AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 16, 2002
REGISTRATION NOS. 333- , 333- -01,
333- -02 AND 333- -03
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
FIFTH THIRD CAPITAL TRUST IV
FIFTH THIRD BANCORP FIFTH THIRD CAPITAL TRUST V
(Exact name of registrant as specified in its FIFTH THIRD CAPITAL TRUST VI
charter) (Exact name of each registrant as specified in its
certificate of trust)
OHIO DELAWARE
(State or other jurisdiction of (State or other jurisdiction of incorporation
incorporation or organization) or organization of each registrant)
31-6677720
31-6677721
31-0854434 31-6677722
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
C/O FIFTH THIRD BANCORP
FIFTH THIRD CENTER FIFTH THIRD CENTER
38 FOUNTAIN SQUARE PLAZA 38 FOUNTAIN SQUARE PLAZA
CINCINNATI, OHIO 45263 CINCINNATI, OHIO 45263
(513) 579-5300 (513) 579-5300
(Address, including zip code, and telephone number, (Address, including zip code, and telephone number,
including including
area code, of registrant's principal executive area code, of each registrant's principal executive
offices) offices)
---------------------
PAUL L. REYNOLDS, ESQ.
FIFTH THIRD BANCORP
FIFTH THIRD CENTER
38 FOUNTAIN SQUARE PLAZA
CINCINNATI, OHIO 45263
(513) 579-5300
(Name, address, including zip code, and telephone number, including area code,
of agent for service of each registrant)
WITH A COPY TO:
MITCHELL S. EITEL, ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004-2498
(212) 558-4000
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: from time
to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED UNIT PRICE REGISTRATION FEE
------------------------------------------------------------------------------------------------------------------------
Debt Securities of Fifth Third
Bancorp........................... (1)(3) (1)(2) (1)(2) N/A
------------------------------------------------------------------------------------------------------------------------
Preferred Stock, no par value, of
Fifth Third Bancorp............... (1) (1)(2) (1)(2) N/A
------------------------------------------------------------------------------------------------------------------------
Depositary Shares of Fifth Third
Bancorp........................... (1)(5) (1)(2) (1)(2) N/A
------------------------------------------------------------------------------------------------------------------------
Common Stock, no par value, of Fifth
Third Bancorp..................... (1) (1)(2) (1)(2) N/A
------------------------------------------------------------------------------------------------------------------------
Capital Securities of Fifth Third
Capital Trust IV, Fifth Third
Capital Trust V and Fifth Third
Capital Trust VI.................. (1) (1)(2) (1)(2) N/A
------------------------------------------------------------------------------------------------------------------------
Fifth Third Bancorp Guarantees with
respect to Capital Securities..... (1)(4) (1)(2) (1)(2) N/A
------------------------------------------------------------------------------------------------------------------------
Warrants of Fifth Third Bancorp..... (1)(6) (1)(2) (1)(2) N/A
------------------------------------------------------------------------------------------------------------------------
Total............................... $2,000,000,000 100% $2,000,000,000 $184,000
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
(1) Pursuant to General Instruction II (D) of Form S-3, such indeterminate
number or principal amount of Debt Securities (including Senior Debt
Securities, Subordinated Debt Securities and Junior Subordinated
Debentures), Preferred Stock, Depositary Shares, Common Stock and Warrants
of Fifth Third Bancorp (the "Company") and Capital Securities (the "Capital
Securities") of Fifth Third Capital Trust IV, Fifth Third Capital Trust V
and Fifth Third Capital Trust VI (separately each trust is also referred to
as an "Issuer Trust" and together as the "Issuer Trusts") as shall have an
aggregate initial offering price not to exceed $2,000,000,000 exclusive of
accrued interest and dividends, if any. Any securities registered hereunder
may be sold separately or as units with other securities registered
hereunder. There are also being registered hereunder an indeterminate number
of shares of Common Stock, Preferred Stock and Depositary Shares and an
indeterminate principal amount of Debt Securities of the Company as shall be
issuable upon the conversion or exchange of convertible or exchangeable Debt
Securities or of shares of convertible or exchangeable Preferred Stock
registered hereunder or as shall be issuable pursuant to anti-dilution
provisions. No separate consideration will be received for such Common
Stock, Preferred Stock, Depositary Shares or Debt Securities.
(2) The proposed maximum offering price per unit will be determined from time to
time in connection with the issuance of the securities registered hereunder.
The maximum aggregate offering price will be such amount in U.S. dollars or
the equivalent thereof in foreign currencies as shall result in a maximum
aggregate offering price for all securities of $2,000,000,000. Estimated
solely for the purpose of calculating the registration fee pursuant to Rule
457(o) under the Securities Act of 1933 and exclusive of accrued interest
and dividends, if any.
(3) Junior Subordinated Debentures may be purchased by any of the Issuer Trusts
with the proceeds of the sale of the Capital Securities of that Issuer
Trust, together with the proceeds received from the Company for the common
securities to be issued by that Issuer Trust to the Company. No separate
consideration will be received for such Junior Subordinated Debentures. Such
Junior Subordinated Debentures may later be distributed for no additional
consideration to the holders of Capital Securities of the applicable Issuer
Trust upon certain events described in the applicable Trust Agreement of
such Issuer Trust.
(4) The Company is also registering pursuant to this Registration Statement the
Company's Guarantees and other obligations that it may have with respect to
Capital Securities issued by any of the Issuer Trusts. Pursuant to Rule
457(n) under the Securities Act of 1933, no separate consideration will be
received for any such Guarantee or any other such obligations.
(5) In the event that the Company elects to offer to the public fractional
interests in shares of Preferred Stock registered hereunder, Depositary
Shares, evidenced by depositary receipts issued pursuant to a deposit
agreement, will be distributed to those persons purchasing such fractional
interests, and the shares of Preferred Stock will be issued to the
depositary under any such agreement.
(6) There is being registered hereunder an indeterminate principal amount of
Warrants representing rights to receive an amount of cash or number of
securities that will be determined and as may be sold, from time to time.
Includes Warrants which may be purchased by underwriters to cover
over-allotments, if any.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SEC IS
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND WE ARE
NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR
SALE IS PROHIBITED.
SUBJECT TO COMPLETION, DATED APRIL 16, 2002
FIFTH THIRD CENTER
38 FOUNTAIN SQUARE PLAZA
CINCINNATI, OHIO 45263
(513) 579-5300
FIFTH THIRD BANCORP
$2,000,000,000
DEBT SECURITIES CAPITAL SECURITIES
PREFERRED STOCK OF
DEPOSITARY SHARES FIFTH THIRD CAPITAL TRUST IV
COMMON STOCK FIFTH THIRD CAPITAL TRUST V
WARRANTS FIFTH THIRD CAPITAL TRUST VI
OF FULLY AND UNCONDITIONALLY
GUARANTEED AS DESCRIBED HEREIN BY
FIFTH THIRD BANCORP FIFTH THIRD BANCORP
We may offer and sell any combination of the securities listed above, in
one or more offerings, up to a total dollar amount of $2,000,000,000 (or the
equivalent in foreign currency or currency units). We will describe specific
terms of the securities in supplements to this prospectus. You should read this
prospectus and the applicable prospectus supplement carefully before you invest.
Fifth Third's common stock is traded on the Nasdaq National Market under
the symbol "FITB".
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY
STATE SECURITIES COMMISSION NOR HAVE THESE ORGANIZATIONS DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
These securities will not be savings accounts, deposits or other
obligations of any bank and are not insured by the Federal Deposit Insurance
Corporation, the Bank Insurance Fund or any other governmental agency.
---------------------
This prospectus is dated , 2002
TABLE OF CONTENTS
PAGE
----
About This Document......................................... 1
Where You Can Find More Information......................... 1
Forward-Looking Statements.................................. 3
Fifth Third Bancorp......................................... 3
Use of Proceeds............................................. 4
Consolidated Earnings Ratios................................ 5
Regulatory Considerations................................... 6
Debt Securities............................................. 7
Preferred Stock............................................. 15
Depositary Shares........................................... 20
Common Stock................................................ 23
Warrants.................................................... 28
The Issuer Trusts........................................... 31
Capital Securities and Related Instruments.................. 33
Junior Subordinated Debentures............................ 44
Guarantees................................................ 56
Relationship Among the Capital Securities and the Related
Instruments............................................ 59
Issuance of Global Securities............................... 61
Plan of Distribution........................................ 63
Validity of Securities...................................... 64
Experts..................................................... 64
i
ABOUT THIS DOCUMENT
This document is called a "prospectus", and it provides you with a general
description of the securities we may offer. Each time we sell securities we will
provide a prospectus supplement containing specific information about the terms
of the securities being offered. That prospectus supplement may include a
discussion of any risk factors or other special considerations that apply to
those securities. The prospectus supplement may also add, update or change the
information in this prospectus. If there is any inconsistency between the
information in this prospectus and any prospectus supplements, you should rely
on the information in that prospectus supplement. You should read both this
prospectus and any prospectus supplement together with additional information
described under the heading "Where You Can Find More Information".
Where appropriate, the applicable prospectus supplement will describe U.S.
federal income tax considerations relevant to the securities being offered.
Fifth Third Bancorp is an Ohio corporation (also referred to as "Fifth
Third"). Fifth Third Capital Trust IV, Fifth Third Capital Trust V and Fifth
Third Capital Trust VI are statutory business trusts created under Delaware law
(separately each trust is also referred to as an "Issuer Trust" and together as
the "Issuer Trusts"). Together, we have filed a registration statement with the
SEC using a "shelf" registration or continuous offering process. Under this
shelf process, we may offer and sell any combination of the securities described
in this prospectus, in one or more offerings, up to a total dollar amount of
$2,000,000,000 (or the equivalent in foreign currencies or currency units).
Unless otherwise indicated or unless the context requires otherwise, all
references in this prospectus to "we", "us", "our", or similar references mean
Fifth Third.
Our SEC registration statement containing this prospectus, including
exhibits, provides additional information about us and the securities offered
under this prospectus. The registration statement can be read at the SEC's web
site or at the SEC's offices. The SEC's web site and street addresses are
provided under the heading "Where You Can Find More Information".
When acquiring securities, you should rely only on the information provided
in this prospectus and in the related prospectus supplement, including any
information incorporated by reference. No one is authorized to provide you with
different information. We are not offering the securities in any state where the
offer is prohibited. You should not assume that the information in this
prospectus, any prospectus supplement or any document incorporated by reference
is truthful or complete for any date other than the date indicated on the cover
page of these documents.
Fifth Third and the Issuer Trusts may sell securities to underwriters who
will in turn sell the securities to the public on terms fixed at the time of
sale. In addition, the securities may be sold by Fifth Third or an Issuer Trust
directly or through dealers or agents designated from time to time, which agents
may be our affiliates. If Fifth Third, directly or through agents, solicits
offers to purchase the securities, Fifth Third reserves the sole right to accept
and, together with our agents, to reject, in whole or in part, any of those
offers.
A prospectus supplement will contain the names of the underwriters, dealers
or agents, if any, together with the terms of offering, the compensation of
those underwriters and the net proceeds to Fifth Third and each Issuer Trust.
Any underwriters, dealers or agents participating in the offering may be deemed
"underwriters" within the meaning of the Securities Act of 1933.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. Please
call the SEC at 1-800-SEC-0330 for further information on the Public Reference
Room. In addition, our SEC filings are available to the public at the SEC's web
site at http://www.sec.gov.
In this prospectus, as permitted by law, we "incorporate by reference"
information from other documents that we file with the SEC. This means that we
can disclose important information to you by referring you to those documents.
The information incorporated by reference is considered to be a part of this
prospectus and should be read with the same care. When we update the information
contained in documents that have been incorporated by reference by making future
filings with the SEC, the information incorporated by reference in this
prospectus is considered to be automatically updated and superseded. In other
words, in case of a conflict or inconsistency between information contained in
this prospectus and information incorporated by reference into this prospectus,
you should rely on the information contained in the document that was filed
later.
We incorporate by reference the documents listed below and any documents we
file with the SEC in the future under Section 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934 until our offering is completed:
- Annual Report on Form 10-K for the year ended December 31, 2001;
- Current Report on Form 8-K dated March 6, 2002; and
- Proxy Statement on Schedule 14A dated February 8, 2002.
You may request a copy of any of these filings, other than an exhibit to a
filing unless that exhibit is specifically incorporated by reference into that
filing, at no cost, by writing to or telephoning us at the following address:
Paul L. Reynolds
Executive Vice President, General Counsel and Secretary
Fifth Third Bancorp
Fifth Third Center
38 Fountain Square Plaza
Cincinnati, Ohio 45263
(513) 579-5300
No separate financial statements of any Issuer Trust are included in this
prospectus. Fifth Third and the Issuer Trusts do not consider that such
financial statements would be material to holders of the capital securities
because each Issuer Trust is a special purpose entity, has no operating history
or independent operations and is not engaged in and does not propose to engage
in any activity other than holding as trust assets the corresponding junior
subordinated debentures (as defined under the heading "The Issuer Trusts") of
Fifth Third and issuing the trust securities. Furthermore, taken together, Fifth
Third's obligations under each series of corresponding junior subordinated
debentures, the indenture under which the corresponding junior subordinated
debentures will be issued, the related trust agreement, the related expense
agreement and the related guarantee provide, in the aggregate, a full,
irrevocable and unconditional guarantee of payments of distributions and other
amounts due on the related capital securities of an Issuer Trust. For a more
detailed discussion, see "The Issuer Trusts", "Capital Securities and Related
Instruments", "Capital Securities and Related Instruments -- Junior Subordinated
Debentures -- Corresponding Junior Subordinated Debentures" and "Capital
Securities and Related Instruments -- Guarantees". In addition, Fifth Third does
not expect any of the Issuer Trusts to file reports under the Exchange Act with
the SEC.
2
FORWARD-LOOKING STATEMENTS
This prospectus and each prospectus supplement contains or incorporates
statements that we believe are "forward-looking statements" within the meaning
of the Private Securities Litigation Reform Act of 1995. These statements relate
to our financial condition, results of operations, plans, objectives, future
performance or business. They usually can be identified by the use of
forward-looking language such as "will likely result", "may", "are expected to",
"is anticipated", "estimate", "forecast", "projected", "intends to" or other
similar words. You should not place undue reliance on these statements, as they
are subject to risks and uncertainties, including but not limited to those
described in this prospectus, the prospectus supplement or the documents
incorporated by reference. When considering these forward-looking statements,
you should keep in mind these risks and uncertainties, as well as any cautionary
statements we may make. Moreover, you should treat these statements as speaking
only as of the date they are made and based only on information then actually
known to us.
Our actual results, performance or achievements could be significantly
different from the results expressed in or implied by any forward-looking
statements. Factors that might cause such a difference include, but are not
limited to: (1) competitive pressures on financial institutions may increase
significantly; (2) changes in the interest rate environment may reduce interest
margins; (3) prepayment speeds, loan sale volumes, charge-offs and loan loss
provisions are inherently uncertain; (4) general economic conditions, either
national or in the states in which we do business, may be less favorable than
expected; (5) political developments, wars or other hostilities may cause
disruption or movements in securities markets or other economic conditions; (6)
legislative or regulatory changes may adversely affect the businesses in which
we are engaged; (7) changes and trends in the securities markets. You should
refer to our periodic and current reports filed with the SEC for further
information on other factors which could cause actual results to be
significantly different from those expressed or implied by these forward-looking
statements. See "Where You Can Find More Information".
FIFTH THIRD BANCORP
Fifth Third Bancorp is an Ohio corporation organized in 1975 with its
principal office located in Cincinnati, Ohio. At December 31, 2001, our wholly
owned second-tier holding company, Fifth Third Financial Corporation, had 11
wholly owned direct subsidiaries: Fifth Third Bank; Fifth Third Bank, Florida;
Fifth Third Bank, Northern Kentucky, Inc.; Fifth Third Bank, Kentucky, Inc.;
Fifth Third Bank, Indiana; Fifth Third Bank, (Michigan); Fifth Third Community
Development Corporation; Fifth Third Insurance Services, Inc.; Fifth Third
Investment Company; USB, Inc. and Heartland Capital Management, Inc.
At December 31, 2001, we, our affiliated banks and other subsidiaries had
consolidated total assets of approximately $71.0 billion, consolidated total
deposits of approximately $45.9 billion and consolidated total shareholders'
equity of approximately $7.6 billion.
Through our subsidiaries, we engage primarily in commercial, retail and
trust banking, electronic payment processing services and investment advisory
services. Significant subsidiaries of our affiliate banks include: The Fifth
Third Company; Fifth Third Leasing Company; Midwest Payment Systems, Inc.; Fifth
Third International Company; Fifth Third Real Estate Capital Markets Company;
Fifth Third Mortgage Company; Fifth Third Mortgage Insurance Reinsurance
Company; Fifth Third Insurance Agency, Inc.; Fifth Third Real Estate Investment
Trust, Inc.; Fifth Third Asset Management, Inc.; Fifth Third Securities, Inc.;
USB Payment Processing, Inc. and GNB Realty, LLC. Our subsidiaries provide a
full range of financial products and services to the retail, commercial,
financial, governmental, educational and medical sectors, including a wide
variety of checking, savings and money market accounts, and credit products such
as credit cards, installment loans, mortgage loans and leasing.
Through Midwest Payment Systems, we operate for ourselves and for other
financial institutions a proprietary automated teller machine ("ATM") and Point
of Sale ("POS") network, Jeanie(R). Fifth Third Bank also participates in
several regional shared ATM networks including NYCE(R), Pulse(R), and Star(R).
These networks include approximately 408,000, 433,000 and 1,063,000 ATMs and POS
devices, respectively. Fifth Third Bank also participates in Cirrus(R) and Plus
System(R), which are international ATM networks including
3
approximately 635,000 and 700,000 participating ATMs, respectively. Midwest
Payment Systems also provides electronic fund transfers, ATM processing,
electronic personal banking, merchant transaction processing, electronic bill
payment and electronic benefit transfer services for thousands of regional
banks, bank holding companies, service retailers and other financial
institutions throughout the United States.
On January 2, 2001, we completed the acquisition of Resource Management,
Inc. dba Maxus Investment Group ("Maxus"), a privately-held diversified
financial services company based in Cleveland, Ohio. In connection with this
acquisition, we issued 470,162 shares of our common stock and paid $18.1 million
in cash for the outstanding capital stock of Maxus. This transaction was
accounted for as a purchase.
On March 9, 2001, we completed the acquisition of Capital Holdings, Inc.
("Capital Holdings"), a publicly traded bank holding company located in
Sylvania, Ohio which owns Capital Bank, N.A. Capital Holdings had total assets
of approximately $1.1 billion and total deposits of $874 million as of September
30, 2000. In connection with this acquisition, we issued 4,505,385 shares of our
common stock for the outstanding shares of Capital Holdings. This transaction
was tax-free and accounted for as a pooling-of-interests.
On April 2, 2001, we completed the acquisition of Old Kent Financial
Corporation ("Old Kent"), a publicly traded financial holding company based in
Grand Rapids, Michigan. As of December 31, 2000, Old Kent had total assets of
$23.8 billion and total deposits of approximately $17.4 billion. In connection
with this acquisition, we issued 103,716,638 shares of our common stock, 7,250
shares of our Series D convertible perpetual preferred stock and 2,000 shares of
our Series E perpetual preferred stock to the shareholders of Old Kent. This
transaction was tax-free and accounted for as a pooling of interests.
On October 31, 2001, we completed the acquisition of USB, Inc. and its
subsidiaries. USB was a privately-held company that provides payment processing
services for agent banks and small and medium sized merchants. In connection
with this acquisition, we paid approximately $220 million in cash. This
transaction was accounted for as a purchase.
Fifth Third is a corporate entity legally separate and distinct from its
subsidiaries. The principal source of our income is dividends from our
subsidiaries. There are certain regulatory restrictions as to the extent to
which our subsidiaries can pay dividends or otherwise supply funds to us. See
"Common Stock -- Dividends".
USE OF PROCEEDS
We expect to use the net proceeds from the sale of any securities for
general corporate purposes, which may include:
- reducing or refinancing existing debt;
- investments at the holding company level;
- investing in, or extending credit to, our operating subsidiaries;
- possible acquisitions;
- stock repurchases; and
- other purposes as described in any prospectus supplement.
Pending such use, we may temporarily invest the net proceeds. The precise
amounts and timing of the application of proceeds will depend upon our funding
requirements and the availability of other funds. Except as indicated in a
prospectus supplement, allocations of the proceeds to specific purposes will not
have been made at the date of that prospectus supplement.
We continually evaluate possible business combination opportunities. As a
result, future business combinations involving cash, debt or equity securities
may occur. Any future business combination or series of business combinations
that we might undertake may be material, in terms of assets acquired,
liabilities assumed or otherwise, to our financial condition.
Based upon our historical and anticipated future growth and our financial
needs, we may engage in additional financings of a character and amount that we
determine as the need arises.
4
CONSOLIDATED EARNINGS RATIOS
The following table provides Fifth Third's consolidated ratios of earnings
to fixed charges and combined fixed charges and preferred stock dividend
requirements:
YEARS ENDED DECEMBER 31,
---------------------------------
2001 2000 1999 1998 1997
----- ---- ---- ---- ----
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Excluding interest on deposits............................. 3.24x 2.89 3.32 3.17 3.33
Including interest on deposits............................. 1.72x 1.62 1.72 1.60 1.58
CONSOLIDATED RATIOS OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDEND REQUIREMENTS
Excluding interest on deposits............................. 3.24x 2.89 3.31 3.17 3.33
Including interest on deposits............................. 1.72x 1.62 1.71 1.60 1.58
For purposes of computing both the consolidated ratios of earnings to fixed
charges and earnings to combined fixed charges and preferred stock dividend
requirements:
- earnings represent net income (loss) before extraordinary items plus
applicable income taxes and fixed charges;
- fixed charges, excluding interest on deposits, include interest expense
(other than on deposits) and the proportion deemed representative of the
interest factor of rent expense, net of income from subleases;
- fixed charges, including interest on deposits, include all interest
expense and the proportion deemed representative of the interest factor
of rent expense, net of income from subleases; and
- pretax earnings required for preferred stock dividends were computed
using tax rates for the applicable year.
5
REGULATORY CONSIDERATIONS
We are extensively regulated under both federal and state law. Fifth Third
is a financial holding company and a bank holding company under the Bank Holding
Company Act, as well as a savings and loan holding company under the Home
Owners' Loan Act. As such, the Federal Reserve Board regulates, supervises and
examines Fifth Third. Each of our banking affiliates has deposit insurance
provided by the Federal Deposit Insurance Corporation through either the Bank
Insurance Fund or the Savings Association Insurance Fund. For a discussion of
the material elements of the regulatory framework applicable to financial
holding companies, bank holding companies and their subsidiaries and specific
information relevant to Fifth Third, please refer to our Annual Report on Form
10-K for the fiscal year ended December 31, 2001 and any subsequent reports we
file with the SEC, which are incorporated by reference in this prospectus. This
regulatory framework is intended primarily for the protection of depositors and
the federal deposit insurance funds and not for the protection of security
holders. As a result of this regulatory framework, Fifth Third's earnings are
affected by actions of the Federal Reserve Board, the Federal Deposit Insurance
Corporation, which insures the deposits of our banking subsidiaries within
certain limits, the Office of Thrift Supervision, which regulates our savings
association subsidiary, the Ohio Commissioner of Banking, which regulates us and
our bank subsidiaries, and the SEC, which regulates the activities of certain
subsidiaries engaged in securities-related businesses.
Our earnings are also affected by general economic conditions, our
management policies and legislative action. In addition, there are numerous
governmental requirements and regulations that affect our business activities. A
change in applicable statutes, regulations or regulatory policy may have a
material effect on our business.
Depository institutions, like our bank and savings association
subsidiaries, are also affected by various federal laws, including those
relating to consumer protection and similar matters. We also have other
financial services subsidiaries regulated, supervised and examined by the
Federal Reserve Board, as well as other relevant state and federal regulatory
agencies and self-regulatory organizations. Our non-bank subsidiaries may be
subject to other laws and regulations of the federal government or the various
states in which they are authorized to do business.
6
DEBT SECURITIES
The following description summarizes the material provisions of the senior
indenture, the subordinated indenture and the debt securities to be issued under
these indentures. This description is not complete and is subject to, and is
qualified in its entirety by reference to, the indenture under which the debt
securities are issued and the Trust Indenture Act. The specific terms of any
series of debt securities will be described in the applicable prospectus
supplement, and may differ from the general description of the terms presented
below. Forms of the senior indenture and the subordinated indenture have been
filed as exhibits to our SEC registration statement. Whenever particular defined
terms of the senior indenture or the subordinated indenture (each as
supplemented or amended from time to time) are referred to in this prospectus or
a prospectus supplement, those defined terms are incorporated in this prospectus
or such prospectus supplement by reference.
