Exhibit (4)(k)
DECLARATION OF TRUST
OF
FIFTH THIRD CAPITAL TRUST V
THIS DECLARATION OF TRUST is made as of December 17, 2001 (this
"Declaration"), by and between Fifth Third Bancorp, an Ohio corporation, as
sponsor (the "Sponsor"), and Wilmington Trust Company, a Delaware banking
corporation, as trustee (the "Trustee"). The Sponsor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "Fifth Third Capital
Trust V" ("the "Trust"), in which name the Trustee or the Sponsor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. Such amount shall constitute the initial trust estate. It
is the intention of the parties hereto that the Trust created hereby constitute
a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
section 3801, et seq. (the "Business Trust Act"), and that this document
constitute the governing instrument of the Trust. The Trustee is hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in such form as the Trustee may approve.
3. The Sponsor and the Trustee will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party to provide for
the contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement or
Declaration, the Trustee shall not have any duty or obligation hereunder with
respect of the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustee may take all actions deemed proper as are necessary
to effect the transactions contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933 (the "1933 Act") one or more
registration statements on Form S-3 in preliminary and final form relating to
the offering and sale of Preferred Securities of the Trust, and such other forms
or filings as may be required by the 1933 Act, the Securities Exchange Act of
1934, as amended, or the Trust Indenture Act of 1939, as amended, in each case
relating to the Preferred Securities of the Trust; (ii) to file and execute on
behalf of the Trust, such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents that shall be necessary or desirable to register or establish the
exemption from registration of the Preferred Securities of the Trust under the
securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of
the Trust, may deem necessary or desirable; (iii) to execute and file an
application, and all other applications, statements, certificates, agreements
and other instruments that shall be necessary or desirable, to the Private
Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market and,
if and at such time as determined by the Sponsor, to the New York Stock Exchange
or any other national stock exchange or the Nasdaq National Market for listing
or quotation of the Preferred Securities of the Trust; (iv) to execute and
deliver letters or documents to, or instruments for filing with, a depository
relating to the Preferred Securities of the Trust; and (v) to execute, deliver
and perform
on behalf of the Trust one or more underwriting agreements, purchase agreements,
registration rights agreements, dealer manager agreements, escrow agreements and
other related agreements providing for or relating to the sale of the Preferred
Securities of the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, PORTAL or state securities or
Blue Sky laws to be executed on behalf of the Trust by the Trustee, the Trustee,
in its capacity as trustee of the Trust, is hereby authorized and directed to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that the Trustee, in its capacity as trustee of
the Trust, shall not be required to join in any such filing or execute on behalf
of the Trust any such document unless required by the rules and regulations of
the Commission, PORTAL or state securities or Blue Sky laws.
5. This Declaration may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one (1) and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Sponsor.
7. This Declaration shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
8. To the fullest extent permitted by applicable law, the Sponsor shall
indemnify and hold harmless the Trustee from and against any loss, damage or
claim incurred by the Trustee by reason of any act or omission performed or
omitted by the Trustee in good faith on behalf of the Trust and in a matter the
Trustee reasonably believed to be within the scope of authority conferred on the
Trustee by this Declaration, except that the Trustee shall not be entitled to be
indemnified in respect of any loss, damage or claim incurred by the Trustee by
reason of gross negligence or willful misconduct with respect to such acts or
omissions.
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
FIFTH THIRD BANCORP, as Sponsor
By: /s/ XXXX X. XXXXXXXX
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as trustee of the Trust
By: /s/ XXXXXX X. XXXXXXXXX
--------------------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
