-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WcFf7Jv/OLQZiZY2W/5nmSFvCMbloZE4UvU04xDG0wpBipRpAM2LfqgLbSKkhnnb Ll+uWEzNI268y2/DP7xfsg== 0000950152-01-500763.txt : 20010411 0000950152-01-500763.hdr.sgml : 20010411 ACCESSION NUMBER: 0000950152-01-500763 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010410 EFFECTIVENESS DATE: 20010410 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: SEC FILE NUMBER: 333-58618 FILM NUMBER: 1599450 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 l87653as-8.txt FIFTH THIRD BANCORP FORM S-8 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 10, 2001 REGISTRATION NO. 333-_______ =========================================================================== 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 registrant as specified in its charter) OHIO 31-0854434 - ------------------------------- --------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) FIFTH THIRD CENTER CINCINNATI, OHIO 45263 --- ---------------------- (Address of principal executive offices including zip code) FIFTH THIRD BANCORP 1998 LONG-TERM INCENTIVE STOCK PLAN, AS AMENDED; FIFTH THIRD BANCORP STOCK OPTION GAIN DEFERRAL PLAN; THE FIFTH THIRD BANCORP NONQUALIFIED DEFERRED COMPENSATION PLAN, AS AMENDED AND RESTATED; FIFTH THIRD BANCORP 1993 STOCK PURCHASE PLAN, AS AMENDED AND RESTATED (Full title of the plan) Copy To: PAUL L. REYNOLDS, ESQ. RICHARD G. SCHMALZL, ESQ. FIFTH THIRD BANCORP H. SAMUEL LIND, ESQ. 38 FOUNTAIN SQUARE PLAZA GRAYDON HEAD & RITCHEY LLP CINCINNATI, OHIO 45263 1900 FIFTH THIRD CENTER (513) 579-5300 511 WALNUT STREET (513) 744-6757 (FAX) CINCINNATI, OHIO 45202 (Name, address and telephone (513) 621-6464 number, including area code, (513) 651-3836 (FAX) of agent for service)
CALCULATION OF REGISTRATION FEE - ----------------------- ------------------ --------------------- ------------------------ ----------------- TITLE OF EACH CLASS OF SECURITIES TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF REGISTERED AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE REGISTERED(1) SHARE PRICE(1) - ----------------------- ------------------ --------------------- ------------------------ ----------------- COMMON STOCK, NO 13,917,191 $50.28(2) $699,756,363.48(2) $174,939.09 PAR VALUE PER SHARE SHARES(3) - ----------------------- ------------------ --------------------- ------------------------ ----------------- COMMON STOCK 2,660,482 $40.17(4) $106,871,561.94(4) $26,717.89 NO SHARES(4) PAR VALUE PER SHARE - ----------------------- ------------------ --------------------- ------------------------ ----------------- COMMON STOCK 6,000,000 $50.81(4) $304,860,000.00(4) $76,215.00 NO SHARES(4) PAR VALUE PER SHARE - ----------------------- ------------------ --------------------- ------------------------ ----------------- COMMON STOCK, NO 1,000,000 $50.28(2) $50,280,000.00(2) $12,570.00 PAR VALUE PER SHARE SHARES(5) - ----------------------- ------------------ --------------------- ------------------------ -----------------
2
- ----------------------- ------------------ --------------------- ------------------------ ----------------- COMMON STOCK, NO 1,000,000 $50.28(2) $50,280,000.00(2) $12,570.00 PAR VALUE PER SHARE SHARES (6) - ----------------------- ------------------ --------------------- ------------------------ ----------------- COMMON STOCK, NO 800,000 $50.28(2) $40,224,000.00(2) $10,056.00 PAR VALUE PER SHARE SHARES(7) - ----------------------- ------------------ --------------------- ------------------------ -----------------
(1) In addition, pursuant to Rule 416, this registration statement covers such additional shares as may be issued by reason of stock splits, stock dividends or similar transactions. (2) Estimated solely for purposes of calculating the amount of the registration fee pursuant to Rule 457(c) and (h), based upon the average of the high and low prices of Fifth Third Common Stock as reported on The Nasdaq National Market on April 6, 2001. (3) Represents the number of shares of Fifth Third Common Stock currently reserved or available for issuance under the Fifth Third Bancorp 1998 Long-Term Incentive Stock Plan, as amended, less 8,660,482 shares issuable upon the exercise of stock options previously granted as described in note (4) below. All other shares issuable under this plan have been previously registered on Registration Statement No. 333-58249. (4) Represents shares of Fifth Third Common Stock issuable upon the exercise of stock options previously granted under the Fifth Third Bancorp 1998 Long-Term Incentive Stock Plan, as amended, but not previously registered, at the exercise prices shown as the proposed maximum offering price per share