Exhibit (1) (b)
FIFTH THIRD BANCORP*
$---------
[____%] [[Senior] [Subordinated]] [[Debentures] [Notes]]
Due _________ __,____
Underwriting Agreement
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To the Representatives named in Schedule I hereto of the Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Fifth Third Bancorp, an Ohio corporation ("Fifth Third"), proposes to sell
to the underwriters named in Schedule II hereto (the "Underwriters"), for whom
you are acting as representatives (the "Representatives"), its designated debt
securities named in Schedule I hereto (the "Securities"), in the aggregate
principal amount set forth in such Schedule I. The Securities will be issued
under the indenture referenced in Schedule I hereto (the "Indenture"), between
Fifth Third and the trustee named in Schedule I (the "Trustee").
1. Representations and Warranties. Fifth Third represents and warrants to,
and agrees with, each Underwriter that:
(a) The registration statement (File No. 333-_____) on Form S-3 (the
"registration statement"), including a prospectus which, as supplemented,
shall be used in connection with the sale of the Securities, has been filed
with the Securities and Exchange Commission (the "Commission"), in the form
heretofore delivered to the Representatives. The registration statement, as
it may have been amended prior to the date of this Agreement, has become
effective under the Securities Act of 1933, as amended (the "Act"). (The
registration statement, as
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* Provisions for Warrants, over-allotment option and convertibility, if
necessary, would need to be added to introductory paragraph, representations,
opinions, etc.
amended to the date of this Agreement, is hereinafter referred to as the
"Registration Statement"; such prospectus (which shall be in the form in
which it has been most recently filed, or transmitted for filing, with the
Commission on or before the date of this Agreement, as the same is proposed
to be added to or changed), as supplemented by a prospectus supplement
relating to the Securities, filed or transmitted for filing with the
Commission pursuant to Rule 424 under the Act and used in connection with
the sale of the Securities, is hereinafter referred to as the "Prospectus";
and such prospectus supplement is hereinafter referred to as the
"Prospectus Supplement". Any reference herein to the Registration
Statement, a preliminary prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on or before the
date of this Agreement, and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement or
the Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act deemed to be incorporated therein by
reference after the date of this Agreement.)
(b) The Registration Statement, at the time it became effective, and
any amendments thereof filed prior to the date hereof, as of their
respective effective dates, conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the respective rules and regulations of the
Commission thereunder; the Registration Statement and the Prospectus, as of
the date of the Prospectus Supplement, and any amendments thereof and
supplements thereto, as of their respective effective or issue dates, will
conform in all material respects to the requirements of the Act, the Trust
Indenture Act and the respective rules and regulations of the Commission
thereunder, and no such document, as of such respective dates and, in the
case of the Prospectus and any amendments thereof or supplements thereto,
as of the Closing Date (as hereinafter defined), included or will include
any untrue statement of a material fact or omitted or will omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading, provided that Fifth Third makes no representations or
warranties as to (i) the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information furnished in writing to
Fifth Third by or on behalf of any Underwriter specifically for use in
connection with the preparation of the Prospectus or any amendment thereof
or supplement thereto.
(c) Fifth Third has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation
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and has all power and authority (corporate and other) necessary to own or
hold its material properties and to conduct its business substantially in
the manner in which it presently conducts such business.
(d) The Securities have been duly authorized, and, when issued,
delivered and paid for pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of Fifth Third entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized and, at
the Closing Date (as defined in Section 3 hereof), the Indenture will be
duly qualified under the Trust Indenture Act and will constitute a valid
and legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Securities and the Indenture conform in all material
respects to the descriptions thereof in the Prospectus.
