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Exhibit 4(c)
DECLARATION OF TRUST
OF
CAPITAL TRUST I
THIS DECLARATION OF TRUST is made as of March 5, 1997 (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 "Capital Trust I"
(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
▇▇▇ 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
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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/ P. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: P. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President &
Chief Financial Officer
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as trustee of the Trust
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
