EX-99.(A)(1)(B) 3 k150249_ex99-a1b.htm Unassociated Document
Exhibit a(1)(B)
 

LETTER OF TRANSMITTAL

Offer To Exchange
Shares of Common Stock
and Cash
For
Depositary Shares
Each Representing 1/250th Interest in a Share of
8.50% Non-Cumulative Perpetual Convertible Preferred Stock, Series G

Pursuant to the Offer to Exchange dated May 20, 2009
 
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON JUNE 17, 2009, UNLESS THE OFFER IS EXTENDED BY US (SUCH DATE AND TIME, AS THE OFFER MAY BE EXTENDED, THE “EXPIRATION DATE”). TENDERS MAY NOT BE WITHDRAWN AFTER THE DEPOSITARY SHARES HAVE BEEN ACCEPTED FOR EXCHANGE.

The Exchange Agent for the Exchange Offer is:
Wilmington Trust FSB
         
By Mail:
      
By Overnight Courier:
Wilmington Trust FSB
c/o Fifth Third Exchange Offer
1100 North Market Street
Wilmington, DE
19890-1626
      
Wilmington Trust FSB
c/o Fifth Third Exchange Offer
1100 North Market Street
Wilmington, DE
19890-1626
Telephone: 302-626-6181

PLEASE READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS

IF YOU WISH TO EXCHANGE CURRENTLY OUTSTANDING DEPOSITARY SHARES EACH REPRESENTING 1/250TH INTEREST IN A SHARE OF 8.50% NON-CUMULATIVE PERPETUAL CONVERTIBLE PREFERRED STOCK, SERIES G FOR SHARES OF THE COMPANY’S COMMON STOCK AND CASH PURSUANT TO THE EXCHANGE OFFER, YOU MUST VALIDLY TENDER (AND NOT WITHDRAW) YOUR DEPOSITARY SHARES TO THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE BY CAUSING AN AGENT’S MESSAGE TO BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO SUCH TIME.

THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.

This Letter of Transmittal is to be used by holders of the Depositary Shares. Tender of  Depositary Shares is to be made according to the Automated Tender Offer Program (“ATOP”) of The Depository Trust Company (“DTC”) pursuant to the procedures set forth in the Offer to Exchange under the caption “The Exchange Offer — Procedures for Tendering Depositary Shares.” DTC participants that are accepting the Exchange Offer must transmit their acceptance to DTC, which will verify the acceptance and execute a book-entry delivery to the Exchange Agent’s DTC account. DTC will then send a computer-generated message known as an “agent’s message” to the Exchange Agent for its acceptance. For you to validly tender your Depositary Shares in the Exchange Offer, the Exchange Agent must receive, prior to the Expiration Date, an agent’s message under the ATOP procedures confirming that:

 
• 
DTC has received your instructions to tender your Depositary Shares; and

 
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•
You agree to be bound by the terms of this Letter of Transmittal.

BY USING THE ATOP PROCEDURES TO TENDER YOUR DEPOSITARY SHARES, YOU WILL NOT BE REQUIRED TO DELIVER THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT. HOWEVER, YOU WILL BE BOUND BY ITS TERMS, AND YOU WILL BE DEEMED TO HAVE MADE THE ACKNOWLEDGMENTS AND THE REPRESENTATIONS AND WARRANTIES IT CONTAINS, JUST AS IF YOU HAD SIGNED IT.

PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY

Ladies and Gentlemen:

The undersigned hereby acknowledges receipt of the Offer to Exchange, dated May 20, 2009 (the “Offer to Exchange”), of Fifth Third Bancorp, an Ohio corporation (the “Company” or “Fifth Third”), and this Letter of Transmittal (the “Letter of Transmittal”), which together describe the Company’s offer (the “Exchange Offer”) to exchange 2,158.8272 shares of the Company’s common stock, no par value (the “Common Stock”) and $7,500 in cash for each set of 250 validly tendered and accepted depositary shares (the “Depositary Shares”), each representing a 1/250th ownership interest in a share of 8.5% Non-Cumulative Perpetual Convertible Preferred Stock, Series G, no par value, $25,000 liquidation preference per share (the “Series G Preferred Stock”) on the terms and subject to the conditions described in the Offer to Exchange, dated May 20, 2009 (the “Offer to Exchange”).
 
The Company reserves the right, at any time or from time to time, to extend the Exchange Offer at its discretion, in which event the term “Expiration Date” shall mean the latest date to which the Exchange Offer is extended. The Company shall give notice of any extension by giving written notice to the Exchange Agent and by making a public announcement by press release prior to 9:00 a.m., New York City time, on the next business day following the previously scheduled expiration date. The term “business day” shall mean any day that is not a Saturday, Sunday or a day on which banks in New York or Ohio are authorized by law or executive order to be closed.
 
