AFFILIATION AGREEMENT
This Affiliation Agreement ("Affiliation Agreement") dated as of
______________________, 1997 is entered into by and between FIFTH
THIRD BANCORP, a corporation organized and existing under the
corporation laws of the State of Ohio with its principal office
located in Cincinnati, Hamilton County, Ohio ("Fifth Third"), and
SUBURBAN BANCORPORATION, INC., a corporation organized and
existing under the corporation laws of the State of Delaware,
with its principal office located in Cincinnati, Hamilton County,
Ohio ("Suburban Bancorp").
W I T N E S S E T H:
WHEREAS, Fifth Third is a registered bank holding company under
the Bank Holding Company Act of 1956, as amended, and Suburban
Bancorp is a unitary savings and loan holding company under
Section 10 of the Home Owners Loan Act, as amended ("HOLA"), and
Fifth Third and Suburban Bancorp desire to effect a merger under
the authority and provisions of the corporation laws of the
States of Ohio and Delaware pursuant to which at the Effective
Time (as herein defined in Section IX) Suburban Bancorp will be
merged into Fifth Third, with Fifth Third to be and become the
surviving corporation (the "Merger");
WHEREAS, Suburban Bancorp owns all of the outstanding stock of
Suburban Federal Savings Bank ("Thrift Subsidiary") which, at the
Effective Time, will be merged with and into Fifth Third's
wholly-owned subsidiary The Fifth Third Bank ("Fifth Third Bank")
with Fifth Third Bank to become the surviving corporation (the
"Subsidiary Merger"); and,
WHEREAS, under the terms of this Agreement each of the issued and
outstanding shares of the Common stock, $.01 par value per share,
of Suburban Bancorp which are issued and outstanding (excluding
any treasury shares and preferred shares) immediately prior to
the Effective Time will at the Effective Time be cancelled and
extinguished and in substitution therefor such Suburban Bancorp
shares will, at the Effective Time, be converted into shares of
the Common Stock, without par value, of Fifth Third ("Fifth Third
Common Stock"), all as more fully provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, Fifth Third and Suburban Bancorp, agree together as
follows:
I. MODE OF EFFECTUATING CONVERSION OF SHARES
A. At the Effective Time (as defined in Article IX), all of
the shares of Fifth Third Common Stock that are issued and
outstanding or held by Fifth Third as treasury shares immediately
prior to the Effective Time will remain unchanged and will remain
outstanding or as treasury shares, as the case may be, of the
Surviving Corporation. Any stock options, subscription rights,
warrants or other securities outstanding immediately prior to the
Effective Time, entitling the holders to subscribe for purchase
of any shares of the capital stock of any class of Fifth Third,
and any securities outstanding at such time that are convertible
into shares of the capital stock of any class of Fifth Third will
remain unchanged and will remain outstanding, with the holders
thereof entitled to subscribe for, purchase or convert their
securities into the number of shares of the class of capital
stock of Fifth Third to which they are entitled under the terms
of the governing documents.
B. Each of the shares of the Common Stock, $.01 par value per
share, of Suburban Bancorp ("Suburban Bancorp Common Stock") that
is issued and outstanding immediately prior to the Effective Time
will, when the Merger becomes effective, be converted by virtue
of the Merger and without further action, into .24357 shares of
Fifth Third Common Stock (the "Exchange Ratio"), subject to
adjustment as provided in Section VIII.A.7. herein. All issued
and outstanding shares of the Preferred Stock of Suburban
Bancorp, if any, shall be cancelled at the Effective Time.
C. At the Effective Time, all of the shares of Suburban
Bancorp Common Stock, whether issued or unissued (including
treasury shares), will be cancelled and extinguished and the
holders of certificates for shares thereof shall cease to have
any rights as shareholders of Suburban Bancorp, except as
aforesaid, their sole rights as shareholders shall pertain to the
Fifth Third Common Stock and cash in lieu of fractional shares,
if any (as described in the immediately succeeding paragraph),
into which their Suburban Bancorp Common Stock shall have been
converted by virtue of the Merger.
D. After the Effective Time, each holder of a certificate or
certificates for shares of Suburban Bancorp Common Stock, upon
surrender of the same duly transmitted to Fifth Third Trust
Department, as Exchange Agent (or in lieu of surrendering such
certificates in the case of lost, stolen, destroyed or mislaid
certificates, upon execution of such documentation as may be
reasonably required by Fifth Third), shall be entitled to receive
in exchange therefor a certificate or certificates representing
the number of whole shares of Fifth Third Common Stock into which
such holder's shares of Suburban Bancorp Common Stock shall have
been converted by the Merger, plus a cash payment for any
fraction of a share to which the holder is entitled, in lieu of
such fraction of a share, equal in amount to the product
resulting from multiplying such fraction by the per share closing
price of Fifth Third Common Stock as reported on the NASDAQ
National Market System on the date the Merger becomes effective
(the "Applicable Market Value Per Share of Fifth Third Common
Stock"). Within seven (7) business days after the Effective
Time, the Exchange Agent will send a notice and transmittal form
to each Suburban Bancorp shareholder of record at the Effective
Time advising such shareholder of the effectiveness of the Merger
and the procedures for surrendering to the Exchange Agent
outstanding certificates formerly evidencing Suburban Bancorp
Common Stock in exchange for new certificates of Fifth Third
Common Stock. Until so surrendered, each outstanding certificate
that prior to the Effective Time represented shares of Suburban
Bancorp Common Stock shall be deemed for all corporate purposes
to evidence ownership of the number of full shares of Fifth Third
Common Stock into which the same shall have been converted;
provided, however, that dividends or distributions otherwise
payable with respect to shares of Fifth Third Common Stock into
which Suburban Bancorp Common Stock shall have been so converted
shall be paid with respect to such shares only when the
certificate or certificates evidencing shares
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of Suburban Bancorp Common Stock shall have been so surrendered
(or in lieu of surrendering such certificates in the case of
lost, stolen, destroyed or mislaid certificates, upon execution
of such documentation as may be reasonably required by Fifth
Third) and thereupon any such dividends and distributions shall
be paid, without interest, to the holder entitled thereto subject
however to the operation of any applicable escheat or similar
laws relating to unclaimed funds.
E. The exchange ratio referred to in Paragraph B of this
Article I shall be adjusted so as to give the Suburban Bancorp
shareholders the economic benefit of any stock dividends,
reclassifications, recapitalizations, split-ups, exchanges of
shares, distributions or combinations or subdivisions of Fifth
Third Common Stock effected between the date of this Agreement
and the Effective Time. In the event between the date of this
Agreement and the Effective Time, Fifth Third has engaged in
either the distribution of any of its assets (other than a cash
dividend), or caused the distribution of capital stock in a
company which holds any asset(s) previously held by Fifth Third
or in any affiliate thereof, to the Fifth Third shareholders,
then the Exchange Ratio shall be increased in such amount so that
the equivalent fair market value of such transaction shall also
be distributed to the Suburban Bancorp shareholders, as of the
Effective Time.
F. When all necessary documents have been filed and recorded
in accordance with the laws of the States of Ohio and Delaware,
and the Merger becomes effective, the separate existence of
Suburban Bancorp shall cease and Suburban Bancorp shall be merged
into Fifth Third (which will be the "Surviving Corporation"), and
which shall continue its corporate existence under the laws of
the State of Ohio under the name "Fifth Third Bancorp".
G. The Second Amended Articles of Incorporation, as amended,
of Fifth Third of record with the Secretary of State of Ohio as
of the Effective Time shall be the Articles of Incorporation of
the Surviving Corporation, until further amended as provided by
law.
H. The Directors of Fifth Third who are in office at the
Effective Time shall be the directors of the Surviving
Corporation, each of whom shall continue to serve as a Director
for the term for which he was elected, subject to the Regulations
of the Surviving Corporation and in accordance with law. The
officers of Fifth Third who are in office at the time the Merger
becomes effective shall be the officers of the Surviving
Corporation, subject to the Regulations of the Surviving
Corporation and in accordance with law.
I. The Regulations of Fifth Third at the Effective Time shall
be the Regulations of the Surviving Corporation, until amended as
provided therein and in accordance with law.
J. At the Effective Time, the effect of the Merger shall be
as provided by the applicable provisions of the laws of Ohio and
Delaware. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time: the separate existence
of Suburban Bancorp shall cease; Fifth Third shall possess all
assets and property of every description, and every interest
therein, wherever located, and the rights, privileges,
immunities, powers,
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franchises and authority, of a public as well as a private
nature, of each of Fifth Third and Suburban Bancorp, and all
obligations owing by or due each of Fifth Third and Suburban
Bancorp shall be vested in, and become the obligations of, Fifth
Third, without further act or deed, including, without
limitation, any liability to Dissenting Shareholders under
Section 262 of the Delaware Corporation laws; and all rights of
creditors of each Fifth Third and Suburban Bancorp shall be
preserved unimpaired, and all liens upon the property of each of
Fifth Third and Suburban Bancorp shall be preserved unimpaired,
on only the property affected by such liens immediately prior to
the Effective Time.
