<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 30, 1998
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.)
38 FOUNTAIN SQUARE PLAZA
CINCINNATI, OHIO 45263
-------------------------------
(Address of principal executive
offices including zip code)
1998 LONG-TERM INCENTIVE STOCK PLAN
-----------------------------------
(Full title of the plans)
Copy To:
PAUL L. REYNOLDS, ESQ. RICHARD G. SCHMALZL, ESQ.
FIFTH THIRD BANCORP GWEN M. MORRIS, ESQ.
38 FOUNTAIN SQUARE PLAZA GRAYDON, HEAD & RITCHEY
CINCINNATI, OHIO 45263 511 WALNUT STREET
1900 FIFTH THIRD CENTER CINCINNATI, OHIO 45202
(513) 579-4300 (513) 621-6464
(Name, address and telephone
number of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, NO 6,285,934 SHARES(1) $59.5938(2) $374,602,693.30 $110,507.79
PAR VALUE PER SHARE
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COMMON STOCK, NO 3,536,303 SHARES(3) $55.2917 $195,528,204.50 $57,680.82
PAR VALUE PER SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK, NO 3,375 SHARES(3) $56.2083 $189,703.0125 $55.96
PAR VALUE PER SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK, NO 2,028 SHARES(3) $56.3333 $114,243.9324 $33.70
PAR VALUE PER SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK, NO 2,475 SHARES(3) $57.50 $142,312.50 $41.98
PAR VALUE PER SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK, NO 1,425 SHARES(3) $56.3125 $80,245.3125 $23.67
PAR VALUE PER SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK, NO 3,375 SHARES(3) $56.4375 $190,476.5625 $56.19
PAR VALUE PER SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK, NO 2,700 SHARES(3) $57.8750 $156,262.50 $46.10
PAR VALUE PER SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK, NO 450 SHARES(3) $54.00 $24,300.00 $7.17
PAR VALUE PER SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK, NO 1,500 SHARES(3) $50.6250 $75,937.50 $22.40
PAR VALUE PER SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 2
<TABLE>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, NO 3,000 SHARES(3) $50.3438 $151,031.40 $44.55
PAR VALUE PER SHARE
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COMMON STOCK, NO 72,000 SHARES(3) $49.3125 $3,550,500.00 $1,047.40
PAR VALUE PER SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK, NO 3,000 SHARES(3) $52.00 $156,000.00 $46.02
PAR VALUE PER SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK, NO 186,000 SHARES(3) $55.25 $10,276,500.00 $3,031.57
PAR VALUE PER SHARE
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
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(1) Represents the total number of shares of Fifth Third Bancorp Common
Stock, no par value per share ("Common Stock") currently reserved or available
for issuance pursuant to the 1998 Long-Term Incentive Stock Plan (the "Plan"),
less 3,817,631 shares of Common Stock issuable upon the exercise of stock
options previously granted as described in note (3) below.
(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 Bancorp common stock as reported on The
Nasdaq National Market for June 24, 1998.
(3) Represents the total number of shares of Common Stock issuable upon
the exercise of stock options previously granted under the Plan at the exercise
price shown as the proposed maximum offering price per share in accordance with
Rule 457(h).
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Fifth Third Bancorp (the "Registrant") is filing this Registration
Statement on Form S-8 in order to register an aggregate of 10,103,565 shares of
its common stock, no par value ("Common Stock"), to be issued pursuant to its
1998 Long-Term Incentive Stock Plan (the "Plan").
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 in the Plan as
required by Rule 428(b)(1). Such documents are not being filed with the
Securities and Exchange Commission (the "Commission") in accordance with the
instructions to Form S-8.
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:
(i) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997;
(ii) the Registrant's Current Report on Form 8-K filed March 17,
1998;
(iii) the Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998; and
(iv) the description of the Registrant's Common Stock contained in
a registration statement filed under the Securities and
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 the Company. Mr. Reynolds is eligible to
participate in the Plan. As a
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participant, he previously has been awarded stock options under the Plan and may
receive future grants under the Plan on the same terms and conditions as other
participants holding similar positions with the Company.
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
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<PAGE> 5
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 Second Amended Articles
of Incorporation or Code of Regulations of the Registrant.
The Code of Regulations of the Registrant 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
President of the Registrant 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. The Registrant may indemnify assistant
officers, employees and others by action of the Board of Directors to the extent
permitted by Ohio law.
The Registrant 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 1998 Long-Term Incentive Stock Plan, as amended
4.2 Second Amended and Restated Articles of Incorporation*
4.3 Code of Regulations*
5.1 Opinion of Counsel employed by Fifth Third Bancorp
23.1 Consent of Counsel employed by Fifth Third Bancorp (included
in opinion)
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
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<PAGE> 6
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 that 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.
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;
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<PAGE> 7
(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.
(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.
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<PAGE> 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 June 30, 1998.
FIFTH THIRD BANCORP
/s/ George A. Schaefer, Jr.
---------------------------
By: 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: June 30, 1998
- ---------------------------
George A. Schaefer, Jr.
President and Chief Executive Officer
Principal Financial Officer:
/s/ Neal E. Arnold Date: June 30, 1998
- ------------------
Neal E. Arnold
Chief Financial Officer and Treasurer
<PAGE> 9
Principal Accounting Officer:
/s/ Roger W. Dean Date: June 30, 1998
- -----------------
Roger W. Dean
Controller
Directors of the Company:
/s/ Darryl F. Allen Date: June 30, 1998
- -------------------
Darryl F. Allen
/s/ John F. Barrett Date: June 30, 1998
- -------------------
John F. Barrett
/s/ Milton C. Boesel, Jr. Date: June 30, 1998
- -------------------------
Milton C. Boesel, Jr.
/s/ Gerald V. Dirvin Date: June 30, 1998
- --------------------
Gerald V. Dirvin
/s/ Thomas B. Donnell Date: June 30, 1998
- ---------------------
Thomas B. Donnell
/s/ Richard T. Farmer Date: June 30, 1998
- ---------------------
Richard T. Farmer
/s/ Ivan W. Gorr Date: June 30, 1998
- ----------------
Ivan W. Gorr
/s/ Joseph H. Head, Jr. Date: June 30, 1998
- -----------------------
Joseph H. Head, Jr.
