Common use of REPRESENTATIONS AND WARRANTIES OF FIFTH THIRD Clause in Contracts

REPRESENTATIONS AND WARRANTIES OF FIFTH THIRD. Fifth Third represents and warrants to Emerald that as of the date hereof or as of the indicated date, as appropriate: A. Fifth Third is duly incorporated, validly existing and in good standing as a corporation under the corporation laws of the State of Ohio, is a registered bank holding company under the Bank Holding Company Act of 1956, as amended, and is duly authorized to conduct the business in which it is engaged, and Fifth Third Bank, N.W., is a national banking association validly existing and in good standing as a corporation under the laws of the United States of America and is duly authorized to conduct the business in which it is engaged. B. Pursuant to Fifth Third's Second Amended Articles of Incorporation, as amended, the total number of shares of capital stock Fifth Third is authorized to have outstanding is 300,500,000 of which 300,000,000 shares are classified as Common Stock without par value ("Fifth Third Common Stock") and 500,000 shares are classified as Preferred Stock without par value. Pursuant to its Proxy Statement sent to its shareholders and filed with the SEC on February 9, 1999, Fifth Third proposed to increase the authorized number of shares from 300,000,000 shares to 500,000,000 shares. As of the close of business on February 1, 1999, 267,147,048 shares of Fifth Third Common Stock were issued and outstanding and 681,214 shares were held in its treasury. As of the date of this Agreement, no shares of its Preferred Stock have been issued. Fifth Third does not have outstanding any stock options, subscription rights, warrants or other securities entitling the holders to subscribe for or purchase any shares of its capital stock other than options granted and to be granted to employees and Directors under its stock option plans. At February 1, 1999, (a) 13,332,886 shares of Fifth Third Common Stock were reserved for issuance in connection with outstanding options granted under it stock option plans and 11,102,535 shares were reserved for issuance under options to be granted in the future, (b) 1,420,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of Ashland Bankshares, Inc., (c) 1,800,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of Enterprise Federal Bancorp, Inc., and (d) 443,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of South Florida Bank Holding Corporation. C. All shares of Fifth Third Common Stock to be received by the shareholders of Emerald as a result of the merger pursuant to the terms of this Agreement shall be, upon transfer or issuance, validly issued, fully paid and non-assessable, and will not, upon such transfer or issuance, be subject to the preemptive rights of any shareholder of Fifth Third. D. Fifth Third has furnished to Emerald Fifth Third's consolidated financial statements as at December 31, 1998, December 31, 1997 and December 31, 1996 and for the respective years then ended together with the opinions of its independent public accountants associated therewith.

REPRESENTATIONS AND WARRANTIES OF FIFTH THIRD. Fifth Third represents and warrants to Emerald Capital that as of the date hereof or as of the indicated date, as appropriate: A. Fifth Third is duly incorporated, validly existing and in good standing as a corporation under the corporation laws of the State of Ohio, is a registered bank financial services holding company under the Bank Holding Company Act of 1956, as amended, and is duly authorized to conduct the business in which it is engaged, and Fifth Third Bank, N.W.Western Ohio is duly incorporated, is a national banking association validly existing and in good standing as a corporation under the laws of the United States State of America Ohio and is duly authorized to conduct the business in which it is engaged. The outstanding shares of capital stock or other ownership interests of each direct subsidiary have been duly authorized and validly issued, are fully paid and non-assessable, and are directly owned by Fifth Third free and clear of all liens and encumbrances. All of such subsidiaries are duly authorized to conduct the business in which they are engaged, unless such failure to obtain or maintain such authorization will not have a material adverse effect on Fifth Third, as a whole. B. Pursuant to Fifth Third's Second Amended Articles of Incorporation, as amended, the total number of shares of capital stock Fifth Third it is authorized to have outstanding is 300,500,000 650,500,000 of which 300,000,000 650,000,000 shares are classified as Common Stock without par value ("Fifth Third Common Stock") Stock and 500,000 shares are classified as Preferred Stock without par value. Pursuant to its Proxy Statement sent to its shareholders and filed with the SEC on February 9, 1999, Fifth Third proposed to increase the authorized number of shares from 300,000,000 shares to 500,000,000 shares. As of the close of business on February 1September 30, 19992000, 267,147,048 461,799,811 shares of Fifth Third Common Stock were issued and outstanding and 681,214 3,600,000 shares were held in its treasury. As of the date of this Agreement, no shares of its Preferred Stock have been issued. Fifth Third does