in accordance with Rule 457(h). (5) Represents the number of shares of Fifth Third Common Stock currently reserved or available for issuance under the Fifth Third Bancorp Stock Option Gain Deferral Plan. Dividends earned on Common Stock, the receipt of which is deferred under the plan, may be reinvested in Common Stock under the plan. (6) Represents the number of shares of Fifth Third Common Stock currently reserved or available for issuance under The Fifth Third Bancorp Nonqualified Deferred Compensation Plan, as amended, in satisfaction of deferred compensation obligations of Fifth Third. (7) Represents the number of additional shares of Fifth Third Common Stock reserved or available for issuance under the Fifth Third Bancorp 1993 Stock Purchase Plan, as amended and restated. ============================================================================ 2 3 PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS. The documents containing the information required in Part I of the registration statement will be provided to each participant as required by Rule 428(b)(1). Such documents are not being filed with the SEC in accordance with the instructions to Form S-8, but constitute (along with the documents incorporated by reference into the registration statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT. Item 3. Incorporation of Documents by Reference. --------------------------------------- The following documents, as filed with the Commission, are incorporated herein by reference: (1) the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2000; (2) the Registrant's Current Reports on Form 8-K filed with the SEC on January 30, March 6, March 9, March 14, March 20 and April 4, 2001; and (3) the description of the Registrant's Common Stock contained in a registration statement filed under the Securities Exchange Act of 1934, including any amendment or report filed for the purpose of updating such description. All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all such securities remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing such documents. Item 4. Description of Securities. ------------------------- Not Applicable. Item 5. Interest of Named Experts and Counsel. ------------------------------------- The validity of the Common Stock offered hereby has been passed upon by Paul L. Reynolds, general counsel to Fifth Third. Mr. Reynolds is eligible to participate in the plans and receive shares of Common Stock on the same terms and conditions as other participants holding similar positions with Fifth Third. 3 4 Item 6. Indemnification of Directors and Officers. ----------------------------------------- Section 1701.13(E) 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 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 (i) repay such amount if it is proved by clear and convincing evidence 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 (ii) 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 the articles of incorporation or code of regulations of Fifth Third. 4 5 The code of regulations of Fifth Third provides that Fifth Third shall indemnify each director and each officer of Fifth Third, and each person employed by Fifth Third who serves at the written request of the President of Fifth Third as a director, trustee, officer, employee or agent of another corporation, domestic or foreign, nonprofit or for profit, to the full extent permitted by Ohio law. Fifth Third may indemnify assistant officers, employees and others by action of the Board of Directors to the extent permitted by Ohio law. Fifth Third carries directors' and officers' liability insurance coverage which insures its directors and officers and the directors and officers of its subsidiaries in certain circumstances. Item 7. Exemption from Registration Claimed. ----------------------------------- Not applicable. Item 8. Exhibits. -------- Exhibit Description of Exhibit ---------------------- 4.1 Fifth Third Bancorp 1998 Long-Term Incentive Stock Plan, as amended* 4.2 Amendment to Fifth Third Bancorp 1998 Long-Term Incentive Stock Plan, as amended* 4.3 Fifth Third Bancorp Stock Option Gain Deferral Plan* 4.4 The Fifth Third Bancorp Nonqualified Deferred Compensation Plan, as amended and restated* 4.5 Fifth Third Bancorp 1993 Stock Purchase Plan, as amended and restated 5.1 Opinion of Counsel employed by Fifth Third Bancorp 23.1 Consent of Counsel employed by Fifth Third Bancorp (included in Exhibit 5.1) 23.2 Consent of Deloitte & Touche LLP - ----------------------------------------------------- * Incorporated by reference. See Exhibit Index. Item 9. Undertakings A. INDEMNIFICATION 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 provisions referred to in Item 6, 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. 