GENERAL
Senior debt securities will be issued in one or more series under an
indenture to be entered into between Fifth Third and a trustee. This indenture
is referred to as the "senior indenture" and this trustee is referred to as the
"senior trustee". Subordinated debt securities will be issued under an indenture
to be entered into between Fifth Third and a trustee. This indenture is referred
to as the "subordinated indenture" and this trustee is referred to as the
"subordinated trustee". The senior indenture and the subordinated indenture are
also referred to together as the "indentures", and the senior trustee and
subordinated trustee are referred to together as the "trustees". The trustees
will be identified in applicable prospectus supplements. Capitalized terms which
are not otherwise defined have the meaning given to them in the relevant
indenture.
The indentures do not limit the aggregate principal amount of debt
securities or of any particular series of debt securities that may be issued
under the indentures. They provide that these debt securities may be issued at
various times in one or more series, in each case with the same or various
maturities, at par or at a discount. The indentures do not limit the amount of
other debt that we may issue and do not contain financial or similar restrictive
covenants. We expect from time to time to incur additional senior indebtedness
and Other Financial Obligations (each as defined below). The indentures do not
prohibit or limit additional senior indebtedness or Other Financial Obligations.
Each indenture provides that there may be more than one trustee under the
indenture with respect to different series of debt securities.
Because we are a holding company and a legal entity separate and distinct
from our subsidiaries, our rights to participate in any distribution of assets
of a subsidiary upon its liquidation, reorganization or otherwise, and the
holders of debt securities' ability to benefit indirectly from that
distribution, would be subject to prior creditor's claims, except to the extent
we may ourselves be recognized as a creditor of that subsidiary. Claims on our
subsidiary banks by creditors other than us include long-term debt and
substantial obligations with respect to deposit liabilities and federal funds
purchased, securities sold under repurchase agreements, other short-term
borrowings and various other financial obligations. The indentures do not
contain any covenants designed to afford holders of debt securities protection
in the event of a highly leveraged transaction involving us.
The particular terms of any debt securities will be contained in a
prospectus supplement. The prospectus supplement will describe the following
terms of the debt securities:
- the title of the debt securities;
- whether the debt securities are senior debt securities or subordinated
debt securities;
- any limit upon the aggregate principal amount of the debt securities and
the percentage of principal amount at which they may be issued;
- the date on which the principal of the debt securities must be paid;
- the interest rates per annum of the debt securities, the methods of
determining these rates, the dates from which the interest will accrue,
the interest payment dates, the regular record date for the interest
payable on any interest payment date, the person to whom any payment must
be made, if other than
7
the person in whose name that debt security is registered on the regular
record date for such interest, and the payment method of any interest
payable on a global debt security on an interest payment date;
- if other than the location specified in this prospectus, the place where
any principal, premium or interest on the debt securities must be paid;
- any redemption and any mandatory or optional sinking fund provisions;
- any repayment provision;
- if other than denominations of integral multiples of $1,000, the
denominations in which the debt securities will be issued;
- if other than the principal amount, the portion of the debt securities'
principal amount that will be payable upon an acceleration of their
maturity;
- the currency or currency unit of payment of principal, premium, if any,
and interest on the debt securities, and any index used to determine the
amount of payment of principal, premium, if any, and interest on these
debt securities;
- whether the debt securities will be issued in permanent global form and,
in such case, the initial depository and the circumstances under which
such permanent global debt security may be exchanged;
- whether the subordination provisions summarized below or other
subordination provisions, including a different definition of "senior
indebtedness", "Entitled Persons" or "Other Financial Obligations" will
apply to the debt securities;
- the terms and conditions of any obligation or right of Fifth Third or a
holder to convert or exchange subordinated debt securities into other
securities; and
- any other key aspects of the debt securities not specified in this
prospectus.
Unless otherwise described in the applicable prospectus supplement,
principal, premium, and interest, if any, on the debt securities will be
payable, and the debt securities will be transferable, at the corporate trust
office of Fifth Third Bank in Cincinnati, Ohio, except that interest may be paid
at our option by check mailed to the address of the holder entitled to it as it
appears on the security register.
Unless otherwise described in the applicable prospectus supplement, the
debt securities will be issued only in fully registered form, without coupons,
in denominations of $1,000 and any integral multiple of $1,000. As permitted by
the indenture, unless otherwise described in the applicable prospectus
supplement, the debt securities will be issued in permanent global form. See
"Issuance of Global Securities". No service charge will be made for any
registration of transfer or exchange of the debt securities, but we may require
payment to cover any tax or other governmental charge payable in connection with
a transfer or exchange.
Both senior debt securities and subordinated debt securities may be issued
as original issue discount securities (as defined below) to be offered and sold
at a substantial discount below their stated principal amount. Federal income
tax consequences and other special considerations that apply to any original
issue discount securities will be summarized in the applicable prospectus
supplement. The term "original issue discount security" means any security that
provides for an amount less than its principal amount to be due and payable upon
the acceleration of its maturity.
We refer to the applicable prospectus supplement relating to any series of
debt securities that are original issue discount securities for the particular
provisions relating to acceleration of the maturity of a portion of the
principal amount of such original issue discount securities upon a continuing
event of default (as defined below).
SUBORDINATION OF THE SUBORDINATED DEBT SECURITIES
Our obligation to make any payment of principal or interest on subordinated
debt securities will, to the extent the subordinated indenture specifies, be
subordinate and junior in right of payment to all of our senior
8
indebtedness. Unless otherwise specified in the prospectus supplement relating
to a specific series of subordinated debt securities, "senior indebtedness" is
defined in the subordinated indenture to mean the principal of (and premium, if
any) and interest on:
- all our indebtedness for money borrowed, including indebtedness of others
guaranteed by us, other than the subordinated debt securities, whether
outstanding on the date of execution of the indenture or incurred
afterward, except indebtedness that by its terms expressly is not
superior in payment right to the subordinated debt securities or ranks
equal to the subordinated debt securities; and
- any deferrals, renewals or extensions of any such senior indebtedness.
The payment of the principal and interest on the subordinated debt
securities will, to the extent described in the subordinated indenture, be
subordinate in payment right to the prior payment of all senior indebtedness.
Unless otherwise described in the prospectus supplement relating to a specific
series of subordinated debt securities, in certain events of insolvency, the
payment of the principal and interest on the subordinated debt securities will,
to the extent described in the subordinated indenture, also be effectively
subordinate in payment right to the prior payment of all Other Financial
Obligations. Upon any payment or distribution of assets to creditors in case of
our liquidation, dissolution, winding up, reorganization, assignment for the
benefit of creditors, or any bankruptcy, insolvency or similar proceedings, all
senior indebtedness holders will be entitled to receive payment in full of all
amounts due before the subordinated debt securities holders will be entitled to
receive any payment of principal or interest on their securities. If upon any
such payment or asset distribution to creditors, there remains, after giving
effect to those subordination provisions in favor of senior indebtedness
holders, any amount of cash, property or securities available for payment or
distribution in respect of subordinated debt securities (defined in the
subordinated indenture as "Excess Proceeds") and (2) at that time, any Entitled
Persons (as defined below) in respect of Other Financial Obligations have not
received payment of all amounts due on such Other Financial Obligations, then
such Excess Proceeds will first be applied to pay these Other Financial
Obligations before any payment may be applied to subordinated debt securities.
If the maturity of any subordinated debt securities is accelerated, all senior
indebtedness holders will be entitled to receive payment of all amounts due
before the subordinated debt securities holders will be entitled to receive any
payment of principal or interest on their securities.
Because of this subordination in favor of senior indebtedness holders, in
the event of insolvency, our creditors who are not holders of senior
indebtedness or subordinated debt securities may recover less, ratably, than
senior indebtedness holders and may recover more, ratably, than subordinated
debt security holders.
Unless otherwise specified with respect to a series of subordinated debt
securities in the related prospectus supplement:
- "Other Financial Obligations" means all obligations of Fifth Third to
make payment under the terms of financial instruments, such as:
- securities contracts and foreign currency exchange contracts;
- derivative instruments such as:
- swap agreements (including interest rate and foreign exchange rate
swap agreements);
- cap agreements;
- floor agreements;
- collar agreements;
- interest rate agreements;
- foreign exchange rate agreements;
- options;
9
- commodity futures contracts;
- commodity option contracts; and
- similar financial instruments, other than:
- obligations on account of senior indebtedness; and
- obligations on account of indebtedness for money borrowed ranking
equal or subordinate to the subordinated debt securities.
- "Entitled Persons" means any person who is entitled to payment under the
terms of Other Financial Obligations.
Our obligations under subordinated debt securities will rank equal in right
of payment with each other subject to the obligations of subordinated debt
security holders to pay over any Excess Proceeds to Entitled Persons in respect
of Other Financial Obligations, unless otherwise described in the prospectus
supplement relating to a specific series of subordinated debt securities.
CONVERSION OR EXCHANGE
If and to the extent indicated in the applicable prospectus supplement, a
series of subordinated debt securities may be convertible or exchangeable into
other debt securities or common stock, preferred stock or depositary shares. The
specific terms on which any series may be so converted or exchanged will be
described in the applicable prospectus supplement. These terms may include
provisions for conversion or exchange, whether mandatory, at the holder's option
or at our option, in which case the amount or number of securities the
subordinated debt security holders would receive would be calculated at the time
and manner described in the applicable prospectus supplement.
DEFAULTS
Senior Debt Securities. The following events will be "events of default"
with respect to each series of senior debt securities:
- default in any principal or premium payment on any security of that
series at maturity;
- default for 30 days in interest payment of any security of that series;
- failure by us to deposit any sinking fund payment when due in respect of
that series;
- failure by us for 60 days in performing any other covenant or warranty in
the senior indenture (other than a covenant or warranty solely for the
benefit of other series of senior debt securities) after:
- we are given written notice by the senior trustee; or
- the holders of at least 25% in aggregate principal amount of the
outstanding securities of that series give written notice to us and the
senior trustee;
- failure by us to pay when due any indebtedness of Fifth Third or any of
our principal subsidiary banks in excess of $25,000,000; or acceleration
of the maturity of any such indebtedness exceeding that amount if
acceleration results from a default under the instrument giving rise to
that indebtedness and is not annulled within 60 days after due notice;
- bankruptcy, insolvency or reorganization of us or one of our principal
subsidiary banks; and
- any other event of default provided for that series.
A "principal subsidiary bank" is any subsidiary (as defined in the senior
indenture) that is a bank and that has total assets equal to 50% or more of our
consolidated assets, determined as of the date of the most recent financial
statements of such entities. At present, the only principal subsidiary bank is
Fifth Third Bank.
10
If an event of default for senior debt securities of any series outstanding
has occurred and is continuing, either the senior trustee or the holders of at
least 25% in aggregate principal amount of the outstanding senior debt
securities of that series may declare the principal amount (or, if the debt
securities of that series are original issue discount securities, that portion
of the principal amount specified by the terms of that series) of all securities
of that series to be due and payable immediately. However, no such declaration
is required with respect to an event of default triggered by bankruptcy,
insolvency or reorganization. Subject to certain conditions, this declaration
may be annulled by the holders of a majority in principal amount of the
outstanding securities of the series. In addition, the holders of a majority in
principal amount of the outstanding securities of the series may waive any past
default with respect to such series, except for a default:
- in any principal, premium or interest payment; or
- of a covenant which cannot be modified without the consent of each holder
of outstanding senior debt securities of the series affected.
Any annulment or waiver so effected will be binding on all holders of securities
of that series.
In the event of our bankruptcy, insolvency or reorganization, senior debt
securities holders' claims would fall under the broad equity power of a federal
bankruptcy court, and to that court's determination of the nature of those
holders' rights.
The senior indenture contains a provision entitling the senior trustee,
acting under the required standard of care, to be indemnified by the holders of
any outstanding senior debt securities series before proceeding to exercise any
right or power under the senior indenture at the holders' request. The holders
of a majority in principal amount of outstanding senior debt securities of any
series may direct the time, method and place of conducting any proceeding for
any remedy available to the senior trustee, or exercising any trust or other
power conferred on the senior trustee, with respect to the senior debt
securities of such series. The senior trustee, however, may decline to act if
that direction is contrary to law or the senior indenture or would involve the
senior trustee in personal liability.
We will file annually with the senior trustee a compliance certificate as
to all conditions and covenants in the senior indenture.
Subordinated Debt Securities. The payment of principal of the subordinated
debt securities may be accelerated only upon an event of default (as defined
below) specified in the subordinated indenture or in the specific terms of a
series of subordinated debt securities (which will be described in the related
prospectus supplement). These events are more limited than the events of default
described above with respect to senior debt securities. In particular, there is
no acceleration right in the case of a default in the payment of interest or
principal prior to the maturity date or a default in performance of any
covenants in the subordinated indenture.
With respect to each series of subordinated debt securities, an "event of
default" includes certain events involving our bankruptcy, insolvency or
reorganization (but not the bankruptcy, insolvency or reorganization of any
subsidiary). With respect to a particular series of subordinated debt
securities, additional events of default may be provided, in which case they
will be described in the related prospectus supplement.
With respect to each series of subordinated debt securities, the
subordinated indenture defines a "default" to include:
- any event of default;
- default in any principal or premium payment on any security of that
series at maturity;
- default for 30 days in interest payment of any security of that series;
11
- failure by us for 30 days in performing any other covenant or warranty in
the subordinated indenture (other than a covenant or warranty solely for
the benefit of other series of subordinated debt securities) after:
- we are given written notice by the subordinated trustee; or
- the holders of at least 25% in aggregate principal amount of the
outstanding securities of that series give written notice to us and the
subordinated trustee; or
- any other default provided for that series.
If an event of default for subordinated debt securities of any series
outstanding has occurred and is continuing, either the subordinated trustee or
the holders of at least 25% in aggregate principal amount of the outstanding
subordinated debt securities of that series may declare the principal amount
(or, if the debt securities of that series are original issue discount
securities, that portion of the principal amount specified by the terms of that
series) of all securities of that series to be due and payable immediately.
Subject to certain conditions, this declaration may be annulled by the holders
of a majority in principal amount of the outstanding securities of the series.
In addition, the holders of a majority in principal amount of the outstanding
securities of the series may waive any past default with respect to such series,
except for a default:
- in any principal, premium or interest payment; or
- of a covenant which cannot be modified without the consent of each holder
of outstanding subordinated debt securities of the series affected.
Any annulment or waiver so effected will be binding on all holders of securities
of that series.
In the event of our bankruptcy, insolvency or reorganization, subordinated
debt securities holders' claims would fall under the broad equity power of a
federal bankruptcy court, and to that court's determination of the nature of
those holders' rights.
The subordinated indenture contains a provision entitling the subordinated
trustee, acting under the required standard of care, to be indemnified by the
holders of any outstanding subordinated debt securities series before proceeding
to exercise any right or power under the subordinated indenture at the holders'
request. The holders of a majority in principal amount of outstanding
subordinated debt securities of any series may direct the time, method and place
of conducting any proceeding for any remedy available to the subordinated
trustee, or exercising any trust or other power conferred on the subordinated
trustee, with respect to the subordinated debt securities of such series. The
subordinated trustee, however, may decline to act if that direction is contrary
to law or the subordinated indenture or would involve the subordinated trustee
in personal liability.
We will file annually with the subordinated trustee a compliance
certificate as to all conditions and covenants in the subordinated indenture.
MODIFICATION AND WAIVER
We may modify or amend an indenture with the consent of the relevant
trustee, in some cases without obtaining the consent of security holders.
Certain modifications and amendments also require the consent of the holders of
at least a majority in aggregate principal amount of the outstanding debt
securities of each series issued under that indenture that would be affected by
the modification or amendment. Further, without the consent of the holder of
each outstanding debt security issued under an indenture that would be affected,
we may not amend or modify an indenture to do any of the following:
- change the stated maturity of the principal, or any installment of
principal or interest, on any outstanding debt security;
- reduce any principal amount, premium or interest, on any outstanding debt
security, including in the case of an original issue discount security
the amount payable upon acceleration of the maturity of that security;
12
- change the place of payment where, or the currency or currency unit in
which, any principal, premium or interest on any outstanding debt
security is payable;
- impair the right to institute suit for the enforcement of any payment on
or after its stated maturity or, in the case of redemption, on or after
the redemption date;
- reduce the above-stated percentage of outstanding debt securities
necessary to modify or amend the applicable indenture; or
- modify the above requirements or reduce the percentage of aggregate
principal amount of outstanding debt securities of any series required to
be held by holders seeking to waive compliance with certain provisions of
the relevant indenture or seeking to waive certain defaults.
The holders of at least a majority in aggregate principal amount of the
outstanding debt securities of a series may waive, insofar as that series is
concerned:
- our compliance with a number of restrictive provisions of the relevant
indenture; and
- any past default with respect to that series, except a default in the
payment of the principal, or premium, if any, or interest on any
outstanding debt security of that series or in respect of an indenture
covenant which cannot be modified or amended without each outstanding
debt security holder consenting.
Any waiver so effected will be binding on all holders of debt securities of that
series.
Each indenture provides that in determining whether the holders of the
requisite principal amount of the outstanding debt securities have given any
request, demand, authorization, direction, notice, consent or waiver under that
indenture or are present at a meeting of holders of outstanding debt securities
for quorum purposes:
- the principal amount of an original issue discount security that is
deemed to be outstanding will be the amount of the principal that would
be due and payable as of the date of such determination upon acceleration
of its maturity; and
- the principal amount of outstanding debt securities denominated in a
foreign currency or currency unit will be the U.S. dollar equivalent,
determined on the date of its original issuance, of the principal amount
of that outstanding debt security or, in the case of an original issue
discount security, the U.S. dollar equivalent, determined on the date of
original issuance of such outstanding debt security, of the amount
determined as provided in the bullet point above.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The indentures provide that we may not consolidate with or merge into
another corporation or transfer our properties and assets substantially as an
entirety to another person unless:
- the entity formed by the consolidation or into which we merge, or to
which we transfer our properties and assets, (1) is a corporation,
partnership or trust organized and existing under the laws of the United
States, any state of the United States or the District of Columbia and
(2) expressly assumes by supplemental indenture the payment of any
principal, premium or interest on the debt securities, and the
performance of any other covenants under the relevant indenture; and
- immediately after giving effect to the transaction, no event of default
or default, as applicable, and no event which, after notice or lapse of
time or both, would become an event of default or default, as applicable,
will have occurred and be continuing under the relevant indenture.
DEFEASANCE AND DISCHARGE
The indentures provide that the terms of any series of debt securities may
allow us to terminate some of our obligations with respect to the debt
securities of that series (this procedure is often referred to as "defeasance")
by depositing with the applicable trustee as trust funds a combination of money
and U.S.
13
government obligations or foreign government obligations, as applicable,
sufficient to pay the principal of or premium, if any, and interest on, the
securities of such series as they come due.
Defeasance is permitted only if, among other things, we deliver to the
trustee:
- an opinion of counsel substantially in the form described in the relevant
indenture to the effect that the holders of the debt securities of that
series will have no U.S. federal income tax consequences as a result; and
- if the debt securities of that series are then listed on the New York
Stock Exchange, an opinion of counsel that the debt securities of that
series will not be delisted as a result.
This termination will not relieve us of our obligation to pay when due the
principal of, premium, if any, and interest on the debt securities of that
series if the debt securities of that series are not paid from the money,
foreign government obligations or U.S. government obligations held by the
applicable trustee for the purpose of making these payments.
Unless specified in the applicable prospectus supplement, these defeasance
provisions of the applicable indenture will apply to each series of debt
securities.
TITLE
Fifth Third, the trustees and any of their agents may treat the registered
owner of any debt security as the absolute owner of that security, whether or
not that debt security is overdue and despite any notice to the contrary, for
any purpose. See "Issuance of Global Securities".
GOVERNING LAW
The indentures and debt securities will be governed by, and construed in
accordance with, the laws of the State of New York.
INFORMATION CONCERNING THE TRUSTEES
A trustee may resign or be removed with respect to one or more series of
debt securities, and a successor trustee may be appointed to act with respect to
that series. If two or more persons are acting as trustee with respect to
different series of debt securities, each will be a trustee of a trust under the
relevant indenture separate and apart from the trust administered by any other,
and any action to be taken by the "trustee" may then be taken by any trustee
with respect to, and only with respect to, the one or more series of debt
securities for which it is trustee.
In the normal course of business, Fifth Third and its subsidiaries may
conduct banking transactions with the trustees, and the trustees may conduct
banking transactions with Fifth Third and its subsidiaries.
14
PREFERRED STOCK
The following description summarizes the material provisions of our
preferred stock. This description is not complete and is qualified in its
entirety by reference to our articles of incorporation, as amended with respect
to each series of preferred stock, which are incorporated by reference.
This information relates to terms and conditions that apply to the
preferred stock as a class. The terms of each series of preferred stock will be
established in an amendment to the articles of incorporation and any difference
from the general terms of preferred stock as a class will be described in the
applicable prospectus supplement.
AUTHORIZED PREFERRED STOCK
The articles of incorporation authorize the issuance of up to 500,000
shares of preferred stock, without par value. In connection with our April 2001
merger with Old Kent Financial Corporation, Old Kent's Series D Perpetual
Preferred Stock and Series E Perpetual Preferred Stock were converted into
corresponding shares of our preferred stock, which are designated as Series D
Perpetual Preferred Stock and Series E Perpetual Preferred Stock. As of the date
of this prospectus, the only preferred stock outstanding was 7,250 shares of
Series D Perpetual Preferred Stock and 2,000 shares of Series E Perpetual
Preferred Stock.
SERIES D PERPETUAL PREFERRED STOCK AND SERIES E PERPETUAL PREFERRED STOCK
Shares of Series D and Series E preferred stock:
- have no voting rights except as required by law;
- have a stated value of $1,000 per share;
- are entitled to cumulative dividends at a per annum rate of eight
percent;
- rank senior to common stock and all other series of preferred stock as to
dividend and liquidation rights, except that shares of Series D preferred
stock rank senior to shares of Series E preferred stock as to dividends
and equally with shares of Series E preferred stock as to liquidation
rights; and
- have a liquidation preference equal to their stated value, including all
accrued and unpaid dividends.
Shares of Series D preferred stock are convertible at the holder's option
into shares of common stock at an initial conversion price of $23.5399 per share
of common stock, subject to adjustment in accordance with antidilution
provisions. In addition, if there occurs:
- a recapitalization of our common stock (other than subdivisions,
combinations, recapitalizations or reclassifications addressed by other
antidilution provisions);
- a consolidation, merger or share exchange (other than a consolidation,
merger or share exchange in which we are the surviving corporation and
each share of our common stock outstanding prior to the transaction
remains outstanding immediately following the transaction); or
- a sale or transfer of all or substantially all our assets,
holders of Series D preferred stock will be entitled to receive the amount and
kind of consideration, if any, to be paid in connection with the transaction for
the shares of common stock into which their shares of Series D preferred stock
are convertible, subject to any subsequent adjustments.
The articles of incorporation provide that we may not:
- issue shares of preferred stock ranking senior to, or on a parity with,
shares of Series D preferred stock or Series E preferred stock as to
dividend or liquidation rights without the prior approval of the holders
of a majority of the Series D preferred stock or Series E preferred
stock, respectively; or
- effect a merger, consolidation, reorganization, recapitalization or other
similar transaction, or an exchange of securities with another party,
unless:
15
- in the case of the Series D preferred stock:
- the Series D preferred stock remains issued and outstanding
following the transaction; or
- holders of Series D preferred stock are issued another series of
preferred stock with substantially identical terms; and
- in the case of the Series E preferred stock:
- the Series E preferred stock remains issued and outstanding
following the transaction;
- holders of Series E preferred stock are issued another series of
preferred stock with substantially identical terms; or
- holders of a majority of the outstanding shares of Series E
preferred stock approve the conversion of shares of Series E
preferred stock into the right to receive a cash payment as
described in the paragraph below.
In addition, if we experience a change of control (as defined in the
articles of incorporation) that is not approved by the holders of a majority of
the outstanding shares of Series E preferred stock, then upon the approval by
the holders of a majority of the outstanding shares of Series E preferred stock,
shares of Series E preferred stock will be converted into the right to receive a
cash payment equal to the value of the consideration to be paid in connection
with the change of control for the shares of common stock into which shares of
Series E preferred stock would be convertible if they were shares of Series D
preferred stock, including any amounts payable in lieu of fractional shares.
The articles of incorporation provide that the Series D preferred stock and
the Series E preferred stock are closed series and the number of authorized
shares of either series cannot be increased or decreased. Accordingly, no
additional shares of Series D preferred stock or Series E preferred stock will
be issued.
GENERAL
Subject to the rights of holders of then-outstanding preferred stock
(including the Series D and Series E preferred stock), the articles of
incorporation allow us to issue preferred stock from time to time in one or more
series, upon authorization by our board of directors. Within certain legal
limits, the board of directors is authorized to determine for any series of
preferred stock to be issued:
- the designation and authorized number of shares;
- dividend rights;
- liquidation price;
- redemption rights;
- sinking fund requirements;
- conversion rights; and
- restrictions on the issuance of shares.