K. From time to time as and when requested by the Surviving
Corporation, or by its successors or assigns, the officers and
Directors of Suburban Bancorp in office at the Effective Time
shall execute and deliver such instruments and shall take or
causes to be taken such further or other action as shall be
necessary in order to vest or perfect in the Surviving
Corporation or to confirm of record or otherwise, title to, and
possession of, all the assets, property, interests, rights,
privileges, immunities, powers, franchises and authority of
Suburban Bancorp and otherwise to carry out the purposes of this
Agreement.
L. This Agreement shall be filed (only if necessary) and
recorded along with Articles or a Certificate of Merger in
accordance with the requirements of the laws of the States of
Ohio and Delaware. This Agreement shall not be filed with the
Secretary of the State of Ohio until, but shall be filed promptly
after, all of the conditions precedent to consummating the Merger
as contained in Article VI of this Agreement shall have been
fully met or effectively waived.
II. REPRESENTATIONS AND WARRANTIES OF SUBURBAN BANCORP.
Suburban Bancorp represents and warrants to Fifth Third that as
of the date hereof or as of the indicated date, as appropriate,
and except as otherwise disclosed in Schedule 1 hereto delivered
by Suburban Bancorp to Fifth Third prior to the execution of this
Agreement by Fifth Third:
A. Suburban Bancorp (i) is duly incorporated, validly
existing and in good standing as a corporation under the
corporation laws of the State of Delaware and is a registered
unitary savings and loan holding company under the HOLA; (ii) is
duly authorized to conduct the business in which it is engaged;
(iii) has 12,000,000 shares, $.01 par value per share, of
Suburban Bancorp Common Stock and 3,000,000 shares, $.01 par
value per share, of Preferred Stock ("Suburban Bancorp Preferred
Stock") authorized pursuant to its Certificate of Incorporation,
which are the total number of shares Suburban Bancorp is
authorized to have outstanding; (iv) has no outstanding
securities of any kind, nor any outstanding options, warrants or
other rights entitling another person to acquire any securities
of Suburban Bancorp of any kind, other than (a) 1,474,932 shares
of Suburban Bancorp Common Stock, which presently are authorized,
duly issued and outstanding and fully paid and nonassessable, and
(b) options to purchase a total of 115,953 shares of Suburban
Bancorp Common Stock which were granted to and are currently held
by the employees, officers and
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Directors of Suburban Bancorp and/or Thrift Subsidiary; and (v)
owns of record and beneficially free and clear of all liens and
encumbrances, all of the 100,000 outstanding shares of the
capital stock of the Thrift Subsidiary, $1.00 par value per
share. Suburban Bancorp has no direct or indirect subsidiaries
other than Thrift Subsidiary, Suburban Financial Services, Inc.,
and Northside Partners Ltd. Partnership.
B. Thrift Subsidiary is duly incorporated, validly existing
and in good standing as a Federal Savings bank under the laws of
the United States, and has all the requisite power and authority
to conduct the banking business as now conducted by it; and
Thrift Subsidiary does not have any outstanding securities of any
kind, nor any outstanding options, warrants or other rights
entitling another person to acquire any securities of any of the
Thrift Subsidiary of any kind, other than 100,000 shares of the
capital stock, $1.00 par value per share, of all of the Thrift
Subsidiary owned of record and beneficially by Suburban Bancorp.
C. Suburban Bancorp has previously furnished to Fifth Third
its audited, consolidated balance sheets, statements of
operations, statements of stockholders' equity and cash flows as
at June 30, 1996, and for the year then ended, together with the
opinions of its independent certified public accountants
associated therewith. Suburban Bancorp also has previously
furnished to Fifth Third the Thrift Financial Reports as filed
with OTS of the Thrift Subsidiary as at June 30, 1994, 1995 and
1996. Suburban Bancorp also has furnished to Fifth Third (i) its
unaudited, consolidated financial statements as at December 31,
1996, and for the six months then ended, and (ii) the Thrift
Financial Reports as filed with the OTS of the Thrift Subsidiary
for the quarters ended December 31, 1996 and September 30, 1996.
Such audited consolidated financial statements of Suburban
Bancorp fairly present the consolidated financial condition of
Suburban Bancorp as of the date thereof, and for the years or
periods covered thereby in conformity with generally accepted
accounting principles, consistently applied (except as stated
therein and except for the omission of notes to unaudited
statements and year-end adjustments to interim results). There
are no material liabilities, obligations or indebtedness of
Suburban Bancorp or the Thrift Subsidiary required to be
disclosed in the financial statements so furnished other than the
liabilities, obligations or indebtedness disclosed in such
financial statements (including footnotes). Suburban Bancorp
shall furnish Fifth Third with unaudited, consolidated financial
statements as at January 31, 1997, and for the month then ended
as soon as practicable, and shall continue to furnish such
financial information for subsequent monthly and quarterly
periods to Fifth Third as soon as practicable until the Closing
Date. In the event that the Closing Date does not occur before
June 30, 1997, Suburban Bancorp shall furnish Fifth Third with
its audited, consolidated financial statements as at June 30,
1997 and for the year then ended as soon as they are reasonably
available.
D. Suburban Bancorp and the Thrift Subsidiary have good and
marketable title to all of the material properties and assets
reflected in its separate statement of financial condition as at
June 30, 1996, and which are still owned by each and each has
good and marketable title to all material properties and assets
acquired by it after such date and still owned by it, subject to
(i) any liens and encumbrances that do not materially adversely
impair the use
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of the property, (ii) statutory liens for taxes not yet due and
payable and (iii) minor defects and irregularities in title that
do not materially adversely impair the use of the property.
E. Except as disclosed in Schedule 1 and for events relating
to the business environment in general: (i) since June 30, 1996,
to the date hereof there have been no material adverse changes in
the financial condition, operations or business of Suburban
Bancorp and the Thrift Subsidiary on a consolidated or separate
basis; (ii) Suburban Bancorp is not aware of any events which
have occurred since June 30, 1996 to the date hereof or which as
of the date hereof are reasonably certain to occur in the future
and which reasonably can be expected to result in any material
adverse change in the financial condition, operations or business
of Suburban Bancorp and the Thrift Subsidiary on a consolidated
or separate basis, excluding in each instance matters (which
shall include but not be limited to changes in general economic
condition, changes in interest rates, changes in laws or
regulations or changes in generally accepted accounting
principles) of general application to the thrift or banking
industry; and (iii) since June 30, 1996, to the date hereof there
have been no material changes in the methods of business
operations of Suburban Bancorp and the Thrift Subsidiary.
F. Except as disclosed in Schedule 1, there are no actions,
suits, proceedings, investigations or assessments of any kind
pending, or to the best knowledge of Suburban Bancorp, threatened
against Suburban Bancorp or the Thrift Subsidiary which
reasonably can be expected to result in any material adverse
change in the financial condition, operations or business of
Suburban Bancorp and the Thrift Subsidiary on a consolidated or
separate basis.
G. Except as disclosed in Schedule 1, since June 30, 1996, to
the date hereof Suburban Bancorp and the Thrift Subsidiary each
has been operated in the ordinary course of business, has not
made any changes in its respective capital or corporate
structures, nor any material changes in its methods of business
operations and has not provided any increases in employee
salaries or benefits other than in the ordinary course of
business. Except as disclosed in Schedule 1, since June 30,
1996, to the date hereof Suburban Bancorp has not declared or
paid any dividends nor made any distributions of any other kind
to its shareholders.
H. Except as disclosed in Schedule 1, Suburban Bancorp and
the Thrift Subsidiary have timely filed all federal, state and
local tax returns required to be filed (after giving effect to
all extensions) by them, respectively, and have paid or provided
for all tax liabilities shown to be due thereon or which have
been assessed against them, respectively. All tax returns filed
by Suburban Bancorp or the Thrift Subsidiary through the date
hereof constitute complete and accurate representations of the
tax liabilities of Suburban Bancorp and the Thrift Subsidiary for
such years and accurately set forth all items (to the extent
required to be included or reflected in such returns) relevant to
its future tax liabilities, including the tax basis of its
properties and assets in all material respects.
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I. Except as disclosed in Schedule 1, neither Suburban
Bancorp nor the Thrift Subsidiary is a party to (i) any written
employment contracts or written contracts of any other kind with
any of its officers, Directors or employees or (ii) any material
contract, lease or agreement of any other kind which is not
assignable as a result of the merger provided for herein without
the consent of another party, except for contracts, leases or
agreements which do not have terms extending beyond six months
from the date of this Agreement or contracts, leases or
agreements (excluding contracts, leases and agreements pursuant
to which credit has been extended by the Thrift Subsidiary) which
do not require the annual expenditure of more than $5,000.00
thereunder.