not have outstanding any stock options, subscription rights, warrants or other securities entitling the holders to subscribe for or purchase any shares of its capital stock other than options granted and to be granted to employees and Directors under its stock option plans. At February 1September 30, 19992000, (a) 13,332,886 28,788,016 shares of Fifth Third Common Stock were reserved for issuance in connection with outstanding options granted under it its stock option plans and 11,102,535 5,684,112 shares were reserved for issuance under options to be granted in the future, (b) 1,420,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of Ashland Bankshares, Inc., (c) 1,800,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of Enterprise Federal Bancorp, Inc., and (d) 443,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of South Florida Bank Holding Corporation. C. All shares of Fifth Third Common Stock to be received by the shareholders of Emerald Capital as a result of the merger pursuant to the terms of this Agreement shall be, upon transfer or issuance, validly issued, fully paid and non-assessable, and will not, upon such transfer or issuance, be subject to the preemptive rights of any shareholder of Fifth Third. D. Fifth Third has furnished to Emerald Fifth Third's Capital its audited consolidated financial statements as at of December 31, 19981999, December 31, 1997 1998 and December 31, 1996 1997 and for the respective years then ended together with the opinions of its independent public accountants associated therewith. Fifth Third has also furnished to Capital its unaudited, consolidated financial statements as of September 30, 2000 and for the three and nine month periods then ended. Such consolidated financial statements fairly present the consolidated financial condition of Fifth Third as of their respective dates and for the respective periods covered thereby in conformity with GAAP consistently followed throughout the periods covered thereby. Neither Fifth Third nor any significant subsidiaries of Fifth Third have any material liabilities, obligations or indebtedness required to be disclosed in such financial statements other than the liabilities, obligations and indebtedness disclosed in such financial statements (including footnotes). Fifth Third will continue to furnish information for subsequent calendar quarter periods to Capital as soon as such becomes publicly available until the Effective Time. E. Except for events relating to the business environment in general: (i) since September 30, 2000 to the date hereof, there have been no material adverse changes in the consolidated financial condition, operations or business of Fifth Third; (ii) the chief executive officer and the chief financial officer of Fifth Third are not aware of any events which have occurred since September 30, 2000, or which are reasonably certain to occur in the future and which reasonably can be expected to result in any material adverse change in the consolidated financial condition, operations or business of Fifth Third; and (iii) since September 30, 2000 to the date hereof there have been no material changes in the methods of business operations of Fifth Third and its subsidiaries. F. 1. The Executive Committee of the Board of Directors of Fifth Third, by resolution adopted by the members present at a meeting duly called and held, at which meeting a quorum was at all times present and acting, has approved this Agreement, including reserving for issuance to Capital shareholders in accordance with this Agreement, a sufficient number of shares of Fifth Third Common Stock. Approval and adoption of this Agreement by the shareholders of Fifth Third is not required under Ohio law, the regulations of the NASDAQ Stock Market or under the Second Amended Articles of Incorporation, as amended, or Code of Regulations of Fifth Third.

REPRESENTATIONS AND WARRANTIES OF FIFTH THIRD. Fifth Third represents and warrants to Emerald Suburban Bancorp that as of the date hereof or as of the indicated date, as appropriate: A. Fifth Third is duly incorporated, validly existing and in good standing as a corporation under the corporation laws of the State of Ohio, is a registered bank holding company under the Bank Holding Company Act of 1956, as amended, and is duly authorized to conduct the business in which it is engaged, and The Fifth Third BankBank is duly incorporated, N.W., is a national banking association validly existing and in good standing as a corporation under the laws of the United States State of America Ohio and is duly authorized to conduct the business in which it is engaged. B. Pursuant to Fifth Third's Second Amended Articles of Incorporation, as amended, the total number of shares of capital stock Fifth Third it is authorized to have outstanding is 300,500,000 of which 300,000,000 shares are classified as Common Stock without par value ("Fifth Third Common Stock") and 500,000 shares are classified as Preferred Stock without par value. Pursuant to its Proxy Statement sent to its shareholders and filed with the SEC on February 9, 1999, Fifth Third proposed to increase the authorized number of shares from 300,000,000 shares to 500,000,000 shares. As of the close of business on February 128, 19991997, 