Exhibit (4) (f)
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[DEBT] [PREFERRED STOCK] [COMMON STOCK]
[DEPOSITARY SHARES] WARRANT AGREEMENT
dated as of ___________ __, ____
between
FIFTH THIRD BANCORP
and
[NAME OF WARRANT AGENT], as Warrant Agent
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[Debt] [Preferred Stock] [Common Stock]
[Depositary Shares] Warrants
Expiring _________ __, ____
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TABLE OF CONTENTS
Page
PARTIES................................................................................................1
RECITALS...............................................................................................1
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
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SECTION 1.01. Issuance of Warrants................................................................2
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates................................2
SECTION 1.03. Transfer of Warrants................................................................4
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant Certificates...........................5
SECTION 1.05. Cancellation of Warrant Certificates................................................5
SECTION 1.06. Treatment of Holders [If Warrants are to be Issued in Book-Entry Form - and
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Beneficial Owners] of Warrant Certificates..........................................6
ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Exercise Price......................................................................6
SECTION 2.02. Duration of Warrants................................................................6
SECTION 2.03. Exercise of Warrants................................................................7
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS [If Warrants are to be issued in
Book-Entry Form - AND BENEFICIAL
OWNERS] OF WARRANTS
SECTION 3.01. No Rights as Holders of Warrant Securities Conferred by Warrants or Warrant
Certificates........................................................................9
SECTION 3.02. Holder [If Warrants are to be issued in Book-Entry Form - and Beneficial Owner] of
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Warrant May Enforce Rights..........................................................9
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ARTICLE IV
CONCERNING THE WARRANT AGENT
Page
SECTION 4.01. Warrant Agent......................................................................10
SECTION 4.02. Limitations on Warrant Agent's Obligations.........................................10
SECTION 4.03. Compliance With Applicable Laws....................................................11
SECTION 4.04. Resignation and Appointment of Successor...........................................12
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendments.........................................................................13
SECTION 5.02. Merger, Consolidation, Sale, Transfer or Conveyance................................14
SECTION 5.03. Notices and Demands to the Company and Warrant Agent...............................14
SECTION 5.04. Addresses..........................................................................14
SECTION 5.05. GOVERNING LAW......................................................................15
SECTION 5.06. Delivery of Prospectus.............................................................15
SECTION 5.07. Obtaining of Governmental Approvals................................................15
SECTION 5.08. Payment of Taxes...................................................................15
SECTION 5.09. Benefits of Warrant Agreement......................................................15
SECTION 5.10. Headings...........................................................................16
SECTION 5.11. Severability.......................................................................16
SECTION 5.12. Counterparts.......................................................................16
SECTION 5.13. Inspection of Agreement............................................................16
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[DEBT] [PREFERRED STOCK] [COMMON STOCK]
[DEPOSITARY SHARES] WARRANT AGREEMENT
[DEBT] [PREFERRED STOCK] [COMMON STOCK] [DEPOSITARY SHARES] WARRANT
AGREEMENT, dated as of ____________ __, ____ (as modified, amended or
supplemented, this "Agreement"), between FIFTH THIRD BANCORP, an Ohio
corporation (the "Company") and [NAME OF WARRANT AGENT], a _____________, as
Warrant Agent (the "Warrant Agent").
W I T N E S S E T H
[If offer consists of Debt Securities with Warrants AND/OR Warrants to
Purchase Debt Securities - WHEREAS, the Company has entered into an Indenture,
dated as of ____________ __, ____ (the "Senior Indenture"), between the Company
and ______________ as trustee, providing for the issuance from time to time of
its unsecured senior debentures, notes or other evidences of indebtedness, and
an Indenture, dated as of ____________ __, ____ (the "Subordinated Indenture",
and together with the Senior Indenture, the Indentures"), between the Company
and ______________, as trustee (together with the trustee under the Senior
Indenture, the "Trustees"), providing for the issuance from time to time of its
unsecured subordinated debentures, notes or other evidences of indebtedness
(together with the securities issuable under the Senior Indenture, the "Debt
Securities"), to be issued in one or more series as provided in each Indenture;
and]
[If Securities and Warrants are to be offered together - WHEREAS, the
Company proposes to sell [title of Securities being Offered] (the "Offered
Securities") together with warrants (each, a "Warrant") representing the right
to purchase [title of Securities purchasable upon exercise of Warrants] [If
Warrants for Depositary Shares are to be offered - , each representing 1/__th
interest in a share of [title of Securities represented by Depositary Shares]]
(the "Warrant Securities") [If Warrants for Depositary Shares are to be offered
- , which term shall also refer, as appropriate, to such [title of securities
represented by Depositary Shares]), such warrant certificates and other warrant
certificates issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and]
[If offer consists of Warrants alone - WHEREAS, the Company proposes to
sell warrant certificates evidencing one or more warrants (each, a "Warrant")
representing the right to purchase [title of Securities purchasable upon
exercise of Warrants] [If Warrants for Depositary Shares are to be offered - ,
each representing a 1/__th interest in a share of [title of securities
represented by the Depositary Shares]] (the "Warrant Securities" [If Warrants
for Depositary Shares are to be offered - , which term shall also refer, as
appropriate, to such [title of securities represented by the Depositary
Shares]), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange, exercise and cancellation of the Warrants, and the
Company wishes to set forth in
this Agreement, among other things, the provisions of the Warrants, the form of
the Warrant Certificates evidencing the Warrants and the terms and conditions
upon which the Warrants may be issued, transferred, exchanged, exercised and
canceled;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. Each Warrant shall represent the right,
subject to the provisions contained herein and therein, to purchase [________]
Warrant Securities [in the aggregate principal amount of $________] at the
Exercise Price set forth in Section 2.01. [If Securities and Warrants are to be
offered together - Warrants shall be issued in units with the Offered Securities
[If Warrants are not immediately detachable - and shall not be separately
transferable [Unless Warrants are not detachable: before ________ __, ____ (the
"Detachment Date")]] .] [If Warrants are to be offered separately - Warrants
shall be issued as a separate security and shall be transferable from and after
the date of issuance.] [If Warrants are to be offered in Book-Entry form - [All]
[A portion] of the Warrants shall initially be represented by one or more global
certificates (each, a "Global Warrant Certificate").] [If Securities and
Warrants are to be offered together and in definitive form - Each Warrant
Certificate included in such a unit shall evidence [__________] Warrants for
each [$_____ principal amount of] [__________] Offered Securities included in
such unit.] [If Warrants are to be offered separately and in definitive form -
Each Warrant Certificate shall evidence [__________] Warrants.]
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates.
(a) One or more Warrant Certificates evidencing Warrants to purchase not
more than [______] [$_______ in aggregate principal amount of] Warrant
Securities (except as provided in Sections 1.03, 1.04 and 2.03(e)) may be
executed by the Company and delivered to the Warrant Agent upon the execution of
this Warrant Agreement or from time to time thereafter.