Thus, the board of directors, without stockholder approval, could authorize
preferred stock to be issued with conversion and other rights that could
adversely affect the voting power and other rights of common stockholders or the
rights of other outstanding series of preferred stock (subject to the rights of
Series D and Series E preferred stock and any other then-outstanding series of
preferred stock).
Each series of preferred stock will have the dividend, liquidation,
redemption and voting rights described below unless otherwise described in a
prospectus supplement pertaining to a specific series. That prospectus
supplement will describe the following terms of the series:
- the designation of that series and the number of shares offered;
- the amount of the liquidation preference per share or the method of
calculating that amount;
16
- the initial public offering price at which shares of that series will be
issued;
- the dividend rate or the method of calculating that rate, the dates on
which dividends will be paid and the dates from which dividends will
begin to cumulate;
- any redemption or sinking fund provisions;
- any conversion or exchange rights;
- any additional rights, preferences, privileges, qualifications,
limitations and restrictions;
- any securities exchange listing;
- the relative ranking and preferences of that series as to dividend rights
and rights upon any liquidation, dissolution or winding up of Fifth
Third; and
- any other terms of the series.
Under the terms of the junior indenture (as defined under the heading
"Capital Securities and Related Instruments -- Junior Subordinated Debentures"),
we have agreed not to declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
our common stock or preferred stock if, at that time, there is a default under
the junior indenture or a related guarantee or Fifth Third has delayed interest
payments on the securities issued under the junior indenture.
Shares of preferred stock, when issued against full payment of their
purchase price, will be fully paid and nonassessable. The liquidation preference
of any series of preferred stock does not necessarily indicate the price at
which shares of that series of preferred stock will actually trade on or after
the issue date.
RANK
With respect to dividend rights and rights upon our liquidation,
dissolution or winding up, each series of preferred stock will rank prior to
common stock. Subject to the articles of incorporation, the rank of each series
of preferred stock compared to other series of preferred stock will be described
in the applicable prospectus supplement.
DIVIDENDS
Holders of preferred stock will be entitled to receive, when, as and if the
board of directors declares, dividends, payable on the dates, in the form and at
the rates per share as described in the applicable prospectus supplement. Those
rates may be fixed, variable or both.
Dividends will be non-cumulative, except as otherwise determined by the
board of directors and described in the applicable prospectus supplement. If
dividends on a series of preferred stock are non-cumulative and if the directors
fail to declare a dividend for a dividend period for that series, then holders
of that preferred stock will have no right to receive a dividend for that
dividend period, and we will have no obligation to pay the dividend for that
period, whether or not dividends are declared for any future dividend payment
dates. If dividends on a series of preferred stock are cumulative, the dividends
on those shares will accrue from and after the date indicated in the applicable
prospectus supplement.
REDEMPTION
Any terms on which any series of preferred stock may be redeemed will be
described in the applicable prospectus supplement. All shares of preferred stock
that we redeem, purchase or acquire, including shares surrendered for conversion
or exchange, will be cancelled and restored to the status of authorized but
unissued shares of preferred stock undesignated as to series.
LIQUIDATION
In the event of our voluntary or involuntary liquidation, dissolution or
winding up, preferred stockholders will be entitled, subject to rights of
creditors and holders of any series of preferred stock ranking prior as to
17
liquidation rights, but before any distribution to common stockholders, to
receive a liquidating distribution in the amount of the liquidation preference
per share as indicated in the applicable prospectus supplement, plus accrued and
unpaid dividends for the current dividend period. This would include any
accumulation of unpaid dividends for prior dividend periods, if dividends on
that series of preferred stock are cumulative. If the amounts available for
distribution upon liquidation, dissolution or winding up are not sufficient to
satisfy the full liquidation rights of all the outstanding preferred stock and
all stock ranking equal to that preferred stock, then the holders of each series
of that stock will share ratably in any distribution of assets in proportion to
the full respective preferential amount, which may include accumulated
dividends, to which they are entitled. After the full amount of the liquidation
preference is paid, the holders of preferred stock will not be entitled to any
further participation in any distribution of our net assets.
VOTING
Except as otherwise required by law, shares of preferred stock have no
voting rights.
Ohio law provides that, regardless of whether a class of shares is granted
voting rights by the articles of incorporation, the shareholders of that class
are entitled to vote as a class on certain amendments to the articles of
incorporation and certain other fundamental changes that can directly affect
that class. These include amendments to our articles of incorporation that:
- change the par value of the issued shares of the class;
- reduce the number of issued shares of the class or change the issued
shares into shares of another class;
- change the terms of the class of shares in a manner prejudicial to the
shareholders of the class;
- change the terms of the issued shares of a class senior to a particular
class in a manner prejudicial to the shareholders of the junior class; or
- authorize or alter rights of conversion of other shares into shares of
the class, provided that the articles may provide that no vote of the
holders of common stock is required in connection with the authorization
of shares of any class that are convertible into common stock (Fifth
Third's articles do not so provide).
In addition, Ohio law provides that the shareholders of every class are entitled
to vote as a class on amendments to our articles of incorporation that:
- reduce or eliminate our stated capital of as a result of certain changes
to the terms of the class of shares;
- substantially change the purposes of the corporation or permit the
adoption of a later amendment that substantially changes the purposes of
the corporation; or
- changes the corporation into a nonprofit corporation.
Under Ohio law, the amendments described above must be approved by at the
holders of least a two-thirds of the shares of the affected class or, if the
articles of incorporation provide or permit, a greater or lesser proportion, but
not less than a majority. The articles of incorporation currently do not provide
for the approval by shareholders of such amendments. Accordingly, the two-thirds
voting requirement provided for under Ohio law governs such amendments. In
addition, where applicable law provides that the corporate action proposed by an
amendment may only be authorized pursuant to a specified vote of shareholders,
the amendment must receive this specified vote in order to be adopted.
The terms of a series of preferred stock may provide that the holders of
that series (together with holders of any other series having similar rights)
will be entitled to vote for the election of directors because dividends on that
series are in arrears for a specified period of time. Under the Bank Holding
Company Act, any series having such a right may then be deemed a "class of
voting securities", and a holder of 25% or more of that
18
series (or a holder of 5% or more if it otherwise exercises a "controlling
influence" over Fifth Third) may then be subject to regulation as a bank holding
company. In addition, in that event
- any bank holding company may be required to obtain Federal Reserve Board
approval, and any foreign bank, and any company that controls a foreign
bank, that has certain types of U.S. banking operations may be required
to obtain Federal Reserve Board approval under the International Banking
Act of 1978, to acquire 5% or more of any series of preferred stock and
- any person other than a bank holding company may be required to obtain
Federal Reserve Board approval under the Change in Bank Control Act to
acquire 10% or more of that series of preferred stock.
CONVERSION OR EXCHANGE
The terms on which preferred stock of any series may be converted into or
exchanged for another class or series of securities will be described in the
applicable prospectus supplement.
NO PREEMPTIVE RIGHTS
The holders of preferred stock will not have any preemptive rights to
subscribe to any other securities that we may issue.
TITLE
Fifth Third, the transfer agent and registrar for a series of preferred
stock, and any of their agents may treat the registered owner of that preferred
stock as the absolute owner of that stock, whether or not any payment for that
preferred stock will be overdue and despite any notice to the contrary, for any
purpose. See also "Issuance of Global Securities".
TRANSFER AGENT AND REGISTRAR
The transfer agent, registrar and dividend disbursement agent for each
series of preferred stock will be named in the applicable prospectus supplement.
19
DEPOSITARY SHARES
The following description summarizes the material provisions of the deposit
agreement, the depositary shares and the depositary receipts. This description
is not complete, and is qualified in its entirety by reference to the deposit
agreement and depositary receipts for the depositary shares corresponding to any
particular series of preferred stock. The form of the deposit agreement has been
filed as an exhibit to our SEC registration statement. The specific terms of any
series of depositary shares will be described in the applicable prospectus
supplement and may differ from the general description of terms presented below.
GENERAL
We may offer fractional interests in shares of preferred stock, instead of
whole shares of preferred stock. If so, we will allow a depositary to issue
depositary shares to the public. The depositary shares will represent the
fractional interest of a share of preferred stock of the series underlying the
corresponding series of depositary shares.
The shares of a preferred stock series underlying depositary shares will be
deposited under a separate deposit agreement between Fifth Third and a bank or
trust company acting as depositary with respect to that series. The depositary
will have its principal office in the United States and have a combined capital
and surplus of at least $50,000,000. The prospectus supplement relating to a
series of depositary shares will mention the name and address of the depositary.
Under the relevant deposit agreement, each owner of a depositary share will be
entitled, in proportion to its fractional interest in a share of the underlying
series of preferred stock, to all the rights and preferences of that preferred
stock, including dividend, voting, redemption, conversion, exchange and
liquidation rights.
Depositary shares will be evidenced by one or more depositary receipts
issued under a deposit agreement.
Pending the preparation of definitive engraved depositary receipts, a
depositary may, upon our order, issue temporary depositary receipts
substantially identical to and entitling their holders to all the rights
pertaining to the definitive depositary receipts but not in definitive form.
Definitive depositary receipts will be prepared without unreasonable delay, and
the temporary depositary receipts will be exchangeable for definitive depositary
receipts at our expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other cash
distributions on the underlying preferred stock to the record depositary
shareholders based on the number of the depositary shares owned by that holder
on the relevant record date. The depositary will distribute only that amount
which can be distributed without attributing to any depositary shareholders a
fraction of one cent, and any balance not so distributed will be added to and
treated as part of the next sum received by the depositary for distribution to
record depositary shareholders.
If there is a distribution other than in cash, the depositary will
distribute property to the entitled record depositary shareholders, unless the
depositary determines that it is not feasible to make that distribution. In that
case the depositary may, with our approval, adopt the method it deems equitable
and practicable for making that distribution, including any sale of property and
the distribution of the net proceeds from this sale to the concerned holders.
Each deposit agreement will also contain provisions relating to the manner
in which any subscription or similar rights we provide to preferred stockholders
of the underlying series will be made available to depositary shareholders.
WITHDRAWAL OF STOCK
Upon surrender of depositary receipts at the depositary's office, a holder
of depositary shares will be entitled to the number of whole shares of the
underlying preferred stock series and any money or other property those
depositary shares represent. Depositary shareholders will be entitled to receive
whole shares of
20
the related preferred stock series on the basis described in the applicable
prospectus supplement, but holders of those whole preferred stock shares will
not afterwards be entitled to receive depositary shares in exchange for their
shares. If the depositary receipts the holder delivers evidence a depositary
share number exceeding the whole share number of the related preferred stock
series to be withdrawn, the depositary will deliver to that holder a new
depositary receipt evidencing the excess depositary share number.
REDEMPTION; LIQUIDATION
Any terms on which the depositary shares relating to the preferred stock of
any series may be redeemed, and any amounts distributable upon our liquidation,
dissolution or winding up, will be described in the applicable prospectus
supplement.
VOTING
Upon receiving notice of any meeting at which holders of the underlying
series of preferred stock are entitled to vote, the depositary will mail the
information contained in that notice to the record depositary shareholders
corresponding to that series of preferred stock. Each such depositary
shareholder on the record date will be entitled to instruct the depositary on
how to vote the underlying shares of preferred stock. The depositary will vote
those underlying preferred stock shares according to those instructions, and we
will take reasonably necessary actions to enable the depositary to do so. If the
depositary does not receive specific instructions from the depositary
shareholders relating to the underlying preferred stock, it will abstain from
voting those shares, unless otherwise indicated in the applicable prospectus
supplement.
AMENDMENT AND TERMINATION OF DEPOSITARY AGREEMENT
We may change the form of the depositary receipt and the relevant deposit
agreement with the consent of the depositary. Certain changes that significantly
affect the rights of the depositary shareholders also require the consent of a
majority of the outstanding depositary shareholders. The deposit agreement
allows us or the depositary to terminate our obligations with respect to the
deposit agreement only if:
- we have redeemed or reacquired all outstanding depositary shares relating
to the deposit agreement;
- all preferred stock of the relevant series has been withdrawn; or
- there has been a final distribution in respect of the preferred stock of
the relevant series in connection with our liquidation, dissolution or
winding up and such distribution has been made to the related depositary
shareholders.
CHARGES OF DEPOSITARY
We will pay all charges of each depositary in connection with the initial
deposit and any redemption of the preferred stock. Depositary shareholders will
be required to pay any other transfer and other taxes and governmental charges
and any other charges expressly provided in the deposit agreement to be for
their accounts.
MISCELLANEOUS
Each depositary will forward to the relevant depositary shareholders all
reports and communications that we are required to furnish to preferred
stockholders of the underlying series.
Neither we nor any depositary will be liable if it is prevented or delayed
by law or any circumstance beyond its control in performing its obligations
under any deposit agreement. The obligations of Fifth Third and each depositary
under any deposit agreement will be limited to performance in good faith of
their duties under that agreement, and they will not be obligated to prosecute
or defend any legal proceeding in respect of any depositary shares or preferred
stock unless they are provided with satisfactory indemnity. They may rely upon
written advice of counsel or accountants, or information provided by persons
presenting preferred stock for deposit, depositary shareholders or other persons
believed to be competent and on documents believed to be genuine.
21
TITLE
Fifth Third, each depositary and any of their agents may treat the
registered owner of any depositary share as the absolute owner of that share,
whether or not any payment for that depositary share is overdue and despite any
notice to the contrary, for any purpose. See "Issuance of Global Securities".
RESIGNATION AND REMOVAL OF DEPOSITARY
A depositary may resign at any time by delivering to us notice of its
election, and we may remove a depositary, and resignation or removal will take
effect upon the appointment of a successor depositary and its acceptance of
appointment. That successor depositary must:
- be appointed within 60 days after delivery of the notice of resignation
or removal;
- be a bank or trust company having its principal office in the United
States; and
- have combined capital and surplus of at least $50,000,000.
22
COMMON STOCK
The following description summarizes the material provisions of our common
stock. This description is not complete, and is qualified in its entirety by
reference to the provisions of the articles of incorporation and code of
regulations as well as the Ohio Business Corporation Act (the "OBC Act"). Our
articles of incorporation and code of regulations are, and any amendments to
them will be, incorporated by reference in our SEC registration statement.
AUTHORIZED COMMON STOCK
The articles of incorporation authorize 1,300,000,000 shares of common
stock, no par value. As of February 28, 2002, 582,012,862 shares of common stock
were outstanding. Our common stock is traded on the Nasdaq National Market under
the symbol "FITB". All of the outstanding shares of common stock are, and any
common stock issued and sold under this prospectus will be, fully paid and
nonassessable.
VOTING RIGHTS
Holders of common stock are entitled to one vote per share on all matters
submitted to a vote of stockholders. Holders of common stock have no preemptive
rights and the common stock has no redemption, sinking fund, or conversion
privileges.
The holders of common stock have the right to vote cumulatively in the
election of directors. Under applicable Ohio law, unless a corporation's
articles of incorporation are amended to provide that no shareholder of the
corporation may cumulate his or her voting power, each shareholder has the right
to vote cumulatively in the election of directors of the corporation if:
- written notice is given by any shareholder of the corporation to the
president, a vice president or the secretary of the corporation, not less
than 48 hours before the time fixed for holding the meeting at which
directors are to be elected, indicating that the shareholder desires that
voting for the election of directors be cumulative; and
- announcement of the giving of this notice is made upon the convening of
the meeting by the chairman or the secretary or by or on behalf of the
shareholder giving the notice.
Where these conditions are met, each shareholder will be entitled to cumulate
the voting power that he or she possesses and to give one nominee as many votes
as the number of directors to be elected multiplied by the number of his or her
shares, or to distribute these votes among two or more candidates. The
availability of cumulative voting rights enhances the ability of minority
shareholders to obtain representation on the board of directors.
DIVIDENDS
Holders of common stock are entitled to dividends as and when declared by
the board of directors out of funds legally available for the payment of
dividends. The board of directors has in the past declared and paid regular
dividends on a quarterly basis, and intends to continue to do so in the
immediate future in such amounts as the board of directors determines from time
to time.
Most of the revenues of Fifth Third available for payment of dividends
derive from amounts paid to it by its subsidiaries. Under applicable banking
law, the total of all dividends declared in any calendar year by each of our
bank subsidiaries may not, without the approval of the Federal Reserve Board,
exceed the aggregate of such bank's net profits and retained net profits for the
preceding two years.
If, in the opinion of the federal bank regulatory agency, a depository
institution under its jurisdiction is engaged in or is about to engage in an
unsafe or unsound practice (which, depending on the financial condition of the
depository institution, could include the payment of dividends), the agency may
require that the bank cease and desist from the practice. The Federal Reserve
Board has similar authority with respect to bank holding companies. In addition,
the federal bank regulatory agencies have issued policy statements which provide
that insured banks and bank holding companies should generally only pay
dividends out of current operating earnings. Finally, these regulatory
authorities have established guidelines with respect to the maintenance of
appropriate levels of capital by a bank, bank holding company or savings
association under their jurisdiction. Compliance with the standards set forth in
these guidelines could limit the amount of dividends that we and our affiliates
may pay in the future.
23
Under the terms of the junior indenture, we have agreed not to declare or
pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of our common stock or preferred stock
if, at that time, there is a default under the junior indenture or a related
guarantee or Fifth Third has delayed interest payments on the securities issued
under the junior indenture. For a more detailed discussion of the junior
indenture, see "Capital Securities and Related Instruments -- Junior
Subordinated Debentures".
RIGHTS UPON LIQUIDATION
In the event of our liquidation, dissolution or winding up, the holders of
common stock would be entitled to receive our net assets remaining after paying
all liabilities and after paying all preferred stockholders (including holders
of depositary shares) the full preferential amount to which those security
holders are entitled.
CHANGES OF CONTROL
Articles of Incorporation and Code of Regulations. The articles of
incorporation and code of regulations contain various provisions which could
discourage or delay attempts to gain control of us, including, among others,
provisions that:
- classify our board of directors into three classes, with each class
serving for three years and only one class being elected annually
- authorize the board of directors to fix its size between 15 and 30
directors
- provide that directors may be removed only for cause and only by a vote
of the holders of a majority of the shares entitled to vote thereon, and
- authorize directors to fill vacancies on the board that occur between
annual stockholder meetings, except for vacancies caused by a director's
removal by a stockholder vote.
In addition, the ability of the board of directors to issue authorized but
unissued common stock or preferred stock could have an anti-takeover effect.
Federal Bank Regulatory Limitations. The Change in Bank Control Act
prohibits a person or group of persons from acquiring "control" of a bank
holding company unless
- the Federal Reserve Board has been given 60 days' prior written notice of
the proposed acquisition and
- within that time period, the Federal Reserve Board does not issue a
notice disapproving the proposed acquisition or extending for up to
another 30 days the period during which such a disapproval may be issued,
or unless the acquisition otherwise requires Federal Reserve Board approval. An
acquisition may be made before expiration of the disapproval period if the
Federal Reserve Board issues written notice that it intends not to disapprove
the action. The acquisition of more than 10% of a class of voting stock of a
bank holding company with publicly held securities, such as Fifth Third,
generally would constitute the acquisition of control.
In addition, any "company" would be required to obtain Federal Reserve
Board approval before acquiring 25% or more of our outstanding common stock. If
the acquiror is a bank holding company, this approval is required before
acquiring 5% of the outstanding common stock. A company's obtaining "control" of
Fifth Third would also require Federal Reserve Board prior approval. "Control"
generally means
- the ownership or control of 25% or more of a class of voting securities,
- the ability to elect a majority of the directors, or
- the ability otherwise to exercise a controlling influence over management
and policies.
Ohio Law. Ohio law contains provisions that also could make more difficult
a change of control of us or discourage a tender offer or other plan to
restructure us. The following discussion of some of these provisions is
qualified in its entirety by reference to those particular statutory and
regulatory provisions.
24
Control Share Acquisition Act. The Ohio Control Share Acquisition Act
provides that any "control share acquisition" of an Ohio issuing public
corporation may be made only with the prior authorization of the shareholders of
the corporation in accordance with the provisions of the Control Share
Acquisition Act, unless the corporation's articles of incorporation or code of
regulations provide that the Act does not apply to control share acquisitions of
its shares. Our articles of incorporation and code of regulations do not so
provide, and accordingly we are subject to the Control Share Acquisition Act.
Subject to certain exceptions, a "control share acquisition" means the
acquisition, directly or indirectly, by any person of shares of the corporation
that, when added to all other shares in respect of which the person exercises
voting power, would entitle that person, directly or indirectly, to exercise
voting power in the election of directors within the following ranges:
- 20% or more, but less than one-third;
- one-third or more, but less than a majority; or
- a majority or more.
The Control Share Acquisition Act also requires that the acquiring person
deliver an acquiring person statement to the corporation. The corporation must
call a special meeting of its shareholders to vote upon the proposed acquisition
within 50 days after receipt of the acquiring person statement, unless the
acquiring person agrees to a later date.
The Control Share Acquisition Act further specifies that the shareholders
must approve the proposed control share acquisition by certain percentages at a
special meeting of shareholders at which a quorum is present. In order to comply
with the Act, the acquiring person may only acquire shares upon the affirmative
vote of:
- a majority of the voting power of the common stock entitled to vote in
the election of directors that is represented in person or by proxy at
the separate special meeting; and
- a majority of the voting power of the common stock that is represented in
person or by proxy at the special meeting excluding those shares of the
common stock deemed to be "interested shares" for purposes of the Control
Share Acquisition Act.
"Interested shares" are shares the voting power of which in the election of
directors is controlled by:
- an acquiring person;
- any officer of the corporation;
- any employee who is also a director of the corporation; or
- any person who transfers such shares for value after the record date for
the special meeting, if accompanied by the voting power in the form of a
blank proxy, an agreement to vote as instructed by the transferee, or
otherwise.
"Interested shares" also includes shares of common stock that are acquired
by any person during the period beginning on the date of the first public
disclosure of a proposed control share acquisition or any proposed merger,
consolidation or other transaction that would result in a change of control of
the corporation or all or substantially all of its assets and ending on the
record date for the special meeting if either:
- the aggregate consideration paid by the person (and any other person
acting in concert with the person) for shares of the corporation's common
stock exceeds $250,000; or
- the number of shares acquired by the person (and any other person acting
in concert with the person), exceeds one-half of one percent of the
outstanding shares of the corporation's common stock entitled to vote in
the election of directors.
In order to comply with the Control Share Acquisition Act, the proposed
control share acquisition must be completed no later than 360 days following
shareholder authorization.
Merger Moratorium Statute. Ohio corporation law prohibits an issuing
public corporation, such as Fifth Third, from engaging in certain transactions
with an interested shareholder for a period of three years following the date on
which the person became an interested shareholder unless, prior to such date,
the directors of the corporation approve either the transaction or the
acquisition of shares pursuant to which such
25
person became an interested shareholder. An interested shareholder is any person
who is the beneficial owner of a sufficient number of shares to allow such
person, directly or indirectly, alone or with others, including affiliates and
associates, to exercise or direct the exercise of 10% of the voting power of the
corporation in the election of directors.
The transactions covered include:
- any merger, consolidation, combination, or majority share acquisition
between or involving the corporation or a subsidiary and an interested
shareholder or an affiliate or associate of an interested shareholder;
- certain transfers of property, dividends, and issuance or transfers of
shares, from or by the corporation or a subsidiary to, with, or for the
benefit of an interested shareholder or an affiliate or associate of an
interested shareholder unless the transaction is in the ordinary course
of the corporation's business and on terms no more favorable to the
interested shareholder than those acceptable to third parties as
demonstrated by contemporaneous transactions; and
- certain transactions which:
- increase the proportionate share ownership of an interested shareholder;
- result in the adoption of a plan, proposed by or on behalf of the
interested shareholder, providing for the dissolution, winding up of the
affairs, or liquidation of the corporation; or
- pledge or extend the credit or financial resources of the corporation to
or for the benefit of the interested shareholder.
After the initial three-year moratorium has expired, the corporation may
engage in a covered transaction if:
- the acquisition of shares pursuant to which the relevant person became an
interested shareholder received the prior approval of the board of
directors;
- the transaction is approved by the affirmative vote of the holders of
shares representing at least two-thirds of the voting power of the
corporation in the election of directors and by the holders of shares
representing at least a majority of voting shares that are not
beneficially owned by an interested shareholder or an affiliate or
associate of an interested shareholder; or
- the transaction meets certain statutory tests designed to ensure that it
is economically fair to all shareholders.
