-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, ZNQut/isaAeO+Tn+gTsS1mfLIih4MAQnSXDe5F4BYaGbYCLJ8CTEp6rBnuw1jTMA M30iraXo/39w/98aZqKVEw== 0000906318-95-000024.txt : 19950721 0000906318-95-000024.hdr.sgml : 19950721 ACCESSION NUMBER: 0000906318-95-000024 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19950720 EFFECTIVENESS DATE: 19950808 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIFTH THIRD BANCORP CENTRAL INDEX KEY: 0000035527 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 310854434 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-61149 FILM NUMBER: 95554953 BUSINESS ADDRESS: STREET 1: 38 FOUNTAIN SQ PLZ STREET 2: FIFTH THIRD CENTER CITY: CINCINNATI STATE: OH ZIP: 45263 BUSINESS PHONE: 5135795300 S-8 1 Registration No. ___________________ __________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________________________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 __________________________________________ FIFTH THIRD BANCORP (Exact name of issuer as specified in its Charter) Ohio 31-0854434 (State of Incorporation) (I.R.S. Employer Identification No.) Fifth Third Center, Cincinnati, Ohio 45263 (Address of Principal Executive Offices) (Zip Code) __________________________________________ Fifth Third Bancorp Amended and Restated Stock Option and Incentive Plan for Selected Executive Officers, Employees and Directors of Falls Financial, Inc. (Full title of the Plan) _________________________________________ Paul L. Reynolds Assistant Secretary Fifth Third Bancorp Fifth Third Center Cincinnati, Ohio 45263 (513) 579-4300 (Name, address, including zip code, and telephone number, including area code, of agent for service) __________________________________________ Copy To: S. Richard Arnold, Esq. Dinsmore and Shohl 1900 Chemed Center 255 East Fifth Street Cincinnati, Ohio 45202 Approximate date of proposed commencement of sales hereunder: As soon as practicable after the effective date of this Registration Statement CALCULATION OF REGISTRATION FEE Title of Amount To Proposed Proposed Amount of Securities Be Registered Maximum Maximum Registration To Be Offering Offering Fee Registered Price Per Price* Share __________________________________________________________________ Common Stock without par value 13,329 $47.49 $416,895.45 $143.76 * Pursuant to Rule 457(h)(1) of Regulation C, the registration filing fee and the aggregate offering price shall be computed with respect to the maximum number of the Registrant's securities issuable under the plan covered by this Registration Statement and the basis of the price at which the options may be exercised. Accordingly, under the plan registered hereunder, 6,000 shares have an exercise price of $47.49, 1,200 shares have an exercise price of $43.31, and 6,129 shares have an exercise price of $13.05, for a maximum number of shares of 13,329 shares and a maximum offering price of $416,895.45. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The information specified in Part I of Form S-8 is set forth in a single document entitled "Prospectus" which constitutes a part of the Section 10(a) Prospectus to which this Registration Statement relates but which is not filed herewith. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. Fifth Third Bancorp (the "Registrant") hereby states that the documents listed in (a) through (c) below are incorporated by reference in this Registration Statement, and further states that all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. (a) The Registrant's Annual Report on Form 10-K for the year ended December 31, 1994. (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since December 31, 1994. (c) The description of the Registrant's Common Stock contained in the Registration Statement filed pursuant to Section 12(G) of the Securities Exchange Act of 1934, which Registration Statement became effective on or about May 14, 1975. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. The validity of the shares of Common Stock offered hereby will be passed upon for the Registrant by Dinsmore and Shohl, Cincinnati, Ohio. At March 1, 1995, partners of Dinsmore and Shohl and attorneys employed thereby, together with their immediate families beneficially owned 33,837 shares of the Registrant's Common Stock. Item 6. Indemnification of Directors and Officers. The Registrant's Code of Regulations provides that the Registrant shall indemnify each director and each officer of the Registrant, and each person employed by the Registrant who serves at the written request of the Chairman of the Board of the Registrant as a director, trustee or officer of another corporation, partnership, joint venture, trust or other enterprise, to the full extent permitted by Ohio law. The Code of Regulations also provides that the Registrant may indemnify assistant officers, employees and others by action of the Board of Directors to the full extent permitted by Ohio law. In