As filed with the Securities and Exchange Commission on November 7, 2001
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FIFTH THIRD BANCORP
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(Exact name of registrant as specified in its charter)
Ohio 31-0854434
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Fifth Third Center
Cincinnati, Ohio 45263
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(Address of principal executive
offices, including zip code)
USB, Inc. 1996 Stock Option/Stock Issuance Plan, USB, Inc. 1997 Stock Option
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Plan, USB, Inc. 1999 Stock Option and Incentive Plan, USB, Inc. 1999 Stock
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Option Plan and USB, Inc. 2000 Stock Option Plan.
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(Full title of the plan)
Copy of Communications To:
Paul L. Reynolds, Esq. Richard G. Schmalzl, Esq.
Fifth Third Bancorp Richard W. Holmes, Jr., Esq.
38 Fountain Square Plaza Graydon Head & Ritchey LLP
Cincinnati, Ohio 45263 511 Walnut Street
1900 Fifth Third Center Cincinnati, Ohio 45202
(513) 579-5300 (513) 621-6464
(513) 744-6757 (Fax) (513) 651-3836 (Fax)
(Name, address and telephone
number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of each
class of Proposed maximum
securities Proposed maximum aggregate Amount of
to be Amount to be offering price offering price registration
registered registered(1) per share (2) (2) fee
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Common Stock, no Par 217,191 shares $21.0066 $4,562,444.46 $1,140.61
value per share
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Common Stock, no Par 95,755 shares $24.8967 $2,383,983.51 $ 596.00
value per share
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Common Stock, no Par 250,635 shares $12.9619 $3,248,705.81 $ 812.18
value per share
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Common Stock, no Par 1,079 shares $18.5325 $ 19,996.56 $ 5.00
value per share
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Common Stock, no Par 19,279 shares $20.7499 $ 400,037.32 $ 100.01
value per share
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Common Stock, no Par 7,711 shares $17.1165 $ 131,985.33 $ 33.00
value per share
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(1) These shares of common stock are issuable pursuant to options previously
granted to certain directors, officers and employees of USB, Inc. assumed
by the Registrant.
(2) Estimated solely for purposes of calculating the amount of the registration
fee pursuant to Rule 457(h), based upon the exercise prices of the options
previously granted.
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 option holder 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, but constitute (along with the documents incorporated by reference
into the registration statement pursuant to Item 3 of Part II hereof) a
prospectus that meets the requirements of Section 10(a) of the Securities Act of
1933.
Part II Information Required in the Registration Statement.
Item 3. Incorporation of Documents by Reference.
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The following documents, as filed with the Commission, are incorporated
herein by reference:
(1) the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000;
(2) the Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31 and June 30, 2001;
(3) the Registrant's Current Reports on Form 8-K filed with the Commission
on April 4, April 17, June 1, June 15, September 6 and September 19,
2001; and
(4) 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.
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Not applicable.
Item 5. Interest of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Section 1701.13(E) of the Ohio Revised Code provides that a corporation
may indemnify or agree to indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative,
other than an action by or in the right of the corporation, by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as a
director, trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if he had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, that he had
reasonable cause to believe that his conduct was unlawful. Section 1701.13(E)(2)
further specifies that a corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to any
threatened, pending, or completed action or suit by or in the right of the
corporation to procure a judgment in its favor, by reason of the fact that he is
or was a director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director, trustee, officer,
employee, member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a partnership, joint
venture, trust, or other enterprise, against expenses, including attorney's
fees, actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of (a) any
claim, issue, or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
corporation unless, and only to the extent, that the court of common pleas or
the court in which such action or suit was brought determines, upon application,
that, despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court of common pleas or such other court
shall deem proper, and (b) any action or suit in which the only liability
asserted against a director is pursuant to Section 1701.95 of the Ohio Revised
Code concerning unlawful loans, dividends and distribution of assets. In
addition, Section 1701.13(E) requires a corporation to pay any expenses,
including attorney's fees, of a director in defending an action, suit, or
proceeding referred to above as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, upon receipt of an undertaking
by or on behalf of the director in which he agrees to both (i) repay such amount
if it is proved by clear and convincing evidence that his action or failure to
act involved an act or omission undertaken with deliberate intent to cause
injury to the corporation or undertaken with reckless disregard for the best
interests of the corporation and (ii) reasonably cooperate with the corporation
concerning the action, suit, or proceeding. The indemnification provided by
Section
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1701.13(E) shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under the articles of incorporation or
code of regulations of Fifth Third.