Tender Offer Procedures. Ohio corporation law also provides that an
offeror may not make a tender offer that would result in the offeror
beneficially owning more than 10% of any class of the corporation's equity
securities without first filing certain information with the Ohio Division of
Securities and providing such information to the corporation and shareholders
within Ohio. The Ohio Division of Securities may suspend the continuation of the
tender offer if it determines that the offeror's filed information does not
provide full disclosure to the offerees of all material information concerning
the tender offer. The statute also provides that an offeror may not acquire any
equity security of the corporation within two years of the offeror's previous
acquisition of any equity security of the corporation pursuant to a tender offer
unless the Ohio shareholders may sell such security to the offeror on
substantially the same terms as the previous tender offer. The statute does not
apply to a transaction if either the offeror or the target corporation is a
savings and loan or bank holding company and the proposed transaction requires
federal regulatory approval. Consequently, this Ohio statute will only apply if
the proposed transaction does not trigger prior approval requirements discussed
above under "Federal Bank Regulatory Limitations."
Dissenter's Rights. Under Ohio law, shareholders have the right to dissent
from certain corporate actions and receive the fair cash value for their shares
if they follow certain procedures. Shareholders entitled to relief as dissenting
shareholders under Ohio law include shareholders:
- dissenting from certain amendments to the corporation's articles of
incorporation;
- of a corporation where all or substantially all of the assets of the
corporation are being leased, sold, exchanged, transferred or otherwise
disposed of outside of the ordinary course of its business;
26
- of a corporation that is being merged or consolidated into a surviving or
new entity;
- of a surviving corporation in a merger who are entitled to vote on the
adoption of an agreement of merger (but only as to the shares so
entitling them to vote);
- other than the parent corporation, of an Ohio subsidiary corporation that
is being merged into its parent corporation;
- of an acquiring corporation in a combination or a majority share
acquisition who are entitled to vote on such transaction (but only as to
the shares so entitling them to vote); and
- of an Ohio subsidiary corporation into which one or more domestic or
foreign corporations are being merged.
Changes to Classified Board of Directors. Under recently enacted
amendments to Ohio's General Corporation Law, any amendment of the regulations
or articles of an Ohio issuing public corporation that would change or eliminate
the classification of directors that are already classified must be adopted by
shareholders at a meeting held for that purpose and approved by:
- the affirmative vote of the holders of voting shares that is required to
effect an amendment to the corporation's regulations or articles under
continuing law; and
- the affirmative vote of the holders of a majority of the disinterested
shares voted on the proposal.
"Disinterested shares" are voting shares that are beneficially owned by any
person who is not an interested shareholder or an affiliate or associate of an
interested shareholder.
"Interested shareholder" means a person other than:
- the issuing public corporation;
- a subsidiary of the corporation; or
- any employee stock ownership or benefit plan of the corporation or any
subsidiary of the corporation, or any trustee or fiduciary with respect
to any such plan acting in that capacity,
who is the beneficial owner of a sufficient number of shares of the corporation
that, when added to all other shares of the corporation in respect of which that
person may exercise or direct the exercise of voting power, would entitle that
person, directly or indirectly, alone or with others, including affiliates or
associates of that person, to exercise or direct the exercise of 10% of the
voting power of the corporation in the election of directors after taking into
account all of that person's beneficially owned shares that are not currently
outstanding.
In addition, the amendments provide that where the directors of an Ohio
issuing public corporation are classified, the shareholders of the corporation
may not remove any director except for cause.
The existence of the above provisions could potentially result in Fifth
Third being less attractive to a potential acquiror, or result in our
stockholders receiving less for their shares of common stock than otherwise
might be available if there is a takeover attempt.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock is Fifth Third Bank,
Cincinnati, Ohio.
27
WARRANTS
The following description summarizes the material provisions of each
warrant agreement, the warrants and the warrant certificates. This description
is not complete, and is qualified in its entirety by reference to the warrant
agreement related to the warrants of any particular series. The form of warrant
agreement has been filed as an exhibit to our SEC registration statement. The
specific terms of any series of warrants will be described in the applicable
prospectus supplement and may differ from the general description of terms
presented below.
GENERAL
We may issue warrants for the purchase of debt securities, preferred stock,
depositary shares or common stock. Warrants may be issued independently or
together with debt securities, preferred stock, depositary shares or common
stock, and may be attached to or separate from those securities.
Each series of warrants will be evidenced by certificates issued under a
separate warrant agreement to be entered into between Fifth Third and a bank or
trust company acting as warrant agent with respect to that series. The warrant
agent will have its principal office in the United States and having combined
capital and surplus of at least $50,000,000. The prospectus supplement relating
to a series of warrants will mention the name and address of the warrant agent.
The particular terms of any series of warrants will be contained in a
prospectus supplement. The prospectus supplement will describe the following
terms of the warrants:
- the offering price;
- the currency for which such warrants may be purchased or exercised;
- the designation and terms of the securities with which the warrants are
issued and the number of warrants issued with each such security or each
principal amount of such security;
- the date which the warrants and the related securities will be separately
transferable;
- in the case of warrants to purchase debt securities, the principal amount
of debt securities that can be purchased upon exercise of one warrant,
and the price and currency for purchasing those debt securities upon
exercise and, in the case of warrants to purchase preferred stock,
depositary shares or common stock, the number of depositary shares or
shares of preferred stock or common stock, as the case may be, that can
be purchased upon the exercise of one warrant, and the price for
purchasing such shares upon this exercise;
- the dates on which the right to exercise the warrants will commence and
expire;
- certain federal income tax consequences of holding or exercising those
warrants;
- the terms of the securities issuable upon exercise of those warrants; and
- any other terms of the warrants.
Warrant certificates may be exchanged for new warrant certificates of
different denominations, may be presented for transfer registration, and may be
exercised at the warrant agent's corporate trust office or any other office
indicated in the applicable prospectus supplement. If the warrants are not
separately transferable from the securities with which they were issued, this
exchange may take place only if the certificates representing such related
securities are also exchanged. Prior to warrant exercise, warrantholders will
not have any rights as holders of the securities purchasable upon such exercise,
including, in the case of warrants to purchase debt securities, the right to
receive principal, premium, if any, or interest payments, on the debt securities
purchasable upon such exercise or to enforce covenants in the applicable
indenture or, in the case of warrants to purchase preferred stock, depositary
shares or common stock, the right to receive any dividends, or payments upon our
liquidation, dissolution or winding up or to exercise any voting rights.
28
EXERCISE OF WARRANTS
Each warrant will entitle the holder to purchase the securities specified
in the applicable prospectus supplement at the exercise price indicated in, or
calculated as described in, the applicable prospectus supplement. Unless
otherwise specified in the applicable prospectus supplement, warrants may be
exercised at any time up to 5:00 p.m., New York time, on the expiration date
indicated in that prospectus supplement. After the close of business on the
expiration date, unexercised warrants will become void.
Warrants may be exercised by delivery of the warrant certificate
representing the warrants to be exercised, or in the case of global securities,
as described below under "Issuance of Global Securities", by delivery of an
exercise notice for those warrants, together with certain information, and
payment to the warrant agent in immediately available funds, as provided in the
applicable prospectus supplement, of the required purchase amount. The
information required to be delivered will be on the reverse side of the warrant
certificate and in the applicable prospectus supplement. Upon receipt of such
payment and the warrant certificate or exercise notice properly executed at the
warrant agent's corporate trust office or any other office indicated in the
applicable prospectus supplement, we will, in the time period the relevant
warrant agreement provides, issue and deliver the securities purchasable upon
such exercise. If fewer than all of the warrants represented by such warrant
certificate are exercised, a new warrant certificate will be issued for the
remaining amount of warrants.
If indicated in the applicable prospectus supplement, securities may be
surrendered as all or part of the exercise price for warrants.
ANTIDILUTION PROVISIONS
In the case of warrants to purchase common stock, the exercise price
payable and the number of common stock shares to be purchased upon warrant
exercise may be adjusted in certain events, including:
- the issuance of a stock dividend to common stockholders or a combination,
subdivision or reclassification of common stock;
- the issuance of rights, warrants or options to all common stockholders
entitling them to purchase common stock for an aggregate consideration
per share less than the current market price per common stock share;
- any distribution by us to our common stockholders of evidences of
indebtedness or of assets, excluding cash dividends or distributions
referred to above; and
- any other events described in the applicable prospectus supplement.
No adjustment in the number of shares purchasable upon warrant exercise
will be required until cumulative adjustments require an adjustment of at least
1% of such number. No fractional shares will be issued upon warrant exercise,
but we will pay the cash value of any fractional shares otherwise issuable.
MODIFICATION
We may modify or amend a warrant agreement with the consent of the relevant
warrant agent, in some cases without obtaining the consent of warrant holders.
Certain modifications and amendments also require the consent of the holders of
at least a majority of the unexercised warrants issued under the warrant
agreement that would be affected by the modification or amendment. Further,
without the consent of each holder under a warrant agreement that would be
affected, we may not amend or modify a warrant agreement to do any of the
following:
- change the number or amount of securities purchasable upon warrant
exercise so as to reduce the number of securities receivable upon this
exercise;
- shorten the time period during which the warrants may be exercised;
- otherwise adversely affect the exercise rights of such warrantholders in
any material respect; or
- reduce the number of unexercised warrants the consent of holders of which
is required for amending the warrant agreement or the related warrants.
29
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each warrant agreement provides that we may consolidate with or merge into
another corporation or transfer all or substantially all of our assets to
another corporation, provided that:
- either we must be the continuing corporation, or the corporation other
than Fifth Third formed by or resulting from any consolidation or merger
or that receives the assets must be organized and existing under the laws
of the United States or any state of the United States must assume our
obligations for the unexercised warrants and the performance of all
covenants and conditions of the relevant warrant agreement; and
- Fifth Third or that successor corporation must not immediately be in
default under the relevant warrant agreement.
ENFORCEABILITY OF RIGHTS BY HOLDERS OF WARRANTS
Each warrant agent will act solely as our agent under the relevant warrant
agreement and will not assume any obligation or relationship of agency or trust
for any warrantholder. A single bank or trust company may act as warrant agent
for more than one issue of warrants. A warrant agent will have no duty or
responsibility in case we default in performing our obligations under the
relevant warrant agreement or warrant, including any duty or responsibility to
initiate any legal proceedings or to make any demand upon us. Any warrantholder
may, without the warrant agent's consent or of any other warrantholder, enforce
by appropriate legal action its right to exercise, and receive the securities
purchasable upon exercise of, that warrant.
REPLACEMENT OF WARRANT CERTIFICATES
We will replace any destroyed, lost, stolen or mutilated warrant
certificate upon delivery to us and the relevant warrant agent of evidence
satisfactory to them of the ownership of that warrant certificate and of the
destruction, loss, theft or mutilation of that warrant certificate, and (in the
case of mutilation) surrender of that warrant certificate to the relevant
warrant agent, unless we or the warrant agent has received notice that the
warrant certificate has been acquired by a bona fide purchaser. That
warrantholder will also be required to provide indemnity satisfactory to the
relevant warrant agent and us before a replacement warrant certificate will be
issued.
TITLE
Fifth Third, the warrant agents and any of our agents may treat the
registered holder of any warrant certificate as the absolute owner of the
warrants evidenced by that certificate for any purpose and as the person
entitled to exercise the rights attaching to the warrants so requested, despite
any notice to the contrary. See "Issuance of Global Securities".
30
THE ISSUER TRUSTS
The following description summarizes the formation, purposes and material
terms of each Issuer Trust. This description is followed by descriptions of:
- the capital securities to be issued by each Issuer Trust;
- the junior subordinated debentures to be issued by us to each Issuer
Trust, and the junior indenture under which they will be issued;
- our guarantees for the benefit of the holders of the capital securities;
and
- the relationship among the capital securities, the corresponding junior
subordinated debentures, the expense agreement and the guarantees.
Each Issuer Trust is a statutory business trust formed under Delaware law
pursuant to:
- a trust agreement executed by us, as depositor of the Issuer Trust, and
the Delaware trustee of such Issuer Trust; and
- a certificate of trust filed with the Delaware Secretary of State.
Before trust securities are issued, the trust agreement for the relevant Issuer
Trust will be amended and restated in its entirety substantially in the form
filed with our SEC registration statement. The trust agreements will be
qualified as indentures under the Trust Indenture Act of 1939.
Each Issuer Trust may offer to the public, from time to time, preferred
securities representing preferred beneficial interests in the applicable Issuer
Trust, which we call "capital securities". In addition to capital securities
offered to the public, each Issuer Trust will sell common securities
representing common ownership interests in such Issuer Trust to Fifth Third,
which we call "trust common securities". All of the trust common securities of
each Issuer Trust will be owned by us. The trust common securities and the
capital securities are also referred to together as the "trust securities".
Each Issuer Trust exists for the exclusive purposes of:
- issuing and selling its trust securities;
- using the proceeds from the sale of these trust securities to acquire
corresponding junior subordinated debentures from us; and
- engaging in only those other activities necessary or incidental to these
purposes (for example, registering the transfer of the trust securities).
When any Issuer Trust sells trust securities, it will use the money it receives
to buy a series of our junior subordinated debentures, which we call the
"corresponding junior subordinated debentures". The payment terms of the
corresponding junior subordinated debentures will be virtually the same as the
terms of that Issuer Trust's capital securities, which we call the "related
capital securities".
Each Issuer Trust will own only the applicable series of corresponding
junior subordinated debentures. The only source of funds for each Issuer Trust
will be the payments it receives from us on the corresponding junior
subordinated debentures. Each Issuer Trust will use these funds to make any cash
payments due to holders of its capital securities.
Each Issuer Trust will also be a party to an expense agreement with Fifth
Third. Under the terms of the expense agreement the Issuer Trust will have the
right to be reimbursed by us for certain expenses.
The trust common securities of an Issuer Trust will rank equally, and
payments on them will be made pro rata, with the capital securities of that
Issuer Trust, except that upon the occurrence and continuance of an event of
default under a trust agreement resulting from an event of default under the
junior indenture, our rights, as holder of the trust common securities, to
payment in respect of distributions and payments upon liquidation or redemption
will be subordinated to the rights of the holders of the capital securities of
that Issuer Trust. See "Capital Securities and Related
Instruments -- Subordination of Trust Common Securi-
31
ties". We will acquire trust common securities in an aggregate liquidation
amount greater than or equal to 3% of the total capital of each Issuer Trust.
The prospectus supplement relating to any capital securities will contain the
details of the cash distributions to be made periodically.
Under certain circumstances, we may redeem the corresponding junior
subordinated debentures that we sold to an Issuer Trust. If this happens, the
Issuer Trust will redeem a like amount of the capital securities which it sold
to the public and the trust common securities which it sold to us.
Under certain circumstances, we may terminate an Issuer Trust and cause the
corresponding junior subordinated debentures to be distributed to the holders of
the related capital securities. If this happens, owners of the related capital
securities will no longer have any interest in such Issuer Trust and will only
own the corresponding junior subordinated debentures we issued to the Issuer
Trust.
Generally, we need the approval of the Federal Reserve Board to redeem the
corresponding junior subordinated debentures or to terminate one or more of the
Issuer Trusts. A more detailed description is provided under the heading
"Capital Securities and Related Instruments -- Liquidation Distribution Upon
Termination".
Unless otherwise specified in the applicable prospectus supplement:
- each Issuer Trust will have a term of approximately 55 years from the
date it issues its trust securities, but may terminate earlier as
provided in the applicable trust agreement;
- each Issuer Trust's business and affairs will be conducted by its
trustees;
- the trustees will be appointed by us as holder of the trust common
securities;
- the trustees for each Issuer Trust will be Wilmington Trust Company, as
property trustee and as Delaware trustee, and two individual
administrative trustees who are employees or officers of or affiliated
with Fifth Third. These trustees are also referred to as the "Issuer
Trust trustees". Wilmington Trust Company, as property trustee, will act
as sole indenture trustee under each trust agreement for purposes of
compliance with the Trust Indenture Act. Wilmington Trust Company will
also act as trustee under the guarantees and the junior indenture. See
"Capital Securities and Related Instruments -- Guarantees" and "Capital
Securities and Related Instruments -- Junior Subordinated Debentures";
- if an event of default under the trust agreement for an Issuer Trust has
occurred and is continuing, the holder of the trust common securities of
that Issuer Trust, or the holders of a majority in liquidation amount of
the related capital securities, will be entitled to appoint, remove or
replace the property trustee and/or the Delaware trustee for such Issuer
Trust;
- under all circumstances, only the holder of the trust common securities
has the right to vote to appoint, remove or replace the administrative
trustees;
- the duties and obligations of each Issuer Trust trustee are governed by
the applicable trust agreement; and
- We will pay all fees and expenses related to each Issuer Trust and the
offering of the capital securities and will pay, directly or indirectly,
all ongoing costs, expenses and liabilities of each Issuer Trust.
The principal executive office of each Issuer Trust is Fifth Third Center,
38 Fountain Square Plaza, Cincinnati, Ohio 45263 and its telephone number is
(513) 579-5300.
32
CAPITAL SECURITIES AND RELATED INSTRUMENTS
The following description summarizes the material provisions of the capital
securities and trust agreements. This description is not complete and is subject
to, and is qualified in its entirety by reference to, each trust agreement,
which is incorporated as an exhibit to our SEC registration statement, and the
Trust Indenture Act. The specific terms of the capital securities will be
described in the applicable prospectus supplement, and may differ from the
general description of the terms presented below. Whenever particular defined
terms of a trust agreement are referred to in this prospectus or in a prospectus
supplement, those defined terms are incorporated in this prospectus or such
prospectus supplement by reference.
GENERAL
Pursuant to the terms of the trust agreement for each Issuer Trust, each
Issuer Trust will sell capital securities to the public and trust common
securities to us. The capital securities represent preferred beneficial
interests in the Issuer Trust that sold them. Holders of the capital securities
will be entitled to receive distributions and amounts payable on redemption or
liquidation ahead of holders of the trust common securities. A more complete
discussion appears under the heading "-- Subordination of Trust Common
Securities". Holders of the capital securities will also be entitled to other
benefits as described in the corresponding trust agreement.
Each of the Issuer Trusts is a legally separate entity and the assets of
one are not available to satisfy the obligations of any of the others.
The capital securities of an Issuer Trust will rank on a parity, and
payments on them will be made pro rata, with the trust common securities of that
Issuer Trust except as described under "-- Subordination of Trust Common
Securities". Legal title to the corresponding junior subordinated debentures
will be held and administered by the property trustee in trust for the benefit
of the holders of the related capital securities and trust common securities.
Each guarantee agreement executed by us for the benefit of the holders of
an Issuer Trust's capital securities will be a guarantee on a subordinated basis
with respect to the related capital securities but will not guarantee payment of
distributions or amounts payable on redemption or liquidation of such capital
securities when the related Issuer Trust does not have funds on hand available
to make such payments. See "Capital Securities and Related
Instruments -- Guarantees".
DISTRIBUTIONS
Distributions on the capital securities will be cumulative, will accumulate
from the date of original issuance (unless otherwise specified in the applicable
prospectus supplement) and will be payable on the dates specified in the
applicable prospectus supplement. In the event that any date on which
distributions are payable is not a business day, payment of that distribution
will be made on the next business day (and without any interest or other payment
in connection with this delay) except that, if the next business day falls in
the next calendar year, payment of the distribution will be made on the
immediately preceding business day, in either case with the same force and
effect as if made on the original distribution date. Each date on which
distributions are payable in accordance with the previous sentence is referred
to as a "distribution date". A "business day" means any day other than a
Saturday or a Sunday, or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to remain closed or a
day on which the corporate trust office of the property trustee or the junior
trustee is closed for business.
Each Issuer Trust's capital securities represent preferred beneficial
interests in the applicable Issuer Trust, and the distributions on each capital
security will be payable at a rate specified in the applicable prospectus
supplement. The amount of distributions payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months unless otherwise
specified in the applicable prospectus supplement. Distributions to which
holders of capital securities are entitled will accumulate additional
distributions at the rate per annum if and as specified in the applicable
prospectus supplement. The term "distributions" as used in this summary includes
these additional distributions unless otherwise stated.
33
If an extension period occurs with respect to the corresponding junior
subordinated debentures, distributions on the related capital securities will be
correspondingly deferred (but would continue to accumulate additional
distributions at the rate per annum set forth in the prospectus supplement for
the capital securities). See "Capital Securities and Related
Instruments -- Junior Subordinated Debentures -- Option to Defer Interest
Payments".
The revenue of each Issuer Trust available for distribution to holders of
its capital securities will be limited to payments under the corresponding
junior subordinated debentures which the Issuer Trust will acquire with the
proceeds from the issuance and sale of its trust securities. See "Capital
Securities and Related Instruments -- Junior Subordinated
Debentures -- Corresponding Junior Subordinated Debentures". If we do not make
interest payments on the corresponding junior subordinated debentures, the
property trustee will not have funds available to pay distributions on the
related capital securities. The payment of distributions (if and to the extent
the Issuer Trust has funds legally available for the payment of distributions
and cash sufficient to make payments) is guaranteed by us on a limited basis as
described under the heading "Capital Securities and Related
Instruments -- Guarantees".
Distributions on the capital securities will be payable to the holders of
capital securities as they appear on the register of the Issuer Trust at the
close of business on the relevant record dates, which, as long as the capital
securities remain in book-entry form, will be one business day prior to the
relevant distribution date. Subject to any applicable laws and regulations and
the provisions of the applicable trust agreement, each such payment will be made
as described under the heading "Issuance of Global Securities". In the event any
capital securities are not in book-entry form, the relevant record date for such
capital securities will be the date at least 15 days prior to the relevant
distribution date, as specified in the applicable prospectus supplement.
REDEMPTION OR EXCHANGE
Mandatory Redemption. Upon the repayment or redemption, in whole or in
part, of any corresponding junior subordinated debentures, whether at maturity
or upon earlier redemption as provided in the junior indenture, the proceeds
from the repayment or redemption will be applied by the property trustee to
redeem a like amount (as defined below) of the trust securities, upon not less
than 30 nor more than 60 days notice, at a redemption price equal to the
aggregate liquidation amount of such trust securities plus accumulated but
unpaid distributions to the date of redemption and the related amount of the
premium, if any, paid by us upon the concurrent redemption of the corresponding
junior subordinated debentures. See "Capital Securities and Related
Instruments -- Junior Subordinated Debentures -- Redemption". If less than all
of any series of corresponding junior subordinated debentures are to be repaid
or redeemed on a redemption date, then the proceeds from the repayment or
redemption will be allocated to the redemption pro rata of the related capital
securities and the trust common securities based upon the relative liquidation
amounts of these classes. The amount of premium, if any, paid by us upon the
redemption of all or any part of any series of any corresponding junior
subordinated debentures to be repaid or redeemed on a redemption date will be
allocated to the redemption pro rata of the related capital securities and the
trust common securities. The redemption price will be payable on each redemption
date only to the extent that the Issuer Trust has funds then on hand and
available in the payment account for the payment of the redemption price.
We will have the right to redeem any series of corresponding junior
subordinated debentures:
- on or after such date as may be specified in the applicable prospectus
supplement, in whole at any time or in part from time to time;
- at any time, in whole (but not in part), upon the occurrence of a tax
event or capital treatment event; or
- as may be otherwise specified in the applicable prospectus supplement,
in each case subject to receipt of prior approval by the Federal Reserve Board
if then required under applicable Federal Reserve capital guidelines or
policies.
34
Distribution of Corresponding Junior Subordinated Debentures. Subject to
our having received prior approval of the Federal Reserve Board to do so if such
approval is then required under applicable capital guidelines or policies of the
Federal Reserve Board, we have the right at any time to terminate any Issuer
Trust and, after satisfaction of the liabilities of creditors of the Issuer
Trust as provided by applicable law, cause the corresponding junior subordinated
debentures in respect of the capital securities and trust common securities
issued by the Issuer Trust to be distributed to the holders of the capital
securities and trust common securities in liquidation of the Issuer Trust.
Tax Event or Capital Treatment Event Redemption. If a tax event or capital
treatment event in respect of a series of capital securities and trust common
securities has occurred and is continuing, we have the right to redeem the
corresponding junior subordinated debentures in whole (but not in part) and
thereby cause a mandatory redemption of the capital securities and trust common
securities in whole (but not in part) at the redemption price within 90 days
following the occurrence of the tax event or capital treatment event. If a tax
event or capital treatment event has occurred and is continuing in respect of a
series of capital securities and trust common securities and we do not elect to
redeem the corresponding junior subordinated debentures and thereby cause a
mandatory redemption of the capital securities or to liquidate the related
Issuer Trust and cause the corresponding junior subordinated debentures to be
distributed to holders of the capital securities and trust common securities in
liquidation of the Issuer Trust as described above, such capital securities will
remain outstanding and additional sums (as defined below) may be payable on the
corresponding junior subordinated debentures.
The term "additional sums" means the additional amounts as may be necessary
in order that the amount of distributions then due and payable by an Issuer
Trust on the outstanding capital securities and trust common securities of the
Issuer Trust will not be reduced as a result of any additional taxes, duties and
other governmental charges to which the Issuer Trust has become subject as a
result of a tax event.
