or any amendments thereof or supplements thereto, as
of their respective effective or issue dates, contained any untrue statement of
a material fact or omitted to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or that, as of the Closing Date, either the Prospectus or
any further amendment or supplement thereto made by Fifth Third prior to the
Closing Date contained any untrue statement of a material fact or omitted to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; it being
understood that such counsel need express no opinion as to the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or as to the
financial statements or other financial data contained in any part of the
Registration Statement or the Prospectus.
(d) Fifth Third shall have furnished to the Underwriters the opinion,
dated the Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, to the effect that:
(i) Each of Fifth Third and Fifth Third Bank has been duly
incorporated and is an existing corporation in good standing under the
laws of the State of Ohio.
(ii) The Indenture has been duly qualified under the Trust Indenture
Act; the Securities have been duly authenticated, issued and delivered;
and the Indenture and the Securities constitute valid and legally binding
obligations of Fifth Third enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(iii) Each part of the Registration Statement, at the time such part
became effective, and the Prospectus, as of the date of the Prospectus
Supplement, appeared on their face to be appropriately responsive, in all
material respects relevant to the offering of the Securities, to the
requirements of the Act, the Trust Indenture Act and the respective rules
and regulations of the Commission thereunder; it being understood that
such counsel need express no opinion as to the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee or as to the
financial statements or other financial data contained in any part of the
Registration Statement or the Prospectus.
In rendering such opinion or opinions, such counsel may rely (A) as to
matters which relate to the Trustee, upon the certificate or certificates of
such Trustee, (B) as to matters involving the application of laws of the State
of Ohio, upon the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., subject to all the
limitations and qualifications set forth in such opinion, and (C) as to certain
other matters, on certificates of responsible officers of Fifth Third, public
officials and others deemed by such counsel to be responsible.
In addition, such counsel shall state that they have participated in
discussions with representatives of the Company, representatives of the
independent public accountants for the Company, representatives of the
Underwriters and counsel for the Underwriters at which the contents of the
Registration Statement and the Prospectus and related matters were discussed,
and, although such counsel have not independently verified and assume no
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and
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the Prospectus, nothing that came to such counsel's attention in the course of
such procedures has caused such counsel to believe that, insofar as relevant to
the offering of the Securities, any part of the Registration Statement, when
such part became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus, as of the
date of the Prospectus Supplement, contained any untrue statement of a material
fact or omitted to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or that, as of the Closing Date, either the Prospectus or any
further amendment or supplement thereto made by Fifth Third prior to the Closing
Date contained any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being understood
that such counsel need express no opinion as to the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee or as to the financial
statements or other financial data contained in any part of the Registration
Statement or the Prospectus.
(e) The Representatives shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Representatives may reasonably
require.
As to matters governed by Ohio law, Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP may
rely upon the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Executive Vice President,
General Counsel and Secretary of Fifth Third.
(f) Deloitte & Touche LLP, as independent accountants of Fifth Third,
shall have furnished to the Representatives a letter, dated as of the date
hereof, to the effect set forth in Schedule III hereto. On the Closing Date,
Deloitte & Touche LLP shall have furnished to the Representatives a letter, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to the prior sentence.
(g) (i) (A) Neither Fifth Third nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus prior to the date of this Agreement
any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus prior to the date of this Agreement, and (B)
since the respective dates as of which information is given in the Prospectus
prior to the date of this Agreement there shall not have been any change in the
capital stock or long-term debt of Fifth Third or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of Fifth Third and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus prior to the date of the this Agreement, the
effect of which, in any such case described in clause (A) or (B), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus.
11
(h) Fifth Third shall have furnished to the Representatives such further
information, certificates and documents as they may reasonably request prior to
the Closing Date.
(i) Subsequent to the date of this Agreement, (1) no downgrading shall
have occurred in the rating accorded Fifth Third's unsecured debt securities or
preferred stock by Standard & Poor's Ratings Group or by ▇▇▇▇▇'▇ Investors
Service, Inc. and (2) neither such organization shall have publicly announced
that it has under surveillance or review, with possible negative implications,
its rating of any of Fifth Third's unsecured debt securities or preferred stock.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and their
counsel, this Agreement and all obligations of the Underwriters hereunder may be
canceled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to Fifth Third in writing or by
telephone or telegraph confirmed in writing.