J. Except as disclosed in Schedule 1, since June 30, 1996, to
the date hereof the Thrift Subsidiary has not incurred any
unusual or extraordinary loan losses which are material to
Suburban Bancorp and the Thrift Subsidiary on a consolidated
basis; to the best knowledge of Suburban Bancorp and in light of
the Thrift Subsidiary's historical loan loss experience and its
management's analysis of the quality and performance of its loan
portfolio, as of December 31, 1996, its reserve for loan losses
was, in the opinion of Suburban Bancorp, adequate to absorb all
known and reasonably anticipated losses as of such date.
K. Except as disclosed in Schedule 1 and except for dealings
with and obligations to Sandler, O'Neill & Partners, L.P.,
neither Suburban Bancorp nor the Thrift Subsidiary has, directly
or indirectly, dealt with any broker or finder in connection with
this transaction and neither has incurred or will incur any
obligation for any broker's or finder's fee or commission in
connection with the transactions provided for in this Agreement.
L. 1. The Directors of Suburban Bancorp, by resolution
adopted by the unanimous vote of all Directors present at a
meeting duly called and held in accordance with applicable law,
have duly approved this Agreement, and have directed that this
Agreement be submitted to a vote of Suburban Bancorp's
shareholders at the annual or a special meeting of the
shareholders to be called for that purpose, all in accordance
with and as required by law and in accordance with the
Certificate of Incorporation and Bylaws of Suburban Bancorp.
2. Suburban Bancorp has the corporate power and
authority to enter into this Agreement and to carry out its
obligations hereunder and thereunder subject to certain required
regulatory and shareholder approvals. This Agreement, when
executed and delivered, will have been duly authorized and will
constitute valid and binding obligations of Suburban Bancorp,
enforceable in accordance with their respective terms, except to
the extent that (i) enforceability thereof may be limited by
insolvency, reorganization, liquidation, bankruptcy, readjustment
of debt or other laws of general application relating to or
affecting the enforcement of creditors' rights generally and (ii)
the availability of certain remedies may be precluded by general
principals of equity, subject, however, to the receipt of
requisite regulatory approvals and the approval of Suburban
Bancorp's shareholders.
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3. Except as disclosed in Schedule 1, neither the
execution of this Agreement, nor the consummation of the
transactions contemplated hereby and thereby, (i) conflicts with,
results in a breach of, violates or constitutes a default under,
Suburban Bancorp's Certificate of Incorporation or Bylaws or, to
the best knowledge of Suburban Bancorp, any federal, state or
local law, statute, ordinance, rule, regulation or court or
administrative order, or any agreement, arrangement, or
commitment, to which Suburban Bancorp or the Thrift Subsidiary is
subject or bound; (ii) to the best knowledge of Suburban Bancorp,
results in the creation of or gives any person the right to
create any material lien, charge, encumbrance, or security
agreement or any other material rights of others or other
material adverse interest upon any material right, property or
asset belonging to Suburban Bancorp or the Thrift Subsidiary;
(iii) except as disclosed in Schedule 1, terminates or gives any
person the right to terminate, amend, abandon, or refuse to
perform any material agreement, arrangement or commitment to
which Suburban Bancorp or the Thrift Subsidiary is a party or by
which Suburban Bancorp's or the Thrift Subsidiary's rights,
properties or assets are subject or bound; or (iv) to the best
knowledge of Suburban Bancorp, accelerates or modifies, or gives
any party thereto the right to accelerate or modify, the time
within which, or the terms according to which, Suburban Bancorp
or the Thrift Subsidiary is to perform any duties or obligations
or receive any rights or benefits under any material agreements,
arrangements or commitments. For purposes of subparagraphs (iii)
and (iv) immediately preceding, material agreements, arrangements
or commitments exclude agreements, arrangements or commitments
having a term expiring less than six months from the date of this
Agreement or which do not require the expenditure of more than
$5,000 (but shall include all agreements, arrangements or
commitments pursuant to which credit has been extended by the
Thrift Subsidiary).
M. Complete and accurate copies of the (i) Certificate of
Incorporation and Bylaws of Suburban Bancorp and (ii) the Charter
and Bylaws of the Thrift Subsidiary in force as of the date
hereof have been delivered to Fifth Third.
N. To the best knowledge of Suburban Bancorp and except as
disclosed in Schedule 1, neither Suburban Bancorp nor the Thrift
Subsidiary nor any employee, officer or Director of any of them
has knowingly engaged in any activity or knowingly omitted to
take any action which, in any material way, has resulted or could
result in the violation of (i) any local, state or federal law
(including without limitation the Bank Secrecy Act, the Community
Reinvestment Act, applicable consumer protection and disclosure
laws and regulations, including without limitation, Truth in
Lending, Truth in Savings and similar disclosure laws and
regulations, and equal employment and employment discrimination
laws and regulations) or (ii) any regulation, order, injunction
or decree of any court or governmental body, the violation of
either of which could reasonably be expected to have a material
adverse effect on the financial condition of Suburban Bancorp and
the Thrift Subsidiary. To the best knowledge of Suburban Bancorp
and except as disclosed in Schedule 1, the Thrift Subsidiary
possesses all licenses, franchises, permits and other
governmental authorizations necessary for the continued conduct
of its business without material interference or interruption.
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O. To the best knowledge of Suburban Bancorp and except as
disclosed in Schedule 1, neither this Agreement nor the Agreement
of Merger nor any report, statement, list, certificate or other
information furnished by Suburban Bancorp or the Thrift
Subsidiary to Fifth Third or its agents in connection with this
Agreement or any of the transactions contemplated hereby
(including, without limitation, any information which has been or
shall be supplied with respect to their business operations and
financial condition for inclusion in the proxy
statement/prospectus and registration statement relating to the
merger) contains or shall contain (or, in the case of information
relating to the proxy statement/prospectus, at the time it is
mailed, in the case of the registration statement, at the time it
becomes effective and in the case of the proxy
statement/prospectus and the registration statement, at the time
the annual or special meeting of shareholders of Suburban Bancorp
is held to consider the adoption of this Agreement and the
Agreement of Merger) an untrue statement of material fact or
omits or shall omit to state a material fact necessary to make
the statements contained herein or therein, in light of the
circumstances in which they are made, not misleading.
P. Except as disclosed in Schedule 1, there are no actions,
proceedings or investigations pending before any environmental
regulatory body, with respect to or threatened against or
affecting Suburban Bancorp or the Thrift Subsidiary in respect to
any "facility" owned, leased or operated by any of them (but
excluding any "facility" as to which sole interest of Suburban
Bancorp or the Thrift Subsidiary is that of a lienholder or
mortgagee, but including any "facility" to which title has been
taken pursuant to mortgage foreclosure or similar proceedings and
including any "facility" in which Suburban Bancorp or the Thrift
Subsidiary ever participated in the financial management of such
facility to a degree sufficient to influence, or have the ability
to influence, the facility's treatment of hazardous waste) under
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), or under any
Federal, state, local or municipal statue, ordinance or
regulation in respect thereof, in connection with any release of
any toxic or "hazardous substance", pollutant or contaminant into
the "environment" which, if adversely determined, (a) would
require the payment by Suburban Bancorp or the Thrift Subsidiary
and/or require Suburban Bancorp or the Thrift Subsidiary to incur
expenses of more than $5,000 (whether or not covered by
insurance) or (b) would otherwise have a material adverse effect
on Suburban Bancorp or the Thrift Subsidiary, nor, to the best
knowledge of Suburban Bancorp after reasonable inquiry, is there
any reasonable basis for the institution of any such actions or
proceedings or investigations which is probable of assertion, nor
are there any such actions or proceedings or investigations in
which Suburban Bancorp or the Thrift Subsidiary is a plaintiff or
complainant. Neither Suburban Bancorp nor the Thrift Subsidiary
is liable in any material respect under any applicable law for
any release by either of them or for any release by any other
"person" of a hazardous substance caused by the spilling,
leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing of hazardous
wastes or other chemical substances, pollutants or contaminants
into the environment, nor is Suburban Bancorp or the Thrift
Subsidiary liable for any material costs (as a result of the acts
or omissions of Suburban Bancorp or the Thrift Subsidiary or, to
the best knowledge of Suburban Bancorp, as a result of the acts
or
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omissions of any other "person") of any remedial action
including, without limitation, costs arising out of security
fencing, alternative water supplies, temporary evacuation and
housing and other emergency assistance undertaken by any
environmental regulatory body having jurisdiction over Suburban
Bancorp or the Thrift Subsidiary to prevent or minimize any
actual or threatened release by Suburban Bancorp or the Thrift
Subsidiary of any hazardous wastes or other chemical substances,
pollutants and contaminants into the environment which would
endanger the public health or the environment. All terms
contained in quotation marks in this paragraph and the paragraph
immediately following shall have the meaning ascribed to such
terms, and defined in, CERCLA.