(e) Fifth Third has all corporate power and authority necessary to
execute and deliver this Agreement, the Indenture and the Securities and to
perform its obligations hereunder and thereunder; the execution, delivery
and performance of this Agreement, the Indenture and the Securities by
Fifth Third and compliance with the provisions hereof and thereof by Fifth
Third will not constitute a breach of or default under, the Articles of
Incorporation or Code of Regulations of Fifth Third, or any material
agreement, indenture or other instrument relating to indebtedness for money
borrowed to which Fifth Third is a party, or, to the best of Fifth Third's
knowledge, any law, order, rule, regulation or decree of any court,
governmental agency or authority located in the United States having
jurisdiction over Fifth Third or any property of Fifth Third, which breach
or default would be reasonably likely to have a material adverse effect on
Fifth Third and its subsidiaries taken as a whole; and, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency or authority is required for the execution, delivery
and performance of this Agreement, the Indenture and the Securities by
Fifth Third except such as have been made or obtained or will be made or
obtained on or before the Closing Date (as defined in Section 3) and except
such as may be required under applicable state securities or "blue sky"
laws.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, Fifth Third agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from Fifth Third, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
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3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and Fifth Third (such date and time of delivery of and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of Fifth
Third in the manner and type of funds specified in Schedule I. Certificates for
the Securities shall be registered in such names and in such denominations as
the Representatives may request not less than one full business day in advance
of the Closing Date.
Fifth Third agrees to have the Securities available for inspection,
checking and packaging in New York, New York, on the business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale as set forth in the Prospectus.
5. Agreements. Fifth Third agrees with the several Underwriters that:
(a) Fifth Third will cause the Prospectus to be filed, or transmitted
for filing, with the Commission pursuant to Rule 424 under the Act and will
promptly advise the Representatives when the Prospectus has been so filed
or transmitted for filing, and, prior to the termination of the offering of
the Securities to which such Prospectus relates, also will promptly advise
the Representatives (i) when any amendment to the Registration Statement
has become effective or any further supplement to the Prospectus has been
so filed or transmitted for filing, (ii) of any request by the Commission
for any amendment of the Registration Statement or the Prospectus or for
any additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose, and (iv)
of the receipt by Fifth Third of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. Fifth Third will use its reasonable best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
reasonably possible the withdrawal thereof. For so long as a prospectus
relating to the Securities is required to be delivered under the Act, Fifth
Third will not file or transmit for filing any amendment to the
Registration Statement or supplement to the Prospectus which relates to the
Securities unless Fifth Third has furnished you or counsel for the
Underwriters a copy for your review prior to filing or transmission for
filing.
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(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend or supplement the Prospectus in connection with the sale of the
Securities to comply with the Act or the rules and regulations of the
Commission thereunder, promptly after becoming aware thereof, Fifth Third
will notify the Representatives or counsel for the Underwriters and, upon
their or its reasonable request, prepare and file or transmit for filing
with the Commission an amendment or supplement which will correct such
statement or omission or effect such compliance.
(c) Fifth Third will make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of the
fiscal quarter of Fifth Third during which the filing, or transmission for
filing, of the Prospectus pursuant to Rule 424 under the Act occurs (except
not later than 90 days after the end of such period if such quarter is the
last fiscal quarter), an earnings statement (which need not be audited) of
Fifth Third and its subsidiaries, covering such 12-month period, which will
satisfy the provisions of Section 11(a) of the Act.
(d) Fifth Third will use its best efforts to furnish in New York City
to each of the Underwriters prior to 10:00 a.m., New York City time, on the
New York business day next succeeding the date of this Agreement and from
time to time, as many copies of the Prospectus, each related preliminary
prospectus supplement and all amendments of and supplements to such
documents as may be reasonably requested.
(e) Fifth Third will pay all expenses incident to the performance of
its obligations under this Agreement, and will pay the expenses of printing
and filing all documents relating to the offering and mailing and
delivering such to Underwriters and dealers, any filing fee incident to any
required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities, all expenses in connection with
the qualification of the Securities for offering and sale under state
securities laws (including the fees and disbursements of counsel to the
Underwriters in connection with such qualification and the preparation of
the Blue Sky and legal investment surveys), any taxes payable in connection
with the sale and delivery of the Securities by Fifth Third to the
Underwriters, and any fees charged for rating the Securities.