general, under Section 1701.13(E) of the Ohio Revised Code, an Ohio corporation is permitted to indemnify its present or former officers, directors, employees and agents against liabilities and expenses incurred by such persons in their capacities as such so long as they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, provided that in an action by or in the name of the corporation, if the person seeking indemnification was adjudged to be liable for negligence, no indemnification is permitted unless the court in which the action was brought specifically determines that such person is fairly and reasonably entitled to indemnification in view of all the circumstances of the case. The statute also provides that an Ohio corporation shall advance attorney's fees incurred by directors, and may advance such fees incurred by executive officers, employees, agents and others, prior to the final outcome of a matter provided the person seeking such advances undertakes to repay them if it is ultimately determined that such person is not entitled to indemnification (except in the case of directors who must undertake to repay such advances only if it is proved by clear and convincing evidence in a court of competent jurisdiction that the act or failure to act in question was undertaken with deliberate intent to cause injury to the corporation or was undertaken with reckless disregard for the best interests of the corporation). In addition, the Registrant has purchased insurance policies which provide coverage for the acts and omissions of the Registrant's directors and officers in certain situations. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit No. Description 5, 23(a) Opinion of Messrs. Dinsmore and Shohl, counsel 23(b) Consent of Deloitte and Touche LLP, independent auditors 25 Power of Attorney * 99(a) Fifth Third Bancorp's Annual Report on Form 10-K for the year ended December 31, 1994 ** 98(b) Pages 1 and 13-36 of Fifth Third Bancorp's 1994 Annual Report to Shareholders ** 99(c) Fifth Third Bancorp's Quarterly Report on Form 10-Q for the quarter ended March 31, 1995 ** 99(d) Fifth Third Bancorp Amended and Restated Stock Option and Incentive Plan for Selected Executive Officers, Employees and Directors of Falls Financial, Inc. __________________________ * Included in signature page ** Incorporated by reference Item 9. Undertakings A. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement 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. (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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. B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) 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. C. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the 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, the 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 whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8 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 July 18, 1995. FIFTH THIRD BANCORP By:/S/ George A. Schaefer, Jr. George A. Schaefer, Jr. President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints GEORGE A. SCHAEFER, JR. his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent 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 to all intents and purposes as he might or could do in person and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Principal Executive Officer: /S/ George A. Schaefer, Jr. George A. Schaefer, Jr. President and Chief Executive Officer July 18, 1995 /S/ P. Michael Brumm P. Michael Brumm Senior Vice President and Chief Financial Officer July 18, 1995 Directors of the Company: /S/ John F. Barrett John F. Barrett July 18, 1995 __________________________ Milton C. Boesel, Jr. /S/ Clement L. Buenger Clement L. Buenger July 18, 1995 /S/ Gerald V. Dirvin Gerald V. Dirvin July 18, 1995 ___________________________ Thomas B. Donnell ___________________________ Richard T. Farmer /S/ John D. Geary John D. Geary July 18, 1995 ___________________________ Ivan W. Gorr /S/ Joseph H. Head, Jr. Joseph H. Head, Jr. July 18, 1995 /S/ Joan R. Herschede Joan R. Herschede July 18, 1995 /S/ William G. Kagler William G. Kagler July 18, 1995 /S/ William J. Keating William J. Keating July 18, 1995 /S/ James D. Kiggen James D. Kiggen July 18, 1995 ________________________ Robert B. Morgan /S/ Michael H. Norris Michael H. Norris July 18, 1995 _________________________ Brian H. Rowe /S/ George A. Schaefer, Jr. George A. Schaefer, Jr. July 18, 1995 /S/ John J. Schiff, Jr. John J. Schiff, Jr. July 18, 1995 /S/ Dennis J. Sullivan, Jr. Dennis J. Sullivan, Jr. July 18, 1995 /S/ Dudley S. Taft Dudley S. Taft July 18, 1995 INDEX TO EXHIBITS Exhibit No. Description Page 5, 23(a) Opinion of Messrs. Dinsmore and Shohl, counsel 23(b) Consent of Deloitte and Touche LLP, independent auditors 25 Power of Attorney * 99(a) Fifth Third Bancorp's Annual Report on Form 10-K for the year ended