(b) Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement. [If Warrants are issued in Book-Entry form - Each
Global Warrant Certificate shall bear such legend or legends as may be required
by the Depository in order for it to accept the Warrants for its book-entry
settlement system.] Each Warrant Certificate shall be printed, lithographed,
typewritten, mimeographed or engraved on steel engraved borders or otherwise
reproduced in any other manner as may be approved by the officers executing the
same (such execution to be conclusive evidence of such approval) and may have
such letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or
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engraved thereon as the officers of the Company executing the same may approve
(such execution to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto, or
with any regulation of any stock exchange on which the Warrants [If Securities
and Warrants are to be offered together - , the Offered Securities] or the
Warrant Securities may be listed, or to conform to usage. Each Warrant
Certificate shall be signed on behalf of the Company by its Chairman of the
Board, President or any Executive or Senior Vice President. The signature of any
such officer on any Warrant Certificate may be manual or facsimile. Each Warrant
Certificate, when so signed on behalf of the Company, shall be delivered to the
Warrant Agent together with an order for the countersignature and delivery of
such Warrants.
(c) The Warrant Agent shall, upon receipt of any Warrant Certificate duly
executed on behalf of the Company, countersign such Warrant Certificate and
deliver such Warrant Certificate to or upon the order of the Company. Each
Warrant Certificate shall be dated the date of its countersignature.
(d) No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby may be exercised, unless such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the Warrant
Agent upon any Warrant Certificate executed by the Company shall be conclusive
evidence that such Warrant Certificate has been duly issued under the terms of
this Agreement.
(e) If any officer of the Company who has signed any Warrant Certificate
either manually or by facsimile signature shall cease to be such officer before
such Warrant Certificate shall have been countersigned and delivered by the
Warrant Agent, such Warrant Certificate nevertheless may be countersigned and
delivered as though the person who signed such Warrant Certificate had not
ceased to be such officer of the Company; and any Warrant Certificate may be
signed on behalf of the Company by such persons as, at the actual date of the
execution of such Warrant Certificate, shall be the proper officers of the
Company as specified in this Section 1.02, regardless of whether at the date of
the execution of this Agreement any such person was such officer.
(f) The Holders shall [If Warrants are to be issued in Book-Entry form - ,
except as stated below with respect to Warrants evidenced by a Global Warrant
Certificate,] be entitled to receive Warrants in physical, certificated form.
[If Warrants are to be issued in Book-Entry form - (g) A Global Warrant
Certificate may be exchanged for a new Global Warrant Certificate, or one or
more new Global Warrant Certificates may be issued, to reflect the issuance by
the Company of additional Warrants. To effect such an exchange, the Company
shall deliver to the Warrant Agent one or more new Global Warrant Certificates
duly executed on behalf of the Company as provided in Section 1.02. The Warrant
Agent shall authenticate each new Global Warrant Certificate as provided in
Section 1.02 and shall deliver each new Global Warrant Certificate to the
Depository. The Warrant Agent shall cancel each Global Warrant Certificate
delivered to it by the Depository in exchange therefor, if any.]
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SECTION 1.03. Transfer of Warrants.
(a) [If Warrants are to be issued in Book-Entry form - [All] [A portion] of
the Warrants shall initially be represented by one or more Global Warrant
Certificates deposited with [the Depository Trust Company] (the "Depository")
and registered in the name of [Cede & Co.], a nominee of the Depository. The
Depository, or such other entity as is agreed to by the Depository, may hold
each Global Warrant Certificate as custodian for Depository. Except as provided
for in Section 1.03(b) hereof, no person acquiring Warrants traded on any
securities exchange with book-entry settlement through the Depository shall
receive or be entitled to receive physical delivery of definitive Warrant
Certificates evidencing such Warrants. Ownership of beneficial interests in the
Warrants shall be shown on, and the transfer of such ownership shall be effected
through, records maintained by (i) the Depository or its nominee for each Global
Warrant Certificate, or (ii) institutions that have accounts with the Depository
(such institution, with respect to a Warrant in its account, a "Participant").]
(b) [If Warrants are to be issued in Book-Entry form - If the Depository
subsequently ceases to make its book-entry settlement system available for the
Warrants, the Company may instruct the Warrant Agent regarding making other
arrangements for book-entry settlement. In the event that the receipts are not
eligible for, or it is no longer necessary to have the Warrants available in,
book-entry form, the Warrant Agent shall provide written instructions to the
Depository to deliver to the Warrant Agent f or cancellation each Global Warrant
Certificate, and the Company shall instruct the Warrant Agent to deliver to the
Depository definitive Warrant Certificates in physical form evidencing such
Warrants. Such definitive Warrant Certificates shall be in the form annexed
hereto as Exhibit A with appropriate insertions, modifications and omissions, as
provided above.]
(c) [If Securities and Warrants are to be offered together - [If Warrants
are not immediately detachable - Prior to the Detachment Date,] Warrants may be
transferred or exchanged only together with the Offered Security to which such
Warrant is attached, and only for the purpose of effecting, or in conjunction
with, a transfer or exchange of such Offered Security. Furthermore, [If Warrants
are not immediately detachable - on or prior to the Detachment Date,] each
transfer of an Offered Security on the register relating to such Offered
Securities shall operate also to transfer the Warrants to which such Offered
Security was initially attached. [If Warrants are not immediately detachable -
From and after the Detachment Date, the above provisions shall be of no further
force and effect.]
(d) A Warrant Certificate may be transferred at the option of the Holder
thereof upon surrender of such Warrant Certificate at the corporate trust office
of the Warrant Agent, properly endorsed or accompanied by appropriate
instruments of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent [If Warrants are to be issued
in Book-Entry form - ; provided, however, that except as otherwise provided
herein or in any Global Warrant Certificate, each Global Warrant Certificate may
be transferred only in whole and only to the Depository, to another nominee of
the Depository, to a successor depository, or to a nominee of a successor
depository]. Upon any such registration of transfer, the Company shall execute,
and the Warrant Agent shall countersign and deliver, as provided in Section
1.02, in the name of the designated transferee a new Warrant Certificate or
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Warrant Certificates of any authorized denomination evidencing in the aggregate
a like number of unexercised Warrants.
(e) [If Warrants are not immediately detachable - After the Detachment
Date,] Upon surrender at the corporate office of the Warrant Agent, properly
endorsed or accompanied by appropriate instruments of transfer and written
instructions for such exchange, all in form satisfactory to the Company and the
Warrant Agent, one or more Warrant Certificates may be exchanged for one or more
Warrant Certificates in any other authorized denominations; provided that such
new Warrant Certificate(s) evidence the same aggregate number of Warrants as the
Warrant Certificate(s) so surrendered. Upon any such surrender for exchange, the
Company shall execute, and the Warrant Agent shall countersign and deliver, as
provided in Section 1.02, in the name of the Holder of such Warrant
Certificates, the new Warrant Certificates.
(f) The Warrant Agent shall keep, at its corporate trust office, books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates in accordance with Section 1.02 and transfers,
exchanges, exercises and cancellations of outstanding Warrant Certificates.