267,147,048 105,881,698 shares of Fifth Third Common Stock were issued and outstanding and 681,214 2,271,962 shares were held in its treasury. As of the date of this Agreement, no shares of its Preferred Stock have been issued. Fifth Third does not have outstanding any stock options, subscription rights, warrants or other securities entitling the holders to subscribe for or purchase any shares of its capital stock other than options granted and to be granted to employees and Directors under its stock -14- option plans. At February 128, 19991997, (a) 13,332,886 3,626,824 shares of Fifth Third Common Stock were reserved for issuance in connection with outstanding options granted under it stock option plans and 11,102,535 427,064 shares were reserved for issuance under options to be granted in the future, (b) 1,420,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of Ashland Bankshares, Inc., (c) 1,800,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of Enterprise Federal Bancorp, Inc., and (d) 443,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of South Florida Bank Holding Corporation. C. All shares of Fifth Third Common Stock to be received by the shareholders of Emerald Suburban Bancorp as a result of the merger pursuant to the terms of this Agreement and the Agreement of Merger shall be, upon transfer or issuance, validly issued, fully paid and non-assessable, and will not, upon such transfer or issuance, be subject to the preemptive rights of any shareholder of Fifth Third. D. Fifth Third has furnished to Emerald Fifth Third's Suburban Bancorp its consolidated financial statements as at December 31, 19981994, December 31, 1997 1995 and December 31, 1996 and for the respective years then ended together with the opinions of its independent public accountants associated therewith. Such consolidated financial statements fairly present the consolidated financial condition of Fifth Third as of their respective dates and for the respective periods covered thereby in conformity with generally accepted accounting principles consistently followed throughout the periods covered thereby. Neither Fifth Third nor any significant subsidiaries of Fifth Third have any material liabilities, obligations or indebtedness required to be disclosed in such financial statements other than the liabilities, obligations and indebtedness disclosed in such financial statements (including footnotes). Fifth Third will furnish to Suburban Bancorp its unaudited consolidated financial statements as at March 31, 1997 and for the three (3) months then ended a soon as such statements publicly are available, and shall continue to furnish information for subsequent calendar quarter periods to Suburban Bancorp as soon as such becomes publicly available until the Closing Date. E. Except for events relating to the business environment in general: (i) since December 31, 1996, to the date hereof there have been no material adverse changes in the consolidated financial condition, operations or business of Fifth Third; (ii) the chief executive officer and the chief financial officer of Fifth Third are not aware of any events which have occurred since December 31, 1996, or which are reasonably certain to occur in the future and which reasonably can be expected to result in any material adverse change in the consolidated financial condition, operations or business of Fifth Third; and (iii) since December 31, 1996, to the date hereof there have been no material changes in the methods of business operations of Fifth Third and its subsidiaries. F. 1. The Executive Committee of the Board of Directors of Fifth Third, by resolution adopted by the members present at a meeting duly called and held, at which meeting a quorum was at all times present and acting, has approved this Agreement, including reserving for issuance to Suburban Bancorp shareholders in accordance with this Agreement, a sufficient number of shares of Fifth Third Common Stock. Approval and adoption of this Agreement by the shareholders of Fifth Third is not required under Ohio -15- law or under the Second Amended Articles of Incorporation, as amended, or Code of Regulations of Fifth Third.

REPRESENTATIONS AND WARRANTIES OF FIFTH THIRD. Fifth Third represents and warrants to Emerald CitFed Bancorp that as of the date hereof or as of the indicated date, as appropriate: A. Fifth Third is duly incorporated, validly existing and in good standing as a corporation under the corporation laws of the State of Ohio, is a registered bank holding company under the Bank Holding Company Act of 1956, as amended, and is duly authorized to conduct the business in which it is engaged, and The Fifth Third BankBank is duly incorporated, N.W., is a national banking association validly existing and in good standing as a corporation under the laws of the United States State of America Ohio and is duly authorized to conduct the business in which it is engaged. B. Pursuant to Fifth Third's Second Amended Articles of Incorporation, as amended, the total number of shares of capital stock Fifth Third it is authorized to have outstanding is 300,500,000 of which 300,000,000 shares are classified as Fifth Third Common Stock and 500,000 shares are classified as preferred stock without par value ("Fifth