December 31, 1994 ** 99(b) Pages 1 and 13-36 of Fifth Third Bancorp's 1994 Annual Report to Shareholders ** 99(c) Fifth Third Bancorp's Quarterly Report on Form 10-Q for the quarter ended March 31, 1995 ** 99(d) Fifth Third Bancorp Amended and Restated Stock Option and Incentive Plan for Selected Executive Officers, Employees and Directors of Falls Financial, Inc. _____________________ * Included in signature page ** Incorporated by reference EX-5 2 S. Richard Arnold, Partner (513) 977-8302 July 20, 1995 Fifth Third Bancorp Fifth Third Center Cincinnati, Ohio 45263 Gentlemen: This opinion is rendered for use in connection with the Registration Statement on Form S-8 prescribed pursuant to the Securities Act of 1933, to be filed by Fifth Third Bancorp (the "Company") with the Securities and Exchange Commission, under which up to 13,329 additional shares of the Company's Common Stock without par value ("Common Stock") are to be registered for issuance pursuant to the Fifth Third Bancorp Amended and Restated Stock Option and Incentive Plan for Selected Executive Officers, Employees and Directors of Falls Financial, Inc. (the "Plan"). We hereby consent to the filing of this opinion as Exhibits 5 and 23(a) to the Registration Statement and to the reference to our name in the Registration Statement. As counsel to the Company, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of such statutes, documents, corporate records, certificates of public officials, and other instruments as we have deemed necessary for the purpose of this opinion, including the Company's Articles of Incorporation and Code of Regulations and the record of proceedings of the directors of the Company. Based upon the foregoing, we are of the opinion that: A. The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Ohio. B. When the Registration Statement shall have been declared effective by order of the Securities and Exchange Commission and up to 13,329 shares of the Common Stock to be issued pursuant to the Plan shall have been issued upon the terms set forth in the Plan and as described in the Registration Statement, such shares will be legally and validly issued and outstanding, fully paid and nonassessable. Very truly yours, DINSMORE and SHOHL /S/ S. Richard Arnold S. Richard Arnold EX-23.2 3 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Fifth Third Bancorp on Form S-8 of our report dated January 13, 1995, (which expresses an unqualified opinion and includes an explanatory paragraph relating to a change in the method of accounting for debt and equity securities) incorporated by reference in the Annual Report on Form 10-K of Fifth Third Bancorp for the year ended December 31, 1994. /S/ Deloitte and Touche LLP Deloitte and Touche LLP July 20, 1995 Cincinnati, Ohio EX-99.4 4 FIFTH THIRD BANCORP AMENDED AND RESTATED STOCK OPTION AND INCENTIVE PLAN FOR SELECTED EXECUTIVE OFFICERS, EMPLOYEES AND DIRECTORS OF FALLS FINANCIAL, INC. (Formerly Falls Financial, Inc. 1989 Stock Option and Incentive Plan) Fifth Third Bancorp, Cincinnati, Ohio ("Fifth Third"), and Falls Financial, Inc., Cuyahoga Falls, Ohio ("Falls Financial"), entered into an Affiliation Agreement and related Plan and Agreement of Merger, both dated as of December 12, 1994 (such agreements hereinafter referred to respectively as the "Affiliation Agreement" and the "Merger Agreement") pursuant to which Falls Financial will merge with and into Fifth Third, with Fifth Third as the surviving corporation (the "Merger"). Under the terms of the Affiliation Agreement, Fifth Third has agreed to assume Falls Financial's obligations under the Falls Financial, Inc. 1989 Stock Option and Incentive Plan (the "Falls Financial Plan") (the plan as assumed by Fifth Third will hereinafter be referred to as the "Plan") effective as of the effective time of the Merger (the "Effective Time"). The Plan, as assumed by Fifth Third, will apply to certain executive officers, key employees and nonemployee directors of Falls Financial and Falls Financial's subsidiaries as in existence prior to the Effective Time who held options to purchase shares of Falls Financial. At the Effective Time, in accordance with Article V of the Affiliation Agreement, each outstanding option under the Falls Financial Plan shall continue outstanding as an option to purchase, in place of the purchase of shares of Falls Common Stock, the number of shares (rounded up to the nearest whole share) of Fifth Third Common Stock that would have been received by the optionee in the Merger had the option been exercised in full (without regard to any limitations contained therein for exercise) for shares of Falls Common Stock immediately prior to the Effective Time upon the same terms and conditions, including without limitation, payment in full of the contractual exercise price, under the relevant option as were applicable immediately prior to the Effective Time (except that all options shall be