Whenever any Warrant Certificates are surrendered for transfer or exchange in
accordance with this Section 1.03, an authorized officer of the Warrant Agent
shall manually countersign and deliver the Warrant Certificates which the Holder
making the transfer or exchange is entitled to receive.
(g) No service charge shall be made for any transfer or exchange of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in
connection with any such transfer or exchange.
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
Upon receipt by the Company and the Warrant Agent of evidence satisfactory to
them of the ownership of and the loss, theft, destruction or mutilation of any
Warrant Certificate and of indemnity satisfactory to them and, in the case of
mutilation, upon surrender of such Warrant Certificate to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost,
stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and for a like number of Warrants. No service charge shall be
made for any replacement of Warrant Certificates, but the Company may require
the payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange. To
the extent permitted under applicable law, the provisions of this Section 1.04
are exclusive with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates and shall preclude any and all other rights or
remedies.
SECTION 1.05. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered to the Warrant Agent for transfer, exchange or exercise of the
Warrants evidenced thereby shall be promptly canceled by the Warrant Agent and
shall not be reissued and, except as expressly permitted by this Agreement, no
Warrant Certificate shall be issued
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hereunder in lieu thereof. The Warrant Agent shall deliver to the Company from
time to time or otherwise dispose of canceled Warrant Certificates in a manner
satisfactory to the Company. Any Warrant Certificate surrendered to the Company
for transfer, exchange or exercise of the Warrants evidenced thereby shall be
promptly delivered to the Warrant Agent and such transfer, exchange or exercise
shall not be effective until such Warrant Certificate has been received by the
Warrant Agent.
SECTION 1.06. Treatment of Holders [If Warrants are to be Issued in
Book-Entry Form - and Beneficial Owners] of Warrant Certificates. (a) The term
"Holder", as used herein, shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose [If Securities and Warrants that are not
immediately detachable are offered - or, prior to the Detachment Date, the
person in whose name the Offered Security to which such Warrant Certificate was
initially attached is registered upon the register relating to such Offered
Securities. At all times prior to the Detachment Date, the Company will, or will
cause the registrar of the Offered Securities to, make available to the Warrant
Agent such information as to holders of the Offered Securities as may be
necessary to keep the Warrant Agent's records current]. [If Warrants are to be
issued in Book-Entry form - The Holder of each Global Warrant Certificate shall
initially be [Cede & Co.], a nominee of the Depository.]
(a) [If Warrants are to be issued in Book-Entry Form - The term "Beneficial
Owner" as used herein shall mean any person in whose name ownership of
beneficial interests in Warrants evidenced by a Global Warrant Certificate is
recorded in the records maintained by the Depository or its nominee, or by a
Participant [If Securities and Warrants that are not immediately detachable are
offered - , or, prior to the Detachment Date, the person in whose name the
Offered Security to which such Warrant Certificate was initially attached is
registered upon the register relating to such Offered Securities].]
(b) Every Holder [If Warrants are to be issued in Book-Entry form - and
every Beneficial Owner] consents and agrees with the Company, the Warrant Agent
and with every subsequent Holder [If Warrants are to be issued in Book-Entry
form - and Beneficial Owner] that until the Warrant Certificate is transferred
on the books of the Warrant Agent, the Company and the Warrant Agent may treat
the registered Holder of such Warrant Certificate as the absolute owner of the
Warrants evidenced thereby for any purpose and as the person entitled to
exercise the rights attaching to the Warrants evidenced thereby, any notice to
the contrary notwithstanding.
ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Exercise Price. The exercise price of each Warrant shall be
$________ (the "Exercise Price") [modify as appropriate to reflect terms of
offered Warrants].
SECTION 2.02. Duration of Warrants. [Subject to the limitations set forth
herein,] Each Warrant may be exercised in whole but not in part [Unless Warrants
may be
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exercised on only one date: on any Business Day (as defined below) occurring
during the period (the "Exercise Period") commencing on [its date of issuance]
[________ __, ___] and ending at 5:00 P.M., New York time,] on __________ , ____
(the "Expiration Date") . Each Warrant remaining unexercised after 5:00 P.M.,
New York time, on the Expiration Date shall become void, and all rights of the
Holder under this Agreement shall cease.
As used herein, the term "Business Day" means any day which is not a
Saturday or Sunday and is not a legal holiday or a day on which banking
institutions generally are authorized or obligated by law or regulation to close
in New York and Ohio.
SECTION 2.03. Exercise of Warrants.
(a) A Holder may exercise a Warrant by delivering, not later than 5:00
P.M., New York time, on [Unless Warrants may be exercised on only one date: any
Business Day during the Exercise Period (the "Exercise Date")] [If Warrants may
be exercised on only one date - the Expiration Date] to the Warrant Agent at its
corporate trust department (i) the Warrant Certificate evidencing the Warrants
to be exercised, [If Warrants are to be issued in Book-Entry form - and, in the
case of a Global Warrant Certificate, the Warrants to be exercised (the
"Book-Entry Warrants") free on the records of the Depository to an account of
the Warrant Agent at the Depository designated for such purpose in writing by
the Warrant Agent to the Depository from time to time,] (ii) an election to
purchase the Warrant Securities ("Election to Purchase"), properly completed and
executed by the Holder on the reverse of the Warrant Certificate [If Warrants
are to be issued in Book-Entry form - or, in the case of a Global Warrant
Certificate, properly executed by the Participant and substantially in the form
included on the reverse of each Warrant Certificate,] and (iii) the Exercise
Price for each Warrant to be exercised in lawful money of the United States of
America by certified or official bank check or by bank wire transfer in
immediately available funds. If any of (a) the Warrant Certificate [If Warrants
are to be issued in Book-Entry form - or the Book-Entry Warrants,] (b) the
Election to Purchase, or (c) the Exercise Price therefor, is received by the
Warrant Agent after 5:00 P.M., New York time, on [Unless Warrants may be
exercised on only one date: the specified Exercise Date, the Warrants will be
deemed to be received and exercised on the Business Day next succeeding the
Exercise Date. It the date specified as the Exercise Date is not a Business Day,
the Warrants will be deemed to be received and exercised on the next succeeding
day which is a Business Day. If the Warrants are received or deemed to be
received after] the Expiration Date, the exercise thereof will be null and void
and any funds delivered to the Warrant Agent will be returned to the Holder [If
Warrants are to be issued in Book-Entry form - or Participant, as the case may
be,] as soon as practicable. In no event will interest accrue on funds deposited
with the Warrant Agent in respect of an exercise or attempted exercise of
Warrants. The validity of any exercise of Warrants will be determined by the
Warrant Agent in its sole discretion and such determination will be final and
binding upon the Holder and the Company. Neither the Company nor the Warrant
Agent shall have any obligation to inform a Holder of the invalidity of any
exercise of Warrants. The Warrant Agent shall deposit all funds received by it
in payment of the Exercise Price in the account of the Company maintained with
the Warrant Agent for such purpose and shall advise the Company by telephone at
the end of each day on which funds for the exercise of the Warrants are received
of the amount so deposited to its account. The Warrant Agent shall promptly
confirm such telephonic advice to the Company in writing.