5 6 B. SUBSEQUENT EXCHANGE OF DOCUMENTS 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 that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. OTHER 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: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (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 a prospectus filed with Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represented 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; (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 the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference 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. 6 7 (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. 7 8 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 April 10, 2001. FIFTH THIRD BANCORP By: /s/ GEORGE A. SCHAEFER, JR. --------------------------- George A. Schaefer, Jr. President and Chief Executive Officer 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 and execute on behalf of the undersigned 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 connection with any such amendments, as fully to all intents and purposes as he might or could do in person, and does hereby ratify and confirm all that said attorney-in-fact 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. Date: April 10, 2001 - --------------------------- George A. Schaefer, Jr. President and Chief Executive Officer Principal Financial Officer: /s/ NEAL E. ARNOLD Date: April 10, 2001 - ------------------ Neal E. Arnold Chief Financial Officer, Executive Vice President and Treasurer Principal Accounting Officer: /s/ ROGER W. DEAN Date: April 10, 2001 - ----------------- Roger W. Dean Controller 8 9 Directors of the Company: /s/ DARRYL F. ALLEN Date: April 10, 2001 - ------------------- Darryl F. Allen /s/ JOHN F. BARRETT Date: April 10, 2001 - ------------------- John F. Barrett /s/ GERALD V. DIRVIN Date: April 10, 2001 - -------------------- Gerald V. Dirvin /s/ THOMAS B. DONNELL Date: April 10, 2001 - --------------------- Thomas B. Donnell /s/ RICHARD T. FARMER Date: April 10, 2001 - --------------------- Richard T. Farmer /s/ JOSEPH H. HEAD, JR. Date: April 10, 2001 - ----------------------- Joseph H. Head, Jr. /s/ JOAN R. HERSCHEDE Date: April 10, 2001 - --------------------- Joan R. Herschede /s/ ALLEN M. HILL Date: April 10, 2001 - ----------------- Allen M. Hill /s/ WILLIAM G. KAGLER Date: April 10, 2001 - --------------------- William G. Kagler 9 10 /s/ JAMES D. KIGGEN Date: April 10, 2001 - ------------------- James D. Kiggen /s/ ROBERT L. KOCH, II Date: April 10, 2001 - ---------------------- Robert L. Koch, II /s/ MITCHEL D. LIVINGSTON, Ph.D. Date: April 10, 2001 - -------------------------------- Mitchel D. Livingston, Ph.D. /s/ ROBERT B. MORGAN Date: April 10, 2001 - -------------------- Robert B. Morgan /s/ DAVID E. REESE Date: April 10, 2001 - ------------------ David E. Reese /s/ JAMES E. ROGERS Date: April 10, 2001 - ------------------- James E. Rogers /s/ BRIAN H. ROWE Date: April 10, 2001 - ----------------- Brian H. Rowe /s/ GEORGE A. SCHAEFER, JR. Date: April 10, 2001 - --------------------------- George A. Schaefer, Jr. /s/ JOHN J. SCHIFF, JR. Date: April 10, 2001 - ----------------------- John J. Schiff, Jr. Date: - --------------------------------- Donald B. Schackelford 10 11 /s/ DENNIS J. SULLIVAN, JR. Date: April 10, 2001 - --------------------------- Dennis J. Sullivan, Jr. /s/ DUDLEY S. TAFT Date: April 10, 2001 - ------------------ Dudley S. Taft Date: - ----------------------------------- Thomas W. Traylor 11 12 INDEX TO EXHIBITS Exhibit Description of Exhibit - ------- ---------------------- 4.1 Fifth Third Bancorp 1998 Long-Term Incentive Stock Plan, as amended (filed as an Exhibit to the Registrant's Form S-8 Registration Statement No. 333-58249, and incorporated by reference herein)* 4.2 Amendment to Fifth Third Bancorp 1998 Long-Term Incentive Stock Plan, as amended (filed as an Annex to the Registrant's Proxy Statement dated February 9, 2001 relating to the Registrant's 2001 Annual Meeting of Shareholders, and incorporated by reference herein)* 4.3 Fifth Third Bancorp Stock Option Gain Deferral Plan (filed as an Annex to the Registrant's Proxy Statement dated February 9, 2001 relating to the Registrant's 2001 Annual Meeting of Shareholders, and incorporated by reference herein)* 4.4 The Fifth Third Bancorp Nonqualified Deferred Compensation Plan, as amended and restated (filed as an Annex to the Registrant's Proxy Statement dated February 9, 2001 relating to the Registrant's 2001 Annual Meeting of