Except as disclosed in Schedule 1, to the best knowledge of
Suburban Bancorp each "facility" owned, leased or operated by
Suburban Bancorp or the Thrift Subsidiary (but excluding any
"facility" as to which the sole interest of Suburban Bancorp or
the Thrift Subsidiary is that of a lienholder or mortgagee, but
including any "facility" to which title has been taken pursuant
to mortgage foreclosure or similar proceedings and including any
"facility" in which Suburban Bancorp or the Thrift Subsidiary
ever participated in the financial management of such facility to
a degree sufficient to influence, or have the ability to
influence, the facility's treatment of hazardous waste) is, in
all material respects, in compliance with all applicable Federal,
state, local or municipal statutes, ordinances, laws and
regulations and all orders, rulings or other decisions of any
court, administrative agency or other governmental authority
relating to the protection of the environment, except to the
extent a failure to comply would not have a material adverse
effect on the business, operations and financial condition of
Suburban Bancorp and the Thrift Subsidiary taken as a whole.
Q. 1. Benefit Plans. Schedule 1 lists the name and a
short description of each Benefit Plan (as herein defined),
together with an indication of its funding status (e.g., trust,
insured or general company assets). For purposes hereof, the
term "Benefit Plan" shall mean any plan, program, arrangement or
system of employee or director benefits maintained by Suburban
Bancorp or the Thrift Subsidiary for the benefit of employees,
former employees or Directors of Suburban Bancorp or the Thrift
Subsidiary and shall include (a) any qualified retirement plan
such as a pension, profit sharing, stock bonus plan or employee
stock ownership plan ("ESOP"), (b) any plan, program or
arrangement providing deferred compensation, bonus deferral or
incentive benefits, whether funded through trust or otherwise,
and (c) any welfare plan, program or policy providing vacation,
severance, salary continuation, supplemental unemployment,
disability, life, health coverage, retiree health, Voluntary
Employees' Beneficiary Association, medical expense reimbursement
or dependent care assistance benefits, in any such foregoing case
without regard to whether the Benefit Plan constitutes an
employee benefit plan under Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or
the number of employees covered under such Benefit Plan.
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2. Plan Documents, Reports and Filings. Except as
disclosed on Schedule 1, Suburban Bancorp or the Thrift
Subsidiary has provided true, complete and correct copies of all
plan documents, if any, comprising each Benefit Plan, together
with, when applicable, (a) the most recent summary plan
description, (b) the most recent actuarial and financial reports
and the most recent annual reports filed with any governmental
agency and (c) all Internal Revenue Service ("IRS") or other
governmental agency rulings and determination letters or any open
requests for IRS rulings or letters with respect to Benefit
Plans.
3. Qualified Retirement Plan Compliance. With respect
to each Benefit Plan which is an employee pension benefit plan
(as defined in section 3(2) of ERISA) other than any such plan
that meets the "top-hat" exception under section 201(1) of ERISA
(a "Qualified Benefit Plan"), except as disclosed on Schedule 1:
(a) the IRS has issued a determination letter which determined
that such Qualified Benefit Plan satisfied the requirements of
section 401(a) of the Internal Revenue Code of 1986, as amended
through the date hereof (the "Code"), as amended by all of the
laws referred to in Section 1 of Revenue Procedure 93-39, such
determination letter has not been revoked or threatened to be
revoked by the IRS, and the scope of such determination letter is
complete and does not exclude consideration of any of the
requirements or matters referred to in sections 4.02 through 4.04
of Revenue Procedure 93-39; (b) to the best knowledge of Suburban
Bancorp, such Qualified Benefit Plan is in material compliance
with all qualification requirements of Section 401(a) of the
Code; (c) to the best knowledge of Suburban Bancorp, such
Qualified Benefit Plan is in substantial compliance with all
notice, reporting and disclosure requirements of ERISA and the
Code; (d) any Qualified Benefit Plan which is an ESOP as defined
in Section 4975(e)(7) of the Code (an "ESOP Qualified Benefit
Plan") is in material compliance with the applicable
qualification requirements of Section 409 of the Code; and (e)
any previously terminated Qualified Benefit Plan was terminated
in material compliance with the requirements of ERISA and the
Code, has received a favorable determination letter therefor, and
the liabilities of such Qualified Benefit Plan and the
requirements of the Pension Benefit Guaranty Corporation ("PBGC")
were fully satisfied.
4. Welfare Plan Compliance. With respect to each
Benefit Plan which is an employee welfare benefit plan (as
defined in Section 3(1) of ERISA) (a "Welfare Benefit Plan"),
except as noted on Schedule 1: (a) such Welfare Benefit Plan, if
it is intended to provide favorable tax benefits to plan
participants, has been, to the best knowledge of Suburban
Bancorp, in compliance with applicable Code provisions; (b) such
Welfare Benefit Plan has been, to the best knowledge of Suburban
Bancorp, operated in substantial compliance with all applicable
notice, reporting and disclosure requirements of ERISA and the
Code; and (c) such Welfare Benefit Plan, if a group health plan
subject to the requirements of Section 4980B of the Code
("COBRA"), has been, to the best knowledge of Suburban Bancorp,
operated in substantial compliance with such COBRA requirements.
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5. Prohibited Transactions. To the best knowledge of
Suburban Bancorp, no prohibited transaction under Section 406 of
ERISA and not exempt under Section 408 of ERISA has occurred with
respect to any Benefit Plan which would result, with respect to
any person, in (a) the imposition, directly or indirectly, of a
material excise tax under Section 4975 of the Code or (b)
material fiduciary liability under Section 409 of ERISA.
6. Lawsuits or Claims. No material actions, suits or
claims (other than routine claims of benefits) are pending or, to
the best knowledge of Suburban Bancorp, threatened against any
Benefit Plan or against Suburban Bancorp or the Thrift Subsidiary
with respect to any Benefit Plan.
7. Disclosure of Unfunded Liabilities. All material
Unfunded Liabilities with respect to each Benefit Plan have been
recorded and disclosed on the most recent financial statement of
Suburban Bancorp and the Thrift Subsidiary or, if not, in
Schedule 1. For purposes hereof, the term "Unfunded Liabilities"
shall mean any amounts properly accrued to date under generally
accepted accounting principles in effect as of the date of this
Agreement (GAAP), or amounts not yet accrued for GAAP purposes
but for which an obligation (which has legally accrued and cannot
legally be eliminated and which is subject to reasonable
estimate) exists for payment in the future which is attributable
to any Benefit Plan, including but not limited to (a) severance
pay benefits, (b) deferred compensation or unpaid bonuses, (c)
any liabilities on account of the change in control which will
result from this Agreement, including any potential 20% excise
tax under Section 4999 of the Code relating to excess parachute
payments under Section 280G of the Code, (d) any unpaid pension
contributions for the current plan year or any accumulated
funding deficiency under Section 412 of the Code and related
penalties under Section 4971 of the Code, including unpaid
pension contributions or funding deficiencies owed by members of
a controlled group of corporations which includes Suburban
Bancorp or the Thrift Subsidiary and for which Suburban Bancorp
or the Thrift Subsidiary is liable under applicable law, (e) any
authorized but unpaid profit sharing contributions or
contributions under Section 401(k) and Section 401(m) of the
Code, (f) retiree health benefit coverage and (g) unpaid premiums
for contributions required under any group health plan to
maintain such plan's coverage through the Effective Time.
8. Defined Benefit Pension Plan Liabilities. Suburban
Bancorp and the Thrift Subsidiary (or any pension plan maintained
by any of them) have not incurred any material liability to the
PBGC or the IRS with respect to any Benefit Plan which is a
defined benefit pension plan, except for the payment of PBGC
premiums pursuant to Section 4007 of ERISA, all of which if due
prior to the date of this Agreement have been fully paid, and no
PBGC reportable event under Section 4043 of ERISA has occurred
with respect to any such pension plan. Except as otherwise
disclosed in Schedule 1, the benefit liabilities, as defined in
Section 4001(a)(16) of ERISA, of each Benefit Plan subject to
Title IV of ERISA, using the actuarial assumptions that would be
used by the PBGC in the event of termination of such plan, do not
exceed the fair market value of the assets of such plan. Neither
Suburban Bancorp, the Thrift Subsidiary nor any controlled group
member of Suburban Bancorp or
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the Thrift Subsidiary participates in, or has incurred any
liability under Sections 4201, 4063 or 4064 of ERISA for a
complete or partial withdrawal from a multiple employer plan or a
multi-employer plan (as defined in Section 3(37) of ERISA).
9. Independent Trustee. Suburban Bancorp and the Thrift
Subsidiaries (a) have not incurred any asserted or, to the best
knowledge of Suburban Bancorp, unasserted material liability for
breach of duties assumed in connection with acting as an
independent trustee of any employee pension plan (as defined in
Section 3(2) of ERISA) which is intended to be qualified under
Section 401(a) of the Code and which is maintained by an employer
unrelated in ownership to Suburban Bancorp or the Thrift
Subsidiary, (b) have not authorized nor knowingly participated in
a material prohibited transaction under Section 406 of ERISA and
not exempt under Section 408 of ERISA and (c) have not received
notice of any material actions, suits or claims (other than
routine claims for benefits) pending or threatened against the
unrelated employer or against them.