The term "like amount" means:
- with respect to a redemption of any series of trust securities, trust
securities of that series having a liquidation amount (as defined below)
equal to the principal amount of corresponding junior subordinated
debentures to be contemporaneously redeemed in accordance with the junior
indenture, the proceeds of which will be used to pay the redemption price
of the trust securities; and
- with respect to a distribution of corresponding junior subordinated
debentures to holders of any series of trust securities in connection
with a dissolution or liquidation of the related Issuer Trust,
corresponding junior subordinated debentures having a principal amount
equal to the liquidation amount of the trust securities in respect of
which the distribution is made.
The term "liquidation amount" means the stated amount per trust security of
$1,000 (or another stated amount set forth in the applicable prospectus
supplement).
After the liquidation date fixed for any distribution of corresponding
junior subordinated debentures for any series of related capital securities:
- the series of related capital securities will no longer be deemed to be
outstanding;
- The Depository Trust Company, commonly referred to as DTC (for a more
detailed explanation of DTC, see "Issuance of Global Securities") or its
nominee, as the record holder of the related capital securities, will
receive a registered global certificate or certificates representing the
corresponding junior subordinated debentures to be delivered upon the
distribution; and
- any certificates representing the related capital securities not held by
DTC or its nominee will be deemed to represent the corresponding junior
subordinated debentures having a principal amount equal to the stated
liquidation amount of the related capital securities, and bearing accrued
and unpaid interest in an amount equal to the accrued and unpaid
distributions on the related capital securities until the certificates
are presented to the administrative trustees or their agent for transfer
or reissuance.
35
Any distribution of corresponding junior subordinated debentures to holders
of related capital securities will be made to the applicable recordholders as
they appear on the register for the related capital securities on the relevant
record date, which will be one business day prior to the liquidation date. In
the event that any related capital securities are not in book-entry form, the
relevant record date will be a date at least 15 days prior to the liquidation
date, as specified in the applicable prospectus supplement.
There can be no assurance as to the market prices for the related capital
securities or the corresponding junior subordinated debentures that may be
distributed in exchange for related capital securities if a dissolution and
liquidation of an Issuer Trust were to occur. Accordingly, the related capital
securities that an investor may purchase, or the corresponding junior
subordinated debentures that the investor may receive on dissolution and
liquidation of an Issuer Trust, may trade at a discount to the price that the
investor paid to purchase the related capital securities being offered in
connection with this prospectus.
REDEMPTION PROCEDURES
Capital securities redeemed on each redemption date will be redeemed at the
redemption price with the applicable proceeds from the contemporaneous
redemption of the corresponding junior subordinated debentures. Redemptions of
the capital securities will be made and the redemption price will be payable on
each redemption date only to the extent that the related Issuer Trust has funds
on hand available for the payment of the redemption price. See also
"-- Subordination of Trust Common Securities".
If the property trustee gives a notice of redemption in respect of any
capital securities, then, while such capital securities are in book-entry form,
by 12:00 noon, New York City time, on the redemption date, to the extent funds
are available, the property trustee will deposit irrevocably with DTC funds
sufficient to pay the applicable redemption price and will give DTC irrevocable
instructions and authority to pay the redemption price to the holders of the
capital securities. See "Issuance of Global Securities". If the capital
securities are no longer in book-entry form, the property trustee, to the extent
funds are available, will irrevocably deposit with the paying agent for the
capital securities funds sufficient to pay the applicable redemption price and
will give the paying agent irrevocable instructions and authority to pay the
redemption price to the holders upon surrender of their certificates evidencing
the capital securities. Notwithstanding the above, distributions payable on or
prior to the redemption date for any capital securities called for redemption
will be payable to the holders of the capital securities on the relevant record
dates for the related distribution dates. If notice of redemption has been given
and funds deposited as required, then upon the date of the deposit, all rights
of the holders of the capital securities so called for redemption will cease,
except the right of the holders of the capital securities to receive the
redemption price and any distribution payable in respect of the capital
securities on or prior to the redemption date, but without interest on the
redemption price, and the capital securities will cease to be outstanding. In
the event that any date fixed for redemption of capital securities is not a
business day, then payment of the redemption price will be made on the next
business day (and without any interest or other payment in connection with this
delay) except that, if the next business day falls in the next calendar year,
the redemption payment will be made on the immediately preceding business day,
in either case with the same force and effect as if made on the original date.
In the event that payment of the redemption price in respect of capital
securities called for redemption is improperly withheld or refused and not paid
either by an Issuer Trust or by us pursuant to the related guarantee as
described under "Capital Securities and Related Instruments -- Guarantees",
distributions on the capital securities will continue to accrue at the then
applicable rate from the redemption date originally established by the Issuer
Trust for the capital securities to the date the redemption price is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the redemption price.
Subject to applicable law (including, without limitation, U.S. federal
securities law), we or our subsidiaries may at any time and from time to time
purchase outstanding capital securities by tender, in the open market or by
private agreement.
Payment of the redemption price on the capital securities and any
distribution of corresponding junior subordinated debentures to holders of
capital securities will be made to the applicable record holders as they appear
on the register for the capital securities on the relevant record date, which,
as long as the capital
36
securities remain in book-entry form, will be one business day prior to the
relevant redemption date or liquidation date, as applicable; provided, however,
that in the event that the capital securities are not in book-entry form, the
relevant record date for the capital securities will be a date at least 15 days
prior to the redemption date or liquidation date, as applicable, as specified in
the applicable prospectus supplement.
If less than all of the capital securities and trust common securities
issued by an Issuer Trust are to be redeemed on a redemption date, then the
aggregate liquidation amount of the capital securities and trust common
securities to be redeemed will be allocated pro rata to the capital securities
and the trust common securities based upon the relative liquidation amounts of
these classes. The particular capital securities to be redeemed will be selected
on a pro rata basis not more than 60 days prior to the redemption date by the
property trustee from the outstanding capital securities not previously called
for redemption, by a customary method that the property trustee deems fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1,000 or an integral multiple of $1,000, unless a different amount is
specified in the applicable prospectus supplement) of the liquidation amount of
capital securities of a denomination larger than $1,000 (or another denomination
as specified in the applicable prospectus supplement). The property trustee will
promptly notify the securities registrar in writing of the capital securities
selected for redemption and, in the case of any capital securities selected for
partial redemption, the liquidation amount to be redeemed. For all purposes of
each trust agreement, unless the context otherwise requires, all provisions
relating to the redemption of capital securities will relate, in the case of any
capital securities redeemed or to be redeemed only in part, to the portion of
the aggregate liquidation amount of capital securities which has been or is to
be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of trust securities to be
redeemed at its registered address. Unless we default in payment of the
redemption price on the corresponding junior subordinated debentures, on and
after the redemption date interest will cease to accrue on the junior
subordinated debentures or portions thereof (and distributions will cease to
accrue on the related capital securities or portions thereof) called for
redemption.
SUBORDINATION OF TRUST COMMON SECURITIES
Payment of distributions on, and the redemption price of, each Issuer
Trust's capital securities and trust common securities, as applicable, will be
made pro rata based on the liquidation amount of the capital securities and
trust common securities; provided, however, that if on any distribution date,
redemption date or liquidation date a debenture event of default has occurred
and is continuing as a result of any failure by us to pay any amounts in respect
of the junior subordinated debentures when due, no payment of any distribution
on, or redemption price of, or liquidation distribution in respect of, any of
the Issuer Trust's trust common securities, and no other payment on account of
the redemption, liquidation or other acquisition of the trust common securities,
will be made unless payment in full in cash of all accumulated and unpaid
distributions on all of the Issuer Trust's outstanding capital securities for
all distribution periods terminating on or prior to that date, or in the case of
payment of the redemption price the full amount of the redemption price on all
of the Issuer Trust's outstanding capital securities then called for redemption,
or in the case of payment of the liquidation distribution the full amount of the
liquidation distribution on all outstanding capital securities, has been made or
provided for, and all funds available to the property trustee must first be
applied to the payment in full in cash of all distributions on, or redemption
price of, the Issuer Trust's capital securities then due and payable.
In the case of any event of default under the applicable trust agreement
resulting from a debenture event of default, we as holder of the Issuer Trust's
trust common securities will have no right to act with respect to the event of
default until the effect of all events of default with respect to such capital
securities have been cured, waived or otherwise eliminated. Until any events of
default under the applicable trust agreement with respect to the capital
securities have been cured, waived or otherwise eliminated, the property trustee
will act solely on behalf of the holders of the capital securities and not on
behalf of us as holder of the Issuer Trust's trust common securities, and only
the holders of the capital securities will have the right to direct the property
trustee to act on their behalf.
37
LIQUIDATION DISTRIBUTION UPON TERMINATION
Pursuant to each trust agreement, each Issuer Trust will terminate on the
first to occur of:
- the expiration of its term;
- certain events of bankruptcy, dissolution or liquidation of the holder of
the trust common securities;
- the distribution of a like amount of the corresponding junior
subordinated debentures to the holders of its trust securities, if we, as
depositor, have given written direction to the property trustee to
terminate the Issuer Trust (subject to Fifth Third having received prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies). Such written direction by us is optional and
solely within our discretion;
- redemption of all of such Issuer Trust's capital securities as described
under "-- Redemption or Exchange -- Mandatory Redemption"; and
- the entry of an order for the dissolution of such Issuer Trust by a court
of competent jurisdiction.
If an early termination occurs as described in the second, third and fifth
bullet points above, the relevant Issuer Trust will be liquidated by the related
Issuer Trust trustees as expeditiously as the Issuer Trust trustees determine to
be possible by distributing, after satisfaction of liabilities to creditors of
the Issuer Trust as provided by applicable law, to the holders of the trust
securities a like amount of the corresponding junior subordinated debentures in
exchange for their trust securities, unless the distribution is determined by
the administrative trustees not to be practical, in which event the holders will
be entitled to receive out of the assets of the Issuer Trust available for
distribution to holders, after satisfaction of liabilities to creditors of such
Issuer Trust as provided by applicable law, an amount equal to, in the case of
holders of capital securities, the aggregate of the liquidation amount plus
accrued and unpaid distributions to the date of payment (an amount referred to
as the "liquidation distribution"). If the liquidation distribution can be paid
only in part because the Issuer Trust has insufficient assets available to pay
in full the aggregate liquidation distribution, then the amounts payable
directly by the Issuer Trust on its capital securities will be paid on a pro
rata basis. The holder of the Issuer Trust's trust common securities will be
entitled to receive distributions upon any liquidation pro rata with the holders
of its capital securities, except that if a debenture event of default has
occurred and is continuing as a result of any failure by us to pay any amounts
in respect of the junior subordinated debentures when due, the capital
securities will have a priority over the trust common securities.
EVENTS OF DEFAULT; NOTICE
The following events will be "events of default" with respect to capital
securities issued under each trust agreement:
- any debenture event of default (see "Capital Securities and Related
Instruments -- Junior Subordinated Debentures -- Events of Default");
- default for 30 days by the Issuer Trust in the payment of any
distribution;
- default by the Issuer Trust in the payment of any redemption price of any
trust security;
- failure by the Issuer Trust trustees for 60 days in performing any other
covenant or warranty in the trust agreement after the holders of at least
25% in aggregate liquidation amount of the outstanding capital securities
of the applicable Issuer Trust give written notice to us and the Issuer
Trust trustees; or
- bankruptcy, insolvency or reorganization of the property trustee and the
failure by us to appoint a successor property trustee within 90 days.
Within five business days after the occurrence of any event of default
actually known to the property trustee, the property trustee will transmit
notice of the event of default to the holders of the Issuer Trust's capital
securities, the administrative trustees and us, as depositor, unless the event
of default has been cured or waived.
38
We, as depositor, and the administrative trustees are required to file
annually with the property trustee a certificate as to whether or not they are
in compliance with all the conditions and covenants applicable to them under
each trust agreement.
If a debenture event of default has occurred and is continuing, the capital
securities will have a preference over the trust common securities as described
above. See "-- Liquidation Distribution Upon Termination". The existence of an
event of default does not entitle the holders of capital securities to
accelerate the maturity of the capital securities.
REMOVAL OF ISSUER TRUST TRUSTEES
Unless a debenture event of default has occurred and is continuing, any
Issuer Trust trustee may be removed at any time by the holder of the trust
common securities. If a debenture event of default has occurred and is
continuing, the property trustee and the Delaware trustee may be removed by the
holders of a majority in liquidation amount of the outstanding capital
securities. In no event will the holders of the capital securities have the
right to vote to appoint, remove or replace the administrative trustees. Such
voting rights are vested exclusively in us as the holder of the trust common
securities. No resignation or removal of an Issuer Trust trustee and no
appointment of a successor trustee will be effective until the acceptance of
appointment by the successor trustee in accordance with the provisions of the
applicable trust agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an event of default has occurred and is continuing, at any time or
from time to time, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the trust
property may at the time be located, we, as the holder of the trust common
securities, and the administrative trustees will have power to appoint one or
more persons either to act as a co-trustee, jointly with the property trustee,
of all or any part of the trust property, or to act as separate trustee of any
trust property, in either case with the powers specified in the instrument of
appointment, and to vest in the person or persons in this capacity any property,
title, right or power deemed necessary or desirable, subject to the provisions
of the applicable trust agreement. In case a debenture event of default has
occurred and is continuing, the property trustee alone will have power to make
this appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUST TRUSTEES
Any person into which the property trustee, the Delaware trustee or any
administrative trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any person resulting from any merger,
conversion or consolidation to which the trustee will be a party, or any person
succeeding to all or substantially all the corporate trust business of the
trustee, will automatically become the successor of the trustee under each trust
agreement, provided the person is otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE ISSUER TRUSTS
An Issuer Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other person, except as
described below. An Issuer Trust may, at our request, with the consent of the
administrative trustees and without the consent of the holders of the related
capital securities, merge with or into, consolidate, amalgamate, or be replaced
by or convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized under the laws of any state, provided that:
- the successor entity either:
- expressly assumes all of the obligations of the Issuer Trust with
respect to the capital securities; or
- substitutes for the capital securities other securities having
substantially the same terms as the capital securities (referred to as
the "successor securities") so long as the successor securities rank the
same as the capital securities in priority with respect to distributions
and payments upon liquidation, redemption and otherwise;
39
- we expressly appoint a trustee of the successor entity possessing the
same powers and duties as the property trustee as the holder of the
corresponding junior subordinated debentures;
- the successor securities are listed, or any successor securities will be
listed upon notification of issuance, on any national securities exchange
or other organization on which the capital securities are then listed, if
any;
- the merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the capital securities to be downgraded
by any nationally recognized statistical rating organization which
assigns ratings to the capital securities;
- the merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the capital securities (including any
successor securities) in any material respect;
- the successor entity has a purpose identical to that of the Issuer Trust;
- prior to the merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, we have received an opinion from counsel
to the Issuer Trust to the effect that:
- the merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the capital securities (including any
successor securities) in any material respect; and
- following the merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Issuer Trust nor the
successor entity will be required to register as an investment company
under the Investment Company Act of 1940, as amended; and
- we or any permitted successor or assignee owns all of the trust common
securities of the successor entity and guarantees the obligations of the
successor entity under the successor securities at least to the extent
provided by the related guarantee.
Notwithstanding the foregoing, an Issuer Trust will not, except with the
consent of holders of 100% in liquidation amount of the related capital
securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Issuer Trust or the
successor entity to be classified as an association taxable as a corporation or
as other than a grantor trust for U.S. federal income tax purposes.
There are no provisions that afford holders of any capital securities
protection in the event of a sudden and dramatic decline in our credit quality
resulting from any highly leveraged transaction, takeover, merger,
recapitalization or similar restructuring or change in control of Fifth Third,
nor are there any provisions that require the repurchase of any capital
securities upon a change in control of Fifth Third.
VOTING RIGHTS; AMENDMENT OF EACH TRUST AGREEMENT
Except as provided below and under "Capital Securities and Related
Instruments -- Guarantees -- Amendments and Assignment" and as otherwise
required by law and the applicable trust agreement, the holders of the capital
securities will have no voting rights or the right to in any manner otherwise
control the administration, operation or management of the relevant Issuer
Trust.
Each trust agreement may be amended from time to time by us, the property
trustee and the administrative trustees, without the consent of the holders of
the capital securities:
- to cure any ambiguity, correct or supplement any provisions in the trust
agreement that may be inconsistent with any other provision, or to make
any other provisions with respect to matters or questions arising under
the trust agreement, which will not be inconsistent with the other
provisions of the trust agreement; or
40
- to modify, eliminate or add to any provisions of the trust agreement as
necessary to ensure that the relevant Issuer Trust:
- will be classified for U.S. federal income tax purposes as a grantor
trust or as other than an association taxable as a corporation at all
times that any trust securities are outstanding; or
- will not be required to register as an "investment company" under the
Investment Company Act,
provided that:
- no such amendment will adversely affect in any material respect the
rights of the holders of the capital securities: and
- any such amendment will become effective when notice of the amendment is
given to the holders of trust securities.
Each trust agreement may be amended by the related Issuer Trust trustees
and us with:
- the consent of holders representing at least a majority (based upon
liquidation amounts) of the outstanding trust securities; and
- receipt by the Issuer Trust trustees of an opinion of counsel to the
effect that the amendment or the exercise of any power granted to the
Issuer Trust trustees in accordance with the amendment will not cause the
Issuer Trust to be taxable as a corporation or affect the Issuer Trust's
status as a grantor trust for U.S. federal income tax purposes or the
Issuer Trust's exemption from status as an "investment company" under the
Investment Company Act,
provided that, without the consent of each holder of trust securities, the trust
agreement may not be amended to:
- change the amount or timing of any distribution on the trust securities
or otherwise adversely affect the amount of any distribution required to
be made in respect of the trust securities as of a specified date; or
- restrict the right of a holder of trust securities to institute suit for
the enforcement of any such payment on or after such date.
So long as any corresponding junior subordinated debentures are held by the
property trustee, the related Issuer Trust trustees will not:
- direct the time, method and place of conducting any proceeding for any
remedy available to the indenture trustee, or executing any trust or
power conferred on the property trustee with respect to the corresponding
junior subordinated debentures;
- waive any past default that is waivable under the junior indenture;
- exercise any right to rescind or annul a declaration that the principal
of all the junior subordinated debentures will be due and payable; or
- consent to any amendment, modification or termination of the junior
indenture or the corresponding junior subordinated debentures, where this
consent is required, without, in each case, obtaining the prior approval
of the holders of a majority in aggregate liquidation amount of all
outstanding capital securities;
provided, however, that where a consent under the junior indenture would require
the consent of each holder of corresponding junior subordinated debentures
affected, no such consent will be given by the property trustee without the
prior consent of each holder of the related capital securities. The Issuer Trust
trustees will not revoke any action previously authorized or approved by a vote
of the holders of the capital securities except by subsequent vote of the
holders of those capital securities. The property trustee will notify each
holder of capital securities of any notice of default with respect to the
corresponding junior subordinated debentures. In
41
addition to obtaining the foregoing approvals of the holders of the capital
securities, prior to taking any of the foregoing actions, the Issuer Trust
trustees will obtain an opinion of counsel to the effect that:
- the Issuer Trust will not be classified as an association taxable as a
corporation for U.S. federal income tax purposes on account of the
action; and
- the action would not cause the Issuer Trust to be classified as other
than a grantor trust for U.S. federal income tax purposes.
Any required approval of holders of capital securities may be given at a
meeting of holders of capital securities convened for that purpose or pursuant
to written consent. The administrative trustees or, at the written request of
the administrative trustees, the property trustee will cause a notice of any
meeting at which holders of capital securities are entitled to vote, or of any
matter upon which action by written consent of those holders is to be taken, to
be given to each holder of record of capital securities in the manner set forth
in each trust agreement.
No vote or consent of the holders of capital securities will be required
for an Issuer Trust to redeem and cancel its capital securities in accordance
with the applicable trust agreement.
Notwithstanding that holders of capital securities are entitled to vote or
consent under any of the circumstances described above, any of the capital
securities that are owned by us, the Issuer Trust trustees or any affiliate of
us or any Issuer Trust trustees, will, for purposes of that vote or consent, be
treated as if they were not outstanding.
GLOBAL CAPITAL SECURITIES
Unless otherwise set forth in a prospectus supplement, any capital
securities will be represented by fully registered global certificates issued as
global capital securities that will be deposited with, or on behalf of, a
depositary with respect to that series instead of paper certificates issued to
each individual holder. The depositary arrangements that will apply, including
the manner in which principal of and premium, if any, and interest on capital
securities and other payments will be payable, are discussed in more detail
under the heading "Issuance of Global Securities".
PAYMENT AND PAYING AGENCY
Payments in respect of capital securities will be made to DTC as described
under "Issuance of Global Securities". If any capital securities are not
represented by global certificates, payments will be made by check mailed to the
address of the holder entitled to them as it appears on the register. Unless
otherwise specified in the applicable prospectus supplement, the paying agent
will initially be the property trustee and any co-paying agent chosen by the
property trustee and reasonably acceptable to the administrative trustees and
us. The paying agent will be permitted to resign as paying agent upon 30 days'
written notice to the property trustee and us. In the event that the property
trustee is no longer the paying agent, the administrative trustees will appoint
a successor (which will be a bank or trust company acceptable to the
administrative trustees and us) to act as paying agent.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable prospectus supplement, the
property trustee will act as registrar and transfer agent for the capital
securities.
Registration of transfers of capital securities will be effected without
charge by or on behalf of each Issuer Trust, but upon payment of any tax or
other governmental charges that may be imposed in connection with any transfer
or exchange. The Issuer Trusts will not be required to register or cause to be
registered the transfer of their capital securities after the capital securities
have been called for redemption.
42
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The property trustee, other than during the occurrence and continuance of
an event of default, undertakes to perform only those duties specifically set
forth in each trust agreement and, after an event of default, must exercise the
same degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the property
trustee is under no obligation to exercise any of the powers vested in it by the
applicable trust agreement at the request of any holder of capital securities
unless it is offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred as a result. If no event of default has
occurred and is continuing and the property trustee is required to decide
between alternative causes of action, construe ambiguous provisions in the
applicable trust agreement or is unsure of the application of any provision of
the applicable trust agreement, and the matter is not one on which holders of
capital securities are entitled under the trust agreement to vote, then the
property trustee will take such action as is directed by us and if not so
directed, will take such action as it deems advisable and in the best interests
of the holders of the trust securities and will have no liability except for its
own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The administrative trustees are authorized and directed to conduct the
affairs of and to operate the Issuer Trusts in such a way that no Issuer Trust
will be (1) deemed to be an "investment company" required to be registered under
the Investment Company Act or (2) classified as an association taxable as a
corporation or as other than a grantor trust for U.S. federal income tax
purposes and so that the corresponding junior subordinated debentures will be
treated as indebtedness of Fifth Third for U.S. federal income tax purposes. In
addition, we and the administrative trustees are authorized to take any action
not inconsistent with applicable law, the certificate of trust of each Issuer
Trust or each trust agreement, that we and the administrative trustees determine
in their discretion to be necessary or desirable for such purposes as long as
such action does not materially adversely affect the interests of the holders of
the related capital securities.
Holders of the capital securities have no preemptive or similar rights.
No Issuer Trust may borrow money or issue debt or mortgage or pledge any of
its assets.
43
JUNIOR SUBORDINATED DEBENTURES
The following description summarizes the material provisions of the junior
indenture and the junior subordinated debentures to be issued under this
indenture. This description is not complete and is qualified in its entirety by
reference to the junior indenture and the Trust Indenture Act. The specific
terms of any series of junior subordinated debentures will be described in the
applicable prospectus supplement, and may differ from the general description of
the terms presented below. The junior indenture is qualified under the Trust
Indenture Act and has been filed as an exhibit to our SEC registration
statement. Whenever particular defined terms of the junior indenture (as
supplemented or amended from time to time) are referred to in this prospectus or
a prospectus supplement, those defined terms are incorporated in this prospectus
or such prospectus supplement by reference.
GENERAL
The junior subordinated debentures are to be issued in one or more series
under a Junior Subordinated Indenture, dated as of March 20, 1997, as
supplemented from time to time, between Fifth Third and Wilmington Trust
Company, as trustee. This indenture is referred to as the "junior indenture" and
the related trustee is referred to as the "junior trustee". Each series of
junior subordinated debentures will rank equally with all other series of junior
subordinated debentures and will be unsecured and subordinate and junior in
right of payment to the extent and in the manner set forth in the junior
indenture to all of our senior debt, including the senior debt securities and
the subordinated debt securities. See "-- Subordination of Junior Subordinated
Debentures". We are a non-operating holding company and almost all of the
operating assets of Fifth Third and its consolidated subsidiaries are owned by
such subsidiaries. We rely primarily on dividends from such subsidiaries to meet
its obligations. Because we are a holding company and a legal entity separate
and distinct from our subsidiaries, our rights to participate in any
distribution of assets of a subsidiary upon its liquidation, reorganization or
otherwise, and the holders of junior subordinated debentures' ability to benefit
indirectly from that distribution, would be subject to prior creditor's claims,
except to the extent we may ourselves be recognized as a creditor of that
subsidiary. Accordingly, the junior subordinated debentures will be effectively
subordinated to all existing and future liabilities of our subsidiaries, and
holders of junior subordinated debentures should look only to the assets of
Fifth Third for payments on the junior subordinated debentures. Except as
otherwise provided in the applicable prospectus supplement, the junior indenture
does not limit the incurrence or issuance of other secured or unsecured debt of
Fifth Third, including senior debt, whether under the junior indenture, any
other existing indenture or any other indenture that we may enter into in the
future or otherwise. See "-- Subordination of Junior Subordinated Debentures"
and the prospectus supplement relating to any offering of capital securities or
junior subordinated debentures.