<PAGE> 10
/s/ Joan R. Herschede Date: June 30, 1998
- ---------------------
Joan R. Herschede
Date: June __, 1998
- ---------------------
William G. Kagler
/s/ James d. Kiggen Date: June 30, 1998
- -------------------
James D. Kiggen
/s/ Mitchel Livingston Date: June 30, 1998
- ----------------------
Mitchel Livingston
Date: June __, 1998
- -------------------
Robert B. Morgan
Date: June __, 1998
- -------------------
James E. Rogers
/s/ Brian H. Rowe Date: June 30, 1998
- -----------------
Brian H. Rowe
/s/ George A. Schaefer, Jr. Date: June 30, 1998
- ---------------------------
George A. Schaefer, Jr.
Date: June __, 1998
- ----------------------
John J. Schiff, Jr.
/s/ Dennis J. Sullivan, Jr. Date: June 30, 1998
- ---------------------------
Dennis J. Sullivan, Jr.
/s/ Dudley S. Taft Date: June 30, 1998
- ------------------
Dudley S. Taft
<PAGE> 11
INDEX TO EXHIBITS
Exhibit Description of Exhibit
------- ----------------------
4.1 1998 Long-Term Incentive Stock Plan, as amended
4.2 Second Amended and Restated Articles of Incorporation [Filed
as an Exhibit to the Registrant's Form S-4, Registration No.
33-63966, and incorporated by reference herein]*
4.3 Code of Regulations [Filed as an Exhibit to the Registrant's
Form S-4, Registration No. 33-63966,0 and incorporated by
reference herein]*
5.1 Opinion of Counsel employed by Fifth Third Bancorp
23.1 Consent of Counsel employed by Fifth Third Bancorp (included
in opinion)
23.2 Consent of Deloitte & Touche, LLP
- -----------------
* Incorporated by reference.
<PAGE> 1
EXHIBIT 4.1
FIFTH THIRD BANCORP
1998 LONG-TERM INCENTIVE STOCK PLAN, AS AMENDED
ARTICLE 1.
ESTABLISHMENT, PURPOSE, AND DURATION
1.1. Establishment of the Plan. On January 19, 1998, the Board of
Directors of Fifth Third Bancorp (the "Company") adopted, subject to the
approval of stockholders, an incentive stock compensation plan known as the
"1998 Long-Term Incentive Stock Plan" (hereinafter referred to as the "Plan"),
which permits the grant of Incentive Stock Options, Nonqualified Stock Options,
Stock Appreciation Rights, Restricted Stock, Performance Units and Performance
Shares. The Plan is designed to comply with the performance-based compensation
exemption under Internal Revenue Code Section 162(m) and Treasury Regulations
issued by the Department of Treasury thereunder.
1.2. Purpose of the Plan. The purpose of the Plan is to promote the
success of the Company and its Subsidiaries by providing incentives to Key
Employees and directors of the Company and its Subsidiaries that will link their
personal interests to the long-term financial success of the Company and its
Subsidiaries and to growth in stockholder value. The Plan is designed to provide
flexibility to the Company and its Subsidiaries in their ability to motivate,
attract, and retain the services of Key Employees and directors upon whose
judgment, interest, and special effort the successful conduct of their
operations is largely dependent.
1.3. Duration of the Plan. The Plan commences on March 17, 1998, and
shall remain in effect, subject to the right of the Board of Directors to
terminate the Plan at any time pursuant to Article 13 herein, until all Shares
subject to it shall have been purchased or acquired according to the provisions
herein. However, in no event may an Award be granted under the Plan on or after
March 17, 2008, which is the tenth (10th) anniversary of the effective date of
the Plan.
ARTICLE 2.
DEFINITIONS AND CONSTRUCTION
2.1. Definitions. Whenever used in the Plan, the following terms shall
have the meanings set forth below and, when the meaning is intended, the initial
letter of the word is capitalized:
(a) "Award" means, individually or collectively, a grant under
this Plan of Incentive Stock Options, Nonqualified Stock Options, Stock
Appreciation Rights, Restricted Stock, Performance Units, or Performance Shares.
(b) "Beneficial Owner" shall have the meaning ascribed to such
term in Rule 13d-3 of the General Rules and Regulations under the Exchange Act.
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(c) "Board" or "Board of Directors" means the Board of
Directors of the Company.
(d) "Cause" shall mean the occurrence of any one of the
following:
(i) The willful and continued failure by a
Participant to substantially perform his/her duties (other than any such failure
resulting from the Participant's disability), after a written demand for
substantial performance is delivered to the Participant that specifically
identifies the manner in which the Company or any of its Subsidiaries, as the
case may be, believes that the Participant has not substantially performed
his/her duties, and the Participant has failed to remedy the situation within
ten (10) business days of receiving such notice; or
(ii) the Participant's conviction for committing a
felony in connection with the employment relationship; or
(iii) the willful engaging by the Participant in
gross misconduct materially and demonstrably injurious to the Company or any of
its Subsidiaries. However, no act, or failure to act, on the Participant's part
shall be considered "willful" unless done, or omitted to be done, by the
Participant not in good faith and without reasonable belief that his/her action
or omission was in the best interest of the Company or any of its Subsidiaries.
(e) "Change in Control" shall be deemed to have occurred if
the conditions set forth in any one of the following paragraphs shall have been
satisfied:
(i) any Person (other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or
any of its Subsidiaries, or a corporation owned directly or indirectly by the
common stockholders of the Company in substantially the same proportions as
their ownership of Stock of the Company), is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing 25% or more of
the combined voting power of the Company's then outstanding securities; or
(ii) during any period of two (2) consecutive years
(not including any period prior to the Effective Date), individuals who at the
beginning of such period constitute the Board and any new director, whose
election by the Board or nomination for election by the Company's stockholders,
was approved by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof; or
(iii) the stockholders of the Company approve (A)a
plan of complete liquidation of the Company; or (B)an agreement for the sale or
disposition of all or substantially all the Company's assets; or (C)a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or
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<PAGE> 3
by being converted into voting securities of the surviving entity), at least 50%
of the combined voting power of the voting securities of the Company (or such
surviving entity) outstanding immediately after such merger or consolidation.
However, in no event shall a Change in Control be
deemed to have occurred, with respect to a Participant, if the Participant is
part of a purchasing group which consummates the Change in Control transaction.