(f) Fifth Third will use its reasonable best efforts to arrange for the
qualification of the Securities for sale under the laws of such
jurisdictions as the
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Representatives may designate and to maintain such qualifications in effect
so long as required for the distribution of the Securities; provided that
Fifth Third shall not be required to qualify to do business in any
jurisdiction where it is not now qualified or to take any action which
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(g) During the period beginning from the date of this Agreement and
continuing until the Closing Date or such longer period as may be agreed to
by Fifth Third and set forth in Schedule I hereto relating to the
Securities, Fifth Third will not offer, sell, contract to sell or otherwise
dispose of any of its debt securities which mature more than one year after
the Closing Date and which are substantially similar to the Securities
without the prior written consent of the Representatives.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy in
all material respects of the representations and warranties on the part of Fifth
Third contained herein as of the date hereof and the Closing Date, to the
accuracy in all material respects of the statements of Fifth Third made in any
certificates pursuant to the provisions hereof, to the performance in all
material respects by Fifth Third of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted and be pending or have been threatened as of the
Closing Date; and all requests for additional information on the part of
the Commission shall have been complied with.
(b) Fifth Third shall have furnished to the Representatives a
certificate, dated the Closing Date, of Fifth Third, signed by the
principal financial or accounting officer of Fifth Third, to the effect
that, to the best of his knowledge after reasonable investigation:
(i) The representations and warranties of Fifth Third in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and Fifth Third has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date, in all material respects;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted and are pending or have been threatened as
of such date;
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(iii) Since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change
in the financial position, results of operations, cash flows or
prospects relating thereto of Fifth Third and its subsidiaries
consolidated, except as set forth in or contemplated by the Prospectus;
and
(iv) Since the date of this Agreement, (A) no downgrading has
occurred in the rating accorded Fifth Third's unsecured debt securities
or preferred stock as described in Section 6(h)(i) and (B) no
announcement has been made with respect to any rating accorded Fifth
Third's unsecured debt securities or preferred stock as described in
Section 6(h)(ii).
(c) Fifth Third shall have furnished to the Underwriters the opinion,
dated the Closing Date, of Xxxx X. Xxxxxxxx, Esq., Executive Vice
President, General Counsel and Secretary of Fifth Third, to the effect
that:
(i) Fifth Third has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Ohio,
with corporate power and authority under such laws to own its material
properties and to conduct its business substantially as described in
the Prospectus;
(ii) The Securities have been duly authorized, executed, issued
and delivered and, assuming authentication by the Trustee in the manner
contemplated in its certificate, constitute valid and legally binding
obligations of Fifth Third entitled to the benefits provided by the
Indenture; and the Securities and the Indenture conform in all material
respects to the descriptions thereof in the Prospectus as amended or
supplemented;
(iii) The Indenture has been duly authorized, executed and
delivered by Fifth Third, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding obligation of
Fifth Third enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iv) Fifth Third has all corporate power and authority necessary
to execute and deliver this Agreement, the Indenture and the
Securities, and to perform its obligations hereunder and thereunder;
this Agreement has been duly authorized, executed and delivered by
Fifth Third; the execution, delivery and performance of this Agreement,
the Indenture, and the
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Securities by Fifth Third and compliance with the provisions hereof and
thereof by Fifth Third will not constitute a breach of or default
under, the Articles of Incorporation or Code of Regulations of Fifth
Third, or any material agreement, indenture or other instrument
relating to indebtedness for money borrowed known to such counsel to
which Fifth Third is a party, or, to the best of such counsel's
knowledge, any law, order, rule, regulation or decree of any court,
governmental agency or authority located in the United States having
jurisdiction over Fifth Third or any property of Fifth Third, which
breach or default would be reasonably likely to have a material adverse
effect on Fifth Third and its subsidiaries taken as a whole; and no
consent, authorization or order of, or filing or registration with, any
court or governmental agency is required for the execution, delivery
and performance of this Agreement, the Indenture or the Securities by
Fifth Third except such as may be required under applicable state
securities or "blue sky" laws or as have been duly made or obtained;
and
(v) The Registration Statement has become effective under the Act,
and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or threatened under the Act, and each part of the Registration
Statement, when such part became effective, any amendments thereof
filed prior to the date of this Agreement, as of their respective
effective dates, and the Registration Statement and the Prospectus, as
of the date of the Prospectus Supplement, and each amendment thereof or
supplement thereto, as of their respective effective or issue dates,
appeared on their face to be appropriately responsive in all material
respects to the requirements of the Act, the Trust Indenture Act and
the respective rules and regulations of the Commission thereunder; such
counsel has no reason to believe that any part of the Registration
Statement, when such part became effective, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of the
Prospectus Supplement, or any amendments thereof or supplements
thereto, as of their respective effective or issue dates, contained any
untrue statement of a material fact or omitted to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that, as
of the Closing Date, either the Prospectus or any further amendment or
supplement thereto made by the Company prior to the Closing Date
contained any untrue statement of a material fact or omitted to state
any material fact necessary to make the statements therein, in the
light of the circumstances under
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which they were made, not misleading; it being understood that such
counsel need express no opinion as to the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee, as to the
financial statements or other financial data contained in any part of
the Registration Statement or the Prospectus, as to any statements or
omissions made in reliance upon or in conformity with information
furnished in writing to Fifth Third by or on behalf of an Underwriter
for use therein.