immediately exercisable). (Capitalized terms used herein shall have the meanings assigned to them in the Affiliation Agreement and Merger Agreement unless otherwise defined herein). The entire text of the Plan following the Effective Time of the Merger is as follows: 1. Purpose. The Plan shall be known as the Fifth Third Bancorp Amended and Restated Stock Option and Incentive Plan for Selected Executive Officers, Employees and Directors of Falls Financial, Inc. (formerly the Falls Financial, Inc. 1989 Stock Option and Incentive Plan) (the "Plan"). The Plan amends and restates the Falls Financial, Inc. 1989 Stock Option and Incentive Plan (the "Falls Financial Plan"). The purpose of the Plan is to advance the interests of Fifth Third and its shareholders by affording to certain executive officers, key employees and nonemployee directors of Falls Financial and Falls Financial's subsidiaries, as in existence prior to the Effective Time, an opportunity to acquire or increase their proprietary interest in Fifth Third by the grant to such officers, employees and directors of Options under the terms set forth herein. It is anticipated and intended that Options granted under the Plan to persons employed on a full-time basis will qualify as Incentive Stock Options, as contemplated by and defined in Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), to the extent that the aggregate fair market value (determined as of the time any Incentive Stock Option was granted by Falls Financial) of the Shares with respect to which Incentive Stock Options are exercisable for the first time by a Participant in any calendar year does not exceed $100,000. To the extent that such fair market value exceeds $100,000, any further Options granted under the Plan to persons employed on a full-time basis will be Non-Qualified Stock Options governed by Section 83 of the Code. Options granted to persons who are not full-time employees will be Non-Qualified Stock Options. 2. Definitions. The following definitions are applicable to the Plan: "Affiliate" - means any "parent corporation" or "subsidiary corporation", as such terms are defined in Sections 425(e) and (f), respectively, of the Code. "Award" - means the grant of an Incentive Stock Option or a Non-Qualified Stock Option, or any combination thereof, as provided in the Plan. "Committee" - means the Committee referred to in Section 3 hereof. "Continuous Service" - means the absence of any interruption or termination of service as a director, officer or employee of Falls Financial or an Affiliate of Falls Financial, as in existence prior to the Effective Time, or Fifth Third or an Affiliate of Fifth Third, after the Effective Time, except that when used with respect to persons granted an Incentive Stock Option means the absence of any interruption or termination of service as a full-time employee of the same. Service shall not be considered interrupted in the case of sick leave, military leave or any other leave of absence approved by Falls Financial or Fifth Third, as applicable, or in the case of transfers between payroll locations of Falls Financial or Fifth Third, as applicable, or between Falls Financial or Fifth Third, as applicable, its parent, its subsidiaries or its successor. "Disinterested Person" - means any person who, at the time discretion under the Plan is exercised, is not eligible, and who has not at any time within one year prior thereto been eligible, for selection as a Participant in the Plan or to whom stock options may be granted pursuant to any other plan of Fifth Third or any of its affiliates (as that term is used in the Securities Exchange Act of 1934) entitling the participants therein to acquire stock or stock options of Fifth Third or of any such affiliates. "Exercise Price" - means the price per Share at which the Shares subject to an Option may be purchased upon exercise of such Option. "Incentive Stock Option" - means an option to purchase Shares granted by the Committee pursuant to Section 5 hereof which is subject to the limitations and restrictions of Section 7 hereof and is intended to qualify under Section 422 of the Code. "Non-Qualified Stock Option" - means an option to purchase Shares granted by the Committee pursuant to Section 5 hereof, which option is not intended to qualify under Section 422 of the Code. "Option" - means an Incentive Stock Option or a Non- Qualified Stock Option. "Participant" - means any officer, employee or director of Falls Financial or an Affiliate of Falls Financial, as in existence prior to the Effective Time, who was granted an Award and who held an outstanding Option under the Plan as of the Effective Time. "Shares" - means the shares of common stock of Fifth Third. 