The Participant shall be deemed "part of a purchasing group..." for purposes of
the preceding sentence if the Participant is an equity participant or has agreed
to become an equity participant in the purchasing company or group (except for
(i)passive ownership of less than 5% of the voting securities of the purchasing
company or (ii)ownership of equity participation in the purchasing company or
group which is otherwise not deemed to be significant, as determined prior to
the Change in Control by a majority of the nonemployee continuing members of the
Board).
(f) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(g) "Committee" means the committee appointed by the Board to
administer the Plan pursuant to Article 3 herein.
(h) "Company" means Fifth Third Bancorp, an Ohio corporation,
or any successor thereto as provided in Article 15 herein.
(i) "Covered Employee" means any Participant designated prior
to the grant of Restricted Stock, Performance Units or Performance Shares by the
Committee who is or may be a "covered employee" within the meaning of Section
162(m)(3) of the Code in the year in which such Restricted Stock, Performance
Units or Performance Shares are taxable to such Participant.
(j) "Director" means an Employee Director and a Non-employee
Director, including without limitation an Outside Director.
(k) "Employee Director" means a director who is also an
employee of the Company.
(l) "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time.
(m) "Fair Market Value" means the last date, as reported on
Nasdaq National Market.
(n) "Incentive Stock Option" or "ISO" means an option to
purchase Stock, granted under Article 6 herein, which is designated as an
incentive stock option and is intended to meet the requirements of Section 422
of the Code.
(o) "Key Employee" means an employee of the Company or any of
its Subsidiaries, including an employee who is an officer or a director of the
Company or any of its Subsidiaries,
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<PAGE> 4
who, in the opinion of the Committee, can contribute significantly to the growth
and profitability of the Company and its Subsidiaries.
"Key Employee" also may include any other employee, identified
by the Committee, in special situations involving extraordinary performance,
promotion, retention, or recruitment. The granting of an Award under this Plan
shall be deemed a determination by the Committee that such employee is a Key
Employee, but shall not create a right to remain a Key Employee.
(p) "Non-employee Director" shall have the meaning assigned to
such term in Rule 16b-3(b)(3), as amended from time to time, promulgated by the
Securities and Exchange Commission under the Exchange Act.
(q) "Non-employee Subsidiary Director" means a director of a
Subsidiary who is not also an employee of the Company, an employee of any
Subsidiary or a director or officer of the Company.
(r) "Nonqualified Stock Option" or "NQSO" means an option to
purchase Stock, granted under Article 6 herein, which is not intended to be an
Incentive Stock Option.
(s) "Option" means an Incentive Stock Option or a Nonqualified
Stock Option.
(t) "Outside Director" means any director who qualifies as an
"outside director" as that term is defined in Code Section 162(m) and the
regulations issued thereunder.
(u) "Participant" means a Key Employee, a Director or a
Non-employee Subsidiary Director who has been granted an Award under the Plan.
(v) "Performance Share" means an Award, designated as a
performance share, granted to a Participant pursuant to Article 9 herein.
(w) "Performance Unit" means an Award, designated as a
performance unit, granted to a Participant pursuant to Article 9 herein.
(x) "Period of Restriction" means the period during which the
transfer of Shares of Restricted Stock is restricted, during which the
Participant is subject to a substantial risk of forfeiture, pursuant to Article
8 herein.
(y) "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d)
thereof, including a "group" as defined in Section 13(d) thereof.
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(z) "Plan" means this 1998 Long-Term Incentive Stock Plan of
Fifth Third Bancorp, as herein described and as hereafter from time to time
amended.
(aa) "Restricted Stock" means an Award of Stock granted to a
Participant pursuant to Article 8 herein.
(bb) "Stock" or "Shares" means the common stock without par
value of the Company.
(cc) "Stock Appreciation Right" or "SAR" means an Award,
designated as a Stock appreciation right, granted to a Participant pursuant to
Article 7 herein.
(dd) "Subsidiary" shall mean any corporation which is a
subsidiary corporation of the Company, as that term is defined in Section
425(f)of the Code.
(ee) "Voting Stock" shall mean securities of any class or
classes of stock of a corporation, the holders of which are ordinarily, in the
absence of contingencies, entitled to elect a majority of the corporate
directors.
2.2. Gender and Number. Except where otherwise indicated by the
context, any masculine term used herein also shall include the feminine, the
plural shall include the singular, and the singular shall include the plural.
2.3. Severability. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of the Plan, and the Plan shall be construed and enforced as
if the illegal or invalid provision had not been included.
ARTICLE 3.
ADMINISTRATION
3.1. The Committee. The Plan shall be administered by a committee (the
"Committee") consisting of not less than two directors who shall be appointed
from time to time by, and shall serve at the discretion of, the Board of
Directors. To the extent required to comply with Rule 16b-3 under the Exchange
Act, each member of the Committee shall qualify as a Non-employee Director. To
the extent required to comply with Code Section 162(m), each member of the
Committee also shall be an Outside Director.
3.2. Authority of the Committee. Subject to the provisions of the Plan,
the Committee shall have full power to construe and interpret the Plan; to
establish, amend or waive rules and regulations for its administration; to
accelerate the exercisability of any Award or the end of a performance period or
the termination of any Period of Restriction or any award agreement, or any
other
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instrument relating to an Award under the Plan; and (subject to the provisions
of Article 13 herein) to amend the terms and conditions of any outstanding
Option, Stock Appreciation Right or other Award to the extent such terms and
conditions are within the discretion of the Committee as provided in the Plan.
Notwithstanding the foregoing, the Committee shall have no authority to adjust
upwards the amount payable to a Covered Employee with respect to a particular
Award, to take any of the foregoing actions or to take any other action to the
extent that such action or the Committee's ability to take such action would
cause any Award under the Plan to any Covered Employee to fail to qualify as
"performance-based compensation" within the meaning of Code Section 162(m)(4)
and the regulations issued thereunder. Also notwithstanding the foregoing, no
action of the Committee (other than pursuant to Section 4.3 hereof or Section
9.4 hereof) may, without the consent of the person or persons entitled to
exercise any outstanding Option or Stock Appreciation Right or to receive
payment of any other outstanding Award, adversely affect the rights of such
person or persons.