Upon the terms and subject to the conditions of the offer, the undersigned hereby tenders to Fifth Third the above-described stated amount of Depositary Shares.  Subject to and effective upon the acceptance for exchange of, and exchange of, Depositary Shares tendered herewith, the undersigned hereby (1) irrevocably tenders, sells, assigns and transfers to Fifth Third all right, title and interest in and to all such Depositary Shares as are being tendered herewith and (2) irrevocably appoints the Exchange Agent as its agent and attorney-in-fact (with full knowledge that the Exchange Agent is also acting as agent of Fifth Third with respect to the tendered Depositary Shares with full power coupled with an interest) to (a) transfer ownership of the Depositary Shares on the account books maintained by DTC, together with all accompanying evidences of transfer and authenticity, to or upon Fifth Third’s order, (b) present the Depositary Shares for transfer on the relevant security register, (c) receive all benefits or otherwise exercise all rights of beneficial ownership of the Depositary Shares, all in accordance with the terms of the offer and (d) deliver, in book-entry form, the shares of common stock issuable upon acceptance of Depositary Shares tendered hereby, together with any Depositary Shares not accepted in the exchange offer, to the DTC account designated herein by the undersigned, all in accordance with the terms and conditions of the offer as described in the Offer to Exchange.
 
Subject to applicable regulations of the Securities and Exchange Commission, if, for any reason whatsoever, acceptance for exchange of, or exchange of, any Depositary Shares tendered pursuant to the offer is delayed (whether before or after Fifth Third’s acceptance for exchange of, or exchange of, Depositary Shares) or Fifth Third extends the offer or is unable to accept for exchange or exchange the Depositary Shares tendered pursuant to the offer, Fifth Third may instruct the Exchange Agent to retain tendered Depositary Shares, and those Depositary Shares may not be withdrawn, except to the extent that you are entitled to the withdrawal rights set forth in the Offer to Exchange.  If you have tendered Depositary Shares, you may withdraw those Depositary Shares prior to the applicable withdrawal deadline by delivering a written notice of withdrawal via DTC subject to the limitations and requirements described in “The Exchange Offer—Withdrawal of Tenders” in the Offer to Exchange.
 
The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Depositary Shares tendered hereby and to acquire the offer consideration issuable upon the exchange of such tendered Depositary Shares, and that, when the Depositary
 

 
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Shares are accepted for exchange, Fifth Third will acquire good, marketable and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances, and that the Depositary Shares tendered hereby are not subject to any adverse claims or proxies.  The undersigned hereby represents and warrants that either (i) it is not a plan (“Plan”) described in Section 4975 of the Internal Revenue Code of 1986, as amended (“Code”) and no portion of the assets used to acquire or hold the common stock constitutes assets of any Plan or (ii) the exchange of Depositary Shares and the acquisition and holding of common stock will not constitute a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of Code or a similar violation under any laws or regulations that are similar to the provisions of Title I of ERISA or Section 4975 of the Code.  The undersigned will, upon request, execute and deliver any additional documents deemed by Fifth Third or the Exchange Agent to be necessary or desirable to complete the sale, assignment and transfer of the Depositary Shares tendered hereby.  The undersigned has read the Offer to Exchange and agrees to all of the terms and conditions of the offer.
 
The undersigned understands that tenders of Depositary Shares pursuant to the procedures described in the Offer to Exchange under the heading “The Exchange Offer—Procedures for Tendering Depositary Shares” and in the instructions herein will, upon Fifth Third’s acceptance for exchange of such tendered Depositary Shares, constitute a binding agreement between the undersigned and Fifth Third upon the terms and subject to the conditions of the offer.
 
The offer is subject to certain conditions described in the section of the Offer to Exchange entitled “The Exchange Offer—Conditions to the Exchange Offer.”
 
The undersigned understands that the delivery and surrender of the Depositary Shares is not effective, and the risk of loss of the Depositary Shares does not pass to the Exchange Agent, until receipt by the Exchange Agent of  an agent’s message.  All questions as to the form of all documents and the validity (including the time of receipt) and acceptance of tenders and withdrawals of Depositary Shares will be determined by Fifth Third, in its sole discretion, which determination shall be final and binding.
 
All authority herein conferred or agreed to be conferred in this letter of transmittal shall survive the death or incapacity of the undersigned and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, personal representatives, trustees in bankruptcy, legal representatives, successors and assigns of the undersigned.
 
IMPORTANT: BY USING THE ATOP PROCEDURES TO TENDER DEPOSITARY SHARES, YOU WILL NOT BE REQUIRED TO DELIVER THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT. YOU WILL, HOWEVER, BE BOUND BY ITS TERMS, AND YOU WILL BE DEEMED TO HAVE MADE THE ACKNOWLEDGMENTS AND THE REPRESENTATIONS AND WARRANTIES IT CONTAINS.