3. Administration. The Plan shall be administered by a Committee consisting of three or more members, each of whom shall be a Disinterested Person. The members of the Committee shall be appointed by the Board of Directors of Fifth Third. Except as limited by the express provisions of the Plan, the Committee shall have sole and complete authority and discretion to (i) select Participants and grant Awards; (ii) determine the number of Shares to be subject to types of Awards generally, as well as to individual Awards granted under the Plan; (iii) determine the terms and conditions upon which Awards shall be granted under the Plan; (iv) prescribe the form and terms of instruments evidencing such grants; and (v) establish from time to time regulations for the administration of the Plan, interpret the Plan, and make all determinations deemed necessary or advisable for the administration of the Plan. The Committee may maintain, and update from time to time as appropriate, a list designating selected directors, officers and employees as Disinterested Persons. The purpose of such list shall be to evidence the status of such individuals as Disinterested Persons, and the Board of Directors may appoint to the Committee any individual actually qualifying as a Disinterested Person, regardless of whether identified as such on said list. A majority of the Committee shall constitute a quorum, and the acts of a majority of the members present at any meeting at which a quorum is present, or acts approved in writing by a majority of the Committee without a meeting, shall be acts of the Committee. 4. Shares Subject to Plan. Subject to adjustment by the operation of Section 8 hereof, the maximum number of Shares with respect to which Awards may be made under the Plan is 13,329. The Shares with respect to which Awards may be made under the Plan may be either authorized and unissued shares or issued shares heretofore or hereafter reacquired and held as treasury shares. 5. General Terms and Conditions of Options. The Committee shall have full and complete authority and discretion except as expressly limited by the Plan, to grant Options and to provide the terms and conditions (which need not be identical among Participants) thereof. In particular, the Committee shall prescribe the following terms and conditions: (i) the Exercise Price of any Option, which shall not be less than the fair market value per Share at the date of grant of such Option by Falls Financial, as adjusted pursuant to the Affiliation Agreement, (ii) the number of Shares subject to, and the expiration date of, any Option, which expiration date shall not exceed ten years from the date of grant by Falls Financial, (iii) the manner, time and rate (cumulative or otherwise) of exercise of such Option, and (iv) the restrictions, if any, to be placed upon such Option or upon shares which may be issued upon exercise of such Option. The Committee may, as a condition of granting any Option, require that a Participant agree not to thereafter exercise one or more Options previously granted to such Participant. 6. Exercise of Options. (a) An Option granted under the Plan shall be exercisable during the lifetime of the Participant to whom such Option was granted only by such Participant and, except as provided in paragraphs (c) and (d) of this Section 6, no such Option may be exercised unless at the time such Participant exercises such Option, such Participant has maintained Continuous Service since the date of grant of such Option by Falls Financial. (b) To exercise an Option under the Plan, the Participant to whom such Option was granted shall give written notice to Fifth Third in form satisfactory to the Committee (and, if partial exercises have been permitted by the Committee, by specifying the number of Shares with respect to which such Participant elects to exercise such Option) together with full payment of the Exercise Price, if any and to the extent required. The date of exercise shall be the date on which such notice is received by Fifth Third. Payment, if any is required, shall be made either (i) in cash (including check, bank draft or money order) or (ii) if permitted by the Committee, by delivering (A) shares already owned by the Participant and having a fair market value equal to the applicable Exercise Price, such fair market value to be determined in such appropriate manner as may be provided by the Committee or as may be required in order to comply with or to conform to requirements of any applicable laws or regulations, or (B) a combination of cash and such Shares. (c) If a Participant to whom an Option was granted shall cease to maintain Continuous Service for any reason (including total or partial disability and normal or early retirement, but excluding death and termination of employment by Fifth Third or any Affiliate of Fifth Third for cause), such Participant may, but only within the period of three months immediately succeeding such cessation of Continuous Service and in no event after the expiration date of such Option, exercise such Option to the extent that such Participant was entitled to exercise such Option at the date of such