3.3. Selection of Participants. The Committee shall have the authority
to grant Awards under the Plan, from time to time, to such Key Employees
(including officers and directors who are employees), Directors and Non-employee
Subsidiary Directors as may be selected by it. The Committee shall select
Participants from among those who they have identified as being Key Employees
and Directors and Non-employee Subsidiary Directors.
3.4. Decisions Binding. All determinations and decisions made by the
Committee pursuant to the provisions of the Plan and all related orders or
resolutions of the Board of Directors shall be final, conclusive and binding on
all persons, including the Company and its Subsidiaries, its stockholders,
employees, and Participants and their estates and beneficiaries, and such
determinations and decisions shall not be reviewable.
3.5. Delegation of Certain Responsibilities. The Committee may, subject
to the terms of the Plan and applicable law, appoint such agents as it deems
necessary or advisable for the proper administration of the Plan under this
Article 3; provided, however, that except as provided below the Committee may
not delegate its authority to grant Awards under the Plan or to correct errors,
omissions or inconsistencies in the Plan. The Committee may delegate to the
Company's Chief Executive Officer its authority under this Article 3 to grant
awards to Key Employees who are neither (a)Covered Employees nor (b)officers of
the Company or its Subsidiaries who are subject to the reporting requirements of
Section 16(a) of the Exchange Act. All authority delegated by the Committee
under this Section 3.5 shall be exercised in accordance with the provisions of
the Plan and any guidelines for the exercise of such authority that may from
time to time be established by the Committee.
3.6. Procedures of the Committee. All determinations of the Committee
shall be made by not less than a majority of its members present at the meeting
(in person or otherwise) at which a quorum is present. A majority of the entire
Committee shall constitute a quorum for the transaction of business. If only two
members serve on the Committee, all determinations of the Committee must
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be made unanimously. Any action required or permitted to be taken at a meeting
of the Committee may be taken without a meeting if a unanimous written consent,
which sets forth the action, is signed by each member of the Committee and filed
with the minutes for proceedings of the Committee. Service on the Committee
shall constitute service as a director of the Company so that members of the
Committee shall be entitled to indemnification, limitation of liability and
reimbursement of expenses with respect to their services as members of the
Committee to the same extent that they are entitled under the Company's Articles
of Incorporation, as amended from time to time, and Ohio law for their services
as directors of the Company.
3.7. Award Agreements. Each Award under the Plan shall be evidenced by
an award agreement which shall be signed by an authorized officer of the Company
and by the Participant, and shall contain such terms and conditions as may be
approved by the Committee. Such terms and conditions need not be the same in all
cases.
3.8. Rule 16b-3 Requirements. Not withstanding any other provision of
the Plan, the Board or the Committee may impose such conditions on any Award
(including, without limitation, the right of the Board or the Committee to limit
the time of exercise to specified periods) as may be required to satisfy the
requirements of Rule 16b-3 (or any successor rule), under the Exchange Act
("Rule 16b-3").
ARTICLE 4.
STOCK SUBJECT TO THE PLAN
4.1. Number of Shares. Subject to adjustment as provided in Section 4.3
herein, the aggregate number of Shares that may be delivered under the Plan at
any time shall not exceed ten million one hundred three thousand five hundred
sixty five (10,103,565) Shares of common stock of the Company. Stock delivered
under the Plan may consist, in whole or in part, of authorized and unissued
Shares or treasury Shares. The exercise of a Stock Appreciation Right and the
payment of Performance Shares or Performance Units shall not be deemed to
constitute an issuance of Stock under the Plan unless payment is made in Stock,
in which case only the number of Shares issued in payment of the Stock
Appreciation Right, Performance Share or Performance Unit Award shall constitute
an issuance of Stock under the Plan.
4.2. Lapsed Awards. If any Award (other than Restricted Stock) granted
under this Plan terminates, expires, or lapses for any reason, any Stock subject
to such Award again shall be available for the grant of an Award under the Plan.
4.3. Adjustments in Authorized Shares. In the event of any merger,
reorganization, consolidation, recapitalization, separation, liquidation, Stock
dividend, split-up, share combination, or other change in the corporate
structure of the Company affecting the Stock, such adjustment shall be made in
the number and class of shares which may be delivered under the Plan, and in the
number
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and class of and/or price of shares subject to outstanding Options, Stock
Appreciation Rights, Restricted Stock Awards, Performance Shares, and
Performance Units granted under the Plan, as may be determined to be appropriate
and equitable by the Committee, in its sole discretion, to prevent dilution or
enlargement of rights; and provided that the number of shares subject to any
Award shall always be a whole number. Any adjustment of an Incentive Stock
Option under this paragraph shall be made in such a manner so as not to
constitute a modification within the meaning of Section 424(h)(3) of the Code.
ARTICLE 5.
ELIGIBILITY AND PARTICIPATION
5.1. Eligibility. Persons eligible to participate in this Plan include
all employees of the Company and its Subsidiaries who, in the opinion of the
Committee, are Key Employees. Directors and Non-employee Subsidiary Directors
may also participate in this Plan.
5.2. Actual Participation. Subject to the provisions of the Plan, the
Committee may from time to time select those Key Employees, Directors and
Non-employee Subsidiary Directors to whom Awards shall be granted and determine
the nature and amount of each Award. No employee, Director or Non-employee
Subsidiary Director shall have any right to be granted an Award under this Plan
even if previously granted an Award.
ARTICLE 6.
STOCK OPTIONS
6.1. Grant of Options. Subject to the terms and provisions of the Plan,
Options may be granted to Key Employees at any time and from time to time as
shall be determined by the Committee. Subject to adjustment as set forth in
Section 4.3, the maximum number of Shares subject to Options granted to any
individual Participant in any calendar year shall be Four Hundred Thousand
(400,000) Shares. The Committee shall have the sole discretion, subject to the
requirements of the Plan, to determine the actual number of Shares subject to
Options granted to any Participant. The Committee may grant any type of Option
to purchase Stock that is permitted by law at the time of grant including, but
not limited to, ISOs and NQSOs. However, no employee may receive an Award of
Incentive Stock Options that are first exercisable during any calendar year to
the extent that the aggregate Fair Market Value of the Stock (determined at the
time the options are granted) exceeds $100,000. Nothing in this Article 6 shall
be deemed to prevent the grant of NQSOs in excess of the maximum established by
Section 422 of the Code. Unless otherwise expressly provided at the time of
grant, Options granted under the Plan will be ISOs.