Third Common Preferred Stock") and 500,000 shares are classified as Preferred Stock without par value. Pursuant to its Proxy Statement sent to its shareholders and filed with the SEC on February 9, 1999, Fifth Third proposed to increase the authorized number of shares from 300,000,000 shares to 500,000,000 shares). As of the close of business on February 1November 30, 19991997, 267,147,048 155,163,554 shares of Fifth Third Common Stock were issued and outstanding and 681,214 3,677,597 shares were held in its treasury. As of the date of this Agreement, no shares of its Fifth Third Preferred Stock have been issued. Fifth Third does not have outstanding any stock options, subscription rights, warrants or other securities entitling the holders to subscribe for or purchase any shares of its capital stock other than options granted and to be granted to employees and Directors directors under its stock option plans. At February 1November 30, 19991997, (a) 13,332,886 7,059,640 shares of Fifth Third Common Stock were reserved for issuance in connection with outstanding options granted under it its stock option plans and 11,102,535 2,116,683 shares were reserved for issuance under options to be granted in the future, (b) 1,420,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of Ashland Bankshares, Inc., (c) 1,800,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of Enterprise Federal Bancorp, Inc., and (d) 443,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of South Florida Bank Holding Corporation. C. All shares of Fifth Third Common Stock to be received by the shareholders of Emerald CitFed Bancorp as a result of the merger pursuant to the terms of this Agreement Merger shall be, upon transfer or issuance, validly issued, fully paid and non-assessable, and will not, upon such transfer or issuance, be subject to the preemptive rights of any shareholder of Fifth Third. D. Fifth Third has furnished to Emerald Fifth Third's CitFed Bancorp its audited consolidated financial statements as at December 31, 19981994, December 31, 1997 1995 and December 31, 1996 and for the respective years then ended together with the opinions of its independent public accountants associated therewith. Such consolidated financial statements fairly present the consolidated financial condition of Fifth Third as of their respective dates and for the respective periods covered thereby in conformity with generally accepted accounting principles consistently followed throughout the periods covered thereby. Neither Fifth Third nor any significant subsidiaries of Fifth Third have any material liabilities, obligations or indebtedness required to be disclosed in such financial statements other than the liabilities, obligations and indebtedness disclosed in such financial statements (including footnotes). Fifth Third will furnish to CitFed Bancorp its audited consolidated financial statements as at December 31, 1997 and for the year then ended together with the opinions of its independent public accountants associated therewith as soon as such statements are publicly available. Fifth Third has also furnished to CitFed Bancorp its unaudited consolidated financial statements as at September 30, 1997, and for the nine (9) months then ended, and shall continue to furnish information for subsequent calendar quarter periods to CitFed Bancorp as soon as such becomes publicly available until the Closing Date. E. Except for events relating to the business environment in general, the effects of any acquisition transactions publicly announced by Fifth Third, and the issuance by Fifth Third Capital Trust I of its 8.136% Capital Securities, Series A and the related issuance by Fifth Third of its 8.136% Junior Subordinated Deferrable Interest Debentures, Series A: (i) since December 31, 1996, to the date hereof there have been no material adverse changes in the consolidated financial condition, operations or business of Fifth Third; (ii) the chief executive officer and the chief financial officer of Fifth Third are not aware of any events which have occurred since December 31, 1996, or which are reasonably certain to occur in the future and which reasonably can be expected to result in any material adverse change in the consolidated financial condition, operations or business of Fifth Third; and (iii) since December 31, 1996, to the date hereof there have been no material changes in the methods of business operations of Fifth Third and its subsidiaries. F. 1. The Executive Committee of the Board of Directors of Fifth Third, by resolution adopted by the members present at a meeting duly called and held, at which meeting a quorum was at all times present and acting, has approved this Agreement, including reserving for issuance to CitFed Bancorp shareholders in accordance with this Agreement, a sufficient number of shares of Fifth Third Common Stock. Approval and adoption of this Agreement by the shareholders of Fifth Third is not required under Ohio law or under the Second Amended Articles of Incorporation, as amended, or Code of Regulations of Fifth Third. No other corporate action is necessary or required, including but not limited to approval of this Agreement or the transaction contemplated herein by the Board of Directors of Fifth Third.