7. Indemnification and Contribution. (a) Fifth Third agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement or in any amendment
thereof filed prior to the date hereof, or in the Registration Statement or the
Prospectus, or in any amendment thereof or supplement thereto, or in any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that (i) Fifth Third will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to Fifth Third by or on behalf of any
Underwriter through the Representatives specifically for use in the Prospectus
or any supplement thereto or any related preliminary prospectus or preliminary
prospectus supplement or of the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of the Trustee, and (ii) such indemnity with respect to any
related preliminary prospectus or preliminary prospectus supplement shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such person
was not sent or given a copy of the Prospectus (or the Prospectus as amended or
supplemented), excluding documents incorporated therein by reference, at or
prior to the confirmation of the sale of such Securities to such person in any
case where such delivery is required by the Act and the untrue statement or
omission of a material fact contained in such related preliminary prospectus or
preliminary prospectus supplement was corrected in the Prospectus (or the
Prospectus as amended or
12
supplemented). This indemnity agreement will be in addition to any liability
which Fifth Third may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless Fifth
Third, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls Fifth Third within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
Fifth Third to each Underwriter, but only with reference to written information
furnished to Fifth Third by or on behalf of such Underwriter through the
Representatives specifically for use in the Prospectus or any supplement thereto
or any related preliminary prospectus or preliminary prospectus supplement. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under Section 7(a) or
(b) of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
such subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party otherwise than under Section 7(a) or (b). In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under Section
7(a) or (b) for any legal or other expenses subsequently incurred by such
indemnified party (other than reasonable costs of investigation) in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate national counsel, approved by the Representatives,
representing the indemnified parties who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or
13
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by Fifth Third on the one hand and the Underwriters of the Securities on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of Fifth Third on the one hand and the Underwriters of the Securities on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by Fifth Third on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by Fifth Third bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
Fifth Third on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Fifth Third and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Securities
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to the Securities and not
joint.
14
8. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to Fifth Third prior
to delivery of and payment for the Securities, if prior to such time there shall
have occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on the National Association of Securities
Dealers Automated Quotations System ("NASDAQ"); (ii) a suspension or material
limitation in trading in Fifth Third's securities on NASDAQ; (iii) a general
moratorium on commercial banking activities declared by either Federal, New York
or Ohio state authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; or (iv) any
change in the financial markets in the United States or the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war or any other national or
international calamity or crisis, if the effect of any such event specified in
this clause (iv) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus.
9. Substituted Underwriters. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Securities that it or they
have agreed to purchase hereunder on such date, and the aggregate number of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate number of the
Securities to be purchased on the Closing Date, the other Underwriters shall be
obligated severally in the proportions that the number of Securities set forth
opposite their respective names in Schedule II bears to the aggregate number of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Underwriters may agree, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on the Closing Date; provided that in no event shall the
number of Securities that any Underwriter has agreed to purchase pursuant to
Section 2 above be increased pursuant to this Section 9 by an amount in excess
of one-ninth of such number of Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Securities and the aggregate number of Securities with
respect to which such default occurs is more than one-tenth of the aggregate
number of Securities to be purchased on the Closing Date, and arrangements
satisfactory to the Underwriters and Fifth Third for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or
Fifth Third. In such case either the Underwriters or Fifth Third shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this Section 9 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. Certain Liabilities Upon Termination. If this Agreement shall be
terminated pursuant to Section 9 hereof, Fifth Third shall not then be under any
liability to any Underwriter except as provided in Sections 5(e) and 7 hereof;
but, if for any other reason, any Securities are not delivered by or on behalf
of Fifth Third as provided herein, Fifth Third will reimburse the Underwriters
through you for all actual out-of-pocket expenses approved in writing by you,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities not so delivered, but Fifth Third
15
shall then be under no further liability to any Underwriter in respect of the
Securities not so delivered except as provided in Sections 5(e) and 7 hereof.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of Fifth Third or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or Fifth Third or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections
5(e), 7, 9, 12, 13 and 14 hereof shall survive the termination or cancellation
of this Agreement.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto (including any Underwriter or Underwriters added
pursuant to Section 9 hereof) and their respective successors, heirs, executors,
administrators and the officers and directors and controlling persons referred
to in Section 7 hereof, and no other person will have any right or obligation
hereunder.
13. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. Counterparts; Notices. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
All notices hereunder shall be in writing or by telegram if promptly
confirmed in writing, and if to the Underwriters shall be sufficient in all
respects if delivered or sent by registered mail to the address of the
Representatives as set forth in Schedule I hereto; and if to Fifth Third shall
be sufficient in all respects if delivered or sent by registered mail to the
address of Fifth Third set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 7 (c) hereof shall be delivered or sent by registered mail to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to Fifth
Third by the Representatives upon request.
15. Action by Underwriters. Any action under this Agreement taken by the
Underwriters jointly or by the firm signing below on behalf of you as the
Representatives will be binding upon all the Underwriters.
16
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between
Fifth Third and the Underwriters.
Very truly yours,
FIFTH THIRD BANCORP
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
On behalf of the Underwriters
set forth in Schedule II
▇▇▇▇▇▇▇, SACHS & CO.