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6.2. Option Agreement. Each Option grant shall be evidenced by an
Option agreement that shall specify the type of Option granted, the Option
price, the duration of the Option, the number of Shares to which the Option
pertains, and such other provisions as the Committee shall determine. The Option
agreement shall specify whether the Option is intended to be an Incentive Stock
Option within the meaning of Section 422 of the Code, or a Nonqualified Stock
Option whose grant is not intended to be subject to the provisions of Code
Section 422.
6.3. Option Price. The purchase price per share of Stock covered by an
Option shall be determined by the Committee but shall not be less than 100% of
the Fair Market Value of such Stock on the date the Option is granted.
Notwithstanding the authority granted to the Committee pursuant to Section 3.2
of the Plan, once an Option is granted the Committee shall have no authority to
reduce the Option price, except pursuant to Section 4.3 of the Plan related to
an adjustment in the number of Shares.
An Incentive Stock Option granted to an employee who, at the time of
Grant, owns (within the meaning of Section 424(d) of the Code) stock possessing
more than 10% of the total combined voting power of all classes of Stock of the
Company, shall have an exercise price which is at least 110% of the Fair Market
Value of the Stock subject to the Option.
6.4. Duration of Options. Each Option shall expire at such time as the
Committee shall determine at the time of grant provided, however, that no ISO
shall be exercisable later than the tenth(10th) anniversary date of its grant
and that no ISO granted to an employee who, at the time of grant, has (within
the meaning of Section 425(d) of the Code) stock possessing more than 10% of the
total combined voting power of all classes of stock of the Company, shall be
exercisable later than the fifth (5th) anniversary date of its grant.
6.5. Exercise of Options. Subject to Section 3.8 herein, Options
granted under the Plan shall be exercisable at such times and be subject to such
restrictions and conditions as the Committee shall in each instance approve,
which need not be the same for all Participants.
6.6. Payment. Options shall be exercised by the delivery of a written
notice to the Company setting forth the number of Shares with respect to which
the Option is to be exercised, accompanied by full payment for the Shares. The
Option price upon exercise of any Option shall be payable to the Company in full
either (a)in cash or its equivalent, (b)by tendering shares of previously
acquired Stock having a Fair Market Value at the time of exercise equal to the
total Option price, (c) by a combination of (a) or (b). The proceeds from such a
payment shall be added to the general funds of the Company and shall be used for
general corporate purposes. As soon as practicable, after receipt of written
notification and payment, the Company shall deliver to the Participant Stock
certificates in an appropriate amount based upon the number of Options
exercised, issued in the Participant's name.
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6.7. Restrictions on Stock Transferability. The Committee shall impose
such restrictions on any Shares acquired pursuant to the exercise of an Option
under the Plan as it may deem advisable, including, without limitation,
restrictions under applicable Federal securities law, under the requirements of
any stock exchange upon which such Shares are then listed and under any blue sky
or state securities laws applicable to such Shares.
6.8. Termination of Employment Due to Death, Disability, or Retirement.
In the event the employment of a Participant is terminated by reason of death or
disability (as defined under the then established rules of the Company or any of
its Subsidiaries, as the case may be), (a)any of such Participant's outstanding
ISOs may be exercised on or before the earlier of the expiration date of the
ISOs or one year after such date of death or date of termination due to
disability, and (b) any of such Participant's NQSOs may be exercised on or
before the expiration date of the NQSOs following the date of death or date of
termination due to disability, by such person or persons as shall have acquired
the Participant's rights under the Option pursuant to Article 10 hereof or by
will or by the laws of descent and distribution. In the event the employment of
a Participant is terminated by reason of retirement under the provisions of any
retirement plan of the Company or any Subsidiary, (a) any of such Participant's
outstanding ISOs may be exercised, (subject to Section 3.8 herein) on or before
the earlier of the expiration date of the ISOs or three months following such
termination due to retirement and (b)any of such Participant's NQSOs may be
exercised on or before the expiration date of the NQSOs following the date of
termination due to retirement. In the case of ISOs, the favorable tax treatment
prescribed under Section 422 of the Internal Revenue Code of 1986, as amended,
may not be available if the Options are not exercised within the Code Section
422 prescribed time period after termination of employment for death,
disability, or retirement.
6.9. Termination of Employment for Other Reasons. If the employment of
a Participant shall terminate for any reason other than death, disability, or
retirement all of the Participant's outstanding Options shall be immediately
forfeited back to the Company. The Committee may waive in its sole discretion
(subject to Section 3.8) the automatic forfeiture of any or all such Options.
6.10. Nontransferability of Options. No Option granted under the Plan
may be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, otherwise than by will or by the laws of descent and distribution.
Further, all Options granted to a Participant under the Plan shall be
exercisable during his lifetime only by such Participant.
ARTICLE 7.
STOCK APPRECIATION RIGHTS
7.1. Grant of Stock Appreciation Rights. Subject to the terms and
conditions of the Plan, Stock Appreciation Rights may be granted to
Participants, at the discretion of the Committee. Subject to adjustment as set
forth in Section 4.3, the maximum number of Shares subject to SARs granted to
any individual Participant in any calendar year shall be four hundred thousand
(400,000)
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Shares. Subject to the immediately preceding sentence, the Committee shall have
the sole discretion, subject to the requirements of the Plan, to determine the
actual number of Shares subject to SARs granted to any Participant.
7.2. Exercise of SARs. Subject to Section 3.8 herein and Section 7.3
herein, SARs may be exercised upon whatever terms and conditions the Committee,
in its sole discretion, imposes upon the SARs, including, but not limited to, a
corresponding proportional reduction in previously granted Options.
7.3. Payment of SAR Amount. Upon exercise of the SAR, the holder shall
be entitled to receive payment of an amount determined by multiplying:
(a) The difference between the Fair Market Value of a Share on
the date of exercise over the price fixed by the Committee at the date of grant
(which price shall not be less than 100% of the market price of a Share on the
date of grant) (the Exercise Price); by
(b) The number of Shares with respect to which the SAR is
exercised.
7.4. Form and Timing of Payment. Payment to a Participant, upon SAR
exercise, will be made in cash or stock, at the discretion of the Committee,
within ten calendar days of the exercise.
7.5. Term of SAR. The term of an SAR granted under the Plan shall not
exceed ten years.