Shareholders, and incorporated by reference herein)* 4.5 Fifth Third Bancorp 1993 Stock Purchase Plan, as amended and restated 5.1 Opinion of Counsel employed by Fifth Third Bancorp 23.1 Consent of Counsel employed by Fifth Third Bancorp (included in Exhibit 5.1) 23.2 Consent of Deloitte & Touche LLP - ----------------- * Incorporated by reference. EX-4.5 2 l87653aex4-5.txt EXHIBIT 4.5 1 EXHIBIT 4.5 AMENDED AND RESTATED -------------------- FIFTH THIRD BANCORP 1993 STOCK PURCHASE PLAN The FIFTH THIRD BANCORP 1993 STOCK PURCHASE PLAN (the "Plan") is hereby amended and restated effective April 1, 2001 pursuant to the direction of the Board of Directors of Fifth Third Bancorp, an Ohio corporation ("Company"). All capitalized terms not otherwise defined have the meaning set forth in Section 20 of this Plan. 1. PURPOSE. The purpose of the Plan is to facilitate the purchase of the Company's Common Stock by Company employees on terms and conditions that enhance the ability of the employees to acquire a financial interest in the Company. The Company believes that employee ownership will promote productivity and encourage continued growth of the Company for the mutual benefit of the Company's employees and shareholders. 2. ELIGIBILITY. Any full-time or part-time Employee of the Company or any Subsidiary who is at least eighteen years of age is eligible to participate in the Plan upon hire. The Company's Directors and executive officers (as defined by the rules and regulations of the Securities and Exchange Commission) are not eligible to participate in the Plan. 3. PARTICIPATION; PAYROLL DEDUCTION. Any eligible Employee may become a participant in the Plan by completing and forwarding an authorization form to the Company at any time. The authorization form will authorize and instruct the Company to deduct from the Employee's Compensation each pay period a certain uniform dollar amount or uniform percentage of Compensation as specified by the Employee's deduction authorization. Payroll Deductions specified by percentage amount shall be in full percentages of Compensation. All Payroll Deductions must be at least $5.00 per pay period. The maximum Payroll Deduction for each Participant is 10 percent of the Participant's Compensation not to exceed $13,000 in any calendar year, provided the remaining Compensation of the Participant is sufficient to pay all payroll taxes, withholdings and any other payroll deductions. Payroll Deductions will be effective with pay checks issued not later than the second pay date following receipt of the Participant's Deduction authorization form. Thereafter, the Payroll Deduction will be made on each pay day for each applicable pay period. The percentage or dollar amount of Payroll Deduction may be changed at any time and may be terminated at any time upon seven days' prior notice to the Company's Payroll Department from the Participant. 4. PURCHASE OF COMMON STOCK; PURCHASE PRICE. As soon as administratively possible, usually the next business day, the Company will remit to the 1 2 Custodian the total of all Payroll Deductions related to the immediately preceding pay period plus an additional amount payable by the Company such that the Payroll Deductions equal ninety percent of the total funds available to purchase Common Stock. The Custodian will then apply such aggregate amount to the purchase in the open market, through securities brokers/dealers who are members of the National Association of Securities Dealers, Inc. and who are duly licensed to buy and sell securities in each state in which there are Participants, as many whole shares of Common Stock as may be purchased with such funds at the then prevailing Fair Market Value. The purchase price to the Participants for each share of Common Stock purchased under this Plan will be ninety percent of the then prevailing Fair Market Value. Purchases of Common Stock will be completed as soon as administratively possible, usually the next business day, following receipt by the Custodian of such Payroll Deductions. Failure to so timely purchase Common Stock will not subject the Custodian to reimbursement for any damages a Participant might suffer as a result of any delay in purchasing Common Stock. On at least an annual basis, the Custodian will provide each Participant with a report as to the total number of shares of Common Stock allocated to his or her Account as of the last day of the reporting period. 