The code of regulations of Fifth Third provides that Fifth Third shall
indemnify each director and each officer of Fifth Third, and each person
employed by Fifth Third who serves at the written request of the President of
Fifth Third as a director, trustee, officer, employee or agent of another
corporation, domestic or foreign, nonprofit or for profit, to the full extent
permitted by Ohio law. Fifth Third may indemnify assistant officers, employees
and others by action of the Board of Directors to the extent permitted by Ohio
law.
Fifth Third carries directors' and officers' liability insurance coverage
which insures its directors and officers and the directors and officers of its
subsidiaries in certain circumstances.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit Description of Exhibit
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4.1 Second Amended Articles of Incorporation, as amended*
4.2 Code of Regulations, as amended*
5.1 Opinion of Counsel employed by Fifth Third Bancorp
23.1 Consent of Counsel employed by Fifth Third Bancorp (included in
Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
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* Incorporated by reference. See Exhibit Index.
Item 9. Undertakings
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A. INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions referred to in Item 6, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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B. SUBSEQUENT EXCHANGE OF DOCUMENTS
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. OTHER
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of a
prospectus filed with Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represented no
more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs 1(i) and 1(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement
4
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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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 November 7, 2001.
FIFTH THIRD BANCORP
By: /s/ GEORGE A. SCHAEFER, JR.
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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: November 7, 2001
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George A. Schaefer, Jr.
President and Chief Executive Officer
Principal Financial Officer:
/s/ NEAL E. ARNOLD Date: November 7, 2001
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Neal E. Arnold
Chief Financial Officer, Executive Vice
President and Treasurer
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Principal Accounting Officer:
/s/ ROGER W. DEAN Date: November 7, 2001
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Roger W. Dean
Controller
Directors of the Company:
/s/ DARRYL F. ALLEN Date: November 7, 2001
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Darryl F. Allen
/s/ JOHN F. BARRETT Date: November 7, 2001
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John F. Barrett
/s/ GERALD V. DIRVIN Date: November 7, 2001
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Gerald V. Dirvin
/s/ THOMAS B. DONNELL Date: November 7, 2001
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Thomas B. Donnell
/s/ RICHARD T. FARMER Date: November 7, 2001
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Richard T. Farmer
/s/ JOSEPH H. HEAD, JR. Date: November 7, 2001
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Joseph H. Head, Jr.
/s/ JAMES P. HACKETT Date: November 7, 2001
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James P. Hackett
/s/ JOAN R. HERSCHEDE Date: November 7, 2001
--------------------------------
Joan R. Herschede
/s/ ALLEN M. HILL Date: November 7, 2001
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Allen M. Hill
Date:
________________________________
William G. Kagler
Date:
________________________________
James D. Kiggen
/s/ ROBERT L. KOCH, II Date: November 7, 2001
--------------------------------
Robert L. Koch, II
/s/ MITCHEL D. LIVINGSTON, PH.D. Date: November 7, 2001
--------------------------------
Mitchel D. Livingston, Ph.D.
Date:
________________________________
Robert B. Morgan
Date:
________________________________
David E. Reese
/s/ JAMES E. ROGERS Date: November 7, 2001
--------------------------------
James E. Rogers
/s/ HENDRIK G. MEIJER Date: November 7, 2001
--------------------------------
Hendrik G. Meijer
/s/ GEORGE A. SCHAEFER, JR. Date: November 7, 2001
--------------------------------
George A. Schaefer, Jr.
/s/ JOHN J. SCHIFF, JR. Date: November 7, 2001
--------------------------------
John J. Schiff, Jr.
/s/ DONALD B. SHACKELFORD Date: November 7, 2001
--------------------------------
Donald B. Shackelford
/s/ DENNIS J. SULLIVAN, JR. Date: November 7, 2001
--------------------------------
Dennis J. Sullivan, Jr.
/s/ DUDLEY S. TAFT Date: November 7, 2001
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Dudley S. Taft
/s/ THOMAS W. TRAYLOR Date: November 7, 2001
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Thomas W. Traylor
/s/ DAVID J. WAGNER Date: November 7, 2001
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David J. Wagner
INDEX TO EXHIBITS
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Exhibit Description of Exhibit
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4.1 Second Amended Articles of Incorporation, as amended (Filed as an
Exhibit to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2001, and incorporated by reference herein)*
4.2 Code of Regulations, as amended (Filed as an Exhibit to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 2001, 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
Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
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* Incorporated by reference.
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