7.6. Termination of Employment. In the event the employment of a
Participant is terminated by reason of death, disability, retirement, or any
other reason, the exercisability of any outstanding SAR shall terminate in the
manner provided under Sections 6.8 and 6.9 hereof.
7.7. Nontransferability of SARs. No SAR granted under the Plan may be
sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
otherwise than by will or by the laws of descent and distribution. Further, all
SARs granted to a Participant under the Plan shall be exercisable during his
lifetime only by such Participant.
ARTICLE 8.
RESTRICTED STOCK
8.1. Grant of Restricted Stock. Subject to the terms and conditions of
the Plan, the Committee, at any time and from time to time, may grant Shares of
Restricted Stock under the Plan to such Participants and in such amounts as it
shall determine. In the case of Covered Employees, the Committee may condition
the vesting or lapse of the Period of Restriction established pursuant to
Section 8.3 upon the obtainment of one or more of the Performance Goals utilized
for purposes of Performance Units and Performance Shares pursuant to Article 9
hereof. Subject to adjustment
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as set forth in Section 4.3, the maximum number of Shares of Restricted Stock
granted to any individual Participant in any calendar year shall be Four Hundred
Thousand (400,000) Shares. In addition, the total Shares of Restricted Stock
under the Plan, when combined with outstanding Performance Units and Performance
Shares, shall not exceed twenty percent (20%) of the total authorized shares
under Section 4.1 of the Plan.
8.2. Restricted Stock Agreement. Each Restricted Stock grant shall be
evidenced by a Restricted Stock Agreement that shall specify the Period of
Restriction, or periods, the number of Shares of Restricted Stock granted, and
such other provisions as the Committee shall determine.
8.3. Transferability. Except as provided in this Article 8 or in
Section 3.8 herein, the Shares of Restricted Stock granted hereunder may not be
sold, transferred, pledged, assigned, or otherwise alienated or hypothecated
until the termination of the applicable Period of Restriction or for such period
of time as shall be established by the Committee and as shall be specified in
the Restricted Stock Agreement, or upon earlier satisfaction of other conditions
(including any performance goals) as specified by the Committee in its sole
discretion and set forth in the Restricted Stock Agreement. All rights with
respect to the Restricted Stock granted to a Participant under the Plan shall be
exercisable during his lifetime only by such Participant.
8.4. Other Restrictions. The Committee shall impose such other
restrictions on any Shares of Restricted Stock granted pursuant to the Plan as
it may deem advisable including, without limitation, restrictions under
applicable Federal or state securities laws, and the Committee may legend
certificates representing Restricted Stock to give appropriate notice of such
restrictions.
8.5. Certificate Legend. In addition to any legends placed on
certificates pursuant to Section 8.4 herein, each certificate representing
Shares of Restricted Stock granted pursuant to the Plan shall bear the following
legend:
"The sale or other transfer of the shares of stock represented
by this certificate, whether voluntary, involuntary, or by operation of law, is
subject to certain restrictions on transfer set forth in the 1998 Long-Term
Incentive Stock Plan of Fifth Third Bancorp in the rules and administrative
procedures adopted pursuant to such Plan, and in a Restricted Stock Agreement
dated _________________. A copy of the Plan, such rules and procedures, and such
Restricted Stock Agreement may be obtained from the Secretary of Fifth Third
Bancorp."
8.6. Removal of Restrictions. Except as otherwise provided in this
Article, Shares of Restricted Stock covered by each Restricted Stock grant made
under the Plan shall become freely transferable by the Participant after the
last day of the Period of Restriction. Once the Shares are released from the
restrictions, the Participant shall be entitled to have the legend required by
Section 8.5 removed from his Stock certificate.
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8.7. Voting Rights. During the Period of Restriction, Participants
holding Shares of Restricted Stock granted hereunder may exercise full voting
rights with respect to those Shares, unless otherwise specified in the
applicable Restricted Stock Agreement.
8.8. Dividends and Other Distributions. During the Period of
Restriction, Participants holding Shares of Restricted Stock granted hereunder
shall be entitled to receive all dividends and other distributions paid with
respect to those Shares while they are so held. If any such dividends or
distributions are paid in Shares, the Shares shall be subject to the same
restrictions on transferability as the Shares of Restricted Stock with respect
to which they were paid.
8.9. Termination of Employment Due to Retirement. In the event that a
Participant terminates his employment with the Company or any of its
Subsidiaries because of normal retirement (as defined under the then established
rules of the Company or any of its Subsidiaries, as the case may be), any
remaining Period of Restriction applicable to the Restricted Stock pursuant to
Section 8.3 hereof shall automatically terminate and, except as otherwise
provided in Section 8.4 or Section 3.8 hereof or as otherwise determined to be
appropriate by the Committee in its sole discretion to prevent such compensation
from failing to qualify as performance based compensation under Section 162(m)
of the Code, the Shares of Restricted Stock shall thereby be free of
restrictions and be freely transferable. In the event that a Participant
terminates his employment with the Company or any of its Subsidiaries because of
early retirement (as defined under the then established rules of the Company or
any of its Subsidiaries, as the case may be), the Committee in its sole
discretion (subject to Section 3.8 herein) may waive the restrictions remaining
on any or all Shares of Restricted Stock pursuant to Section 8.3 herein and add
such new restrictions to those Shares of Restricted Stock as it deems
appropriate.
8.10. Termination of Employment Due to Death or Disability. In the
event a Participant's employment is terminated because of death or disability
(as defined under the then established rules of the Company or any of its
Subsidiaries, as the case may be) during the Period of Restriction, any
remaining Period of Restriction applicable to the Restricted Stock pursuant to
Section 8.3 herein shall automatically terminate and, except as otherwise
provided in Section 8.4. herein or as otherwise determined to be appropriate by
the Committee in its sole discretion to prevent such compensation from failing
to qualify as performance based compensation under Section 162(m) of the Code,
the shares of Restricted Stock shall thereby be free of restrictions and be
fully transferable.
8.11. Termination of Employment for Other Reasons. In the event that a
Participant terminates his employment with the Company or any of its
Subsidiaries for any reason other than for death, disability, or retirement, as
set forth in Sections 8.9 and 8.10 herein, during the Period of Restriction,
then any shares of Restricted Stock still subject to restrictions as of the date
of such termination shall automatically be forfeited and returned to the
Company; provided, however, that in the event of an involuntary termination of
the employment of a Participant by the Company or any of its Subsidiaries other
than for Cause, the Committee, in its sole discretion (subject to Section 3.8
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herein), may waive the automatic forfeiture of any or all such Shares and may
add such new restrictions to such Shares of Restricted Stock as it deems
appropriate.