cessation, provided, however, that such right of exercise after cessation of Continuous Service shall not be available to a Participant if the Committee otherwise determines and so provides in the applicable instrument or instruments evidencing the grant of such Option. If the Continuous Service of a Participant to whom an Option was granted by Falls Financial is terminated for cause, all rights under any Option of such Participant shall expire immediately upon the giving to the Participant of notice of such termination. (d) In the event of the death of a Participant while in the Continuous Service of Fifth Third or an Affiliate of Fifth Third or within the three month period referred to in paragraph (c) of this Section 6, the person to whom any Option held by the Participant at the time of his death is transferred by will or the laws of descent and distribution may, but only to the extent such Participant was entitled to exercise such Option immediately prior to his death, exercise such Option at any time within a period of one year succeeding the date of death of such Participant, but in no event later than ten years from the date of grant of such Option by Falls Financial. Following the death of any Participant to whom an Option was granted under the Plan, the Committee may, as an alternative means of settlement of such Option, elect to pay to the person to whom such Option is transferred by will or by the laws of descent and distribution the amount by which the fair market value per Share on the date of exercise of such Option shall exceed the Exercise Price of such Option, multiplied by the number of Shares with respect to which such Option is properly exercised. Any such settlement of an Option shall be considered an exercise of such Option for all purposes of the Plan. 7. Incentive Stock Options. Incentive Stock Options were granted only to Participants who were employees of Falls Financial or an Affiliate of Falls Financial as in existence prior to the Effective Time. All outstanding Incentive Stock Options were originally granted under the Falls Financial Plan. After consummation of the Merger, no further Incentive Stock Options shall be granted under the Plan. Any provision of the Plan to the contrary notwithstanding, (i) no Incentive Stock Option shall be exercisable more than ten years from the date such Incentive Stock Option was granted by Falls Financial, (ii) the Exercise Price of any Incentive Stock Option shall not be less than the fair market value per Share on the date such Incentive Stock Option was granted by Falls Financial, as adjusted by the Affiliation Agreement, (iii) any Incentive Stock Option shall not be transferable by the Participant to whom such Incentive Stock Option was granted other than by will or the laws of descent and distribution and shall be exercisable during such Participant's lifetime only by such Participant, and (iv) the aggregate fair market value (determined as of the time any Incentive Stock Option was granted by Falls Financial) of the Shares with respect to which Incentive Stock Options are exercisable for the first time by a Participant in any calendar year shall not exceed $100,000. 8. Adjustments Upon Changes in Capitalization. In the event of any change in the outstanding Shares subsequent to the effective date of the Plan by reason of any reorganization, recapitalization, stock split, stock dividend, combination or exchange of shares, merger consolidation or any change in the corporate structure or Shares of Fifth Third, the maximum aggregate number and class of shares as to which Awards may be granted under the Plan and the number and class of shares with respect to which Awards theretofore have been granted under the Plan shall be appropriately adjusted by the Committee, whose determination shall be conclusive. 9. Assignments and Transfers. No Award nor any right or interest of a Participant under the Plan in any instrument evidencing any Award under the Plan may be assigned, encumbered or transferred except, in the event of the death of a Participant, by will or the laws of descent and distribution. 10. Employee Rights Under the Plan. No director, officer or employee shall have a right to be selected as a Participant nor, having been so selected to be selected again as a Participant and no director, officer, employee or other person shall have any claim or right to be granted an Award under the Plan or under any other incentive or similar plan of Fifth Third or any Affiliate of Fifth Third. Neither the Plan nor any action taken thereunder shall be construed as giving any employee any right to be retained in the employ of Fifth Third or any Affiliate of Fifth Third. 