The junior subordinated debentures will be issuable in one or more series
pursuant to an indenture supplemental to the junior indenture or a resolution of
our board of directors or a committee thereof.
The particular terms of any junior subordinated debentures will be
contained in a prospectus supplement. The prospectus supplement will describe
the following terms of the junior subordinated debentures:
- the title of the junior subordinated debentures;
- any limit upon the aggregate principal amount of the junior subordinated
debentures;
- the date or dates on which the principal of the junior subordinated
debentures must be paid;
- the interest rate or rates, if any, applicable to the junior subordinated
debentures;
- the dates on which any such interest will be payable;
- our right, if any, to defer or extend an interest payment date;
- the record dates for any interest payable on any interest payment date or
the method by which any of the foregoing will be determined;
- the place or places where the principal of and premium, if any, and
interest on the junior subordinated debentures will be payable and where,
subject to the terms of the junior indenture as described below
44
under "-- Denominations, Registration and Transfer", the junior
subordinated debentures may be presented for registration of transfer or
exchange and the place or places where notices and demands to or upon us
in respect of the junior subordinated debentures and the junior indenture
may be made;
- any period or periods within which or date or dates on which, the price
or prices at which and the terms and conditions upon which junior
subordinated debentures may be redeemed, in whole or in part, at the
holder's option or at our option;
- the obligation or the right, if any, of Fifth Third or a holder to
redeem, purchase or repay the junior subordinated debentures and the
period or periods within which, the price or prices at which, the
currency or currencies (including currency unit or units) in which and
the other terms and conditions upon which the junior subordinated
debentures will be redeemed, repaid or purchased, in whole or in part,
pursuant to that obligation;
- if other than denominations of integral multiples of $25, the
denominations in which any junior subordinated debentures will be issued;
- if other than in U.S. dollars, the currency or currencies (including
currency unit or units) in which the principal of (and premium, if any)
and interest and additional interest, if any, on the junior subordinated
debentures will be payable, or in which the junior subordinated
debentures will be denominated;
- any additions, modifications or deletions in the events of default under
the junior indenture or covenants of Fifth Third specified in the junior
indenture with respect to the junior subordinated debentures;
- if other than the principal amount, the portion of the junior
subordinated debentures' principal amount that will be payable upon
declaration of acceleration of the maturity thereof;
- any additions or changes to the junior indenture with respect to a series
of junior subordinated debentures that are necessary to permit or
facilitate the issuance of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
- any index or indices used to determine the amount of payments of
principal of and premium, if any, on the junior subordinated debentures
and the manner in which such amounts will be determined;
- the terms and conditions relating to the issuance of a temporary global
security representing all of the junior subordinated debentures of such
series and the exchange of such temporary global security for definitive
junior subordinated debentures of such series;
- whether the junior subordinated debentures of the series will be issued
in whole or in part in the form of one or more global securities and, in
such case, the depositary for such global securities;
- the appointment of any paying agent or agents;
- the terms and conditions of any obligation or right of us or a holder to
convert or exchange the junior subordinated debentures into capital
securities;
- the form of trust agreement, guarantee agreement and expense agreement,
if applicable;
- the relative degree, if any, to which such junior subordinated debentures
of the series will be senior to or be subordinated to other series of
such junior subordinated debentures or other indebtedness of Fifth Third
in right of payment, whether such other series of junior subordinated
debentures or other indebtedness are outstanding or not; and
- any other terms of the junior subordinated debentures not inconsistent
with the provisions of the junior indenture.
Unless otherwise described in the applicable prospectus supplement,
principal, premium, if any and interest, if any, on the junior subordinated
debentures will be payable, and the junior subordinated debentures
45
will be transferable, at the office of the junior trustee, except that interest
may be paid at our option by check mailed to the address of the holder entitled
to it as it appears on the security register.
Junior subordinated debentures may be sold at a substantial discount below
their stated principal amount bearing no interest or interest at a rate which at
the time of issuance is below market rates. Federal income tax consequences and
other special considerations applicable to any such junior subordinated
debentures will be summarized in the applicable prospectus supplement.
If the purchase price of any of the junior subordinated debentures is
payable in whole or in part in any currency other than U.S. dollars or if any
junior subordinated debentures are denominated in whole or in part in any
currency other than U.S. dollars, if the principal of, premium, if any, or
interest on the junior subordinated debentures are to be payable in one or more
foreign currencies or currency units, or if any index is used to determine the
amount of payments of principal of, premium, if any, or interest on any series
of the junior subordinated debentures, the restrictions, elections, certain U.S.
federal income tax consequences, specific terms and other information with
respect to that series of junior subordinated debentures and the foreign
currencies or currency units will be described in the applicable prospectus
supplement.
The junior indenture does not contain any provisions that would provide
protection to holders of the junior subordinated debentures against any highly
leveraged or other transaction involving us that may adversely affect holders of
the junior subordinated debentures.
The junior indenture allows us to merge or consolidate with another
company, or to sell all or substantially all of our assets to another company.
If these events occur, the other company will be required to assume our
responsibilities relating to the junior subordinated debentures, and we will be
released from all liabilities and obligations. See "-- Consolidation, Merger,
Sale of Assets and Other Transactions" below for a more detailed discussion. The
junior indenture provides that we and the junior trustee may change certain of
our obligations or certain of your rights concerning the junior subordinated
debentures of that series. However, to change the amount or timing of principal,
interest or other payments under the junior subordinated debentures, every
holder in the series must consent. See "-- Modification of the Junior Indenture"
below for a more detailed discussion.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable prospectus supplement, the
junior subordinated debentures will be issued only in registered form, without
coupons, in denominations of $25 and any integral multiple of $25. See "Issuance
of Global Securities". Subject to restrictions relating to junior subordinated
debentures represented by global securities, junior subordinated debentures of
any series will be exchangeable for other junior subordinated debentures of the
same issue and series, of any authorized denominations, of a like aggregate
principal amount, of the same original issue date and stated maturity and
bearing the same interest rate.
Subject to restrictions relating to junior subordinated debentures
represented by global securities, junior subordinated debentures may be
presented for exchange as provided above, and may be presented for registration
of transfer (with the form of transfer endorsed thereon, or a satisfactory
written instrument of transfer, duly executed) at the office of the appropriate
securities registrar or at the office of any transfer agent designated by us for
such purpose with respect to any series of junior subordinated debentures and
referred to in the applicable prospectus supplement, without service charge and
upon payment of any taxes and other governmental charges as described in the
junior indenture. We will appoint the junior trustee as securities registrar
under the junior indenture. If the applicable prospectus supplement refers to
any transfer agents (in addition to the securities registrar) initially
designated by us for any series of junior subordinated debentures, we may at any
time rescind the designation of any of these transfer agents or approve a change
in the location through which any of these transfer agents acts, provided that
we maintain a transfer agent in each place of payment for that series. We may at
any time designate additional transfer agents for any series of junior
subordinated debentures.
46
In the event of any redemption, neither we nor the junior trustee will be
required to:
- issue, register the transfer of or exchange junior subordinated
debentures of any series during the period beginning at the opening of
business 15 days before the day of selection for redemption of junior
subordinated debentures of that series and ending at the close of
business on the day of mailing of the relevant notice of redemption; and
- transfer or exchange any junior subordinated debentures so selected for
redemption, except, in the case of any junior subordinated debentures
being redeemed in part, any portion thereof not being redeemed.
OPTION TO DEFER INTEREST PAYMENTS
If provided in the applicable prospectus supplement, so long as no
debenture event of default (as defined below) has occurred and is continuing, we
will have the right at any time and from time to time during the term of any
series of junior subordinated debentures to defer payment of interest for up to
the number of consecutive interest payment periods that is specified in the
applicable prospectus supplement, referred to as an "extension period", subject
to the terms, conditions and covenants, if any, specified in the prospectus
supplement, provided that the extension period may not extend beyond the stated
maturity of the applicable series of junior subordinated debentures. U.S.
federal income tax consequences and other special considerations applicable to
any such junior subordinated debentures will be described in the applicable
prospectus supplement.
As a consequence of any such deferral, distributions on the capital
securities would be deferred (but would continue to accumulate additional
distributions at the rate per annum described in the prospectus supplement for
the capital securities) by the Issuer Trust of the capital securities during the
extension period. During any applicable extension period, we may not:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of our capital
stock; or
- make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any of our debt securities that rank on a
parity in all respects with or junior in interest to the corresponding
junior subordinated debentures other than:
- repurchases, redemptions or other acquisitions of shares of our capital
stock in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees,
officers, directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase plan or in connection with
the issuance of our capital stock (or securities convertible into or
exercisable for our capital stock) as consideration in an acquisition
transaction entered into prior to the applicable extension period;
- as a result of any exchange or conversion of any class or series of our
capital stock (or any capital stock of a subsidiary of Fifth Third) for
any class or series of our capital stock or of any class or series of
our indebtedness for any class or series of our capital stock;
- the purchase of fractional interests in shares of our capital stock in
accordance with the conversion or exchange provisions of such capital
stock or the security being converted or exchanged;
- any declaration of a dividend in connection with any stockholders'
rights plan, or the issuance of rights, stock or other property under
any stockholders' rights plan, or the redemption or repurchase of rights
in accordance with any stockholders' rights plan; or
- any dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of the
warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks on a parity with or junior to such
stock.
Prior to the termination of any applicable extension period, we may further
defer the payment of interest.
47
This covenant will also apply if:
- we have actual knowledge of an event that with the giving of notice or
the lapse of time, or both, would constitute an event of default under
the junior indenture with respect to the junior subordinated debentures
and we have not taken reasonable steps to cure the event, and
- if the junior subordinated debentures are held by an Issuer Trust, we are
in default with respect to its payment of any obligations under the
guarantee related to the related capital securities.
REDEMPTION
Unless otherwise indicated in the applicable prospectus supplement, junior
subordinated debentures will not be subject to any sinking fund.
Unless otherwise indicated in the applicable prospectus supplement, we may,
at our option and subject to receipt of prior approval by the Federal Reserve
Board if such approval is then required under applicable capital guidelines or
policies, redeem the junior subordinated debentures of any series in whole at
any time or in part from time to time. If the junior subordinated debentures of
any series are so redeemable only on or after a specified date or upon the
satisfaction of additional conditions, the applicable prospectus supplement will
specify this date or describe these conditions. Unless otherwise indicated in
the form of security for such series, junior subordinated debenture in
denominations larger than $25 may be redeemed in part but only in integral
multiples of $25. Except as otherwise specified in the applicable prospectus
supplement, the redemption price for any junior subordinated debenture will
equal any accrued and unpaid interest (including additional interest) to the
redemption date, plus 100% of the principal amount.
Except as otherwise specified in the applicable prospectus supplement, if a
tax event (as defined below) in respect of a series of junior subordinated
debentures or a capital treatment event (as defined below) has occurred and is
continuing, we may, at its option and subject to receipt of prior approval by
the Federal Reserve Board if such approval is then required under applicable
capital guidelines or policies, redeem that series of junior subordinated
debentures in whole (but not in part) at any time within 90 days following the
occurrence of the tax event or capital treatment event, at a redemption price
equal to 100% of the principal amount of the junior subordinated debentures then
outstanding plus accrued and unpaid interest to the date fixed for redemption,
except as otherwise specified in the applicable prospectus supplement.
A "capital treatment event" means the reasonable determination by us that
as a result of
- any amendment to or change, including any announced prospective change,
in the laws, or any rules or regulations under the laws, of the United
States or of any political subdivision of or in the United States, if the
amendment or change is effective on or after the date the capital
securities are issued; or
- any official or administrative pronouncement or action or any judicial
decision interpreting or applying such laws or regulations, if the
pronouncement, action or decision is announced on or after the date the
capital securities are issued,
there is more than an insubstantial risk that we will not be entitled to treat
the liquidation amount of the capital securities as "Tier 1 Capital" for
purposes of the applicable Federal Reserve capital adequacy guidelines as then
in effect.
A "tax event" means the receipt by us and the Issuer Trust of an opinion of
independent counsel, experienced in tax matters, to the following effect that,
as a result of any tax change, there is more than an insubstantial risk that any
of the following will occur:
- the Issuer Trust is, or will be within 90 days after the date of the
opinion of counsel, subject to U.S. federal income tax on income received
or accrued on the corresponding junior subordinated debentures;
- interest payable by us on the corresponding junior subordinated
debentures is not, or within 90 days after the opinion of counsel will
not be, deductible by us, in whole or in part, for U.S. federal income
tax purposes; or
48
- the Issuer Trust is, or will be within 90 days after the date of the
opinion of counsel, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
As used above, the term "tax change" means any of the following:
- any amendment to or change, including any announced prospective change,
in the laws or any regulations under the laws of the United States or of
any political subdivision or taxing authority of or in the United States,
if the amendment or change is enacted, promulgated or announced on or
after the date the capital securities are issue; or
- any official administrative pronouncement, including any private letter
ruling, technical advice memorandum, field service advice, regulatory
procedure, notice or announcement, including any notice or announcement
of intent to adopt any procedures or regulations, or any judicial
decision interpreting or applying such laws or regulations, whether or
not the pronouncement or decision is issued to or in connection with a
proceeding involving us or the trust or is subject to review or appeal,
if the pronouncement or decision is enacted, promulgated or announced on
or after the date of the issuance of the capital securities.
Notice of any redemption will be mailed at least 45 days but not more than
75 days before the redemption date to each holder of junior subordinated
debentures to be redeemed at its registered address. Unless we default in
payment of the redemption price, on and after the redemption date interest will
cease to accrue on the junior subordinated debentures or portions thereof called
for redemption.
MODIFICATION OF THE JUNIOR INDENTURE
We may modify or amend the junior indenture with the consent of the junior
trustee, in some cases without obtaining the consent of security holders.
Certain modifications and amendments also require the consent of the holders of
at least a majority in principal amount of the outstanding junior subordinated
debentures of each series issued under the junior indenture that would be
affected by the modification or amendment. Further, without the consent of the
holder of each outstanding junior subordinated debenture issued under the junior
indenture that would be affected:
- change the stated maturity of the principal, or any installment of
principal or interest, on any outstanding junior subordinated debenture;
- reduce any principal amount, premium or interest, on any outstanding
junior subordinated debenture, including in the case of an original issue
discount security the amount payable upon acceleration of the maturity of
that security;
- change the place of payment where, or the coin or currency or currency
unit in which, any principal, premium or interest, on any junior
subordinated debenture is payable;
- impair the right to institute suit for the enforcement of any payment on
or after the stated maturity or, in the case of redemption, on or after
the redemption date;
- reduce the above-stated percentage of outstanding junior subordinated
debentures necessary to modify or amend the applicable indenture; or
- modify the above requirements or reduce the percentage of aggregate
principal amount of outstanding junior subordinated debentures of any
series required to be held by holders seeking to waive compliance with
certain provisions of the relevant indenture or seeking to waive certain
defaults,
and provided that, in the case of corresponding junior subordinated debentures,
so long as any of the related capital securities remain outstanding,
- no modification may be made that adversely affects the holders of such
capital securities in any material respect, and no termination of the
junior indenture may occur, and no waiver of any event of default or
compliance with any covenant under the junior indenture may be effective,
without the prior consent of the holders of at least a majority of the
aggregate liquidation amount of all outstanding
49
related capital securities affected unless and until the principal of the
corresponding junior subordinated debentures and all accrued and unpaid
interest have been paid in full and certain other conditions have been
satisfied, and
- where a consent under the junior indenture would require the consent of
each holder of corresponding junior subordinated debentures, no such
consent will be given by the property trustee without the prior consent
of each holder of related capital securities.
We may, with the junior trustee's consent, execute, without the consent of
any holder of junior subordinated debentures, any supplemental indenture for the
purpose of creating any new series of junior subordinated debentures.
EVENTS OF DEFAULT
The following events will be "debenture events of default" with respect to
each series of junior subordinated debentures:
- default for 30 days in interest payment of any security of that series,
including any additional interest (subject to the deferral of any
interest payment in the case of an extension period);
- default in any principal or premium payment on any security of that
series at maturity;
- failure by us for 90 days in performing any other covenant or warranty in
the junior indenture after:
- we are given written notice by the junior trustee; or
- the holders of at least 25% in aggregate principal amount of the
outstanding securities of that series give written notice to us and the
senior trustee;
- our bankruptcy, insolvency or reorganization; or
- any other event of default provided for that series.
The holders of a majority in aggregate outstanding principal amount of
junior subordinated debentures of each series affected have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the junior trustee. The junior trustee or the holders of at least 25% in
aggregate outstanding principal amount of junior subordinated debentures of each
series affected may declare the principal (or, if the junior subordinated
debentures of such series are discount securities, the portion of the principal
amount specified in a prospectus supplement) due and payable immediately upon a
debenture event of default. In the case of corresponding junior subordinated
debentures, should the junior trustee or the property trustee fail to make this
declaration, the holders of at least 25% in aggregate liquidation amount of the
related capital securities will have the right to make this declaration. The
property trustee may annul the declaration and waive the default, provided all
defaults have been cured and all payment obligations have been made current. In
the case of corresponding junior subordinated debentures, should the property
trustee fail to annul the declaration and waive the default, the holders of a
majority in aggregate liquidation amount of the related capital securities will
have the right to do so. In the event of our bankruptcy, insolvency or
reorganization, junior subordinated debentures holders' claims would fall under
the broad equity power of a federal bankruptcy court, and to that court's
determination of the nature of those holders' rights.
The holders of a majority in aggregate outstanding principal amount of each
series of junior subordinated debentures affected may, on behalf of the holders
of all the junior subordinated debentures of that series, waive any default,
except a default in the payment of principal or interest (including any
additional interest) (unless the default has been cured and a sum sufficient to
pay all matured installments of interest (including any additional interest) and
principal due otherwise than by acceleration has been deposited with the junior
trustee) or a default in respect of a covenant or provision which under the
junior indenture cannot be modified or amended without the consent of the holder
of each outstanding junior subordinated debenture of that series. In the case of
corresponding junior subordinated debentures, should the holders of such
corresponding junior subordinated debentures fail to waive the default, the
holders of a majority in aggregate liquidation amount of the related capital
securities will have the right to do so. We are required to file annually with
the junior
50
trustee a certificate as to whether or not we are in compliance with all the
conditions and covenants applicable to us under the junior indenture.
In case a debenture event of default has occurred and is continuing as to a
series of corresponding junior subordinated debentures, the property trustee
will have the right to declare the principal of and the interest on the
corresponding junior subordinated debentures, and any other amounts payable
under the junior indenture, to be immediately due and payable and to enforce its
other rights as a creditor with respect to the corresponding junior subordinated
debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a debenture event of default with respect to a series of corresponding
junior subordinated debentures has occurred and is continuing and the event is
attributable to our failure to pay interest or principal on the corresponding
junior subordinated debentures on the date the interest or principal is due and
payable, a holder of the related capital securities may institute a legal
proceeding directly against us for enforcement of payment to that holder of the
principal of or interest (including any additional interest) on corresponding
junior subordinated debentures having a principal amount equal to the aggregate
liquidation amount of the related capital securities of that holder (a "direct
action"). We may not amend the junior indenture to remove this right to bring a
direct action without the prior written consent of the holders of all of the
related capital securities outstanding. If the right to bring a direct action is
removed, the applicable Issuer Trust may become subject to reporting obligations
under the Exchange Act. We will have the right under the junior indenture to
set-off any payment made to the holder of the related capital securities by us
in connection with a direct action.
The holders of related capital securities will not be able to exercise
directly any remedies other than those set forth in the preceding paragraph
available to the holders of the junior subordinated debentures unless there has
occurred an event of default under the trust agreement. See "Capital Securities
and Related Instruments -- Events of Default; Notice".
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The junior indenture provides that we may not consolidate with or merge
into another corporation or transfer our properties and assets substantially as
an entirety to another person unless:
- the entity formed by the consolidation or into which we merge, or to
which we transfer our properties and assets (1) is a corporation,
partnership or trust organized and existing under the laws of the United
States, any state of the United States or the District of Columbia and
(2) expressly assumes by supplemental indenture the payment of any
principal, premium or interest on the junior subordinated debentures, and
the performance of our other covenants under the junior indenture; and
- immediately after giving effect to this transaction, no debenture event
of default, and no event which, after notice or lapse of time or both,
would become a debenture event of default, will have occurred and be
continuing under the relevant indenture.
The general provisions of the junior indenture do not afford holders of the
junior subordinated debentures protection in the event of a highly leveraged or
other transaction involving us that may adversely affect holders of the junior
subordinated debentures.
SATISFACTION AND DISCHARGE
The junior indenture provides that when, among other things, all junior
subordinated debentures not previously delivered to the junior trustee for
cancellation:
- have become due and payable;
- will become due and payable at their stated maturity within one year; or
- are to be called for redemption within one year under arrangements
satisfactory to the junior trustee for the giving of notice of redemption
by the junior trustee;
51
and we deposit or cause to be deposited with the junior trustee funds, in trust,
for the purpose and in an amount in the currency or currencies in which the
junior subordinated debentures are payable sufficient to pay and discharge the
entire indebtedness on the junior subordinated debentures not previously
delivered to the junior trustee for cancellation, for the principal, premium, if
any, and interest (including any additional interest) to the date of the deposit
or to the stated maturity, as the case may be, then the junior indenture will
cease to be of further effect (except as to our obligations to pay all other
sums due under the junior indenture and to provide the officers' certificates
and opinions of counsel described therein), and we will be deemed to have
satisfied and discharged the junior indenture.
CONVERSION OR EXCHANGE
If and to the extent indicated in the applicable prospectus supplement, a
series of junior subordinated debentures may be convertible or exchangeable into
junior subordinated debentures of another series or into capital securities of
another series. The specific terms on which series may be converted or exchanged
will be described in the applicable prospectus supplement. These terms may
include provisions for conversion or exchange, whether mandatory, at the
holder's option, or at our option, in which case the number of shares of capital
securities or other securities the junior subordinated debenture holder would
receive would be calculated at the time and manner described in the applicable
prospectus supplement.
SUBORDINATION OF JUNIOR SUBORDINATED DEBENTURES
The junior subordinated debentures will be subordinate in right of payment,
to the extent set forth in the junior indenture, to all our senior debt (as
defined below). If we default in the payment of any principal, premium, if any,
or interest, if any, or any other amount payable on any senior debt when it
becomes due and payable, whether at maturity or at a date fixed for redemption
or by declaration of acceleration or otherwise, then, unless and until the
default has been cured or waived or has ceased to exist or all senior debt has
been paid, no direct or indirect payment (in cash, property, securities, by
set-off or otherwise) may be made or agreed to be made on the junior
subordinated debentures, or in respect of any redemption, repayment, retirement,
purchase or other acquisition of any of the junior subordinated debentures.
As used in this section, the term "senior debt" means any obligation of
ours to our creditors, whether now outstanding or subsequently incurred, other
than any obligation as to which, in the instrument creating or evidencing the
obligation or pursuant to which the obligation is outstanding, it is provided
that such obligation is not senior debt, but does not include trade accounts
payable and accrued liabilities arising in the ordinary course of business.
Senior debt includes our outstanding subordinated debt securities and any
subordinated debt securities issued in the future with substantially similar
subordination terms, but does not include the junior subordinated debentures of
any series or any junior subordinated debentures issued in the future with
subordination terms substantially similar to those of the junior subordinated
debentures. Substantially all of our existing indebtedness constitutes senior
debt.
Indebtedness existing under the junior indenture, at December 31, 2001,
totaled approximately $200 million. This amount does not include indebtedness of
subsidiaries of Fifth Third.
In the event of:
- any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to us, our
creditors or our property;
- any proceeding for the liquidation, dissolution or other winding up of
Fifth Third, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings;
- any assignment by us for the benefit of creditors; or
- any other marshaling of our assets,
52
then all senior debt (including any interest accruing after the commencement of
any of the proceedings described above) must first be paid in full before any
payment or distribution, whether in cash, securities or other property, may be
made on account of the junior subordinated debentures. Any payment or
distribution on account of the junior subordinated debentures, whether in cash,
securities or other property, that would otherwise (but for the subordination
provisions) be payable or deliverable in respect of the junior subordinated
debentures will be paid or delivered directly to the holders of senior debt in
accordance with the priorities then existing among those holders until all
senior debt (including any interest accruing after the commencement of any such
proceedings) has been paid in full.