ARTICLE 9.
PERFORMANCE UNITS AND PERFORMANCE SHARES
9.1. Grant of Performance Units or Performance Shares. Subject to the
terms and conditions of the Plan, Performance Units or Performance Shares may be
granted to Participants at any time and from time to time as shall be determined
by the Committee. The Committee shall have complete discretion in determining
the number of Performance Units or Performance Shares granted to each
Participant. The total number of Performance Units or Performance Shares issued
under the Plan when combined with all shares of Restricted Stock shall not
exceed twenty percent (20%) of the total authorized outstanding Shares pursuant
to Section 4.1 of the Plan.
9.2. Value of Performance Units and Performance Shares. The Committee
shall set performance goals over certain periods to be determined in advance by
the Committee ("Performance Periods"). Prior to each grant of Performance Units
or Performance Shares, the Committee shall establish an initial value for each
Performance Unit and an initial number of Shares for each Performance Share
granted to each Participant for that Performance Period. Prior to each grant of
Performance Units or Performance Shares, the Committee also shall set the
performance goals that will be used to determine the extent to which the
Participant receives a payment of the value of the Performance Units or number
of Shares for the Performance Shares awarded for such Performance Period. These
goals will be based on the attainment, by the Company or its Subsidiaries, of
certain objective performance measures, which shall include one or more of the
following: return on equity, earnings per share and net income. Such performance
goals also may be based upon the attainment of specified levels of performance
of the Company or one or more Subsidiaries under one or more of the measures
described above relative to the performance of other corporations. With respect
to each such performance measure utilized during a Performance Period, the
Committee shall assign percentages to various levels of performance which shall
be applied to determine the extent to which the Participant shall receive a
payout of the values of Performance Units and number of Performance Shares
awarded. With respect to Covered Employees, all performance goals shall be
objective performance goals satisfying the requirements for "performance-based
compensation" within the meaning of Section 162(m)(4) of the Code, and shall be
set by the Committee within the time period prescribed by Section 162(m) of the
Code and related regulations.
9.3. Payment of Performance Units and Performance Shares. After a
Performance Period has ended, the holder of a Performance Unit or Performance
Share shall be entitled to receive the value thereof as determined by the
Committee. The Committee shall make this determination by first determining the
extent to which the performance goals set pursuant to Section 9.2 have been met.
It will then determine the applicable percentage (which may exceed 100%) to be
applied to, and will
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apply such percentage to, the value of Performance Units or number of
Performance Shares to determine the payout to be received by the Participant. In
addition, with respect to Performance Units and Performance Shares granted to
any Covered Employee, no payout shall be made hereunder except upon written
certification by the Committee that the applicable performance goal or goals
have been satisfied to a particular extent. The maximum amount payable in cash
to any Covered Employee with respect to any Performance Period pursuant to any
Performance Unit or Performance Share award shall be $2 million, and the maximum
number of Shares that may be issued to any Covered Employee with respect to any
Performance Period pursuant to any Performance Unit or Performance Share award
is Four Hundred Thousand (400,000) (subject to adjustment as provided in Section
4.3).
9.4. Committee Discretion to Adjust Awards. Subject to Section 3.2
regarding Awards to Covered Employees, the Committee shall have the authority to
modify, amend or adjust the terms and conditions of any Performance Unit award
or Performance Share award, at any time or from time to time, including but not
limited to the performance goals.
9.5. Form and Timing of Payment. The payment described in Section 9.3
herein shall be made in cash, Stock, or a combination thereof as determined by
the Committee. Payment may be made in a lump sum or installments as prescribed
by the Committee. If any payment is to be made on a deferred basis, the
Committee may provide for the payment of dividend equivalents or interest during
the deferral period. Any stock issued in payment of a Performance Unit or
Performance Share shall be subject to the restrictions on transfer in Section
3.8 herein.
9.6. Termination of Employment Due to Death, Disability, or Retirement.
In the case of death, disability, or retirement (each of disability and
retirement as defined under the established rules of the Company or any of its
Subsidiaries, as the case may be), the holder of a Performance Unit or
Performance Share shall receive a prorated payment based on the Participant's
number of full months of service during the Performance Period, further adjusted
based on the achievement of the performance goals during the entire Performance
Period, as computed by the Committee. Payment shall be made at the time payments
are made to Participants who did not terminate service during the Performance
Period.
9.7. Termination of Employment for Other Reasons. In the event that a
Participant terminates employment with the Company or any of its Subsidiaries
for any reason other than death, disability, or retirement, all Performance
Units and Performance Shares shall be forfeited; provided, however, that in the
event of an involuntary termination of the employment of the Participant by the
Company or any of its Subsidiaries other than for Cause, the Committee in its
sole discretion may waive the automatic forfeiture provisions and pay out on a
prorata basis.
9.8. Nontransferability. No Performance Units or Performance Shares
granted under the Plan may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, otherwise than by will or by the laws of descent and
distribution until the termination of the applicable
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Performance Period. All rights with respect to Performance Units and Performance
Shares granted to a Participant under the Plan shall be exercisable during his
lifetime only by such Participant.
ARTICLE 10.
BENEFICIARY DESIGNATION
Each Participant under the Plan may, from time to time, name any
beneficiary or beneficiaries (who may be named contingently or successively and
who may include a trustee under a will or living trust) to whom any benefit
under the Plan is to be paid in case of his death before he receives any or all
of such benefit. Each designation will revoke all prior designations by the same
Participant, shall be in a form prescribed by the Committee, and will be
effective only when filed by the Participant in writing with the Committee
during his lifetime. In the absence of any such designation or if all designated
beneficiaries predecease the Participant, benefits remaining unpaid at the
Participant's death shall be paid to the Participant's estate.
ARTICLE 11.
RIGHTS OF EMPLOYEES
11.1. Employment. Nothing in the Plan shall interfere with or limit in
any way the right of the Company or any of its Subsidiaries to terminate any
Participant's employment at any time, nor confer upon any Participant any right
to continue in the employ of the Company or any of its Subsidiaries.