10. Retiree Benefits. Except as listed on Schedule 1
and identified as "Retiree Liability", Suburban Bancorp and
Thrift Subsidiary have no obligation to provide medical benefits,
or life insurance benefits to or with respect to retirees, former
employees or any of their relatives.
11. Right to Amend and Terminate. Except as listed on
Schedule 1, Suburban Bancorp or Thrift Subsidiary has all power
and authority necessary to amend or terminate each Benefit Plan
without incurring any penalty or liability provided that, in the
case of an employee pension benefit plan (as defined in section
3(2) of ERISA), benefits accrued as of the date of amendment or
termination are not reduced.
12. Material. For purposes of this Paragraph Q as a
whole, the term "material" in connection with a liability shall
mean a liability or loss, taxes, penalties, interest and related
legal fees in the total amount of $5,000 or more, with such
determination being made on the basis of the aggregate affected
participants of a Benefit Plan and not with respect to any single
participant.
R. The investment portfolios of Suburban Bancorp and the
Thrift Subsidiary consist of securities in marketable form.
Except as disclosed in Schedule 1, since June 30, 1996 to the
date hereof neither Suburban Bancorp nor the Thrift Subsidiary
has incurred any unusual or extraordinary losses in its
investment portfolio, and, except for matters of general
application to the thrift or banking industry (including, but not
limited to, changes in laws or regulations or generally accepted
accounting principles) or for events relating to the business
environment in general, including market fluctuations and changes
in interest rates, Suburban Bancorp is not aware of any events
which are reasonably certain to occur in the future and which
reasonably can be expected to result in any material adverse
change in the quality or performance of Suburban Bancorp's and
the Thrift Subsidiary's investment portfolio on a consolidated
basis.
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S. Except as disclosed in Schedule 1, there are no actions,
suits, claims, proceedings, investigations or assessments of any
kind pending, or to the best knowledge of Suburban Bancorp,
threatened against any of the Directors or officers of Suburban
Bancorp or the Thrift Subsidiary in their capacities as such, and
no Director or officer of Suburban Bancorp or the Thrift
Subsidiary currently is being indemnified or seeking to be
indemnified by either Suburban Bancorp or the Thrift Subsidiary
pursuant to applicable law or Suburban Bancorp's Articles of
Incorporation or Bylaws or the Thrift Subsidiary's Charter or
Bylaws.
T. Schedule 1 sets forth, among other things, exceptions to
Suburban Bancorp's representations and warranties in this Section
II. While Suburban Bancorp has used its best efforts to identify
in Schedule 1 the particular representation or warranty to which
each such exception relates, each such exception shall be deemed
disclosed for purposes of all representations and warranties in
this Section II. The mere inclusion of an exception in Schedule
1 shall not be deemed an admission by Suburban Bancorp that such
exception represents a material fact, event or circumstances or
would result in a material adverse effect to Suburban Bancorp.
U. All representations and warranties contained in this
Section II shall expire at the Effective Time, and, thereafter,
neither Suburban Bancorp nor the Thrift Subsidiary nor any
officer or director of either of them shall have any liability or
obligations with respect thereto.
III. REPRESENTATIONS AND WARRANTIES OF FIFTH THIRD
Fifth Third represents and warrants to Suburban Bancorp that as
of the date hereof or as of the indicated date, as appropriate:
A. Fifth Third is duly incorporated, validly existing and in
good standing as a corporation under the corporation laws of the
State of Ohio, is a registered bank holding company under the
Bank Holding Company Act of 1956, as amended, and is duly
authorized to conduct the business in which it is engaged, and
The Fifth Third Bank is duly incorporated, validly existing and
in good standing as a corporation under the laws of the State of
Ohio and is duly authorized to conduct the business in which it
is engaged.
B. Pursuant to Fifth Third's Second Amended Articles of
Incorporation, as amended, the total number of shares of capital
stock it is authorized to have outstanding is 300,500,000 of
which 300,000,000 shares are classified as Common Stock without
par value ("Fifth Third Common Stock") and 500,000 shares are
classified as Preferred Stock without par value. As of the close
of business on February 28, 1997, 105,881,698 shares of Fifth
Third Common Stock were issued and outstanding and 2,271,962
shares were held in its treasury. As of the date of this
Agreement, no shares of its Preferred Stock have been issued.
Fifth Third does not have outstanding any stock options,
subscription rights, warrants or other securities entitling the
holders to subscribe for or purchase any shares of its capital
stock other than options granted and to be granted to employees
and Directors under its stock
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option plans. At February 28, 1997, 3,626,824 shares of Fifth
Third Common Stock were reserved for issuance in connection with
outstanding options granted under it stock option plans and
427,064 shares were reserved for issuance under options to be
granted in the future.
C. All shares of Fifth Third Common Stock to be received by
the shareholders of Suburban Bancorp as a result of the merger
pursuant to the terms of this Agreement and the Agreement of
Merger shall be, upon transfer or issuance, validly issued, fully
paid and non-assessable, and will not, upon such transfer or
issuance, be subject to the preemptive rights of any shareholder
of Fifth Third.
D. Fifth Third has furnished to Suburban Bancorp its
consolidated financial statements as at December 31, 1994,
December 31, 1995 and December 31, 1996 and for the respective
years then ended together with the opinions of its independent
public accountants associated therewith. Such consolidated
financial statements fairly present the consolidated financial
condition of Fifth Third as of their respective dates and for the
respective periods covered thereby in conformity with generally
accepted accounting principles consistently followed throughout
the periods covered thereby. Neither Fifth Third nor any
significant subsidiaries of Fifth Third have any material
liabilities, obligations or indebtedness required to be disclosed
in such financial statements other than the liabilities,
obligations and indebtedness disclosed in such financial
statements (including footnotes). Fifth Third will furnish to
Suburban Bancorp its unaudited consolidated financial statements
as at March 31, 1997 and for the three (3) months then ended a
soon as such statements publicly are available, and shall
continue to furnish information for subsequent calendar quarter
periods to Suburban Bancorp as soon as such becomes publicly
available until the Closing Date.
E. Except for events relating to the business environment in
general: (i) since December 31, 1996, to the date hereof there
have been no material adverse changes in the consolidated
financial condition, operations or business of Fifth Third; (ii)
the chief executive officer and the chief financial officer of
Fifth Third are not aware of any events which have occurred since
December 31, 1996, or which are reasonably certain to occur in
the future and which reasonably can be expected to result in any
material adverse change in the consolidated financial condition,
operations or business of Fifth Third; and (iii) since December
31, 1996, to the date hereof there have been no material changes
in the methods of business operations of Fifth Third and its
subsidiaries.
F. 1. The Executive Committee of the Board of Directors
of Fifth Third, by resolution adopted by the members present at a
meeting duly called and held, at which meeting a quorum was at
all times present and acting, has approved this Agreement,
including reserving for issuance to Suburban Bancorp shareholders
in accordance with this Agreement, a sufficient number of shares
of Fifth Third Common Stock. Approval and adoption of this
Agreement by the shareholders of Fifth Third is not required
under Ohio
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law or under the Second Amended Articles of Incorporation, as
amended, or Code of Regulations of Fifth Third.
2. Fifth Third has corporate power and authority to
enter into this Agreement and to carry out its obligations
hereunder and thereunder subject to certain required regulatory
approvals. This Agreement, when executed and delivered, will
have been duly authorized and will the constitute valid and
binding obligation of Fifth Third, enforceable in accordance with
its terms, except to the extent that (i) enforceability thereof
may be limited by insolvency, reorganization, liquidation,
bankruptcy, readjustment of debt or other laws of general
application relating to or affecting the enforcement of
creditors' rights generally and (ii) the availability of certain
remedies may be precluded by general principles of equity,
subject, however, to the receipt of requisite regulatory
approvals.
3. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby and thereby,
does or will (i) conflict with, result in a breach of, violate or
constitute a default, under Fifth Third's Second Amended Articles
of Incorporation, as amended, or Code of Regulations or, to the
best knowledge of its chief executive officer and chief financial
officer, any federal, foreign, state or local law, statute,
ordinance, rule, regulation or court or administrative order, or
any agreement, arrangement, or commitment to which Fifth Third is
subject or bound; (ii) to the best knowledge of the chief
executive officer and chief financial officer of Fifth Third,
result in the creation of or give any person the right to create
any material lien, charge, encumbrance, security agreement or any
other material rights of others or other material adverse
interest upon any material right, property or asset belonging to
Fifth Third or any of its subsidiaries other than such rights as
may be given the shareholders of Suburban Bancorp pursuant to the
provisions of Sections 1701.84 and 1701.85 of the Ohio Revised
Code; (iii) terminate or give any person the right to terminate,
amend, abandon, or refuse to perform any material agreement,
arrangement or commitment to which Fifth Third is a party or by
which Fifth Third's rights, properties or assets are subject or
bound; or (iv) accelerate or modify, or give any party thereto
the right to accelerate or modify, the time within which, or the
terms according to which, Fifth Third is to perform any duties or
obligations or receive any rights or benefits under any material
agreement, arrangements or commitments.