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(b) The Warrant Agent shall, by 11:00 A.M. on the Business Day following
the [Unless Warrants may be exercised on only one date: Exercise Date of any
Warrant] [If Warrants may be exercised on only one date - Expiration Date],
advise the Company and the [Trustee under the Indenture applicable to] [the
transfer agent and registrar in respect of] the Warrant Securities issuable upon
such exercise as to the number of Warrants exercised in accordance with the
terms and conditions of this Agreement, the instructions of each Holder [If
Warrants are to be issued in Book-entry Form - or Participant, as the case may
be,] with respect to delivery of the Warrant Securities issuable upon such
exercise, and the delivery of definitive Warrant Certificates [If Warrants are
to be issued in Book-Entry form - or one or more Global Warrant Certificates, as
appropriate,] evidencing the balance, if any, of the Warrants remaining after
such exercise, and such other information as the Company or such [Trustee]
[transfer agent and registrar] shall reasonably require.
(c) The Company shall, by 5:00 P.M., New York time, on the third Business
Day next succeeding the [Unless Warrants may be exercised on only one date:
Exercise Date of any Warrant] [If Warrants may be exercised on only one date -
Expiration Date] , execute, issue and deliver to the Warrant Agent, [pursuant to
the Indenture applicable to the Warrant Securities, the Warrant Securities, duly
authenticated by the Trustee of such Indenture and in authorized denominations]
[the Warrant Securities] to which such Holder is entitled, in fully registered
form, registered in such name or names as may be directed by such Holder [If
Warrants are to be issued in Book-Entry form - or the Participant, as the case
may be] . Upon receipt of such Warrant Securities, the Warrant Agent shall, by
5:00 P.M., New York time, on the fifth Business Day next succeeding [Unless
Warrants may be exercised on only one date: such Exercise Date] [If Warrants may
be exercised on only one date - the Expiration Date], transmit such Warrant
Securities, to or upon the order of the Holder [If Warrants are to be issued in
Book-Entry form - or Participant, as the case may be,] together with, or
preceded by the prospectus referred to in Section 5.06 hereof. The Company
agrees that it will provide such information and documents to the Warrant Agent
as may be necessary for the Warrant Agent to fulfill its obligations hereunder.
(d) The accrual of [interest] [dividends], if any, on the Warrant
Securities issued upon the valid exercise of any Warrant will be governed by the
terms of the applicable [Indenture] [articles of amendment] and such Warrant
Securities. From and after the issuance of such Warrant Securities, the former
Holder of the Warrants exercised will be entitled to the benefits of the
[Indenture] [articles of amendment] under which such Warrant Securities are
issued and such former Holder's right to receive payments of [principal of (and
premium, if any) and interest, if any, on] [dividends and any other amounts
payable in respect of] the Warrant Securities shall be governed by, and shall be
subject to, the terms and provisions of such [Indenture] [articles of amendment]
and the Warrant Securities.
Warrants may be exercised only in whole numbers of Warrants. [Unless
Warrants may be exercised on only one date: If fewer than all of the Warrants
evidenced by a Warrant Certificate are exercised, a new Warrant Certificate for
the number of Warrants remaining unexercised shall be executed by the Company
and countersigned by the Warrant Agent as provided in Section 1.02 hereof, and
delivered to the Holder at the address specified on the books of the Warrant
Agent or as otherwise specified by such Holder.]
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(e) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities; and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Securities until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
[If Warrants for Common Stock are offered - SECTION 2.04. Adjustment Under
Certain Circumstances. The Exercise Price and the number of Warrant Securities
purchasable upon the exercise of each Warrant shall be subject to adjustment
upon (i) the issuance of a stock dividend to the holders of the outstanding
shares of Warrant Securities or a combination, subdivision or reclassification
of the Warrant Securities; (ii) the issuance of rights, warrants or options to
all holders of the Warrant Securities entitling the holders thereof to purchase
Warrant Securities for an aggregate consideration per share less than the
current market price per share of the Warrant Securities; or (iii) any
distribution by the Company to the holders of the Warrant Securities of
evidences of indebtedness of the Company or of assets (excluding cash dividends
or distributions payable out of consolidated earnings and earned surplus and
dividends or distributions referred to in (i) above); provided that no such
adjustment in the number of Warrant Securities purchasable upon exercise of the
Warrants will be required until cumulative adjustments require an adjustment of
at least 1% of such number. No fractional shares will be issued upon exercise of
Warrants, but the Company will pay the cash value of any fractional shares
otherwise issuable. The adjustments to be made under this Section 2.03 shall be
determined by the Warrant Agent and such determination shall be final and
binding upon the Holders and the Company.]
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
[If Warrants are to be issued in Book-Entry Form -
AND BENEFICIAL OWNERS] OF WARRANTS
SECTION 3.01. No Rights as Holders of Warrant Securities Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the Holder thereof to any of the rights of a holder of any
Warrant Securities, including, without limitation, [the right to receive the
payments of principal of (and premium, if any) and interest, if any, on Debt
Securities purchasable upon such exercise or to enforce any of the covenants in
the Indenture] [the right to receive dividends, if any, or payments upon the
liquidation, dissolution or winding up of the Company or to exercise voting
rights, if any].
SECTION 3.02. Holder [If Warrants are to be issued in Book-Entry Form - and
Beneficial Owner] of Warrant May Enforce Rights. Notwithstanding any of the
provisions of this Agreement, any Holder [If Warrants are to be issued in
Book-Entry form - and any Beneficial Owner] of any Warrant, without the consent
of the Warrant Agent or the Holder of any Warrant, may, on such Holder's [If
Warrants are to be issued in Book-Entry form - or Beneficial Owner's] own behalf
and for his own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise in respect
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of, such Holder's [If Warrants are to be issued in Book-Entry form - or
Beneficial Owner's] right to exercise the Warrants evidenced by any Warrant
Certificate in the manner provided in this Agreement and such Warrant
Certificate.
ARTICLE IV
CONCERNING THE WARRANT AGENT
SECTION 4.01. Warrant Agent. The Company hereby appoints [Name of Warrant
Agent] as Warrant Agent of the Company in respect of the Warrants upon the terms
and subject to the conditions herein set forth, and [Name of Warrant Agent]
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it hereby and such further powers and
authority to act on behalf of the Company as the Company may hereafter grant to
or confer upon it.
SECTION 4.02. Limitations on Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the Holders from time to time shall be subject:
(a) Compensation and Indemnification. The Company agrees to pay the
Warrant Agent compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent
for all reasonable out-of-pocket expenses (including reasonable counsel
fees) incurred by the Warrant Agent in connection with the services
rendered by it hereunder. The Company also agrees to indemnify the Warrant
Agent for, and to hold it harmless against, any loss, liability or expense
incurred without negligence, bad faith or breach of this Agreement on the
part of the Warrant Agent, arising out of or in connection with its acting
as Warrant Agent hereunder.