 
ACKNOWLEDGEMENT OF REPRESENTATIONS AND WARRANTIES
 
The issuance of the common stock in the Offer to Exchange is being made pursuant to an exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), contained in Section 3(a)(9) of the Securities Act, and has not been registered under any other applicable securities laws.
 
The undersigned also represents, warrants and acknowledges that:
 
 
(i)
it has carefully reviewed the Offer to Exchange; and
 
 
(ii)
there are risks incident to the acquisition of the common stock, including, without limitation, those risks which are summarized under “Risk Factors” in the Offer to Exchange.
 


 
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INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer
 
1.  Book-Entry Confirmations.

Any confirmation of a book-entry transfer of Depositary Shares to the Exchange Agent’s account at DTC (a “Book-Entry Confirmation”), as well as any agent’s message and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at its address set forth herein prior to the expiration date.

Any beneficial holder whose Depositary Shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender Depositary Shares in the offer should contact such registered holder promptly and instruct such registered holder to tender on such beneficial holder’s behalf.  If such beneficial holder wishes to tender directly, such beneficial holder must, prior to completing and executing this letter of transmittal and tendering Depositary Shares, either make appropriate arrangements to register ownership of the Depositary Shares in such beneficial holder’s own name or obtain a properly completed bond power from the registered holder.  Beneficial holders should be aware that the transfer of registered ownership may take considerable time.
 
Delivery to an address other than as set forth herein, or instructions via a facsimile number other than the ones set forth herein, will not constitute a valid delivery.
 
Fifth Third expressly reserves the right, at any time or from time to time, to extend the expiration date by complying with certain conditions set forth in the Offer to Exchange.
 
2.  Partial Tenders and Unaccepted Depositary Shares.
 
Tenders of Depositary Shares will be accepted only in integral multiples of 250 shares. The entire amount of Depositary Shares delivered to the Exchange Agent will be deemed to have been tendered unless otherwise communicated to the Exchange Agent. If the entire amount of all Depositary Shares is not tendered, then Depositary Shares for the amount of Depositary Shares not tendered will be credited to the account maintained at DTC from which the tendered Depositary Shares were delivered as soon as practicable after the applicable settlement date.

The Exchange Agent will credit to the account maintained at DTC from which the tendered Depositary Shares were delivered any Depositary Shares which have been tendered but which are not accepted for exchange.

3.  Transfer Taxes.
 
Holders who tender their Depositary Shares for exchange generally should not be obligated to pay any transfer taxes.  However, if transfer taxes would apply to the Exchange Offer, then the amount of any transfer taxes, whether imposed on the registered holder or any other persons, will be payable by the tendering holder.  If satisfactory evidence of payment of such taxes or exemption from them is not submitted to the Exchange Agent, the amount of such transfer taxes will be billed directly to the tendering holder.
 
4.  Waiver of Conditions.
 
Fifth Third reserves the absolute right to waive, in whole or in part, any of the specified conditions to the offer set forth in the Offer to Exchange.
 

 
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5.  Requests for Assistance or Additional Copies.
 
Questions and requests for assistance relating to the Offer to Exchange, this letter of transmittal and other related documents and relating to the procedure for tendering may be directed to the Information Agent at the address and telephone number set forth above.
 
6.  Validity and Form.
 
All questions as to the validity, form, eligibility (including time of receipt) and acceptance for exchange of any tendered Depositary Shares pursuant to any of the instructions in this letter of transmittal, and the form and validity (including time of receipt of notices of withdrawal) of all documents will be determined by Fifth Third in its sole discretion, which determination will be final and binding.  Fifth Third reserves the absolute right to reject any or all tenders of any Depositary Shares determined by Fifth Third not to be in proper form, or if the acceptance or exchange of such Depositary Shares may, in the opinion of counsel for Fifth Third, be unlawful.  Fifth Third also reserves the absolute right to waive any conditions to any offer that Fifth Third is legally permitted to waive.
 
Tender of Depositary Shares will not be deemed to have been validly made until all defects or irregularities in such tender have been cured or waived.  All questions as to the form and validity (including time of receipt) of any delivery will be determined by Fifth Third in its sole discretion, which determination shall be final and binding.  None of Fifth Third, the Exchange Agent, the Information Agent or any other person or entity is under any duty to give notification of any defects or irregularities in any tender or withdrawal of any Depositary Shares, or will incur any liability for failure to give any such notification.  Holders should send all materials to the Exchange Agent and not to Fifth Third or the Information Agent.
 