G. Complete and accurate copies of (i) the Second Amended
Articles of Incorporation, as amended, and (ii) the Code of
Regulations of Fifth Third in force as of the date hereof have
been delivered to Suburban Bancorp.
H. To the best knowledge of the chief executive officer and
chief financial officer of Fifth Third, neither Fifth Third nor
any of its subsidiaries has knowingly engaged in any activity or
omitted to take any action which, in any material way, has
resulted or could result in the violation of (i) any local, state
or federal law or (ii) any regulation, order, injunction or
decree of any court or governmental body, the violation of either
or which could reasonably be expected to have a material adverse
effect on the financial condition Fifth Third and its
subsidiaries taken as a whole. To the best knowledge of the
chief executive officer and
-16-
chief financial officer of Fifth Third, Fifth Third and its
subsidiaries possess all licenses, franchise, permits and other
governmental authorizations necessary for the continued conduct
of their businesses without material interference or
interruption.
I. 1. To the best knowledge of the chief executive
officer and chief financial officer of Fifth Third, neither this
Agreement nor any report, statement, list, certificate or other
information furnished or to be furnished by Fifth Third to
Suburban Bancorp or its agents in connection with this Agreement
or any of the transactions contemplated hereby (including,
without limitation, any information which has been or shall be
supplied with respect to its business operations and financial
condition for inclusion in the proxy statement/prospectus and
registration statement relating to the merger) contains or shall
contain (in the case of information relating to the proxy
statement/prospectus, at the time it is mailed, and, in the case
of the registration statement, at the time it becomes effective
and, in the case of the proxy statement/prospectus and the
registration statement, at the time the annual or special meeting
of shareholders of Suburban Bancorp is held to consider the
adoption of this Agreement and the Agreement of Merger) an untrue
statement of a material fact or omits or shall omit to state a
material fact necessary to make the statements contained herein
or therein, in light of the circumstances in which they are made,
not misleading.
2. Fifth Third has furnished to Suburban Bancorp or its
agents true and complete copies (including all exhibits and all
documents incorporated by reference) of the following documents
as filed by Fifth Third with the SEC:
a. Fifth Third's Annual Report on Form 10-K for
the year ended December 31, 1996;
b. any Current Report on Form 8-K with respect to
any event occurring after December 31, 1996 and prior
to the date of this Agreement;
c. any report filed by Fifth Third to amend or
modify any of the reports described above; and
d. all proxy statements prepared in connection
with meetings of Fifth Third's shareholders held or to
be held subsequent to December 31, 1996.
The information set forth in the documents described in this
subsection 2 (including all exhibits thereto and all documents
incorporated therein by reference) did not, as of the dates on
which such reports were filed with the SEC, (a) contain any
untrue statement of a material fact, (b) omit any material fact
required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they
were made, not misleading, or (c) omit any material exhibit
required to be filed therewith. Prior to the date hereof no
event has occurred subsequent to December 31, 1996 which Fifth
Third is required to describe in a Current Report on Form 8-K
other than the Current Reports heretofore furnished by Fifth
Third to Suburban Bancorp. Fifth Third timely shall furnish
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Suburban Bancorp with copies of all reports filed by Fifth Third
with the SEC subsequent to the date of this Agreement and until
the Closing Date.
J. There are no actions, suits, proceedings, investigations
or assessments of any kind pending or, to the best knowledge of
the chief executive officer and chief financial officer of Fifth
Third, threatened against Fifth Third or any Fifth Third
subsidiary, which reasonably can be expected to result in any
material adverse change in the consolidated financial condition,
operations or business of Fifth Third.
K. Since December 31, 1996 to the date hereof, none of Fifth
Third's banking subsidiaries and thrift subsidiaries has incurred
any unusual or extraordinary loan losses which would be material
to Fifth Third on a consolidated basis; and to the best knowledge
and belief of the chief executive officer and chief financial
officer of Fifth Third, and in the light of such banking
subsidiaries' and thrift subsidiary's historical loan loss
experience and their managements' analysis of the quality and
performance of their respective loan portfolios, as of December
31, 1996, their consolidated reserves for loan losses are
adequate to absorb all known and reasonably anticipated losses as
of such date.
L. Fifth Third and its subsidiaries have filed all federal,
state and local tax returns required to be filed (after giving
effect to all extensions) by them, respectively, and have paid or
provided for all tax liabilities shown to be due thereon or which
have been assessed against them, respectively.
M. Fifth Third has not, directly or indirectly, dealt with
any broker or finder in connection with this transaction and has
not incurred and will not incur any obligation for any broker's
or finder's fee or commission in connection with the transactions
provided for in this Agreement and the Agreement of Merger.
N. Fifth Third has no unfunded liabilities with respect to
any Benefit Plan (as such term is defined in subparagraph Q.1. of
Section II hereof, but applied to Fifth Third, its subsidiaries
and affiliates) that are material, either individually or in the
aggregate, to Fifth Third on a consolidated basis and that have
not been recorded and disclosed as required by generally accepted
accounting principles (GAAP) in the most recent year-end, audited
financial statements of Fifth Third supplied to Suburban Bancorp
pursuant to Paragraph D of Section III hereof.
O. The investment portfolios of Fifth Third and its
subsidiaries and affiliates consist of securities in marketable
form. Since December 31, 1996, to the date hereof Fifth Third
and its affiliates, on a consolidated basis, have not incurred
any unusual or extraordinary losses in their respective
investment portfolios, and, except for events relating to the
business environment in general, including market fluctuations,
the management of Fifth third is not aware of any events which
are reasonably certain to occur in the future and which
reasonably can be expected to result in any material adverse
change in the quality or
-18-
performance of the investment portfolios of Fifth Third and its
affiliates on a consolidated basis.
P. As of the date hereof, Fifth Third is not aware of the
existence of any factor that would materially delay or materially
hinder issuance of any of the required regulatory approvals
necessary to consummate the Merger or the other transactions
contemplated hereby.
Q. All representations and warranties contained in this
Section III shall expire at the Effective Time, and thereafter,
neither Fifth Third nor any officer or Director of Fifth Third
shall have any further liability or obligation with respect
thereto, except for any misrepresentations, breaches of
warranties or violations of covenants that were made with intent
to defraud.
IV. Obligations of Suburban Bancorp Between the Date of this
Agreement and the Effective Time.
A. Suburban Bancorp, in consultation with Fifth Third, will
take all actions necessary to call and hold its annual or a
special meeting of its shareholders as soon as practicable after
the Fifth Third registration statement relating to this
transaction has been declared effective by the SEC and under all
applicable state securities laws for the purpose of approving and
adopting this Agreement and any other documents or actions
necessary to the consummation of the Merger provided for herein
pursuant to law. The Board of Directors of Suburban Bancorp
intends to inform the shareholders of Suburban Bancorp in the
proxy materials relating to the annual or special meeting that
all Directors of Suburban Bancorp presently intend to vote all
shares of Suburban Bancorp Common Stock which they own of record
in favor of approving this Agreement and any such other necessary
documents or actions, and all Directors will recommend approval
of this Agreement to the other shareholders of Suburban Bancorp,
subject only to such Directors' fiduciary obligations, receipt of
an updated fairness opinion from Sandler, O'Neill Investment
Banking Group dated as of date immediately prior to the date of
the Proxy Statement, and their review of Fifth Third's
registration statement to be filed with the SEC as set forth in
Section V herein, and their reasonable satisfaction with the
information set forth therein.