(b) Agent for the Company. In acting in the capacity of Warrant Agent
under this Agreement, the Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or relationship of agency or
trust with any of the owners or holders of the Warrants except as expressly
set forth herein.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it (which may be counsel to the Company), and the advice of such counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
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(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest
in, any Warrant, with the same rights that it or they would have were it
not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as a depositary, trustee or
agent for, any committee or body of holders of Warrants [If Securities and
Warrants are being offered together - , Offered Securities] or Warrant
Securities, or other securities or obligations of the Company as freely as
if it were not the Warrant Agent hereunder. Nothing in this Agreement shall
be deemed to prevent the Warrant Agent from acting as trustee under either
Indenture.
(f) No Liability for Interest. The Warrant Agent shall not be under
any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement.
(g) No Liability for Invalidity. The Warrant Agent shall not be under
any responsibility with respect to the validity or sufficiency of this
Agreement or the execution and delivery hereof (except the due execution
and delivery hereof by the Warrant Agent) or with respect to the validity
or execution of the Warrant Certificates (except its countersignature
thereon)
(h) No Responsibility for Recitals. The recitals contained herein and
in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon) shall be taken as the statements of the Company
and the Warrant Agent assumes no responsibility hereby for the correctness
of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform such duties as are specifically set forth herein and no implied
duties or obligations shall be read into this Agreement against the Warrant
Agent. The Warrant Agent shall not be under any obligation to take any
action hereunder which may tend to involve it in any expense or liability,
the payment of which within a reasonable time is not, in its opinion,
assured to it. The Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any Warrant Certificate
authenticated by the Warrant Agent and delivered by it to the Company
pursuant to this Agreement or for the application by the Company of the
proceeds of the issue and sale, or exercise, of the Warrants. The Warrant
Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein
or in any Warrant Certificate or in the case of the receipt of any written
demand from a Holder with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or,
except as provided in Section 5.03 hereof, to make any demand upon the
Company.
SECTION 4.03. Compliance With Applicable Laws. The Warrant Agent agrees to
comply with all applicable federal and state laws imposing obligations on it in
respect of the services rendered by it under this Agreement and in connection
with the Warrants, including (but not limited to) the provisions of United
States federal income tax laws regarding
-11-
information reporting and backup withholding. The Warrant Agent expressly
assumes all liability for its failure to comply with any such laws imposing
obligations on it, including (but not limited to) any liability for its failure
to comply with any applicable provisions of United States federal income tax
laws regarding information reporting and backup withholding.
SECTION 4.04. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the Holders from time to time,
that there shall at all times be a Warrant Agent hereunder until all the
Warrants issued hereunder have been exercised or have expired in accordance with
their terms, which Warrant Agent shall be a bank or trust company organized
under the laws of the United States of America or one of the states thereof,
which is authorized under the laws of the jurisdiction of its organization to
exercise corporate trust powers, has a combined capital and surplus of at least
$50,000,000 and has an office or an agent's office in the United States of
America.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which it desires such resignation to become effective; provided that such
date shall not be less than three months after the date on which such notice is
given, unless the Company agrees to accept such notice less than three months
prior to such date of effectiveness. The Company may remove the Warrant Agent at
any time by giving written notice to the Warrant Agent of such removal,
specifying the date on which it desires such removal to become effective. Such
resignation or removal shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company qualified as set forth in Section 4.04(a)) and the acceptance of
such appointment by such successor Warrant Agent. The obligation of the Company
under Section 4.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall cease to be
qualified as set forth in Section 4.04(a), or shall be removed, or shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or shall file
a petition seeking relief under any applicable Federal or State bankruptcy or
insolvency law or similar law, or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver, conservator or custodian
of all or any substantial part of its property, or shall admit in writing its
inability to pay or to meet its debts as they mature, or if a receiver or
custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the provisions of any applicable Federal or State bankruptcy or similar
law, or if any public officer shall have taken charge or control of the Warrant
Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified as set forth
in Section 4.04(a), shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment as herein
provided of a successor Warrant Agent and acceptance by the latter of such
appointment, the Warrant Agent so superseded shall cease to be Warrant Agent
under this Agreement.
(d) Any successor Warrant Agent appointed under this Agreement shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument
-12-
accepting such appointment, and thereupon such successor Warrant Agent, without
any further act, deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of such predecessor
with like effect as if originally named as Warrant Agent under this Agreement,
and such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all monies, securities and
other property on deposit with or held by such predecessor, as Warrant Agent
under this Agreement.
(e) Any corporation into which the Warrant Agent may be merged or converted
or any corporation with which the Warrant Agent may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Warrant Agent shall be a party, or any corporation to which the Warrant Agent
shall sell or otherwise transfer all or substantially all the assets and
business of the Warrant Agent, in each case provided that it shall be qualified
as set forth in Section 4.04(a), shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement, including, without limitation, any
successor to the Warrant Agent first named above.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendments.
(a) This Agreement and any Warrant Certificate may be amended by the
parties hereto by executing a supplemental warrant agreement (a "Supplemental
Agreement"), without the consent of the Holder of any Warrant, for the purpose
of (i) curing any ambiguity, or curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement that is not
inconsistent with the provisions of this Agreement or the Warrant Certificates,
(ii) evidencing the succession of another corporation to the Company and the
assumption by any such successor of the covenants of the Company contained in
this Warrant Agreement and the Warrants, (iii) evidencing and providing for the
acceptance of appointment by a successor Warrant Agent with respect to the
Warrants, [If Warrants are to be issued in Book-Entry form - (iv) evidencing and
providing for the acceptance of appointment by a successor Depository with
respect to each Global Warrant Certificate, (v) issuing definitive Warrant
Certificates in accordance with paragraph (b) of Section 1.03,] (vi) adding to
the covenants of the Company for the benefit of the Holders or surrendering any
right or power conferred upon the Company under this Agreement, or (vii)
amending this Agreement and the Warrants in any manner that the Company may deem
to be necessary or desirable and that will not adversely affect the interests of
the Holders in any material respect.
(b) The Company and the Warrant Agent may amend this Agreement and the
Warrants by executing a Supplemental Agreement with the consent of the Holders
of not fewer than a majority of the unexercised Warrants affected by such
amendment, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this
-13-
Agreement or of modifying in any manner the rights of the Holders under this
Agreement; provided, however, that, without the consent of each Holder of
Warrants affected thereby, no such amendment may be made that (i) changes the
Warrants so as to reduce the [principal amount] [number] of Warrant Securities
purchasable upon exercise of the Warrants or so as to increase the exercise
price [If Warrants for Common Stock are offered - (other than as provided by
Section 2.03)], (ii) shortens the period of time during which the Warrants may
be exercised, (iii) otherwise adversely affects the exercise rights of the
Holders in any material respect, or (iv) reduces the number of unexercised
Warrants the consent of the Holders of which is required for amendment of this
Agreement or the Warrants.