5. CUSTODY; DELIVERY OF COMMON STOCK. Shares of Common Stock purchased under the Plan will be allocated to the respective Accounts of the Participants at the end of each pay period in proportion to the contributions made by each Participant. Allocations will be made in full shares and in fractional shares to the third decimal place. The Custodian will hold certificates for the Common Stock purchased in its nominee name until any such shares are distributed to the Participant. Pursuant to Section 10, upon written request of a Participant to the Company at any time, certificates representing all or part of the whole shares of Common Stock credited to the Participant's Account will be registered in the Participant's name promptly and delivered to the Participant. Fractional shares will not be issued. Instead, fractional shares which have been credited to the Participant's Account will be converted in to cash by the Custodian at the then prevailing Fair Market Value on the sale date and promptly paid to the Participant in cash. 6. PARTICIPANT RIGHTS IN COMMON STOCK. Each Participant will have all the rights of a shareholder of the Company with respect to the shares of Common Stock allocated to the Participant's Account. Such rights include without limitation the right to vote such shares and the right to receive all distributions of cash or other property with respect to such shares. In addition, appropriate adjustments will be made in the number of shares credited to Participant's Accounts to give effect to any stock dividends, stock splits, recapitalizations and similar changes. 7. DIVIDEND REINVESTMENT. Any cash dividends on the Common Stock, if and when declared and received by the Custodian with respect to shares held by 2 3 the Plan, will be credited to the Participants in proportion to the number of shares of Common Stock held by the Custodian for the Participant's Account on the dividend record date. Any cash dividends received by the Custodian with respect to Common Stock held under the Plan shall be applied toward the purchase for the Accounts of all Participants under the Plan of additional shares of Common Stock as soon as administratively possible, usually the next business day following the date of receipt of the dividend. 8. VOTING. All shares, including fractional shares, of Common Stock in each Participant's Account will be voted in accordance with proxy instructions duly delivered to the Custodian by the respective Participant. Each Participant may instruct the Custodian how to vote the shares credited to the Participant's Account and the Custodian will vote such shares accordingly. In the event no voting instructions are provided, the Custodian shall vote the shares in the same proportion as the shares held under the Plan for which the Custodian receives voting instructions. 9. NO INTEREST. No Participant shall be entitled, at any time, to any payment or credit for interest with respect to or on the Payroll Deductions contemplated herein, or on any other assets held hereunder for the Participant's Account. 10. SUSPENSION OF PAYROLL DEDUCTIONS. Pursuant to Section 5, a Participant may request certificates representing all or a portion of his or her whole shares in the Plan. Upon such request, the Participant's Payroll Deductions shall be suspended for a period of 12 months commencing on the date the certificates are issued to the Participant. Upon the expiration of the 12-month suspension period, the Employee may re-enroll in the Plan by submitting a new authorization form pursuant to Section 5. Notwithstanding the foregoing, a Participant may request delivery of the shares in his or her Account for the purpose of exercising stock options, as granted by Fifth Third Bancorp under the Stock Option Plan, without becoming subject to a suspension period. As contemplated by Section 15, the Company's Board of Directors has designated the Pension and Profit Sharing Committee the Administrator of the Plan. The Administrator may from time to time also adopt other rules and procedures relating to partial terminations and/or other matters. 11. TERMINATION OF PARTICIPATION. A Participant's participation in the Plan shall terminate on the Participant's pay date for the pay period in which one of the following occurs: (a) a Participant's death or termination of employment; (b) discontinuance of the Plan by the Company; or (c) the Participant's written election to terminate participation in the Plan is received by the Company. Upon termination, certificates representing the total number of whole shares of Common Stock credited to the Participant's Account will be issued in the Participant's name or in the event of death in the name of the Participant's legal representative. The Company will deliver these certificates to the Participant or legal representative promptly. Fractional shares which have 3 4 been credited to the Participant's Account will be converted in to cash by the Custodian at the then prevailing Fair Market Value on the sale date and promptly paid to the Participant in cash. If such request to terminate falls between the record date and payable date of a dividend or stock split, the certification and sale of fractional shares will be processed after the payable date of the dividend. 