B. (i) Consistent with generally accepted accounting
principles, Suburban Bancorp agrees that on or before the
Effective Time based on a review of the Thrift Subsidiary's loan
losses, current classified assets and commercial, multi-family
and residential mortgage loans and investment portfolio, Suburban
Bancorp will work with Fifth Third with the goal of establishing
collection procedures, internal valuation reviews, credit
policies and practices and general valuation allowances which are
consistent with the guidelines used within the Fifth Third
holding company system, provided that no adjustment to general
valuation allowances or reserves shall be made until immediately
prior to the Effective Time and all conditions precedent to the
obligations of the parties hereto have either been satisfied or
waived as confirmed by such parties in writing. Fifth Third
shall provide such assistance
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and direction to Suburban Bancorp as is necessary in conforming
to such polices, practices, procedures and asset dispositions
which are mutually agreeable between the date of this Agreement
until the Effective Time; and (ii) from the date of this
Agreement until the Effective Time, Suburban Bancorp and the
Thrift Subsidiary each will be operated in the ordinary course of
business, and neither of them will, without the prior written
consent of Fifth Third, which consent shall not be unreasonably
withheld: make any changes in its capital or corporate
structures; issue any additional shares of its Common Stock other
than pursuant to the exercise of options granted prior to the
date hereof; issue any other equity securities, other than
pursuant to the exercise of options granted prior to the date
hereof; or, issue as borrower any long term debt (other than the
incurrence or renewal of FHLB advances in an aggregate amount not
to exceed thirty percent (30%) of Suburban Bancorp's consolidated
assets provided that Suburban Bancorp will consult with and
consider alternative advances from Fifth Third prior to such
incurrence or renewal) or convertible or other securities of any
kind, or right to acquire any of its securities; make any
material changes in its method of business operations; make,
enter into any agreement to make, or become obligated to make,
any capital expenditures in excess of $5,000, except that this
restriction does not apply to the proposed addition of a drive-in
facility to the Hartwell offices; make, enter into or renew any
agreement for services to be provided to Suburban Bancorp or the
Thrift Subsidiary or permit the automatic renewal of any such
agreement, except any agreement for services having a term of not
more than three months or requiring the expenditure of not more
than $5,000 (for this purpose the phrase "permit the automatic
renewal" includes the failure to send a notice of termination of
such contract if such failure would constitute a renewal) and
except that any employment or severance agreement which is
subject to renewal by the end of September of each year may be
renewed in the ordinary course; open for business any branch
office which has been approved by the appropriate regulatory
authorities but not yet opened or apply to the appropriate
regulatory authorities to establish a new branch office or expand
any existing branch office; acquire, become obligated to acquire,
or enter into any agreement to acquire, any banking or non-
banking company or any branch offices of any such companies;
declare or pay any cash dividends on its own stock other than
normal and customary cash dividends ($0.15) per quarter paid in
such amounts and at such times as Suburban Bancorp historically
has done on its Common stock, provided this covenant shall only
apply to Suburban Bancorp and provided further that
notwithstanding anything to the contrary herein, Fifth Third and
Suburban Bancorp shall cooperate in selecting the Effective Time
to ensure that the holders of Suburban Bancorp Common Stock do
not become entitled to receive both a dividend in respect of
their Suburban Bancorp Common Stock and a dividend in respect of
the Fifth Third Common Stock or fail to be entitled to receive
any dividend with respect to any quarterly period or portion
thereof in which the Effective Time occurs; pay any stock
dividends or make any other distributions on its stock other than
cash dividends as described in the immediately preceding clause;
change or otherwise amend any Benefit Plans other than as
required by law or as contemplated herein; and provide any
increases in employee salaries or benefits other than in the
ordinary course of business, other than ordinary and customary
bonuses which have historically been paid (including, but not
limited to, bonuses in conformance with Suburban Bancorp's and
the Thrift Subsidiary
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management incentive compensation plan) which may be paid in June
and for which Suburban Bancorp has accrued a sufficient amount
(provided that if the Effective Time occurs before June 30, 1997,
such bonuses shall be paid to the extent accrued on a pro rata
basis through the Effective Time), or as described in Schedule 1.
Suburban Bancorp agrees that it will not sell or otherwise
dispose of or encumber any of the shares of the capital stock of
the Thrift Subsidiary which are now owned by it.
V. COOPERATION AND OTHER OBLIGATIONS AND OTHER COVENANTS
A. Fifth Third will, prepare and cause to be filed at its
expense such applications and other documents with the Board of
Governors of the Federal Reserve System, the Federal Deposit
Insurance Corporation, the Ohio Division of Banks, the Office of
Thrift Supervision, and any other governmental agencies as are
required to secure the requisite approval of such agencies to the
consummation of the transactions provided for in this Agreement,
and the parties shall cooperate in the preparation of an
appropriate registration statement, including the prospectus,
proxy statement, and such other documents necessary to comply
with all federal and state securities laws relating to the
registration and issuance of the shares of Fifth Third Common
Stock to be issued to the shareholders of Suburban Bancorp in
this transaction (the expenses thereof, other than accounting,
legal, investment banking, financial consulting and associated
expenses of Suburban Bancorp and its affiliates, to be paid by
Fifth Third), and any other laws applicable to the transactions
provided for in this Agreement. Fifth Third shall use all
reasonable efforts to file all such applications within sixty
(60) days of the date of this Agreement and to secure all such
approvals. Suburban Bancorp agrees that it will, as promptly as
practicable after request and at its own expense, provide Fifth
Third with all information and documents concerning Suburban
Bancorp and Thrift Subsidiary, as shall be required in connection
with preparing such applications, registration statements and
other documents and in connection with securing such approvals.
Prior to filing any such applications or other documents with the
applicable governmental agencies, Fifth Third shall provide, at
least five (5) days prior to the filing date, copies thereof to
Suburban Bancorp. Suburban Bancorp shall have the right to
review and comment on the proxy statement included in the
registration statement in an appropriate manner prior to its
filing. Fifth Third agrees that it will, as promptly as
practicable after request and at its own expense, provide
Suburban Bancorp with all information and documents concerning
Fifth Third and its subsidiaries as shall be required in
connection with preparing such applications, registration
statements and other documents which are to be prepared and filed
by Suburban Bancorp and in connection with approvals required to
be obtained by Suburban Bancorp hereunder. Prior to filing any
such applications, statements or other documents with the
applicable governmental agency, Suburban Bancorp shall provide,
at least five (5) days prior to the filing date, copies thereof
to Fifth Third.
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B. Each of the parties hereto agrees to use its best efforts
and to cooperate with the other party in all reasonable respects
in order to carry out and consummate the transactions
contemplated by this Agreement at the earliest practicable time
including, without limitation, the filing of applications,
notices and other documents with, and obtaining approval from,
appropriate governmental regulatory agencies.
C. Suburban Bancorp agrees to permit Fifth Third, its
officers, employees, accountants, agents and attorneys, and Fifth
Third agrees to permit Suburban Bancorp, its officers, employees,
accountants, agents and attorneys, to have reasonable access
during business hours to their respective books, records and
properties, and those of the Thrift Subsidiary and The Fifth
Third Bank as well, for the purpose of making a detailed
examination, or updating and amplifying prior examinations, of
the financial condition, assets, liabilities, legal compliance,
affairs and the conduct of the business of Suburban Bancorp and
the Thrift Subsidiary or Fifth Third or The Fifth Third Bank, as
the case may be, prior to the Effective Time, and also to permit
the monitoring of the foregoing on an ongoing basis (such rights
of examination and monitoring to be subject to the
confidentiality obligations set forth in such Paragraph VII.D.
hereof); provided, however, that any such examination by Fifth
Third or Suburban Bancorp shall not relieve Fifth Third or
Suburban Bancorp from any responsibility or liability for any
material misrepresentation or material breach of warranty
hereunder discovered in the course of or subsequently to such
examination and prior to the Effective Time.
D. The directors and certain senior officers (those who have
written employment or severance agreements with Suburban Bancorp
or the Thrift Subsidiary) of Suburban Bancorp shall have
exercised and fully paid prior to the Effective Time each option
held by such person to acquire Suburban Bancorp Common Stock.
Suburban Bancorp shall use its best efforts to have options to
acquire Suburban Bancorp Common Stock held by any other person to
have been exercised and fully paid. If all options have been
exercised prior to the Effective Time Suburban Bancorp shall
terminate its Stock Option Plan. If all options have not been
exercised prior to the Effective Time, Suburban Bancorp shall
amend its Stock Option Plan to the extent necessary to permit the
cancellation or termination at the Effective Time of each option
(whether or not currently exercisable) to purchase Suburban
Bancorp Common Stock outstanding on the Effective Time and each
holder of such a stock option which shall have been so cancelled
or terminated shall receive in payment therefor, at Fifth Third's
discretion, cash or Fifth Third Common Stock in an amount
determined by multiplying the number of shares of Suburban
Bancorp Common Stock subject to the option by such holder by an
amount equal to the difference between (x) the Applicable Market
Value of Fifth Third Common Stock multiplied by the Exchange
Ratio, as may be adjusted and (y) the per share exercise price of
such option; provided, that if Fifth Third elects pursuant to
Section VII.A.7. herein not to adjust the Exchange Ratio but to
pay cash in lieu thereof the value of such cash payment shall be
added to the cash or value of Fifth Third Common Stock to be paid
hereunder.