SECTION 5.02. Merger, Consolidation, Sale, Transfer or Conveyance. The
Company may consolidate or merge with or into any other corporation or sell,
lease, transfer or convey all or substantially all of its assets to any other
corporation, provided that (i) either (x) the Company is the continuing
corporation or (y) the corporation (if other than the Company) that is formed by
or results from any such consolidation or merger or that receives such assets is
a corporation organized and existing under the laws of the United States of
America or a state thereof and such corporation assumes the obligations of the
Company with respect to the performance and observance of all of the covenants
and conditions of this Agreement to be performed or observed by the Company and
(ii) the Company or such successor corporation, as the case may be, must not
immediately be in default under this Agreement. If at any time there shall be
any consolidation or merger or any sale, lease, transfer, conveyance or other
disposition of all or substantially all of the assets of the Company, then in
any such event the successor or assuming corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
and in the Warrant Certificates as the Company; the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and, in the
event of any such sale, lease, transfer, conveyance (other than by way of lease)
or other disposition, the Company as the predecessor corporation may thereupon
or at any time thereafter be dissolved, wound up or liquidated. Such successor
or assuming corporation thereupon may cause to be signed, and may issue either
in its own name or in the name of the Company, Warrant Certificates evidencing
the Warrants not theretofore exercised, in exchange and substitution for the
Warrant Certificates theretofore issued. Such Warrant Certificates shall in all
respects have the same legal rank and benefit under this Agreement as the
Warrant Certificates evidencing the Warrants theretofore issued in accordance
with the terms of this Agreement as though such new Warrant Certificates had
been issued at the date of the execution hereof. In any case of any such merger
or consolidation or sale, lease, transfer, conveyance or other disposition of
all or substantially all of the assets of the Company, such changes in
phraseology and form (but not in substance) may be made in the new Warrant
Certificates, as may be appropriate.
SECTION 5.03. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by the
Holder [If Warrants are to be issued in Book-Entry form - or a Participant, as
the case may be], the Warrant Agent shall promptly forward such notice or demand
to the Company.
SECTION 5.04. Addresses. Any communications from the Company to the Warrant
Agent with respect to this Agreement shall be addressed to __________,
Attention: ____________, and any communications from the Warrant Agent to the
Company with respect
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to this Agreement shall be addressed to Fifth Third Bancorp, Fifth Third Center,
ββ ββββββββ ββββββ βββββ, ββββββββββ, ββββ βββββ, Attention: General Counsel (or
such other address as shall be specified in writing by the Warrant Agent or by
the Company, as the case may be) . The Company or the Warrant Agent shall give
notice to the Holders of Warrants by mailing written notice by first class mail,
postage prepaid, to such Holders as their names and addresses appear in the
books and records of the Warrant Agent [or, prior to the Detachment Date, on the
register of the Offered Securities]
SECTION 5.05. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT CERTIFICATE
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
SECTION 5.06. Delivery of Prospectus. The Company shall furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants and complying in all material
respects with the Securities Act of 1933, as amended (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
shall deliver a Prospectus to the Holder of such Warrant, prior to or
concurrently with the delivery of the Warrant Securities issued upon such
exercise.
SECTION 5.07. Obtaining of Governmental Approvals. The Company shall from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States Federal and state
laws, which the Company may deem necessary or appropriate in connection with the
issuance, sale, transfer and delivery of the Warrants, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Securities to
be issued upon exercise of Warrants or upon the expiration of the period during
which the Warrants are exercisable.
SECTION 5.08. Payment of Taxes. The Company will pay all stamp and other
duties, if any, to which, under the laws of the United States of America, this
Agreement or the original issuance of the Warrants may be subject.
SECTION 5.09. Benefits of Warrant Agreement. Nothing in this Agreement or
any Warrant Certificate expressed or implied and nothing that may be inferred
from any of the provisions hereof or thereof is intended, or shall be construed,
to confer upon, or give to, any person or corporation other than the Company,
the Warrant Agent and their respective successors and assigns, [If Warrants are
to be issued in Book-Entry form - the Beneficial Owners] and the Holders any
right, remedy or claim under or by reason of this Agreement or any Warrant
Certificate or of any covenant, condition, stipulation, promise or agreement
hereof or thereof; and all covenants, conditions, stipulations, promises and
agreements contained in this Agreement or any Warrant Certificate shall be for
the sole and exclusive benefit of the Company and the Warrant Agent and their
respective successors and assigns and of the [If Warrants are to be issued in
Book-Entry form - Beneficial Owners and] Holders.
-15-
SECTION 5.10. Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 5.11. Severability. If any provision in this Agreement or in any
Warrant Certificate shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions, or of such provisions in any other jurisdiction, shall not in any
way be affected or impaired thereby.
SECTION 5.12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 5.13. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of the
Warrant Agent and at the office of the Company at Fifth Third Center, ββ
ββββββββ ββββββ βββββ, ββββββββββ, ββββ βββββ, for inspection by any Holder. The
Warrant Agent may require any such Holder to submit satisfactory proof of
ownership for inspection by it.
-16-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FIFTH THIRD BANCORP
By:_____________________________
Authorized Officer
[WARRANT AGENT]
By:_____________________________
Authorized Officer
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Form of legend if Securities with Warrants that are not immediately detachable
or Warrants that are not immediately exercisable are offered: [PRIOR TO
_____________,] THIS WARRANT CERTIFICATE [(i) CANNOT BE TRANSFERRED OR EXCHANGED
UNLESS ATTACHED TO A [TITLE OF OFFERED SECURITY] AND (II)] CANNOT BE EXERCISED
IN WHOLE OR IN PART.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
Warrant Certificate evidencing
Warrants to Purchase
[Title of Warrant Securities]
as described herein.
FIFTH THIRD BANCORP
No. ________ CUSIP No. _____________
VOID AFTER [5:00 P.M.], NEW YORK TIME, ON ______ ___, ____
This certifies that ____________________________ or registered assigns is
the registered holder of [Insert number initially issued] warrants to purchase
certain securities (the "Warrants). Each Warrant entitles the holder thereof,
subject to the provisions contained herein and in the Warrant Agreement referred
to below, to purchase from FIFTH THIRD BANCORP, an Ohio corporation (the
"Company"), [$_________ principal amount] [____] of the Company's [title of
Securities purchasable upon exercise of Warrants] [If Warrants for Depositary
Shares are to be offered: , each representing a 1/___th interest in a share of
[title of securities represented by the Depositary Shares]] (the "Warrant
Securities" [If Warrants for Depositary Shares are to be offered: , which term
shall also refer, as appropriate, to such [title of securities represented by
the Depositary Shares]), [issued or to be issued under the Indenture (as
hereinafter defined)], at the Exercise Price set forth below. The exercise price
of each Warrant (the "Exercise Price") shall be [modify as appropriate to
reflect the terms of the offered Warrants]
A-1
Subject to the terms of the Warrant Agreement, each Warrant evidenced
hereby may be exercised in whole but not in part at any time, as specified
herein, [Unless Warrants may be exercised on only one date: on any Business Day
(as defined below) occurring during the period (the "Exercise Period")
commencing on [the date of issuance thereof] [_______________ ___, ____] and
ending at 5:00 P.M., New York time,] on __________ __, ___ (the "Expiration
Date"). Each Warrant remaining unexercised after 5:00 P.M., New York time, on
the Expiration Date shall become void, and all rights of the holder of this
Warrant Certificate evidencing such Warrant shall cease.