In the event of any of the proceedings described above, after payment in
full of all senior debt, the holders of junior subordinated debentures, together
with the holders of any of our obligations ranking on a parity with the junior
subordinated debentures, will be entitled to be paid from our remaining assets
the amounts at the time due and owing on the junior subordinated debentures and
the other obligations before any payment or other distribution, whether in cash,
property or otherwise, will be made on account of any of our capital stock or
obligations ranking junior to the junior subordinated debentures. If any payment
or distribution on account of the junior subordinated debentures of any
character or any security, whether in cash, securities or other property, is
received by any holder of any junior subordinated debentures in contravention of
any of the terms described above and before all the senior debt has been paid in
full, that payment or distribution or security will be received in trust for the
benefit of, and must be paid over or delivered and transferred to, the holders
of the senior debt at the time outstanding in accordance with the priorities
then existing among those holders for application to the payment of all senior
debt remaining unpaid to the extent necessary to pay all senior debt in full.
Because of this subordination, in the event of our insolvency, holders of senior
debt may receive more, ratably, and holders of the junior subordinated
debentures may receive less, ratably, than our other creditors. Such
subordination will not prevent the occurrence of any event of default under the
junior indenture.
The junior indenture places no limitation on the amount of additional
senior debt that may be incurred by us. We expect from time to time to incur
additional indebtedness constituting senior debt.
TRUST EXPENSES
Pursuant to the expense agreement for each series of corresponding junior
subordinated debentures, we, as holder of the trust common securities, will
irrevocably and unconditionally agree with each Issuer Trust that holds junior
subordinated debentures that we will pay to the Issuer Trust, and reimburse the
Issuer Trust for, the full amounts of any costs, expenses or liabilities of the
Issuer Trust, other than obligations of the Issuer Trust to pay to the holders
of any capital securities or other similar interests in the Issuer Trust the
amounts due such holders pursuant to the terms of the capital securities or such
other similar interests, as the case may be. This payment obligation will
include any costs, expenses or liabilities of the Issuer Trust that are required
by applicable law to be satisfied in connection with a termination of the Issuer
Trust.
GOVERNING LAW
The junior indenture and the junior subordinated debentures will be
governed by and construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE JUNIOR TRUSTEE
The junior trustee will have, and be subject to, all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to these provisions, the junior trustee is under no
obligation to exercise any of the powers vested in it by the junior indenture at
the request of any holder of junior subordinated debentures, unless offered
reasonable indemnity by that holder against the costs, expenses and liabilities
which might be incurred thereby. The junior trustee is not required to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the junior trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
53
CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
The corresponding junior subordinated debentures may be issued in one or
more series of junior subordinated debentures under the junior indenture with
terms corresponding to the terms of a series of related capital securities. In
that event, concurrently with the issuance of each Issuer Trust's capital
securities, the Issuer Trust will invest the proceeds thereof and the
consideration paid by us for the trust common securities of the Issuer Trust in
such series of corresponding junior subordinated debentures issued by us to the
Issuer Trust. Each series of corresponding junior subordinated debentures will
be in the principal amount equal to the aggregate stated liquidation amount of
the related capital securities and the trust common securities of the Issuer
Trust and will rank on a parity with all other series of junior subordinated
debentures. Holders of the related capital securities for a series of
corresponding junior subordinated debentures will have the rights in connection
with modifications to the junior indenture or upon occurrence of Debenture
Events of Default, as described under "-- Modification of the Junior Indenture"
and "-- Events of Default", unless provided otherwise in the prospectus
supplement for such related capital securities.
Unless otherwise specified in the applicable prospectus supplement, if a
tax event or a capital treatment event in respect of an Issuer Trust has
occurred and is continuing, we may, at our option and subject to prior approval
of the federal reserve board if then required under applicable capital
guidelines or policies, redeem the corresponding junior subordinated debentures
at any time within 90 days of the occurrence of such tax event or capital
treatment event, in whole but not in part, subject to the provisions of the
junior indenture and whether or not the corresponding junior subordinated
debentures are then otherwise redeemable at our option. Unless provided
otherwise in the applicable prospectus supplement, the redemption price for any
corresponding junior subordinated debentures will be equal to 100% of the
principal amount of the corresponding junior subordinated debentures then
outstanding plus accrued and unpaid interest to the date fixed for redemption.
For so long as the applicable Issuer Trust is the holder of all the outstanding
corresponding junior subordinated debentures, the proceeds of any redemption
will be used by the Issuer Trust to redeem the corresponding trust securities in
accordance with their terms. In lieu of such redemption, we have the right to
dissolve the applicable Issuer Trust and to distribute the corresponding junior
subordinated debentures to the holders of the related series of trust securities
in liquidation of the Issuer Trust. See "Capital Securities and Related
Instruments -- Redemption or Exchange -- Distribution of Corresponding Junior
Subordinated Debentures" for a more detailed discussion. We may not redeem a
series of corresponding junior subordinated debentures in part unless all
accrued and unpaid interest has been paid in full on all outstanding
corresponding junior subordinated debentures of that series for all interest
periods terminating on or prior to the redemption date.
We have agreed in the junior indenture, as to each series of corresponding
junior subordinated debentures, that if and so long as:
- the Issuer Trust of the related series of trust securities is the holder
of all the corresponding junior subordinated debentures;
- a tax event in respect of such Issuer Trust has occurred and is
continuing; and
- we elect, and do not revoke that election, to pay additional sums in
respect of the trust securities,
we will pay to the Issuer Trust these additional sums (as defined under "Capital
Securities and Related Instruments -- Redemption or Exchange"). We also have
agreed, as to each series of corresponding junior subordinated debentures:
- to maintain directly or indirectly 100% ownership of the trust common
securities of the Issuer Trust to which the corresponding junior
subordinated debentures have been issued, provided that certain
successors which are permitted under the junior indenture may succeed to
our ownership of the trust common securities; or
- not to voluntarily terminate, wind-up or liquidate any Issuer Trust,
except:
- in connection with a distribution of corresponding junior subordinated
debentures to the holders of the capital securities in exchange for
their capital securities upon liquidation of the Issuer Trust; or
54
- in connection with certain mergers, consolidations or amalgamations
permitted by the related trust agreement,
in either such case, if specified in the applicable prospectus supplement
upon prior approval of the Federal Reserve, if then required under
applicable Federal Reserve capital guidelines or policies; and
- to use its reasonable efforts, consistent with the terms and provisions
of the related trust agreement, to cause the Issuer Trust to be
classified as a grantor trust and not as an association taxable as a
corporation for U.S. federal income tax purposes.
55
GUARANTEES
The following description summarizes the material provisions of the
guarantees. This description is not complete and is subject to, and is qualified
in its entirety by reference to, all of the provisions of each guarantee,
including the definitions therein, and the Trust Indenture Act. The form of the
guarantee has been filed as an exhibit to our SEC registration statement.
Reference in this summary to capital securities means the capital securities
issued by the related Issuer Trust to which a guarantee relates. Whenever
particular defined terms of the guarantees are referred to in this prospectus or
in a prospectus supplement, those defined terms are incorporated in this
prospectus or the prospectus supplement by reference.
GENERAL
A guarantee will be executed and delivered by us at the same time each
Issuer Trust issues its capital securities. Each guarantee is for the benefit of
the holders from time to time of the capital securities. Wilmington Trust
Company will act as indenture trustee (referred to below as the "guarantee
trustee") under each guarantee for the purposes of compliance with the Trust
Indenture Act and each guarantee will be qualified as an indenture under the
Trust Indenture Act. The guarantee trustee will hold each guarantee for the
benefit of the holders of the related Issuer Trust's capital securities.
We will irrevocably and unconditionally agree to pay in full on a
subordinated basis, to the extent described below, the guarantee payments (as
defined below) to the holders of the capital securities, as and when due,
regardless of any defense, right of set-off or counterclaim that the Issuer
Trust may have or assert other than the defense of payment. The following
payments or distributions with respect to the capital securities, to the extent
not paid by or on behalf of the related Issuer Trust (referred to as the
"guarantee payments"), will be subject to the related guarantee:
- any accumulated and unpaid distributions required to be paid on the
capital securities, to the extent that the Issuer Trust has funds on hand
available for the distributions;
- the redemption price with respect to any capital securities called for
redemption, to the extent that the Issuer Trust has funds on hand
available for the redemptions; or
- upon a voluntary or involuntary dissolution, winding up or liquidation of
the Issuer Trust (unless the corresponding junior subordinated debentures
are distributed to holders of such capital securities in exchange for
their capital securities), the lesser of:
- the liquidation distribution; and
- the amount of assets of the Issuer Trust remaining available for
distribution to holders of capital securities after satisfaction of
liabilities to creditors of the Issuer Trust as required by applicable
law.
Our obligation to make a guarantee payment may be satisfied by direct
payment of the required amounts by us to the holders of the applicable capital
securities or by causing the Issuer Trust to pay these amounts to the holders.
Each guarantee will be an irrevocable and unconditional guarantee on a
subordinated basis of the related Issuer Trust's obligations under the capital
securities, but will apply only to the extent that the related Issuer Trust has
funds sufficient to make such payments, and is not a guarantee of collection.
See "-- Status of the Guarantees".
If we do not make interest payments on the corresponding junior
subordinated debentures held by the Issuer Trust, the Issuer Trust will not be
able to pay distributions on the capital securities and will not have funds
legally available for the distributions. Each guarantee constitutes an unsecured
obligation of ours and will rank subordinate and junior in right of payment to
all of our senior debt. See "-- Status of the Guarantees". Because we are a
holding company, our right to participate in any distribution of assets of any
subsidiary upon such subsidiary's liquidation or reorganization or otherwise, is
subject to the prior claims of creditors of that subsidiary, except to the
extent we may ourselves be recognized as a creditor of that subsidiary.
Accordingly, our obligations under the guarantees will be effectively
subordinated to all existing
56
and future liabilities of our subsidiaries, and claimants should look only to
our assets for payments. Except as otherwise provided in the applicable
prospectus supplement, the guarantees do not limit the incurrence or issuance of
other secured or unsecured debt of ours, including senior debt, whether under
the junior indenture, any other existing indenture or any other indenture that
we may enter into in the future or otherwise. See the applicable prospectus
supplement relating to any offering of capital securities.
We have, through the applicable guarantee, the applicable trust agreement,
the applicable series of corresponding junior subordinated debentures, the
junior indenture and the applicable expense agreement, taken together, fully,
irrevocably and unconditionally guaranteed all of the Issuer Trust's obligations
under the related capital securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents constitutes
a guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of an Issuer
Trust's obligations under its related capital securities. See "Capital
Securities and Related Instruments -- Relationship Among the Capital Securities
and the Related Instruments".
STATUS OF THE GUARANTEES
Each guarantee will constitute an unsecured obligation of ours and will
rank subordinate and junior in right of payment to all of our senior debt in the
same manner as corresponding junior subordinated debentures.
Each guarantee will rank equally with all other guarantees issued by us.
Each guarantee will constitute a guarantee of payment and not of collection
(i.e., the guaranteed party may institute a legal proceeding directly against us
to enforce its rights under the guarantee without first instituting a legal
proceeding against any other person or entity). Each guarantee will be held for
the benefit of the holders of the related capital securities. Each guarantee
will not be discharged except by payment of the guarantee payments in full to
the extent not paid by the Issuer Trust or upon distribution to the holders of
the capital securities of the corresponding junior subordinated debentures. None
of the guarantees places a limitation on the amount of additional senior debt
that may be incurred by us. We expect from time to time to incur additional
indebtedness constituting senior debt.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the material rights of holders of the related capital securities (in which case
no vote of the holders will be required), no guarantee may be amended without
the prior approval of the holders of at least a majority of the aggregate
liquidation amount of the related outstanding capital securities. The manner of
obtaining any such approval will be as described under "Capital Securities and
Related Instruments -- Voting Rights; Amendment of Each Trust Agreement". All
guarantees and agreements contained in each guarantee will bind our successors,
assigns, receivers, trustees and representatives and will inure to the benefit
of the holders of the related capital securities then outstanding. We may not
assign our obligations under the guarantees except in connection with a
consolidation, merger or sale involving us that is permitted under the terms of
the junior indenture and then only if any such successor or assignee agrees in
writing to perform our obligations under the guarantees.
EVENTS OF DEFAULT
An event of default under each guarantee will occur upon our failure to
perform any of our payment obligations under the guarantee or to perform any
non-payment obligations if this non-payment default remains unremedied for 30
days. The holders of at least a majority in aggregate liquidation amount of the
related capital securities have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the guarantee trustee
in respect of the guarantee or to direct the exercise of any trust or power
conferred upon the guarantee trustee under the guarantee.
The holders of at least a majority in aggregate liquidation amount of the
related capital securities have the right, by vote, to waive any past events of
default and its consequences under each guarantee. If such a waiver occurs, any
event of default will cease to exist and be deemed to have been cured under the
terms of the guarantee.
57
Any holder of the capital securities may, to the extent permissible under
applicable law, institute a legal proceeding directly against us to enforce its
rights under the guarantee without first instituting a legal proceeding against
the Issuer Trust, the guarantee trustee or any other person or entity.
We, as guarantor, are required to file annually with the guarantee trustee
a certificate as to whether or not we are in compliance with all the conditions
and covenants applicable to it under the guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The guarantee trustee, other than during the occurrence and continuance of
a default by us in performance of any guarantee, undertakes to perform only
those duties specifically set forth in each guarantee and, after default with
respect to any guarantee, must exercise the same degree of care and skill as a
prudent person would exercise or use in the conduct of his or her own affairs.
Subject to this provision, the guarantee trustee is under no obligation to
exercise any of the powers vested in it by any guarantee at the request of any
holder of any capital securities unless it is offered reasonable indemnity
against the costs, expenses and liabilities that might be incurred as a result.
However, such a requirement does not relieve the guarantee trustee of its
obligations to exercise its rights and powers under the guarantee upon the
occurrence of an event of default.
TERMINATION OF THE GUARANTEES
Each guarantee will terminate and be of no further force and effect upon:
- full payment of the redemption price of the related capital securities;
- full payment of the amounts payable upon liquidation of the related
Issuer Trust; or
- the distribution of corresponding junior subordinated debentures to the
holders of the related capital securities in exchange for their capital
securities.
Each guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of the related capital securities must
restore payment of any sums paid under the capital securities or the guarantee.
GOVERNING LAW
Each guarantee will be governed by and construed in accordance with the
laws of the State of New York.
THE EXPENSE AGREEMENT
Pursuant to the expense agreement that will be entered into by us under
each trust agreement, we will irrevocably and unconditionally guarantee to each
person or entity to whom the Issuer Trust becomes indebted or liable, the full
payment of any costs, expenses or liabilities of the Issuer Trust, other than
obligations of the Issuer Trust to pay to the holders of any capital securities
or other similar interests in the Issuer Trust of the amounts owed to holders
pursuant to the terms of the capital securities or other similar interests, as
the case may be. The expense agreement will be enforceable by third parties.
58
RELATIONSHIP AMONG THE CAPITAL SECURITIES
AND THE RELATED INSTRUMENTS
The following description of the relationship among the capital securities,
the corresponding junior subordinated debentures, the relevant expense agreement
and the relevant guarantee is not complete and is subject to, and is qualified
in its entirety by reference to, each trust agreement, the junior indenture and
the form of guarantee, each of which is incorporated as an exhibit to our SEC
registration statement, and the Trust Indenture Act.
FULL AND UNCONDITIONAL GUARANTEE
Payments of distributions and other amounts due on the capital securities
(to the extent the related Issuer Trust has funds available for the payment of
such distributions) are irrevocably guaranteed by us as described under "Capital
Securities and Related Instruments -- Guarantees". Taken together, our
obligations under each series of corresponding junior subordinated debentures,
the junior indenture, the related trust agreement, the related expense
agreement, and the related guarantee provide, in the aggregate, a full,
irrevocable and unconditional guarantee of payments of distributions and other
amounts due on the related capital securities. No single document standing alone
or operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of these documents
that has the effect of providing a full, irrevocable and unconditional guarantee
of the Issuer Trust's obligations under the related capital securities. If and
to the extent that we do not make payments on any series of corresponding junior
subordinated debentures, the Issuer Trust will not pay distributions or other
amounts due on its related capital securities. The guarantees do not cover
payment of distributions when the related Issuer Trust does not have sufficient
funds to pay such distributions. In such an event, the remedy of a holder of any
capital securities is to institute a legal proceeding directly against us
pursuant to the terms of the junior indenture for enforcement of payment of
amounts of such distributions to such holder. Our obligations under each
guarantee are subordinate and junior in right of payment to all of our senior
debt.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on
each series of corresponding junior subordinated debentures, such payments will
be sufficient to cover distributions and other payments due on the related
capital securities, primarily because:
- the aggregate principal amount of each series of corresponding junior
subordinated debentures will be equal to the sum of the aggregate stated
liquidation amount of the related capital securities and related trust
common securities;
- the interest rate and interest and other payment dates on each series of
corresponding junior subordinated debentures will match the distribution
rate and distribution and other payment dates for the related capital
securities;
- we will pay, under the related expense agreement, for all and any costs,
expenses and liabilities of the Issuer Trust except the Issuer Trust's
obligations to holders of its capital securities under the capital
securities; and
- each trust agreement provides that the Issuer Trust will not engage in
any activity that is inconsistent with the limited purposes of such
Issuer Trust.
Notwithstanding anything to the contrary in the junior indenture, we have
the right to set-off any payment we are otherwise required to make under the
junior indenture with a payment we make under the related guarantee.
59
ENFORCEMENT RIGHTS OF HOLDERS OF CAPITAL SECURITIES
A holder of any related capital security may, to the extent permissible
under applicable law, institute a legal proceeding directly against us to
enforce its rights under the related guarantee without first instituting a legal
proceeding against the guarantee trustee, the related Issuer Trust or any other
person or entity.
A default or event of default under any of our senior debt would not
constitute a default or event of default under the junior indenture. However, in
the event of payment defaults under, or acceleration of, our senior debt, the
subordination provisions of the junior indenture provide that no payments may be
made in respect of the corresponding junior subordinated debentures until the
senior debt has been paid in full or any payment default has been cured or
waived. Failure to make required payments on any series of corresponding junior
subordinated debentures would constitute an event of default under the junior
indenture.
LIMITED PURPOSE OF ISSUER TRUSTS
Each Issuer Trust's capital securities evidence a preferred and undivided
beneficial interest in the Issuer Trust, and each Issuer Trust exists for the
sole purpose of issuing its capital securities and trust common securities and
investing the proceeds thereof in corresponding junior subordinated debentures
and engaging in only those other activities necessary or incidental thereto. A
principal difference between the rights of a holder of a capital security and a
holder of a corresponding junior subordinated debenture is that a holder of a
corresponding junior subordinated debenture is entitled to receive from us the
principal amount of and interest accrued on corresponding junior subordinated
debentures held, while a holder of capital securities is entitled to receive
distributions from the Issuer Trust (or from us under the applicable guarantee)
if and to the extent the Issuer Trust has funds available for the payment of
such distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
any Issuer Trust involving our liquidation, the holders of the related capital
securities will be entitled to receive, out of the assets held by such Issuer
Trust, the liquidation distribution in cash. See "Capital Securities and Related
Instruments -- Liquidation Distribution Upon Termination". Upon any voluntary or
involuntary liquidation or bankruptcy of ours, the property trustee, as holder
of the corresponding junior subordinated debentures, would be a subordinated
creditor of ours, subordinated in right of payment to all senior debt as set
forth in the junior indenture, but entitled to receive payment in full of
principal and interest, before any stockholders of ours receive payments or
distributions. Since we are the guarantor under each guarantee and have agreed,
under the related expense agreement, to pay for all costs, expenses and
liabilities of each Issuer Trust (other than the Issuer Trust's obligations to
the holders of its capital securities), the positions of a holder of such
capital securities and a holder of such corresponding junior subordinated
debentures relative to other creditors and to our stockholders in the event of
our liquidation or bankruptcy are expected to be substantially the same.
60
ISSUANCE OF GLOBAL SECURITIES
Unless otherwise indicated in the applicable prospectus supplement,
securities other than common stock will be issued in the form of one or more
global certificates, or "global securities", registered in the name of a
depositary or its nominee. Unless otherwise indicated in the applicable
prospectus supplement, the depositary will be The Depository Trust Company,
commonly referred to as DTC. DTC has informed us that its nominee will be Cede &
Co. Accordingly, we expect Cede & Co. to be the initial registered holder of all
securities that are issued in global form. No person that acquires a beneficial
interest in those securities will be entitled to receive a certificate
representing that person's interest in the securities except as described herein
or in the applicable prospectus supplement. Unless and until definitive
securities are issued under the limited circumstances described below, all
references to actions by holders of securities issued in global form will refer
to actions taken by DTC upon instructions from its participants, and all
references to payments and notices to holders will refer to payments and notices
to DTC or Cede & Co., as the registered holder of these securities.
DTC has informed us that it is a limited-purpose trust company organized
under the New York Banking Law, a "banking organization" within the meaning of
the New York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Exchange Act. DTC holds securities that DTC participants deposit with DTC. DTC
also facilitates the settlement among DTC participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in DTC participants' accounts,
thereby eliminating the need for physical movement of certificates. DTC
participants include securities brokers and dealers, banks, trust companies and
clearing corporations, and may include other organizations. DTC is owned by a
number of its direct participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, LLC and the National Association of Securities Dealers,
Inc. Indirect access to the DTC system also is available to others such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly. The
rules applicable to DTC and DTC participants are on file with the SEC.
Persons that are not participants or indirect participants but desire to
purchase, sell or otherwise transfer ownership of, or other interests in,
securities may do so only through participants and indirect participants. Under
a book-entry format, holders may experience some delay in their receipt of
payments, as such payments will be forwarded by our designated agent to Cede &
Co., as nominee for DTC. DTC will forward such payments to its participants, who
will then forward them to indirect participants or holders. Holders will not be
recognized by the relevant registrar, transfer agent, trustee, depositary or
warrant agent as registered holders of the securities entitled to the benefits
of our articles of incorporation or the applicable indenture, trust agreement,
guarantee, deposit agreement or warrant agreement. Beneficial owners that are
not participants will be permitted to exercise their rights only indirectly
through and according to the procedures of participants and, if applicable,
indirect participants.
Under the rules, regulations and procedures creating and affecting DTC and
its operations as currently in effect, DTC will be required to make book-entry
transfers of securities among participants and to receive and transmit payments
to participants. DTC rules require participants and indirect participants with
which beneficial securities owners have accounts to make book-entry transfers
and receive and transmit payments on behalf of their respective account holders.
Because DTC can act only on behalf of
- participants, who in turn act only on behalf of participants or indirect
participants and
- certain banks, trust companies and other persons approved by it,
the ability of a beneficial owner of securities issued in global form to pledge
such securities to persons or entities that do not participate in the DTC system
may be limited due to the unavailability of physical certificates for these
securities.
DTC has advised us that DTC will take any action permitted to be taken by a
registered holder of any securities under our articles of incorporation or the
relevant indenture, trust agreement, guarantee, deposit
61
agreement or warrant agreement only at the direction of one or more participants
to whose accounts with DTC such securities are credited.
Unless otherwise indicated in the applicable prospectus supplement, a
global security will be exchangeable for the relevant definitive securities
registered in the names of persons other than DTC or its nominee only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
for that global security or if DTC ceases to be a clearing agency
registered under the Exchange Act when DTC is required to be so
registered;
- we determine, in our discretion, that the global security will be
exchangeable for definitive securities in registered form; or
- there has occurred and is continuing a default in the payment of any
amount due in respect of the securities or, in the case of debt
securities, an event of default or an event that, with the giving of
notice or lapse of time, or both, would constitute an event of default
with respect to these debt securities.
Any global security representing debt securities that is exchangeable
pursuant to the preceding paragraph will be exchangeable in whole for definitive
debt securities in registered form, of like tenor and of an equal aggregate
principal amount as the global security, in denominations specified in the
applicable prospectus supplement (if other than $1,000 and integral multiples of
$1,000). The definitive debt securities will be registered by the registrar in
the name or names instructed by DTC. Unless otherwise indicated in a prospectus
supplement any principal, premium and interest will be payable, the transfer of
the definitive debt securities will be registrable and the definitive debt
securities will be exchangeable at the corporate trust office of Fifth Third
Bank in Cincinnati, Ohio, provided that payment of interest may be made at our
option by check mailed to the address of the person entitled to that interest
payment as of the record date and as shown on the register for the debt
securities.