12. DESIGNATION OF CUSTODIAN. The Company has designated the Fifth Third Bank as the Custodian subject to the Company's right to terminate the designation at any time and appoint a successor Custodian. 13. PLAN EXPENSES. The charges of the Custodian and all costs of maintaining records, administering the Plan and executing transfers by the Custodian will be borne by the Company. 14. ADMINISTRATION OF PLAN. The Board of Directors of the Company shall appoint the Pension and Profit Sharing Committee to serve as Administrator of the Plan. The duties of the Administrator will be to announce the existence of the Plan; to provide employees with copies of the Plan and Payroll Deduction authorization instructions; to supervise Payroll Deductions; to forward Payroll Deductions to the Custodian; to provide the Custodian with names an addresses of employees to facilitate communications regarding the Plan; and, if requested by the Custodian, to address and distribute communications to employees from the Custodian. The Board of Directors of the Company shall be vested with full authority to make and interpret all rules and regulations as it deems necessary for the Administrator to administer the Plan. Any determination, decision or act of the Board of Directors with respect to any action in connection with the construction, interpretation, or application of the Plan shall be final and binding upon all Employees, Participants, and all persons claiming under or through them. 15. LIMITATION OF ACTIVITIES. Neither the Administrator nor any other employee or representative of the Company or a Subsidiary shall solicit Employees to participate in the Plan, render investment advice of any kind or perform any function or activity relative to the Plan except the specified duties of the Administrator set forth in paragraph 13 above. All questions of Participants regarding administration of the Plan shall be directed solely to the Administrator, and any questions relating to investment advice shall be directed solely to the Participant's personal advisors. 16. TERM OF PLAN; AMENDMENTS. The Plan is effective on the date hereof and has no fixed expiration date, however, the Plan may be amended or discontinued by the Board of Directors of the Company at any time. The Plan is intended to be a permanent program, but the Board or Directors of the 4 5 Company shall have the right at any time to declare the Plan terminated completely as to it or as to any Subsidiary. No amendment may make any change in any right previously granted which would adversely affect the rights of any Participant. 17. NONGUARANTY OF EMPLOYMENT. The Plan is strictly a voluntary undertaking on the part of the Company and shall not constitute a contract between the Company or any Subsidiary and any Employee, or consideration for an inducement or a condition of, the employment of an Employee. Nothing contained in the Plan shall give any Employee the right to be retained in the service of the Company or any Subsidiary or to interfere with or restrict the right of the Company or any Subsidiary, which right is hereby expressly reserved, to discharge or retire any Employee at any time, with or without cause and with or without notice. Participation in the Plan will not give any Employee any right or claim to any benefits hereunder except to the extent such right has specifically become fixed under the terms of the Plan. 18. GOVERNMENTAL APPROVALS. Implementation and continuation of the Plan and the transactions contemplated hereby shall be subject to the Company obtaining any registration or qualification under any federal or state law or obtaining the consent or approval of any governmental regulatory body which the Company shall determine, in its sole discretion, is necessary or desirable as a condition to, or in connection with, the operation of the Plan. 19. SECTION HEADINGS. Section headings are provided herein for convenience only and are not to serve as the basis for interpretations or construction of the Plan. 20. DEFINITIONS: (a) ACCOUNT - means that separate account maintained for each Participant under the Plan, which account shall be credited with the Participant's Payroll Deduction, charged for the purchases of Common Stock for that Participant under the Plan, and allocated that number of shares of Common Stock as have been