The holder of the Warrants represented by this Warrant Certificate may
exercise any Warrant evidenced hereby by delivering, not later than 5:00 P.M.,
New York time, on [Unless Warrants may be exercised on only one date: any
Business Day during the Exercise Period (the "Exercise Date")] [If Warrants may
be exercised on only one date: the Expiration Date] to [name of Warrant Agent]
(the "Warrant Agent", which term includes any successor warrant agent under the
Warrant Agreement described below) at its corporate trust department at
___________________, (i) this Warrant Certificate [For Global Warrant
Certificate: and the Warrants to be exercised (the "Book-Entry Warrants") free
on the records of [The Depository Trust Company] (the "Depository") to an
account of the Warrant Agent at the Depository designated for such purpose in
writing by the Warrant Agent to the Depository], (ii) an election to purchase
("Election to Purchase"), [For definitive Warrant Certificates: properly
executed by the holder hereof on the reverse of this Warrant Certificate] [For
Global Warrant Certificates: properly executed by the institution in whose
account the Warrant is recorded on the records of the Depository (the
"Participant"), and substantially in the form included on the reverse of hereof]
and (iii) the Exercise Price for each Warrant to be exercised in lawful money of
the United States of America by certified or official bank check or by bank wire
transfer in immediately available funds. If any of (a) this Warrant Certificate
[For Global Warrant Certificates: or the Book-Entry Warrants] , (b) the Election
to Purchase, or (c) the Exercise Price therefor, is received by the Warrant
Agent after 5:00 P.M., New York time, on [Unless Warrants may be exercised on
only one date: the specified Exercise Date, the Warrants will be deemed to be
received and exercised on the Business Day next succeeding the Exercise Date. If
the date specified as the Exercise Date is not a Business Day, the Warrants will
be deemed to be received and exercised on the next succeeding day which is a
Business Day. If the Warrants to be exercised are received or deemed to be
received after] the Expiration Date, the exercise thereof will be null and void
and any funds delivered to the Warrant Agent will be returned to the holder as
soon as practicable. In no event will interest accrue on funds deposited with
the Warrant Agent in respect of an exercise or attempted exercise of Warrants.
The validity of any exercise of Warrants will be determined by the Warrant Agent
in its sole discretion and such determination will be final and binding upon the
holder of the Warrants and the Company. Neither the Warrant Agent nor the
Company shall have any obligation to inform a holder of
A-2
Warrants of the invalidity of any exercise of Warrants. As used herein, the term
"Business Day" means any day which is not a Saturday or Sunday and is not a
legal holiday or a day on which banking institutions generally are authorized or
obligated by law or regulation to close in _____________.
Warrants may be exercised only in whole numbers of Warrants. [Unless
Warrants may be exercised on only one date: If fewer than all of the Warrants
evidenced by this Warrant Certificate are exercised, a new Warrant Certificate
for the number of Warrants remaining unexercised shall be executed by the
Company and countersigned by the Warrant Agent as provided in Section 1.02 of
the Warrant Agreement, and delivered to the holder of this Warrant Certificate
at the address specified on the books of the Warrant Agent or as otherwise
specified by such registered holder.]
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement, dated as of ____________ __, ____ (the "Warrant Agreement"), between
the Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate [For Global Warrant Certificate: and the
beneficial owners of the Warrants represented by this Warrant Certificate]
consent[s] by acceptance hereof. Copies of the Warrant Agreement are on file and
can be inspected at the above-mentioned office of the Warrant Agent and at the
office of the Company at Fifth Third Center, ββ ββββββββ ββββββ βββββ,
ββββββββββ, ββββ βββββ.
[If the Warrant Securities are Debt Securities: The Warrant Securities to
be issued and delivered upon the exercise of the Warrants evidenced by this
Warrant Certificate will be issued under and in accordance with the Indenture,
dated as of _________ __, ____ (the "Indenture"), between the Company and [name
of trustee], as trustee (together with any successor or successors as such
trustee, the "Trustee"), and will be subject to the terms and provisions
contained in the Warrant Securities and in the Indenture.] The accrual of
[interest] [dividends] , if any, on the Warrant Securities issued upon the valid
exercise of any Warrant will be governed by the terms of the applicable
[Indenture] [articles of amendment] and such Warrant Securities. From and after
the issuance of such Warrant Securities, the former holder of the Warrants
exercised will be entitled to the benefits of the [Indenture] [articles of
amendment] under which such Warrant Securities are issued and such former
holder's right to receive payments of [principal of (and premium, if any) and
interest, if any, on] [dividends and any other amounts payable in respect of]
the Warrant Securities shall be governed by, and shall be subject to, the terms
and provisions of such [Indenture] [articles of amendment] and the Warrant
Securities. Copies of the [Indenture, including the form of the Warrant
Securities,] [articles of amendment] are on file at the corporate trust office
of the Trustee.]
A-3
[If Warrants for Common Stock are offered: The Exercise Price and the
number of Warrant Securities purchasable upon the exercise of each Warrant shall
be subject to adjustment upon (i) the issuance of a stock dividend to the
holders of the outstanding shares of Warrant Securities or a combination,
subdivision or reclassification of the Warrant Securities; (ii) the issuance of
rights, warrants or options to all holders of the Warrant Securities entitling
the holders thereof to purchase Warrant Securities for an aggregate
consideration per share less than the current market price per share of the
Warrant Securities; or (iii) any distribution by the Company to the holders of
the Warrant Securities of evidences of indebtedness of the Company or of assets
(excluding cash dividends or distributions payable out of consolidated earnings
and earned surplus and dividends or distributions referred to in (i) above);
provided that no such adjustment in the number of Warrant Securities purchasable
upon exercise of the Warrants will be required until cumulative adjustments
require an adjustment of at least 1% of such number. No fractional shares will
be issued upon exercise of Warrants, but the Company will pay the cash value of
any fractional shares otherwise issuable. The adjustments to be made under this
Section 2.03 shall be determined by the Warrant Agent and such determination
shall be final and binding upon the holders of the Warrants and the Company.]
[If Securities and Warrants are to be offered together: [If Warrants are
not immediately detachable: Prior to the Detachment Date,] The Warrants
represented by this Warrant Certificate may be exchanged or transferred only
together with the [title of Offered Security] (the "Offered Security") to which
the Warrants are attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security.
Additionally, [If Warrants are not immediately detachable: on or prior to the
Detachment Date,] each transfer of such Offered Security on the register of the
Offered Securities shall operate also to transfer the Warrants to which such
Offered Securities was initially attached. [If Warrants are not immediately
detachable: From and after the Detachment Date, the above provisions shall be of
no further force and effect.]] Upon due presentment for registration of transfer
or exchange of this Warrant Certificate at the corporate trust office of the
Warrant Agent, the Company shall execute, and the Warrant Agent shall
countersign and deliver, as provided in Section 1.02 of the Warrant Agreement,
in the name of the designated transferee one or more new Warrant Certificates of
any authorized denomination evidencing in the aggregate a like number of
unexercised Warrants, subject to the limitations provided in the Warrant
Agreement.