Any global security representing capital securities that is exchangeable
pursuant to the first or second bullet point above will be exchangeable in whole
for definitive capital securities in registered form, of like tenor and of an
equal aggregate principal amount as the global security, in denominations
specified in the applicable prospectus supplement (if other than $25.00 and
integral multiples of $25.00). The definitive capital securities will be
registered by the registrar in the name or names instructed by DTC. Any
distributions and other payments will be payable, the transfer of the definitive
capital securities will be registrable and the definitive capital securities
will be exchangeable at the corporate trust office of Fifth Third Bank in
Cincinnati, Ohio, provided that such payment may be made at our option by check
mailed to the address of the person entitled to that payment as of the record
date and as shown on the register for the capital securities.
Redemption notices will be sent to Cede & Co. as the registered holder of
the global securities. If less than all of a series of the debt securities or an
Issuer Trust's trust securities are being redeemed, DTC will determine the
amount of the interest of each direct participant to be redeemed in accordance
with its then current procedures.
Except as described above, the global security may not be transferred
except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC or to a successor depositary we appoint. Except as
described above, DTC may not sell, assign, transfer or otherwise convey any
beneficial interest in a global security evidencing all or part of any
securities unless the beneficial interest is in an amount equal to an authorized
denomination for these securities.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that we and the Issuer Trusts believe to be
accurate, but we and the Issuer Trusts assume no responsibility for the accuracy
thereof. None of Fifth Third, the trustees, any registrar and transfer agent,
any warrant agent or any depositary, or any agent of any of them, will have any
responsibility or liability for any aspect of DTC's or any participant's records
relating to, or for payments made on account of, beneficial interests in a
global security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
62
Secondary trading in notes and debentures of corporate issuers is generally
settled in clearing-house or next-day funds. In contrast, beneficial interests
in a global security, in some cases, may trade in the DTC's same-day funds
settlement system, in which secondary market trading activity in those
beneficial interests would be required by DTC to settle in immediately available
funds. There is no assurance as to the effect, if any, that settlement in
immediately available funds would have on trading activity in such beneficial
interests. Also, settlement for purchases of beneficial interests in a global
security upon the original issuance of this security may be required to be made
in immediately available funds.
PLAN OF DISTRIBUTION
The securities described in this document may be sold in public offerings
to or through underwriters, to be designated at various times, or directly to
other purchasers or through agents. The distribution of securities may be
effected at various times in one or more transactions at a fixed price or
prices, which may be changed, or at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices.
Securities other than common stock will be new issues of securities with no
established trading market. It has not presently been established whether the
underwriters, if any, of these securities will make a market in these
securities. If a market in these securities is made by those underwriters, this
market making may be discontinued at any time without notice. These securities
may or may not be listed on a national securities exchange or the Nasdaq
National Market. No assurance can be given as to the liquidity of the trading
market for these securities.
In facilitating the sale of securities, underwriters may receive
compensation from us and/or the applicable Issuer Trust or from purchasers of
securities for whom they may act as agents in the form of discounts, concessions
or commissions. Underwriters may sell securities to or through dealers, and
these dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers and agents that participate
in the distribution of securities may be considered underwriters, and any
discounts or commissions received by them from us and/or the applicable Issuer
Trust and any profit on the resale of securities by them may be considered
underwriting discounts and commissions under the Securities Act. Any such
underwriter or agent will be identified, and any such compensation received from
us and/or the applicable Issuer Trust will be described, in the prospectus
supplement relating to those securities.
Unless otherwise indicated in the applicable prospectus supplement, the
obligations of any underwriters to purchase the securities will be subject to
certain conditions precedent, and each of the underwriters with respect to a
sale of securities will be obligated to purchase all of its securities if any
are purchased. Unless otherwise indicated in the applicable prospectus
supplement, any such agent involved in the offer and sale of the securities in
respect of which this prospectus is being delivered will be acting on a best
efforts basis for the period of its appointment.
In connection with an offering of securities, underwriters may purchase and
sell these securities in the open market. These transactions may include
over-allotment and stabilizing transactions and purchases to cover short
positions created by underwriters with respect to the offering. Stabilizing
transactions consist of certain bids or purchases for preventing or retarding a
decline in the market price of the securities; and short positions created by
underwriters involve the sale by underwriters of a greater number of securities
than they are required to purchase from us and/or the applicable Issuer Trust in
the offering. Underwriters also may impose a penalty bid, by which selling
concessions allowed to broker-dealers in respect of the securities sold in the
offering may be reclaimed by underwriters if such securities are repurchased by
underwriters in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the securities,
which may be higher than the price that might otherwise prevail in the open
market; and these activities, if commenced, may be discontinued at any time.
Under agreements which we and the Issuer Trusts may enter into,
underwriters, agents and their controlling persons who participate in the
distribution of securities may be entitled to indemnification by us and the
Issuer Trusts against certain liabilities, including liabilities under the
Securities Act.
63
If so noted in the prospectus supplement relating to any securities, we
will authorize dealers or other persons acting as our agents to solicit offers
by certain institutions to purchase any securities from us and/or the applicable
Issuer Trust under contracts providing for payment and delivery on a future
date. Institutions with which these contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others. We must approve such
institutions in all cases. The obligations of any purchaser under any of these
contracts will be subject to the condition that the purchase of any securities
will not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such other
agents will not have any responsibility in respect of the validity or
performance of such contracts.
If we and/or the applicable Issuer Trust offers and sells securities
directly to a purchaser or purchasers in respect of which this prospectus is
delivered, purchasers involved in the reoffer or resale of such securities, if
these purchasers may be considered underwriters as that term is defined in the
Securities Act, will be named and the terms of their reoffers or resales will be
described in the applicable prospectus supplement. These purchasers may then
reoffer and resell such securities to the public or otherwise at varying prices
to be determined by such purchasers at the time of resale or as otherwise
described in the applicable prospectus supplement. Purchasers of securities
directly from us may be entitled under agreements that they may enter into with
us and/or the applicable Issuer Trust to indemnification by us and/or the
applicable Issuer Trust against certain liabilities, including liabilities under
the Securities Act, and may engage in transactions with or perform services for
us in the ordinary course of their business or otherwise.
Underwriters or agents and their associates may be customers of (including
borrowers from), engage in transactions with, and/or perform services for, Fifth
Third and its affiliates, or any of the trustees, depositaries, warrant agents,
transfer agents or registrars for securities sold using this prospectus, in the
ordinary course of business.
VALIDITY OF SECURITIES
Unless otherwise indicated in the applicable prospectus supplement and
except as described below, the validity of the securities will be passed upon
for us by our special counsel, Sullivan & Cromwell, New York, New York. Sullivan
& Cromwell will rely upon the opinion of Paul L. Reynolds, Esq., Executive Vice
President, General Counsel and Secretary of Fifth Third, as to matters of Ohio
law. Mr. Reynolds owns shares of our common stock and holds options to purchase
additional shares of our common stock.
Unless otherwise indicated in the applicable prospectus supplement, matters
of Delaware law relating to the validity of the capital securities will be
passed upon by Richards, Layton & Finger, our special Delaware counsel.
EXPERTS
The consolidated financial statements of Fifth Third Bancorp, except the
amounts included for Old Kent Financial Corporation, incorporated by reference
to our Annual Report on Form 10-K for the year ended December 31, 2001 have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is also incorporated by reference, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
The separate financial statements of Old Kent Financial Corporation as of
and for the years ended December 31, 2000 and 1999 consolidated with those of
Fifth Third Bancorp and not presented separately therein, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report, which is included in our Annual Report on Form 10-K for the year ended
December 31, 2001 and incorporated herein by reference in reliance upon the
authority of said firm as experts in giving said report.
On March 14, 2002, Arthur Andersen LLP was indicted on federal obstruction
of justice charges arising from the government's investigation of Enron Corp.
Arthur Andersen LLP has stated that it intends to vigorously contest the
indictment.
64
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an itemized statement of the fees and expenses (all but
the SEC fees are estimates) in connection with this offering.
Registration Statement filing fees.......................... $ 184,000
Listing Fees and Expenses................................... 500,000
Blue Sky fees and expenses.................................. 10,000
Printing and engraving expenses............................. 200,000
Trustees', Registrar and Transfer Agents', Depositaries' and
Warrant Agents' fees and expenses......................... 150,000
Attorneys fees and expenses................................. 500,000
Accounting fees and expenses................................ 15,000
Rating agency fees.......................................... 250,000
Miscellaneous............................................... 50,000
-------------
Total............................................. $ 1,859,000
=============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1701.13(E)(1) of the Ohio Revised Code provides that a corporation
may indemnify or agree to indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative,
other than an action by or in the right of the corporation, by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as a
director, trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if he had
no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, that he had reasonable cause to believe that his conduct was
unlawful. Section 1701.13(E)(2) further specifies that a corporation may
indemnify or agree to indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending, or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor, by reason of the fact that he is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request of the corporation
as a director, trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made
in respect of (a) any claim, issue, or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his duty to the corporation unless, and only to the extent that, the court of
common pleas or the court in which such action or suit was brought determines,
upon application, that, despite the adjudication of liability, but in view of
all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses as the
65
court of common pleas or such other court shall deem proper, and (b) any action
or suit in which the only liability asserted against a director is pursuant to
Section 1701.95 of the Ohio Revised Code concerning unlawful loans, dividends
and distribution of assets.
In addition, Section 1701.13(E) requires a corporation to pay any expenses,
including attorney's fees, of a director in defending an action, suit, or
proceeding referred to above as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, upon receipt of an undertaking
by or on behalf of the director in which he agrees to both (1) repay such amount
if it is proved by clear and convincing evidence in a court of competent
jurisdiction that his action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the corporation or
undertaken with reckless disregard for the best interests of the corporation and
(2) reasonably cooperate with the corporation concerning the action, suit, or
proceeding. The indemnification provided by Section 1701.13(E) shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under our articles of incorporation or code of regulations, any
agreement, a vote of shareholders or disinterested directors, or otherwise, both
as to action in their official capacities and as to action in another capacity
while they were in office, and shall continue as to a person who has ceased to
hold office and inure to the benefit of their heirs, executors and
administrators.
Our code of regulations provides that we shall indemnify each of our
directors and officers, and each person employed by us who serves at the written
request of our President as a director, trustee, officer, employee or agent of
another corporation, domestic or foreign, nonprofit or for profit, partnership,
joint venture, trust or other enterprise, to the full extent permitted by Ohio
law. We may indemnify assistant officers, employees and others by action of the
Board of Directors to the extent permitted by Ohio law.
We carry directors' and officers' liability insurance coverage which
insures our directors and officers and the directors and officers of our
subsidiaries in certain circumstances.
Under agreements which may be entered into by us, certain of our
controlling persons, directors and officers may be entitled to indemnification
by underwriters and agents who participate in the distribution of securities
covered by the registration statement against certain liabilities, including
liabilities under the Securities Act of 1933.
ITEM 16. EXHIBITS.
EXHIBIT NO. EXHIBIT
----------- -------
(1)(a) Form of Underwriting Agreement for Common Stock, Preferred
Stock, Depositary Shares and Warrants.
(1)(b) Form of Underwriting Agreement for Debt Securities.
(1)(c) Form of Underwriting Agreement for Capital Securities.
(3)(a) Second Amended Articles of Incorporation of Fifth Third
Bancorp, as amended (Incorporated by reference to Exhibit
(3)(i) to Fifth Third's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2001).
(3)(b) Code of Regulations of Fifth Third Bancorp, as amended
(Incorporated by reference to Exhibit (3)(ii) to Fifth
Third's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001).
(4)(a) Form of Deposit Agreement (Including Form of Depositary
Receipt).
(4)(b) Form of Senior Indenture.
(4)(c) Form of Senior Debt Security.
(4)(d) Form of Subordinated Indenture.
(4)(e) Form of Subordinated Debt Security.
(4)(f) Form of Warrant Agreement (Including Form of Warrant
Certificate).
(4)(g) Junior Subordinated Indenture, dated as of March 20, 1997,
between Fifth Third and Wilmington Trust Company, as trustee
(Incorporated by reference to Exhibit 4.1 to Fifth Third's
Current Report on Form 8-K dated March 26, 1997).
66
EXHIBIT NO. EXHIBIT
----------- -------
(4)(h) Certificate of Trust of Fifth Third Capital Trust IV.
(4)(i) Trust Agreement of Fifth Third Capital Trust IV.
(4)(j) Certificate of Trust of Fifth Third Capital Trust V.
(4)(k) Trust Agreement of Fifth Third Capital Trust V.
(4)(l) Certificate of Trust of Fifth Third Capital Trust VI.
(4)(m) Trust Agreement of Fifth Third Capital Trust VI.
(4)(n) Form of Amended and Restated Trust Agreement for Fifth Third
Capital Trust IV.
(4)(o) Form of Amended and Restated Trust Agreement for Fifth Third
Capital Trust V.
(4)(p) Form of Amended and Restated Trust Agreement for Fifth Third
Capital Trust VI.
(4)(q) Form of Agreement as to Expenses and Liabilities (Included
as Exhibit D to Exhibits (4)(n), (4)(o) and (4)(p)).
(4)(r) Form of Capital Security Certificate (Included as Exhibit E
to Exhibits (4)(n), (4)(o) and (4)(p)).
(4)(s) Form of Guarantee Agreement for Fifth Third Capital Trust
IV.
(4)(t) Form of Guarantee Agreement for Fifth Third Capital Trust V.
(4)(u) Form of Guarantee Agreement for Fifth Third Capital Trust
VI.
(5)(a) Opinion of Paul L. Reynolds, Esq. as to the validity of the
securities.
(5)(b) Opinion of Sullivan & Cromwell as to the validity of the
securities.
(5)(c) Opinion of Richards, Layton & Finger as to the validity of
the capital securities, the enforceability of the trust
agreements and the formation of the Issuer Trusts.
(12)(a) Computations of Consolidated Ratios of Earnings to Fixed
Charges.
(12)(b) Computations of Consolidated Ratios of Earnings to Combined
Fixed Charges and Preferred Stock Dividend Requirements.
(23)(a) Consent of Deloitte & Touche LLP.
(23)(b) Consent of Arthur Andersen LLP.
(23)(c) Consent of Paul L. Reynolds, Esq. (Included in Exhibit
(5)(a)).
(23)(d) Consent of Sullivan & Cromwell (Included in Exhibit (5)(b)).
(23)(e) Consent of Richards, Layton & Finger (Included in Exhibit
(5)(c)).
(24) Power of Attorney (Included in the Registration Statement
under the heading "Signatures").
(25)(a) Form T-1 Statement of Eligibility to act as trustee under
the Junior Subordinated Indenture.
(25)(b) Form T-1 Statement of Eligibility of Wilmington Trust
Company to act as trustee under the Amended and Restated
Trust Agreement of Fifth Third Capital Trust IV.
(25)(c) Form T-1 Statement of Eligibility of Wilmington Trust
Company to act as trustee under the Amended and Restated
Trust Agreement of Fifth Third Capital Trust V.
(25)(d) Form T-1 Statement of Eligibility of Wilmington Trust
Company to act as trustee under the Amended and Restated
Trust Agreement of Fifth Third Capital Trust VI.
(25)(e) Form T-1 Statement of Eligibility of Wilmington Trust
Company under the Guarantee for the benefit of the holders
of Capital Securities of Fifth Third Capital Trust IV.
(25)(f) Form T-1 Statement of Eligibility of Wilmington Trust
Company under the Guarantee for the benefit of the holders
of Capital Securities of Fifth Third Capital Trust V.
(25)(g) Form T-1 Statement of Eligibility of Wilmington Trust
Company under the Guarantee for the benefit of the holders
of Capital Securities of Fifth Third Capital Trust VI.
ITEM 17. UNDERTAKINGS.
Each of the undersigned registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 (the "Securities
Act"), each filing of the registrant's annual report pursuant
67
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of each
registrant pursuant to the provisions described under Item 15 above, or
otherwise, each registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by each registrant of expenses incurred or paid by a director, officer
or controlling person of each registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, each registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
Each of the undersigned registrants hereby also undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by a registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) To provide to the underwriter at the closing specified in the
underwriting agreements, certificates in such denominations and registered
in such names as required by the underwriter to permit prompt delivery to
each purchaser.
68
(5) That, for purposes of determining any liability under the
Securities Act:
(i) The information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in the form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed
to be part of this registration statement as of the time it was declared
effective.
(ii) Each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(6) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of
the Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Trust Indenture
Act.
69
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Fifth Third Bancorp certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cincinnati, State of Ohio, on the 16th day of
April, 2002.
FIFTH THIRD BANCORP
By: /s/ GEORGE A. SCHAEFER, JR.
------------------------------------
George A. Schaefer, Jr.
President and Chief Executive
Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned directors
and officers of Fifth Third Bancorp hereby constitutes and appoints George A.
Schaefer, Jr. and Neal E. Arnold, and each of them, each with full power to act
without the others, the true and lawful attorneys-in-fact and agents of the
undersigned, with full power of substitution and resubstitution, for the
undersigned and in the undersigned's name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, to
sign any abbreviated registration statement filed pursuant to Rule 462(b) of the
Securities Act and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as the undersigned
might or could do in person hereby, ratifying and confirming all that said
attorneys-in-fact and agents, or their substitutes or resubstitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 16th day of April, 2002.
SIGNATURE TITLE
--------- -----
/s/ GEORGE A. SCHAEFER, JR. President and Chief Executive Officer
---------------------------------------------
George A. Schaefer, Jr.
/s/ NEAL E. ARNOLD Executive Vice President and
--------------------------------------------- Chief Financial Officer
Neal E. Arnold
/s/ DAVID J. DEBRUNNER Controller
---------------------------------------------
David J. DeBrunner
/s/ DARRYL F. ALLEN Director
---------------------------------------------
Darryl F. Allen
/s/ JOHN F. BARRETT Director
---------------------------------------------
John F. Barrett
/s/ THOMAS B. DONNELL Director
---------------------------------------------
Thomas B. Donnell
70
SIGNATURE TITLE
--------- -----
/s/ JAMES P. HACKETT Director
---------------------------------------------
James P. Hackett
/s/ JOSEPH H. HEAD, JR. Director
---------------------------------------------
Joseph H. Head, Jr.
/s/ JOAN R. HERSCHEDE Director
---------------------------------------------
Joan R. Herschede
/s/ ALLEN M. HILL Director
---------------------------------------------
Allen M. Hill
/s/ ROBERT L. KOCH, II Director
---------------------------------------------
Robert L. Koch, II
/s/ MITCHEL D. LIVINGSTON, PH.D. Director
---------------------------------------------
Mitchel D. Livingston, Ph.D.
/s/ HENDRICK G. MEIJER Director
---------------------------------------------
Hendrick G. Meijer
/s/ ROBERT B. MORGAN Director
---------------------------------------------
Robert B. Morgan
/s/ JAMES E. ROGERS Director
---------------------------------------------
James E. Rogers
/s/ GEORGE A. SCHAEFER, JR. Director
---------------------------------------------
George A. Schaefer, Jr.
/s/ JOHN J. SCHIFF, JR. Director
---------------------------------------------
John J. Schiff, Jr.
/s/ DONALD B. SHACKELFORD Director
---------------------------------------------
Donald B. Shackelford
/s/ DUDLEY S. TAFT Director
---------------------------------------------
Dudley S. Taft
/s/ THOMAS W. TRAYLOR Director
---------------------------------------------
Thomas W. Traylor
/s/ DAVID J. WAGNER Director
---------------------------------------------
David J. Wagner
71
Pursuant to the requirements of the Securities Act of 1933, Fifth Third
Capital Trust IV certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cincinnati, State of Ohio, on the 16th day of
April, 2002.
FIFTH THIRD CAPITAL TRUST IV
By: Fifth Third Bancorp as Depositor
By: /s/ PAUL L. REYNOLDS
------------------------------------
Pursuant to the requirements of the Securities Act of 1933, Fifth Third
Capital Trust V certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cincinnati, State of Ohio, on the 16th day of
April, 2002.
FIFTH THIRD CAPITAL TRUST V
By: Fifth Third Bancorp as Depositor
By: /s/ PAUL L. REYNOLDS
------------------------------------
Pursuant to the requirements of the Securities Act of 1933, Fifth Third
Capital Trust VI certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cincinnati, State of Ohio, on the 16th day of
April, 2002.
FIFTH THIRD CAPITAL TRUST VI
By: Fifth Third Bancorp as Depositor
By: /s/ PAUL L. REYNOLDS
------------------------------------
72
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
----------- -------
(1)(a) Form of Underwriting Agreement for Common Stock, Preferred
Stock, Depositary Shares and Warrants.
(1)(b) Form of Underwriting Agreement for Debt Securities.
(1)(c) Form of Underwriting Agreement for Capital Securities.
(3)(a) Second Amended Articles of Incorporation of Fifth Third
Bancorp, as amended (Incorporated by reference to Exhibit
(3)(i) to Fifth Third's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2001).
(3)(b) Code of Regulations of Fifth Third Bancorp, as amended
(Incorporated by reference to Exhibit (3)(ii) to Fifth
Third's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001).
(4)(a) Form of Deposit Agreement (Including Form of Depositary
Receipt).
(4)(b) Form of Senior Indenture.
(4)(c) Form of Senior Debt Security.
(4)(d) Form of Subordinated Indenture.
(4)(e) Form of Subordinated Debt Security.
(4)(f) Form of Warrant Agreement (Including Form of Warrant
Certificate).
(4)(g) Junior Subordinated Indenture, dated as of March 20, 1997,
between Fifth Third and Wilmington Trust Company, as trustee
(Incorporated by reference to Exhibit 4.1 to Fifth Third's
Current Report on Form 8-K dated March 26, 1997).
(4)(h) Certificate of Trust of Fifth Third Capital Trust IV.
(4)(i) Trust Agreement of Fifth Third Capital Trust IV.
(4)(j) Certificate of Trust of Fifth Third Capital Trust V.
(4)(k) Trust Agreement of Fifth Third Capital Trust V.
(4)(l) Certificate of Trust of Fifth Third Capital Trust VI.
(4)(m) Trust Agreement of Fifth Third Capital Trust VI.
(4)(n) Form of Amended and Restated Trust Agreement for Fifth Third
Capital Trust IV.
(4)(o) Form of Amended and Restated Trust Agreement for Fifth Third
Capital Trust V.
(4)(p) Form of Amended and Restated Trust Agreement for Fifth Third
Capital Trust VI.
(4)(q) Form of Agreement as to Expenses and Liabilities (Included
as Exhibit D to Exhibits (4)(n), (4)(o) and (4)(p)).
(4)(r) Form of Capital Security Certificate (Included as Exhibit E
to Exhibits (4)(n), (4)(o) and (4)(p)).
(4)(s) Form of Guarantee Agreement for Fifth Third Capital Trust
IV.
(4)(t) Form of Guarantee Agreement for Fifth Third Capital Trust V.
(4)(u) Form of Guarantee Agreement for Fifth Third Capital Trust
VI.
(5)(a) Opinion of Paul L. Reynolds, Esq. as to the validity of the
securities.
(5)(b) Opinion of Sullivan & Cromwell as to the validity of the
securities.
(5)(c) Opinion of Richards, Layton & Finger as to the validity of
the capital securities, the enforceability of the trust
agreements and the formation of the Issuer Trusts.
(12)(a) Computations of Consolidated Ratios of Earnings to Fixed
Charges.
(12)(b) Computations of Consolidated Ratios of Earnings to Combined
Fixed Charges and Preferred Stock Dividend Requirements.
(23)(a) Consent of Deloitte & Touche LLP.
(23)(b) Consent of Arthur Andersen LLP.
EXHIBIT NO. EXHIBIT
----------- -------
(23)(c) Consent of Paul L. Reynolds, Esq. (Included in Exhibit
(5)(a)).
(23)(d) Consent of Sullivan & Cromwell (Included in Exhibit (5)(b)).
(23)(e) Consent of Richards, Layton & Finger (Included in Exhibit
(5)(c)).
(24) Power of Attorney (Included in the Registration Statement
under the heading "Signatures").
(25)(a) Form T-1 Statement of Eligibility to act as trustee under
the Junior Subordinated Indenture.
(25)(b) Form T-1 Statement of Eligibility of Wilmington Trust
Company to act as trustee under the Amended and Restated
Trust Agreement of Fifth Third Capital Trust IV.
(25)(c) Form T-1 Statement of Eligibility of Wilmington Trust
Company to act as trustee under the Amended and Restated
Trust Agreement of Fifth Third Capital Trust V.
(25)(d) Form T-1 Statement of Eligibility of Wilmington Trust
Company to act as trustee under the Amended and Restated
Trust Agreement of Fifth Third Capital Trust VI.
(25)(e) Form T-1 Statement of Eligibility of Wilmington Trust
Company under the Guarantee for the benefit of the holders
of Capital Securities of Fifth Third Capital Trust IV.
(25)(f) Form T-1 Statement of Eligibility of Wilmington Trust
Company under the Guarantee for the benefit of the holders
of Capital Securities of Fifth Third Capital Trust V.
(25)(g) Form T-1 Statement of Eligibility of Wilmington Trust
Company under the Guarantee for the benefit of the holders
of Capital Securities of Fifth Third Capital Trust VI.