REPRESENTATIONS AND WARRANTIES OF FIFTH THIRD. Fifth Third represents and warrants to Emerald Ottawa that as of the date hereof or as of the indicated date, as appropriate: A. Fifth Third is duly incorporated, validly existing and in good standing as a corporation under the corporation laws of the State of Ohio, is a registered bank financial services holding company under the Bank Holding Company Act of 1956, as amended, and is duly authorized to conduct the business in which it is engaged, and Fifth Third Bank, N.W.Indiana is duly incorporated, is a national banking association validly existing and in good standing as a corporation under the laws of the United States State of America Michigan and is duly authorized to conduct the business in which it is engaged. The outstanding shares of capital stock or other ownership interests of each direct subsidiary have been duly authorized and validly issued, are fully paid and non-assessable, and are directly owned by Fifth Third free and clear of all liens and encumbrances. All of such subsidiaries are duly authorized to conduct the business in which they are engaged, unless such failure to obtain or maintain such authorization will not have a material adverse effect on Fifth Third, as a whole. B. Pursuant to Fifth Third's Second Amended Articles of Incorporation, as amended, the total number of shares of capital stock Fifth Third it is authorized to have outstanding is 300,500,000 650,500,000 of which 300,000,000 650,000,000 shares are classified as Common Stock without par value ("Fifth Third Common Stock") Stock and 500,000 shares are classified as Preferred Stock without par value. Pursuant to its Proxy Statement sent to its shareholders and filed with the SEC on February 9, 1999, Fifth Third proposed to increase the authorized number of shares from 300,000,000 shares to 500,000,000 shares. As of the close of business on February 1June 30, 19992000, 267,147,048 465,002,511 shares of Fifth Third Common Stock were issued and outstanding and 681,214 zero (0) shares were held in its treasury. As of the date of this Agreement, no shares of its Preferred Stock have been issued. Fifth Third does not have outstanding any stock options, subscription rights, warrants or other securities entitling the holders to subscribe for or purchase any shares of its capital stock other than options granted and to be granted to employees and Directors under its stock option plans. At February 1June 30, 19992000, (a) 13,332,886 29,347,033 shares of Fifth Third Common Stock were reserved for issuance in connection with outstanding options granted under it its stock option plans and 11,102,535 5,567,449 shares were reserved for issuance under options to be granted in the future, (b) 1,420,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of Ashland Bankshares, Inc., (c) 1,800,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of Enterprise Federal Bancorp, Inc., and (d) 443,000 shares of Fifth Third Common Stock were reserved for the issuance to the shareholders of South Florida Bank Holding Corporation. C. All shares of Fifth Third Common Stock to be received by the shareholders of Emerald Ottawa as a result of the merger pursuant to the terms of this Agreement shall be, upon transfer or issuance, validly issued, fully paid and non-assessable, and will not, upon such transfer or issuance, be subject to the preemptive rights of any shareholder of Fifth Third. D. Fifth Third has furnished to Emerald Fifth Third's Ottawa its audited consolidated financial statements as at December 31, 19981999, December 31, 1997 1998 and December 31, 1996 1997 and for the respective years then ended together with the opinions of its independent public accountants associated 17NEXT PAGE therewith. Fifth Third has also furnished to Ottawa its unaudited, consolidated financial statements as at June 30, 2000 and for the three and six month periods then ended. Such consolidated financial statements fairly present the consolidated financial condition of Fifth Third as of their respective dates and for the respective periods covered thereby in conformity with GAAP consistently followed throughout the periods covered thereby. Neither Fifth Third nor any subsidiaries of Fifth Third have any material liabilities, obligations or indebtedness required to be disclosed in such financial statements other than the liabilities, obligations and indebtedness disclosed in such financial statements (including footnotes). Fifth Third will furnish to Ottawa its unaudited consolidated financial statements as at September 30, 2000 and for the nine (9) months then ended as soon as such statements are publicly available, and shall continue to furnish information for subsequent calendar quarter periods to Ottawa as soon as such becomes publicly available until the Effective Time. E. Except for events relating to the business environment in general: (i) since June 30, 2000 to the date hereof, there have been no material adverse changes in the consolidated financial condition, operations or business of Fifth Third; (ii) the chief executive officer and the chief financial officer of Fifth Third are not aware of any events which have occurred since June 30, 2000, or which are reasonably certain to occur in the future and which reasonably can be expected to result in any material adverse change in the consolidated financial condition, operations or business of Fifth Third; and (iii) since June 30, 2000 to the date hereof there have been no material changes in the methods of business operations of Fifth Third and its subsidiaries. F. 1. The Executive Committee of the Board of Directors of Fifth Third, by resolution adopted by the members present at a meeting duly called and held, at which meeting a quorum was at all times present and acting, has approved this Agreement, including reserving for issuance to Ottawa shareholders in accordance with this Agreement, a sufficient number of shares of Fifth Third Common Stock. Approval and adoption of this Agreement by the shareholders of Fifth Third is not required under Ohio law, the regulations of the Nasdaq Stock Market or under the Second Amended Articles of Incorporation, as amended, or Code of Regulations of Fifth Third.