7.  Important Tax Information.
 
TO COMPLY WITH TREASURY DEPARTMENT CIRCULAR 230, YOU ARE HEREBY NOTIFIED THAT: (A) ANY DISCUSSION OF FEDERAL TAX ISSUES IN THIS LETTER OF TRANSMITTAL IS NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT BE USED BY YOU, FOR THE PURPOSE OF AVOIDING PENALTIES THAT MAY BE IMPOSED ON YOU UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”); (B) ANY SUCH DISCUSSION IS INCLUDED HEREIN BY FIFTH THIRD IN CONNECTION WITH THE PROMOTION OR MARKETING OF THE OFFER TO EXCHANGE DESCRIBED IN THE OFFER TO EXCHANGE; AND (C) YOU SHOULD SEEK ADVICE BASED ON YOUR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
 
Under current U.S. federal income tax law, the Exchange Agent (as payor) may be required to withhold a portion of any payments made to certain holders (or other payees) pursuant to the offer and other transactions described in the Offer to Exchange.  To avoid such backup withholding, each tendering U.S. Holder or other U.S. payee must provide the Exchange Agent with its correct taxpayer identification number (“TIN”) or Employer Identification Number (“EIN”) and certify that it is not subject to backup withholding and that the TIN or EIN provided is correct (or that the holder has applied for a TIN/EIN) by completing Form W-9 of the Internal Revenue Service (the “IRS”), or otherwise establish an exemption from the backup withholding rules.  In general, for an individual, the TIN is such individual’s social security number.  Furthermore, certain penalties may be imposed by the IRS on a recipient of payments that is required to supply information but that does not do so in the proper manner. If an exemption from backup withholding is not established, any reportable payments will be subject to backup withholding at the applicable rate, currently 28%.  Such reportable payments generally will be subject to information reporting, even if an exemption from backup withholding is established.  If a U.S. Holder has not been issued a TIN and has applied for one or intends to apply for one in the near future, such U.S. Holder should write “Applied For” in the space provided for the TIN in Part I of Form W-9, sign and date the Form W-9 and the Certificate of Awaiting Taxpayer Identification Number.  If “Applied For” is written in Part I and the Exchange Agent is not provided with a TIN prior to the date of payment, the Exchange Agent will withhold 28% of any reportable payments made to the U.S. Holder.  For further information concerning backup withholding and instructions for completing Form W-9 (including how to obtain a TIN if you do not have one and how to complete Form W-9 if the Depositary Shares are held in more than one name), consult the instructions in Form W-9.  All IRS forms mentioned herein may be obtained on the IRS website at www.irs.gov.
 

 
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Certain holders (including, among others, all corporations and certain non-U.S. persons) are not subject to these backup withholding and reporting requirements.  Exempt U.S. persons should indicate their exempt status on Form W-9.  To satisfy the Exchange Agent that a non-U.S. person qualifies as an exempt recipient, such person must submit a Form W-8BEN (or other applicable form) of the IRS, signed under penalties of perjury, attesting to that person’s non-U.S. status.  A Form W-8BEN (or other applicable form) can be obtained from the Exchange Agent.  Holders should consult their tax advisors as to any qualification for exemption from backup withholding, and the procedure for obtaining the exemption.
 
A person’s failure to complete Form W-9, Form W-8BEN or other appropriate form will not, by itself, cause such person’s Depositary Shares to be deemed invalidly tendered, but may require the Exchange Agent to withhold a portion (currently 28%) of any payments made to such person pursuant to the offer and other transactions described in the Offer to Exchange.  Backup withholding is not an additional U.S. federal income tax.  Rather, the amount of U.S. federal income tax withheld should generally be creditable against the U.S. federal income tax liability of a person subject to backup withholding.  If backup withholding results in an overpayment of U.S. federal income tax, a refund generally may be obtained provided that the required information is timely furnished to the IRS.
 
 NOTE: FAILURE TO COMPLETE AND RETURN FORM W-9 (OR THE APPLICABLE FORM W-8) MAY RESULT IN BACKUP WITHHOLDING OF 28% OF ANY REPORTABLE PAYMENTS MADE TO YOU PURSUANT TO THE OFFER AND OTHER TRANSACTIONS DESCRIBED IN THE OFFER TO EXCHANGE.  PLEASE REVIEW FORM W-9 AND THE INSTRUCTIONS CONTAINED IN THIS LETTER OF TRANSMITTAL FOR ADDITIONAL DETAILS OR CONTACT THE EXCHANGE AGENT FOR THE APPLICABLE FORM W-8.
 
IMPORTANT:  CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
 

 
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CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
 
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (1) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration office or (2) I intend to mail or deliver an application in the near future.  I understand that if I do not provide a taxpayer identification number by the time of payment, a portion (currently 28%) of all reportable payments made to me will be withheld and remitted to the Internal Revenue Service.
 
SIGNATURE: ____________________________                                            DATE:   _______________________
 

 
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