11. Delivery and Registration of Stock. Fifth Third's obligation to deliver Shares with respect to an Award shall, if the Committee so requests, be conditioned upon the receipt of a representation as to the investment intention of the Participant to whom such Shares are to be delivered, in such form as the Committee shall determine to be necessary or advisable to comply with the provisions of the Securities Act of 1933 or any other Federal, state or local securities legislation or regulation. It may be provided that any representation requirement shall become inoperative upon a registration of the Shares or other action eliminating the necessity of such representation under such Securities Act or other securities legislation. Fifth Third shall not be required to deliver any Shares under the Plan prior to (i) the admission of such shares to listing on any stock exchange on which Shares may then be listed, and (ii) the completion of such registration or other qualification of such Shares under any state or Federal law, rule or regulation, as the Committee shall determine to be necessary or advisable. This Plan is intended to comply with Rule 16B-3 under the Securities Exchange Act of 1934. Any provision of the Plan which is inconsistent with said Rule shall, to the extent of such inconsistency, be inoperative and shall not affect the validity of the remaining provisions of the Plan. 12. Withholding Tax. Where a Participant or other person is entitled to receive Shares pursuant to the exercise of an Option pursuant to the Plan, Fifth Third shall have the right to require the Participant or such other person to pay Fifth Third the amount of any taxes which Fifth Third is required to withhold with respect to such Shares. 13. Amendment or Termination. The Board of Directors of Fifth Third may amend, suspend or terminate the Plan or any portion thereof at any time, but (except as provided in Section 8 hereof) no amendment shall be made without approval of the shareholders of Fifth Third which shall (i) materially increase the aggregate number of Shares with respect to which Awards may be made under the Plan, (ii) materially increase the aggregate number of Shares which may be subject to Awards to Participants who were not employees of Falls Financial or an Affiliate of Falls Financial, or (iii) change the class of persons eligible to participate in the Plan; provided, however, that no such amendment, suspension or termination shall impair the rights of any Participant, without his consent, in any Award theretofore made pursuant to the Plan. 14. Effective Date and Term of Plan. The Plan shall be deemed adopted and effective as of the close of business on the date the Merger is consummated. The Plan shall continue in effect for a term of ten years after the date of adoption of the Falls Financial Plan by Falls Financial, unless sooner terminated under Section 13 hereof.
EXHIBIT 1 Outstanding Options at Effective Time of Merger Name Prior No. of Exercise No. of Out- Exercise Outstanding Options Price standing Options Price to Purchase Falls to Purchase Fifth Common Stock Third Common Stock Under the Plan David E. Waddell 10,602 $ 6.25 5,080 $13.05 Rodney W. Vargo 1,000 $20.75 480 $43.31 Paula Chesser 250 $22.75 120 $47.49 500 $20.75 240 $43.31 Christine Solitro 250 $22.75 120 $47.49 500 $20.75 240 $43.31 Lawrence L. Zarrilli 2,188 $ 6.25 1,049 $13.05 500 $20.75 240 $43.31 Milton Atwood 250 $22.75 120 $47.49 Connie Auerbach 250 $22.75 120 $47.49 Marjorie Baldwin 250 $22.75 120 $47.49 Patricia Bisson 250 $22.75 120 $47.49 Susan Bockus 250 $22.75 120 $47.49 Jo Box 250 $22.75 120 $47.49 Della Caporlett 250 $22.75 120 $47.49 Jay Ciptak 250 $22.75 120 $47.49 Susan Davies 250 $22.75 120 $47.49 Patricia Davis-Boarman 250 $22.75 120 $47.49 Sue Debevec 250 $22.75 120 $47.49 Libby Ann Dick 250 $22.75 120 $47.49 Maureen Dukeman 250 $22.75 120 $47.49 Kathryn Francis 250 $22.75 120 $47.49 Darlene Grainger 250 $22.75 120 $47.49 Tammy Gray 250 $22.75 120 $47.49 Jody Hope 250 $22.75 120 $47.49 Tina Hunkele 250 $22.75 120 $47.49 Christine Kaiser 250 $22.75 120 $47.49 Shirley Ann Kaiser 250 $22.75 120 $47.49 Mary Beth Kerr 250 $22.75 120 $47.49 G. Frederick Kleinhen 250 $22.75 120 $47.49 Leslie Kruger 250 $22.75 120 $47.49 Debbie Lemke 250 $22.75 120 $47.49 Lou Ann Lintner 250 $22.75 120 $47.49 Audrey Lisik 250 $22.75 120 $47.49 Kathy Logan 250 $22.75 120 $47.49 Michelle Low 250 $22.75 120 $47.49 Michael Marcozzi 250 $22.75 120 $47.49 Ximena Marion 250 $22.75 120 $47.49 Tracie McNutt 250 $22.75 120 $47.49 Kay Meade 250 $22.75 120 $47.49 Steve Mondozzi 250 $22.75 120 $47.49 Karen Null 250 $22.75 120 $47.49 Paula Padula 250 $22.75 120 $47.49 Carlene Poff 250 $22.75 120 $47.49 Carolyn Ritchie 250 $22.75 120 $47.49 Mary Rummel 250 $22.75 120 $47.49 Jim Sampson 250 $22.75 120 $47.49 Nancy Sax 250 $22.75 120 $47.49 Amy Schertzinger 250 $22.75 120 $47.49 Robert Shoman 250 $22.75 120 $47.49 Lynn Stadelman 250 $22.75 120 $47.49 Dawn Stahl 250 $22.75 120 $47.49 Valerie Strickler 250 $22.75 120 $47.49 Jin Teh 250 $22.75 120 $47.49 Lynda Tisch 250 $22.75 120 $47.49 Rhonda Tultz 250 $22.75 120 $47.49
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