By: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
17
SCHEDULE I
TITLE OF DESIGNATED SECURITIES:
4.50% Subordinated Notes Due June 1, 2018
AGGREGATE PRINCIPAL AMOUNT:
$500,000,000
PRICE TO PUBLIC:
99.653% of the principal amount of the Designated Securities, plus
accrued interest, if any, from May 23, 2003
PURCHASE PRICE BY UNDERWRITERS:
98.903% of the principal amount of the Designated Securities, plus
accrued interest, if any, from May 23, 2003
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds by wire
INDENTURE:
Indenture, dated as of May 23, 2003, between Fifth Third and Wilmington
Trust Company, as Trustee
MATURITY:
June 1, 2018
INTEREST RATE:
4.50% per annum
INTEREST PAYMENT DATES:
June 1 and December 1 of each year, commencing December 1, 2003
REGULAR RECORD DATES:
May 15 and November 15 of each year, commencing November 15, 2003
REPAYMENT PROVISIONS:
None
I-1
REDEMPTION PROVISIONS:
None
SINKING FUND PROVISIONS:
None
CONVERSION PROVISIONS:
None
EXCHANGE PROVISIONS:
None
FORM OF DESIGNATED SECURITY:
Global in denominations set forth in the Prospectus Supplement
CLOSING DATE:
May 23, 2003 at 10:00 a.m.
OFFICE FOR DELIVERY OF DESIGNATED SECURITIES:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
OFFICE FOR PAYMENT FOR DESIGNATED SECURITIES:
Fifth Third Bancorp
Fifth Third Center
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
NAME OF REPRESENTATIVES:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇ Brothers Inc.
ADDRESS FOR NOTICES, ETC.:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
I-2
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
I-3
SCHEDULE II
Principal Amount
of Securities to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $250,000,000
▇▇▇▇▇▇ Brothers Inc. 100,000,000
Citigroup Global Markets Inc. 50,000,000
Fifth Third Securities, Inc. 50,000,000
UBS Warburg LLC 50,000,000
------------
TOTAL $500,000,000
II-1
SCHEDULE III
Pursuant to Section 6(e) of the Underwriting Agreement, the independent
accountants of Fifth Third shall provide a comfort letter to the effect that:
(i) They are independent certified public accountants with respect to
Fifth Third and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and included or
incorporated by reference in the Prospectus as amended or supplemented comply as
to form in all material respects with the applicable accounting requirements of
the Act or the Exchange Act, as applicable, and the published rules and
regulations thereunder;
(iii) On the basis of limited procedures, not constituting an audit,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of Fifth Third and its subsidiaries, inspection of the
minute books of Fifth Third and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus as amended or supplemented, inquiries of officials of Fifth Third and
its subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of changes in financial
position included or incorporated by reference in Fifth Third's most
recent Quarterly Report on Form 10-Q incorporated by reference in the
Prospectus (if any) as amended or supplemented does not comply as to form
in all material respects with the applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q and the related published
rules and regulations thereunder or are not in conformity with generally
accepted accounting principles applied on a basis substantially consistent
with that of the audited consolidated financial statements included or
incorporated by reference in Fifth Third's most recent Annual Report on
Form 10-K;
(B) any unaudited financial data included in the Prospectus as
amended or supplemented as at any time, or for any period ending, after
the end of the latest interim period covered by a Quarterly Report on Form
10-Q of Fifth Third or year ended for which Fifth Third has filed an
Annual Report on Form 10-K (whichever is more recent) (and any data for
any comparable prior period included therein) do not agree with the
corresponding amounts in the unaudited consolidated financial statements
from which such data are derived, or any such unaudited financial data
were not determined on a basis substantially consistent with the basis for
the corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in Fifth Third's most recent Annual
Report on Form 10-K;
III-1
(C) the unaudited pro forma consolidated condensed financial
statements (if any) included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those statements;
(D) as of a specified date not more than five days prior to the date
of delivery of such letter there have been any changes in the capital
stock (other than issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented) or
long-term debt of Fifth Third or any of its subsidiaries, or any decreases
in consolidated stockholders' equity, consolidated assets, consolidated
deposits, or allowance for loan losses of Fifth Third or other items
specified by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus as amended or supplemented except in each case for changes,
increases or decreases which the Prospectus as amended or supplemented
discloses have occurred or may occur or which are described in such
letter; and
(E) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented to the end of the latest period for which financial
statements are available there were any decreases in consolidated net
interest income, net interest income after provision for loan losses, or
the total or per share amounts of net income of Fifth Third or other items
specified by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for increases
or decreases which the Prospectus as amended or supplemented discloses
have occurred or may occur or which are described in such letter;
(iv) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in subparagraph (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information specified by the Representatives which are
derived from the general accounting records of Fifth Third and its subsidiaries,
which appear in the Prospectus as amended or supplemented (excluding documents
incorporated by reference), in exhibits to the Registration Statement specified
by the Representatives, or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting records of
Fifth Third and its subsidiaries and have found them to be in agreement.
III-2