11.2. Participation. No employee Director or Non-employee Subsidiary
Director shall have a right to be selected as a Participant, or, having been so
selected, to be selected again as a Participant.
11.3. No Implied Rights; Rights on Termination of Service. Neither the
establishment of the Plan nor any amendment thereof shall be construed as giving
any Participant, beneficiary, or any other person any legal or equitable right
unless such right shall be specifically provided for in the Plan or conferred by
specific action of the Committee in accordance with the terms and provisions of
the Plan. Except as expressly provided in this Plan, neither the Company nor any
of its Subsidiaries shall be required or be liable to make any payment under the
Plan.
11.4. No Right to Company Assets. Neither the Participant nor any other
person shall acquire, by reason of the Plan, any right in or title to any
assets, funds or property of the Company or any of its Subsidiaries whatsoever
including, without limiting the generality of the foregoing, any specific funds,
assets, or other property which the Company or any of its Subsidiaries, in its
sole discretion, may set aside in anticipation of a liability hereunder. Any
benefits which become payable hereunder shall be paid from the general assets of
the Company or the applicable subsidiary. The
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Participant shall have only a contractual right to the amounts, if any, payable
hereunder unsecured by any asset of the Company or any of its Subsidiaries.
Nothing contained in the Plan constitutes a guarantee by the Company or any of
its Subsidiaries that the assets of the Company or the applicable subsidiary
shall be sufficient to pay any benefit to any person.
ARTICLE 12.
CHANGE IN CONTROL
12.1. Stock Based Awards. Notwithstanding any other provisions of the
Plan, in the event of a Change in Control, all Stock based awards granted under
this Plan shall immediately vest 100% in each Participant (subject to Section
3.8 herein), including Incentive Stock Options, Nonqualified Stock Options,
Stock Appreciation Rights, and Restricted Stock.
12.2. Performance Based Awards. Notwithstanding any other provisions of
the Plan, in the event of a Change in Control, all performance based awards
granted under this Plan shall be immediately paid out in cash, including
Performance Units and Performance Shares. The amount of the payout shall be
based on the higher of: (i)the extent, as determined by the Committee, to which
performance goals, established for the Performance Period then in progress have
been met up through and including the effective date of the Change in Control or
(ii)100% of the value on the date of grant of the Performance Units or number of
Performance Shares.
ARTICLE 13.
AMENDMENT, MODIFICATION, AND TERMINATION
13.1. Amendment, Modification, and Termination. At any time and from
time to time, the Board may terminate, amend, or modify the Plan, subject to the
approval of the stockholders of the Company if required by the Code, by the
insider trading rules of Section 16 of the Exchange Act, by any national
securities exchange or system on which the Stock is then listed or reported, or
by any regulatory body having jurisdiction with respect hereto.
13.2. Awards Previously Granted. No termination, amendment or
modification of the Plan other than pursuant to Section 4.3 hereof shall in any
manner adversely affect any Award theretofore granted under the Plan, without
the written consent of the Participant.
ARTICLE 14.
WITHHOLDING
14.1. Tax Withholding. The Company and any of its Subsidiaries shall
have the power and the right to deduct or withhold, or require a Participant to
remit to the Company or any of its
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Subsidiaries, an amount sufficient to satisfy Federal, state and local taxes
(including the Participant's FICA obligation) required by law to be withheld
with respect to any grant, exercise, or payment made under or as a result of
this Plan.
14.2. Stock Delivery or Withholding. With respect to withholding
required upon the exercise of Nonqualified Stock Options, or upon the lapse of
restrictions on Restricted Stock, participants may elect, subject to the
approval of the Committee, to satisfy the withholding requirement, in whole or
in part, by tendering to the Company shares of previously acquired Stock or by
having the Company withhold Shares of Stock, in each such case in an amount
having a Fair Market Value equal to the amount required to be withheld to
satisfy the tax withholding obligations described in Section 14.1. The value of
the Shares to be tendered or withheld is to be based on the Fair Market Value of
the Stock on the date that the amount of tax to be withheld is to be determined.
All Stock withholding elections shall be irrevocable and made in writing, signed
by the Participant on forms approved by the Committee in advance of the day that
the transaction becomes taxable.
Stock withholding elections made by Participants who are subject to the
short-swing profit restrictions of Section 16 of the Exchange Act must comply
with the additional restrictions of Section 16 and Rule 16b-3 in making their
elections.
ARTICLE 15.
SUCCESSORS
All obligations of the Company under the Plan, with respect to Awards
granted hereunder, shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation or otherwise, of all or substantially all of the business
and/or assets of the Company.
ARTICLE 16.
REQUIREMENTS OF LAW
16.1. Requirements of Law. The granting of Awards and the issuance of
Shares of Stock under this Plan shall be subject to all applicable laws, rules,
and regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
16.2. Governing Law. The Plan, and all agreements hereunder, shall be
construed in accordance with and governed by the laws of the State of Ohio.
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EXHIBIT 5.1
June 30, 1998
Fifth Third Bancorp
38 Fountain Square Plaza
511 Walnut Street
Cincinnati, Ohio 45202
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
I am General Counsel of Fifth Third Bancorp, an Ohio corporation (the
"Company"), and have acted as counsel to the Company in connection with the
registration under the Securities Act of 1933, as amended, on Form S-8 (the
"Registration Statement") of up to 10,103,565 shares of the Company's Common
Stock, no par value per share (the "Shares"), issuable under the Fifth Third
Bancorp 1998 Long-Term Incentive Stock Plan.
As counsel for the Company, I have made such legal and factual
examinations and inquiries as I deemed advisable for the purpose of rendering
this opinion. In addition, I have examined such documents and materials,
including the Second Amended and Articles of Incorporation and Code of
Regulations of the Company, and other corporate records of the Company as I have
deemed necessary and appropriate for the purpose of this opinion.
On the basis of the foregoing, I am of the opinion that the 10,103,565
shares of Common Stock of the Company 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,
/s/ Paul L. Reynolds
--------------------
Paul L. Reynolds, Counsel
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EXHIBIT 23.2
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 15, 1998,
incorporated by reference in the Annual Report on Form 10-K of Fifth Third
Bancorp for the year ended December 31, 1997.
DELOITTE & TOUCHE LLP
Cincinnati, Ohio
June 30, 1998