As to those matters which relate to the Trustee, such counsel may rely
upon the certificate or certificates of such Trustee, and as to matters
governed by New York law, upon the opinion of [ ].
(d) The Representatives shall have received from [ ], counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with
respect to such matters as the Representatives may reasonably require.
As to matters governed by Ohio law, [ ] may rely upon the opinion of
Xxxx X. Xxxxxxxx, Esq., Executive Vice President, General Counsel and
Secretary of Fifth Third, delivered pursuant to Section 6(c).
(e) Deloitte & Touche LLP, as independent accountants of Fifth Third,
shall have furnished to the Representatives a letter, dated as of the
Closing Date, to the effect set forth in Schedule III hereto.
(f) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting
the financial position, long-term debt, stockholders' equity or results of
operations of Fifth Third and its consolidated subsidiaries which the
Representatives conclude, after consultation with Fifth Third, in the
judgment of the Representatives is so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of the Securities as contemplated by the Prospectus.
(g) Fifth Third shall have furnished to the Representatives such
further information, certificates and documents as they may reasonably
request prior to the Closing Date.
(h) Subsequent to the date of this Agreement, (i) no downgrading shall
have occurred in the rating accorded Fifth Third's unsecured debt
securities or preferred stock by Standard & Poor's Ratings Group or by
Xxxxx'x Investors Service, Inc. and (ii) neither such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of Fifth Third's
unsecured debt securities or preferred stock.
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If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to Fifth Third in writing or by telephone or telegraph confirmed
in writing.
7. Indemnification and Contribution. (a) Fifth Third agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement or in any amendment
thereof filed prior to the date hereof, or in the Registration Statement or the
Prospectus, or in any amendment thereof or supplement thereto, or in any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) Fifth Third will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to Fifth Third by or on behalf of any Underwriter through the
Representatives specifically for use in the Prospectus or any supplement thereto
or any related preliminary prospectus or preliminary prospectus supplement or of
the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the
Trustee, and (ii) such indemnity with respect to any related preliminary
prospectus or preliminary prospectus supplement shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person was not sent or given a
copy of the Prospectus (or the Prospectus as amended or supplemented), excluding
documents incorporated therein by reference, at or prior to the confirmation of
the sale of such Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in such related preliminary prospectus or preliminary prospectus
supplement was corrected in the Prospectus (or the Prospectus as amended or
supplemented). This indemnity agreement will be in addition to any liability
which Fifth Third may otherwise have.
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(b) Each Underwriter severally agrees to indemnify and hold harmless Fifth
Third, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls Fifth Third within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
Fifth Third to each Underwriter, but only with reference to written information
furnished to Fifth Third by or on behalf of such Underwriter through the
Representatives specifically for use in the Prospectus or any supplement thereto
or any related preliminary prospectus or preliminary prospectus supplement. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under Section 7(a) or
(b) of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
such subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party otherwise than under Section 7(a) or (b). In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under Section
7(a) or (b) for any legal or other expenses subsequently incurred by such
indemnified party (other than reasonable costs of investigation) in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate national counsel, approved by the Representatives,
representing the indemnified parties who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
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(d) If the indemnification provided for in this Section 7 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by Fifth Third on the one hand and the Underwriters of the Securities on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of Fifth Third on the one hand and the Underwriters of the Securities on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by Fifth Third on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by Fifth Third bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
Fifth Third on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Fifth Third and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Securities
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to the Securities and not
joint.