acquired with Payroll Deductions contributed by the Participant. Each Account shall be the property of the Participant for whom it is maintained and shall be nonforfeitable at all times. (b) BUSINESS DAY - means a day in which the NASDAQ National Market System, or such other market system or exchange on which the Common Stock is then primarily traded, is open for business. (c) COMMON STOCK - means the common stock, no par value, of the Company. (d) COMPENSATION - means the gross wages paid to the Employee during the period in question for services rendered by the Employee to the Company or any Subsidiary. Compensation includes any wages or salary subject to a salary reduction arrangement under any cash or deferred profit sharing 5 6 arrangement or cafeteria plan that is maintained by the Company or any Subsidiary and that is intended to be qualified under I.R.C. Sections 401(k) or 125 respectively. Compensation does not include severance pay, moving allowance, or other noncash compensation. (e) CUSTODIAN - means that bank appointed by the Company in its sole discretion from time to time to take responsibility for safekeeping of the funds paid in to the Plan and of the Common Stock purchased under the Plan. (f) EMPLOYEE - means an individual who renders services to the Company or any Subsidiary as a common law employee or officer (i.e., a person whose wages from the Company or any Subsidiary are subject to federal income tax withholding). A person rendering services to the Company or any Subsidiary as an independent contractor is not an Employee. (g) FAIR MARKET VALUE - means the price(s) at which the Custodian is able to purchase Common Stock on the NASDAQ National Market System, or such other market system or exchange on which the Common Stock is then primarily traded, on the purchase date. (h) PARTICIPANT - means any Employee who is eligible to participate in the Plan and who authorizes Payroll Deductions under the Plan pursuant to Section 3 of the Plan. (i) PAYROLL DEDUCTION - means the amount or percentage of Compensation authorized by a Participant to be deducted from his Compensation under the Plan. (j) SUBSIDIARY - means any corporation, partnership, trade or business which is wholly owned, directly or indirectly, by the Company. Executed as of April 1, 2001 ------------- FIFTH THIRD BANCORP By: GEORGE A. SCHAEFER, JR. ----------------------- George A. Schaefer, Jr. President & Chief Executive Officer 6 EX-5.1 3 l87653aex5-1.txt EXHIBIT 5.1 1 EXHIBIT 5.1 FIFTH THIRD BANCORP FIFTH THIRD CENTER CINCINNATI, OHIO 45263 April 10, 2001 Fifth Third Bancorp 38 Fountain Square Plaza Cincinnati, Ohio 45263 RE: Issuance of 25,377,673 Shares of Common Stock of Fifth Third Bancorp Pursuant to Registration Statement on Form S-8 filed with the Securities and Exchange Commission Gentlemen: I have acted as counsel to Fifth Third Bancorp, an Ohio corporation ("Company"), in connection with the issuance of 25,377,673 shares of the Company's common stock, no par value ("Common Stock") pursuant to the Fifth Third Bancorp 1998 Long-Term Incentive Stock Plan (as amended), the Fifth Third Bancorp Stock Option Gain Deferral Plan, The Fifth Third Bancorp Nonqualified Deferred Compensation Plan (as amended and restated), and the Fifth Third Bancorp 1993 Stock Purchase Plan (as amended and restated). As counsel for the Company I have made such legal and factual examinations and inquiries as I deem advisable for the purpose of rendering this opinion. In addition, I have examined such documents and materials, including the Articles of Incorporation, Code of Regulations, and other corporate records of the Company, as I have deemed necessary for the purpose of this opinion. On the basis of the foregoing, I express the opinion that the 25,377,673 shares of Common Stock registered for issuance pursuant to the Registration Statement, are currently validly authorized and, when issued as contemplated by the Registration Statement, will be legally issued, fully paid and nonassessable shares of Common Stock of the Company. I hereby consent to the filing of this opinion as part of the above-referenced Registration Statement and amendments thereto. Very truly yours, FIFTH THIRD BANCORP By: /s/ PAUL L. REYNOLDS ------------------------- Paul L. Reynolds, Counsel EX-23.2 4 l87653aex23-2.txt EXHIBIT 23.2 1 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement on Form S-8 of Fifth Third Bancorp of our report dated January 16, 2001, incorporated by reference in the Annual Report on Form 10-K of Fifth Third Bancorp for the year ended December 31, 2000. /s/ Deloitte & Touche LLP Cincinnati, Ohio April 10, 2001 -----END PRIVACY-ENHANCED MESSAGE-----