Neither this Warrant Certificate nor the Warrants evidenced hereby shall
entitle the holder hereof or thereof to any of the rights of a holder of the
Warrant Securities, including, without limitation, [the right to receive the
payments of principal of (and premium, if any), and interest, if any, on Debt
Securities purchasable upon such exercise or to enforce any of the covenants in
the applicable Indenture] [the right
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to receive dividends, if any, or payments upon the liquidation, dissolution or
winding up of the Company or to exercise voting rights, if any]
The Warrant Agreement and this Warrant Certificate may be amended as
provided in the Warrant Agreement including, under certain circumstances
described therein, without the consent of the holder of this Warrant Certificate
or the Warrants evidenced thereby.
THIS WARRANT CERTIFICATE AND ALL RIGHTS HEREUNDER AND UNDER THE WARRANT
AGREEMENT AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO
APPLICABLE CONFLICTS OF LAW PROVISIONS).
This Warrant Certificate shall not be entitled to any benefit under the
Warrant Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced hereby may be exercised, unless this Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated as of ________ __, ____
FIFTH THIRD BANCORP
By: ________________________
Authorized Officer
[NAME OF WARRANT AGENT],
as Warrant Agent
By: _________________________
Authorized Officer
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[REVERSE]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder [For Global Warrant
Certificate: or Participant] must, by 5:00 P.M., New York time, on the specified
Exercise Date, deliver to the Warrant Agent at its corporate trust department, a
certified or official bank check or a wire transfer in immediately available
funds, in each case payable to the Warrant Agent at Account No. ____, in an
amount equal to the Exercise Price in full for the Warrants exercised. In
addition, the Warrant holder [For Global Warrant Certificates: or Participant]
must provide the information required below and deliver this Warrant Certificate
to the Warrant Agent at the address set forth below [For Global Warrant
Certificates: and the Book-Entry Warrants to the Warrant Agent in its account
with the Depository designated for such purpose]. This Warrant Certificate and
the Election to Purchase must be received by the Warrant Agent by 5:00 P.M., New
York time, on the specified Exercise Date.
ELECTION TO PURCHASE
TO BE EXECUTED IF WARRANT HOLDER DESIRES
TO EXERCISE THE WARRANTS EVIDENCED HEREBY
The undersigned hereby irrevocably elects to exercise, on __________, ___
(the "Exercise Date'), _____________ Warrants, evidenced by this Warrant
Certificate, to purchase, [$_____________ principal amount] [__________________]
of the [title of Securities purchasable upon exercise of Warrants] [If Warrants
for Depositary Shares are to be offered: , each representing a 1/___th interest
in a share of [title of securities represented by the Depositary Shares]] (the
"Warrant Securities") of FIFTH THIRD BANCORP, an Ohio corporation (the
"Company"), and represents that on or before the Exercise Date such holder has
tendered payment for such Warrant Securities by certified or official bank check
or bank wire transfer in immediately available funds to the order of the Company
c/o [Name and address of Warrant Agent], in the amount of $_____________ in
accordance with the terms hereof. The undersigned requests that said [principal
amount of] [number of] Warrant Securities be in fully registered form, in the
authorized denominations, registered in such names and delivered, all as
specified in accordance with the instructions set forth below.
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[Unless Warrants may be exercised on only one date: If said [principal
amount] [number] of Warrant Securities is less than all of the Warrant
Securities purchasable hereunder, the undersigned requests that a new Warrant
Certificate evidencing the remaining balance of the Warrants evidenced hereby be
issued and delivered to the holder of the Warrant Certificate unless otherwise
specified in the instructions below.]
Dated: ____________ __, ____
Name __________________________
------------------------
(Please Print)
/ / / /- / / /- / / / / /
(Insert Social Security or Other Identifying
Number of Holder)
Address_______________________
------------------------
Signature________________________
This Warrant may only be exercised by presentation to the Warrant Agent at one
of the following locations:
By hand at
By mail at
The method of delivery of this Warrant Certificate is at the option and risk of
the exercising holder and the delivery of this Warrant Certificate will be
deemed to be made only when actually received by the Warrant Agent. If delivery
is by mail, registered mail with return receipt requested, properly insured, is
recommended. In all cases, sufficient time should be allowed to assure timely
delivery.
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(Instructions as to form and delivery of Warrant
Securities and/or Warrant Certificates)
Name in which Warrant Securities are to be registered if other than in the name
of the registered holder of this Warrant Certificate:
Address to which Warrant Securities are to be mailed if other than to the
address of the registered holder of this Warrant Certificate as shown on the
books of the Warrant Agent:
----------------------------------------
(Street Address)
----------------------------------------
(City and State) (Zip Code)
[Except for Global Warrant Certificate:]
Name in which Warrant Certificate
evidencing unexercised Warrants, if any,
are to be registered if other than in
the name of the registered holder of
this Warrant Certificate:
----------------------------------------
Address to which certificate representing unexercised Warrants, if any, are to
be mailed if other than to the address of the registered holder of this Warrant
Certificate as shown on the books of the Warrant Agent:
----------------------------------------
(Street Address)
----------------------------------------
(City and State) (Zip Code)]
Date:
----------------------------------------
Signature
([Except for Global Warrant Certificate:
Signature must conform in all respects
to the name of the holder as specified
on the face of this Warrant
Certificate.] If Warrant Securities, or
a Warrant Certificate evidencing
unexercised Warrants, are to be issued
in a name other than that of the
registered holder hereof or are to be
delivered to an address other than the
address of such holder as shown
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on the books of the Warrant Agent, the
above signature must be guaranteed by a
member firm of a registered national
stock exchange, a member of the National
Association of Securities Dealers, Inc.,
a participant in the Security Transfer
Agents Medallion Program or the Stock
Exchange Medallion Program, or by a
commercial bank or trust company having
an office or correspondent in the United
States.)
SIGNATURE GUARANTEE
Name of Firm_____________________
Address__________________________
Area Code
and Number_______________________
Authorized
Signature _________________________
Name ____________________________
Title _____________________________
Dated: ______________________, ____
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ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF WARRANT HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED_________________ hereby sells, assigns and transfers
unto ______________________________________.
___________________________________ ____________________________________
(Please print name and address (Please insert social security or
including zip code) other identifying number)
the rights represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _____________ Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
----------------------------------------
Signature
(Signature must conform in all respects
to the name of the holder as specified
on the face of this Warrant Certificate
and must bear a signature guarantee by a
member firm of a registered national
securities exchange, a member of the
National Association of Securities
Dealers, Inc., a participant in the
Security Transfer Agents Medallion
Program or the Stock Exchange Medallion
Program, or by a commercial bank or
trust company having an office or
correspondent in the United States)
SIGNATURE GUARANTEE
Name of Form_____________________
Address__________________________
Area Code
and Number_______________________
Authorized
Signature _________________________
Name ____________________________
Title _____________________________
Date: _______________________, ____
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