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8. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to Fifth Third prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Representatives, impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated by the
Prospectus.
9. Substituted Underwriters. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Securities that it or they
have agreed to purchase hereunder on such date, and the aggregate number of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate number of the
Securities to be purchased on the Closing Date, the other Underwriters shall be
obligated severally in the proportions that the number of Securities set forth
opposite their respective names in Schedule II bears to the aggregate number of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Underwriters may agree, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on the Closing Date; provided that in no event shall the
number of Securities that any Underwriter has agreed to purchase pursuant to
Section 2 above be increased pursuant to this Section 9 by an amount in excess
of one-ninth of such number of Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Securities and the aggregate number of Securities with
respect to which such default occurs is more than one-tenth of the aggregate
number of Securities to be purchased on the Closing Date, and arrangements
satisfactory to the Underwriters and Fifth Third for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or
Fifth Third. In such case either the Underwriters or Fifth Third shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this Section 9 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. Certain Liabilities Upon Termination. If this Agreement shall be
terminated pursuant to Section 9 hereof, the Company shall not then be under any
liability to any Underwriter except as provided in Sections 5(e) and 7 hereof;
but, if for any other reason, any Securities are not delivered by or on behalf
of the Company as provided herein, the Company will reimburse the Underwriters
through you for all actual out-of-
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pocket expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Securities not so delivered, but the Company
shall then be under no further liability to any Underwriter in respect of the
Securities not so delivered except as provided in Sections 5(e) and 7 hereof.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of Fifth Third or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or Fifth Third or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections
5(e), 7, 9, 12, 13 and 14 hereof shall survive the termination or cancellation
of this Agreement.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto (including any Underwriter or Underwriters added
pursuant to Section 9 hereof) and their respective successors, heirs, executors,
administrators and the officers and directors and controlling persons referred
to in Section 7 hereof, and no other person will have any right or obligation
hereunder.
13. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. Counterparts; Notices. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
All notices hereunder shall be in writing or by telegram if promptly
confirmed in writing, and if to the Underwriters shall be sufficient in all
respects if delivered or sent by registered mail to the address of the
Representatives as set forth in Schedule I hereto; and if to Fifth Third shall
be sufficient in all respects if delivered or sent by registered mail to the
address of Fifth Third set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 7 (c) hereof shall be delivered or sent by registered mail to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to Fifth
Third by the Representatives upon request.
15. Action by Underwriters. Any action under this Agreement taken by the
Underwriters jointly or by the firm signing below on behalf of you as the
Representatives will be binding upon all the Underwriters.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between Fifth
Third and the Underwriters.
Very truly yours,
FIFTH THIRD BANCORP
----------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
By: [Representatives]
On behalf of the Underwriters
set forth in Schedule II
By: ______________________________
Name:
Title:
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SCHEDULE I
TITLE OF DESIGNATED SECURITIES:
[____%] [[Senior] [Subordinated]] [[Debentures] [Notes]] Due _________
__,____
AGGREGATE PRINCIPAL AMOUNT:
$_________
PRICE TO PUBLIC:
____% of the principal amount of the Designated Securities[, plus accrued
interest, if any, from _________ __, ______]
PURCHASE PRICE BY UNDERWRITERS:
____% of the principal amount of the Designated Securities[, plus accrued
interest, if any, from _________ __, ______]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds by wire
INDENTURE:
Indenture, dated as of ________ __, ____, between Fifth Third and
__________, as [Successor] Trustee, as amended
MATURITY:
__________ __, _____
INTEREST RATE:
[_____% per annum] [describe floating rate provisions]
INTEREST PAYMENT DATES:
________ __ and ________ __ of each year, commencing _______ __, ____
I-1
REGULAR RECORD DATES:
________ __ and ________ __ of each year, commencing _______ __, ____
REPAYMENT PROVISIONS:
[Describe repayment provisions, if any]
REDEMPTION PROVISIONS:
[Describe redemption provisions, if any]
SINKING FUND PROVISIONS:
[Describe sinking fund provisions, if any]
CONVERSION PROVISIONS:
[Describe conversion provisions, if any]
EXCHANGE PROVISIONS:
[Describe exchange provisions, if any]
OTHER TERMS:
[Describe additional terms, if any]
ADDITIONAL COMFORT LETTER COVERAGE:
[Describe additional coverage, if any]
FORM OF DESIGNATED SECURITY:
[Global] [Certificated] in denominations set forth in the Prospectus
Supplement
CLOSING DATE:
________ __, ____ at [time]
RESTRICTED PERIOD UNDER SECTION 5(G) OF UNDERWRITING AGREEMENT:
[Describe period if other than through Closing Date]
I-2
OFFICE FOR DELIVERY OF DESIGNATED SECURITIES:
[insert address]
OFFICE FOR PAYMENT FOR DESIGNATED SECURITIES:
[insert address]
NAME OF REPRESENTATIVES:
[insert names]
ADDRESS FOR NOTICES, ETC.:
[insert address]
I-3
SCHEDULE II
Principal
Amount of
Securities
to be
Underwriter Purchased
----------- -----------
$
[underwriters names]
--------
TOTAL $
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SCHEDULE III
Pursuant to Section 6(e) of the Underwriting Agreement, the independent
accountants of Fifth Third shall provide a comfort letter to the effect that:
(i) They are independent certified public accountants with respect to Fifth
Third and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and included or
incorporated by reference in the Prospectus as amended or supplemented comply as
to form in all material respects with the applicable accounting requirements of
the Act or the Exchange Act, as applicable, and the published rules and
regulations thereunder;
(iii) On the basis of limited procedures, not constituting an audit,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of Fifth Third and its subsidiaries, inspection of the
minute books of Fifth Third and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus as amended or supplemented, inquiries of officials of Fifth Third and
its subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of changes in financial position
included or incorporated by reference in Fifth Third's most recent
Quarterly Report on Form 10-Q incorporated by reference in the Prospectus
(if any) as amended or supplemented does not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related published rules and
regulations thereunder or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that
of the audited consolidated financial statements included or incorporated
by reference in Fifth Third's most recent Annual Report on Form 10-K;
(B) any unaudited financial data included in the Prospectus as amended
or supplemented as at any time, or for any period ending, after the end of
the latest interim period covered by a Quarterly Report on Form 10-Q of
Fifth Third or year ended for which Fifth Third has filed an Annual Report
on Form 10-K (whichever
III-1
is more recent) (and any data for any comparable prior period included
therein) do not agree with the corresponding amounts in the unaudited
consolidated financial statements from which such data are derived, or any
such unaudited financial data were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by reference in
Fifth Third's most recent Annual Report on Form 10-K;
(C) the unaudited pro forma consolidated condensed financial statements
(if any) included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(D) as of a specified date not more than five days prior to the date of
delivery of such letter there have been any changes in the capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented) or
long-term debt of Fifth Third or any of its subsidiaries, or any decreases
in consolidated stockholders' equity, consolidated assets, consolidated
deposits, or allowance for loan losses of Fifth Third or other items
specified by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus as amended or supplemented except in each case for changes,
increases or decreases which the Prospectus as amended or supplemented
discloses have occurred or may occur or which are described in such letter;
and
(E) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented to the end of the latest period for which financial statements
are available there were any decreases in consolidated net interest income,
net interest income after provision for loan losses, or the total or per
share amounts of net income of Fifth Third or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period of the
preceding year and with any other period of corresponding length specified
by the Representatives, except in each case for increases or decreases
which the Prospectus as amended or supplemented discloses have occurred or
may occur or which are described in such letter;
III-2
(iv) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in subparagraph (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
Fifth Third and its subsidiaries, which appear in the Prospectus as amended
or supplemented (excluding documents incorporated by reference), in
exhibits to the Registration Statement specified by the Representatives, or
in documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of Fifth Third and its
subsidiaries and have found them to be in agreement.
III-3
