Floating Rate Subordinated Notes (2006)Full Document 

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FIFTH THIRD BANCORP

$250,000,000

Floating Rate Subordinated Notes

due 2016

$500,000,000

5.45% Subordinated Notes

due 2017

Banc of America Securities LLC

9 West 57th Street

New York, NY 10019

Citigroup Global Markets Inc.

388 Greenwich Street

New York, NY 10013

Goldman, Sachs & Co.

85 Broad Street

New York, NY 10004

Underwriting Agreement

December 13, 2006

To the Representatives named in Schedules I and II hereto of the Underwriters named in Schedule III hereto

Ladies and Gentlemen:

Fifth Third Bancorp, an Ohio corporation (“Fifth Third”), proposes to sell to the underwriters named in Schedule III hereto (the “Underwriters”), for whom you are acting as representatives (the “Representatives”), $250,000,000 aggregate principal amount of its Floating Rate Subordinated Notes due 2016 (the “Floating Rate Securities”) and $ 500,000,000 aggregate principal amount of its 5.45% Subordinated Notes due 2017 (the “Fixed Rate Securities” and, together with the Floating Rate Securities, the “Securities”). The Securities will be issued under the indenture referenced in Schedules I and II hereto (the “Indenture”), between Fifth Third and the trustee named in Schedules I and II (the “Trustee”).

1. Representations and Warranties. Fifth Third represents and warrants to, and agrees with, each Underwriter that:


(a) The registration statement (File No. 333-86360) on Form S-3 (the “registration statement”), and any post-effective amendment thereto, including a prospectus which, as supplemented, shall be used in connection with the sale of the Securities, has been filed with the Securities and Exchange Commission (the “Commission”), in the form heretofore delivered to the Representatives. The registration statement, as it may have been amended prior to the date of this Agreement, has become effective under the Securities Act of 1933, as amended (the “Act”), and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or threatened by the Commission. (The various parts of the registration statement, including all exhibits thereto and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B under the Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively referred to as the “Registration Statement”; the base prospectus filed as part of such Registration Statement (which shall be in the form in which it has been most recently filed, or transmitted for filing, with the Commission on or before the date of this Agreement) is hereinafter referred to as the “Basic Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Securities, filed or transmitted for filing with the Commission pursuant to Rule 424(b) under the Act and used in connection with the sale of the Securities, is hereinafter referred to as a “Preliminary Prospectus”; the Basic Prospectus, as amended and supplemented immediately prior to the Applicable Time (as defined in Section 1(d) hereof) is hereinafter referred to as the “Pricing Prospectus”; and the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is hereinafter referred to as the “Prospectus.”) Any reference herein to the Registration Statement, the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the date of this Agreement, with respect to the Registration Statement, or the date of the applicable prospectus, with respect to any such prospectus; any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated therein by reference after the date of this Agreement; any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed under the Exchange Act and incorporated therein, in each case after the date of the Basic Prospectus, such Preliminary Prospectus or the Prospectus, as the case may be. Any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Securities is hereinafter called an “Issuer Free Writing Prospectus.”

(b) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act, the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the respective rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain any untrue statement of a material fact or omit to state

 

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any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, however, that this representation and warranty shall not apply as to (i) the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or (ii) any statements or omissions made in reliance upon and in conformity with information furnished in writing to Fifth Third by or on behalf of any Underwriter expressly for use therein.

(c) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to Fifth Third by or on behalf of any Underwriter expressly for use therein.

(d) For the purposes of this Agreement, the “Applicable Time” is 4:07p.m. (Eastern time) on the date of this Agreement; the Pricing Prospectus as supplemented by the final term sheet prepared and filed pursuant to Section 5(b) hereof, taken together (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule V(a) hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to Fifth Third by or on behalf of any Underwriter expressly for use therein.

(e) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to Fifth Third by or on behalf of any Underwriter expressly for use therein; and no such documents were

 

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filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule V(b) hereto.

(f) Each of Fifth Third and its subsidiaries has been duly organized, is validly existing in good standing under the laws of its jurisdiction of organization and has all power and authority (corporate and other) necessary to own or hold its material properties and to conduct its business substantially in the manner in which it presently conducts such business, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except for failures to be so qualified or be in good standing that would not reasonably be expected to have a material adverse effect on the financial condition, stockholders’ equity or results of operations of Fifth Third and its subsidiaries, taken as a whole.

(g) Fifth Third is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended (the “BHC Act”). Fifth Third and each of its subsidiaries are in compliance in all material respects with all laws administered by the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”), the Federal Deposit Insurance Corporation (“FDIC”) and any other federal or state bank regulatory authorities (together with the Federal Reserve Board and the FDIC, the “Bank Regulatory Authorities”) with jurisdiction over Fifth Third and its subsidiaries, except for failures to be so in compliance that would not reasonably be expected to have a material adverse effect on the financial condition, stockholders’ equity or results of operations of Fifth Third and its subsidiaries, taken as a whole.

(h) The deposit accounts of each of the bank subsidiaries of Fifth Third are insured up to applicable limits by the FDIC and no proceedings for the termination or revocation of such insurance are pending or, to the knowledge of Fifth Third, threatened.

(i) The Securities have been duly authorized, and, when issued, delivered and paid for pursuant to this Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of Fifth Third entitled to the benefits provided by the Indenture; the Indenture has been duly authorized and, at the Closing Date (as defined in Section 3 hereof), the Indenture will be duly qualified under the Trust Indenture Act and will constitute a valid and legally binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Securities and the Indenture conform in all material respects to the descriptions thereof in the Pricing Disclosure Package and the Prospectus.

(j) Fifth Third has all corporate power and authority necessary to execute and deliver this Agreement, the Indenture and the Securities and to perform its obligations hereunder and thereunder; the execution, delivery and performance of this Agreement, the Indenture and the Securities by Fifth Third and compliance with the provisions hereof and thereof by Fifth Third will not constitute a breach of or default under, the Articles of Incorporation or Code of Regulations of Fifth Third or any of its subsidiaries, or any material agreement, indenture or other instrument to which Fifth Third or any of its subsidiaries is a party, or, to the best of Fifth Third’s knowledge, any law, order, rule, regulation or decree of any court, governmental agency or authority located in the United States having jurisdiction over Fifth Third or any of its subsidiaries or any property of Fifth Third or any of its subsidiaries, which breach or default

 

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would be reasonably likely to have a material adverse effect on the financial condition, stockholders’ equity or results of operations of Fifth Third and its subsidiaries, taken as a whole or on the ability of Fifth Third to perform its obligations hereunder or its obligations under the Indenture or the Securities; and, no consent, authorization or order of, or filing or registration with, any court or governmental agency or authority is required for the execution, delivery and performance of this Agreement, the Indenture and the Securities by Fifth Third except such as have been made or obtained or will be made or obtained on or before the Closing Date (as defined in Section 3) and except such as may be required under applicable state securities or “blue sky” laws.

(k) Neither Fifth Third nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, except for losses or interferences that would not reasonably be expected to have a material adverse effect on the financial condition, stockholders’ equity or results of operations of Fifth Third and its subsidiaries, taken as a whole; and, since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any material change in the capital stock or long-term debt of Fifth Third or any of its subsidiaries or any material adverse change, or any development that is reasonably likely to result in a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of Fifth Third and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus.

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