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E. (1) Suburban Bancorp shall develop a written
description and timetable which shall be provided to and approved
by Fifth Third and its counsel, setting forth all actions
necessary to: (i) make contributions to the Suburban Bancorp,
Inc. Employee Stock Ownership Plan ("ESOP") and/or to have the
ESOP sell unallocated shares under the ESOP to fully repay the
ESOP's existing loan, all in compliance with the applicable
requirements of ERISA and the Internal Revenue Code, including
Code Sections 415 (as interpreted by the IRS in Private Letter
Rulings 9648054 and 9426048) and 404; (ii) amend the ESOP to
authorize the sale of unallocated shares to repay the loan, to
provide for the allocation of gain on the sale of unallocated
shares in a manner that complies with the position of the IRS in
Private Letter Rulings 9648054 and 9426048 and to make such other
changes as may be necessary to implement the termination; (iii)
terminate the ESOP; and (iv) submit the ESOP to the Internal
Revenue Service for a determination letter that the ESOP, as so
amended and terminated, continues to be a qualified retirement
plan and employee stock ownership plan under Sections 401(a) and
4975(e)(7) of the Code. Upon development and approval by Fifth
Third of said written description and timetable, Suburban Bancorp
shall take such actions as described therein as are approved by
Fifth Third. Distribution of the shares and any other assets of
the ESOP shall (i) not occur until after the receipt of the
foregoing IRS determination letter and (ii) occur prior to the
Effective Time only with the express written consent of Fifth
Third, which shall not be unreasonably withheld. In connection
with the development of the written description and timetables
referred to above and resolution of the ESOP, the parties agree
they intend that, to the extent not prohibited by applicable law,
the ESOP shall be maintained through the date of its final
termination for the exclusive benefit of individuals who had
become ESOP participants on or before the Effective Time. In
furtherance of this intention, such timetable and plan shall
include provisions: (a) that Suburban Bancorp may make
contributions to the ESOP for the plan year ending June 30, 1997
in the amount accrued in the ordinary course through February 28,
1997; (b) That Suburban may make contributions to the ESOP for
the plan year ending June 30, 1997, in the amount accrued and to
be accrued in the ordinary course from March 1, 1997, through
June 30, 1997, but in no event greater than $42,000 and in no
event may any amount be contributed that would create or increase
an amount in the ESOP suspense account which, under the written
description and timetable referred to above (assuming termination
of the ESOP on June 30, 1998) may not be allocated within the
limits of Code section 415 (as interpreted by the IRS in Private
Letter Rulings 9648054 and 9426048); (c) that no interest shall
accrue on the existing ESOP loan after June 30, 1997; and, (d)
that the ESOP shall terminate no later than June 30, 1998 if at
that time there would be no amount in the ESOP suspense account
which may not be allocated within the limits of Code section 415
(as interpreted by the IRS in Private Letter Rulings 9648054 and
9426048). If, upon development of the written description and
timetable referred to above, the parties agree in good faith that
allocation of all or any shares of stock held in the ESOP's
suspense account would violate the Code's section 415 limitations
as interpreted by the IRS in private letter rulings 9648054 and
9426048, Suburban Bancorp shall apply to the IRS for approval
(either through an IRS determination letter or other means
reasonably acceptable to Fifth Third) of a transaction (the
"Transaction") whereby the excess shares (or cash value thereof)
(i.e., those shares remaining after fully utilizing the section
415 limits as interpreted by the
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IRS in private rulings 9648054 and 9426048) either revert to
Fifth Third or are transferred to an employee benefit plan of
Fifth Third. If and only if the IRS approves such a Transaction,
or Fifth Third otherwise proceeds with the Transaction without
IRS approval, Fifth Third will thereafter pay (out of its
corporate assets and not plan assets) an equivalent amount
(determined using the fair market value of the transferred plan
assets at the time of the transfer), reduced by expenses
incurred, to individuals who were ESOP participants on the
Effective Time and who shall divide such payment pro rata based
on their relative ESOP account balances on June 30, 1997. The
parties further agree that counsel selected by Suburban Bancorp
shall be responsible, before and after the Effective Time, both
for securing a determination letter from the Internal Revenue
Service ("IRS") that the Suburban Bancorp ESOP, is tax-qualified
for periods through its termination date and a determination
letter or other acceptable IRS approval effectuating the purposes
of this paragraph, all subject to the prior review and approval
(which approval will not be unreasonably withheld) of Fifth Third
and its counsel of the filings with the IRS and notice and
opportunity to comment by Fifth Third with respect to any other
actions; provided that after the Effective Time Fifth Third may
remove such counsel if such counsel fails to carry out the
directions of the parties in interest.
(2) Except as provided in (1) above, Suburban Bancorp or
Thrift Subsidiary shall take all actions necessary to freeze the
Qualified Benefit Plans as of a date at least thirty (30) days
preceding the Effective Time such that no further contributions
(including employee 401(k) contributions) shall be made under the
Qualified Benefit Plans.
(3) If Fifth Third so requests, Suburban Bancorp or the
Thrift Subsidiary shall develop a plan and timetable for
terminating any or all of the Qualified Benefit Plans other than
the ESOP, and, with the advance written approval of Fifth Third,
shall proceed with the implementation of said termination plan
and timetable.
(4) Except as provided in (1) above, Suburban Bancorp
and Thrift Subsidiary, without the advance written consent of
Fifth Third shall not (1) adopt any amendments to the Qualified
Benefit Plans after the date of this Agreement; or (2) make any
distributions from the Qualified Benefit Plans after the date of
this Agreement; or (3) make any contributions to the Qualified
Benefit Plans (except 401(k) employee contributions) after the
date of this Agreement.
(5) Suburban Bancorp or Thrift Subsidiary shall provide
to Fifth Third at least sixty (60) days prior to the Effective
Time, documentation reasonably satisfactory to Fifth Third
demonstrating that the requirements of Sections 404, 412, 415,
416, 401(k) and (m) of the Code have been satisfied by all of its
Qualified Benefit Plans or that the violation of any such
requirement is adequately addressed in the VCR application
referred to in (9) below.
(6) With respect to any Benefit Plan that provides for
vesting of benefits, there shall be no discretionary acceleration
of vesting without Fifth Third's consent whether or not such
discretionary acceleration of vesting is provided under the terms
of the Benefit Plan;
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provided that a Benefit Plan which pursuant to its terms provides
for an acceleration of vesting upon a change of control of
Suburban Bancorp shall not be deemed to involve a discretionary
acceleration of vesting and vesting thereunder shall accelerate
as of the Effective Time.
(7) With respect to the operational problems previously
identified with respect to the Suburban ESOP and 401(k) Plan, the
parties shall use their best efforts to proceed with the actions
described in the written description and timetable that is
appended hereto as Appendix V.E.9. Subsequent to the date of
this Agreement, Suburban Bancorp and Thrift Subsidiary shall take
no actions regarding said operational problems without the
advance written consent of Fifth Third, which consent shall not
be unreasonably withheld.
(8) Suburban Bancorp or Thrift Subsidiary shall have
provided to Fifth Third at least sixty (60) days prior to the
Effective Time any and all documentation Fifth Third shall have
reasonably requested in writing to demonstrate that there is no
material potential liability under the terminated or merged
"Retirement Income Plan".
VI. CONDITIONS PRECEDENT TO CLOSING.
A. Conditions to the Obligations of Each of the Parties:
The obligation of each of the parties hereto to consummate the
transactions provided for herein is subject to the fulfillment on
or prior to the Effective Time of each of the following
conditions:
1. The shareholders of Suburban Bancorp shall have duly
approved and adopted this Agreement in accordance with and as
required by law and in accordance with its Certificate of
Incorporation and Bylaws.
2. All necessary governmental and regulatory orders,
consents, clearances and approvals and requirements shall have
been secured and satisfied for the consummation of such
transactions, including without limitation, those of the Federal
Reserve System, the Ohio Division of Banks, the Office of Thrift
Supervision and the Federal Deposit Insurance Corporation to the
extent required.
3. Graydon, Head & Ritchey, counsel for Fifth Third, or
other counsel reasonably acceptable to Fifth Third and Suburban
Bancorp, shall have delivered an opinion as to certain federal
tax aspects of the transaction addressed to Fifth Third and
Suburban Bancorp, in substantially the form appended hereto as
Appendix A.
4. Prior to or at the Effective Time, no material
investigation by any state or federal agency shall have been
threatened or instituted seeking to enjoin or prohibit, or
enjoining or prohibiting, the transactions contemplated hereby
and no material governmental action or proceeding shall have been
threatened or instituted before any court
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or government body or authority, seeking to enjoin or prohibit,
or enjoining or prohibiting, the transactions contemplated hereby
other than investigations, actions and proceedings which have
been withdrawn prior to or at the Effective Time without material
adverse effect to Fifth Third or Suburban Bancorp and other than
regularly-scheduled regulatory examinations.
5. Any waiting period mandated by law in respect of the
final approval by any applicable Federal regulator(s) of the
transaction contemplated herein shall have expired.
B. Conditions to the Obligations of Fifth Third:
The obligation of Fifth Third to consummate the transactions
provided for herein is subject to the fulfillment at or prior to
the Effective Time of each of the following conditions unless
waived by Fifth Third in a writing delivered to Suburban Bancorp
which specifically refers to the condition or conditions being
waived:
1. All of the representations and warranties of Suburban
Bancorp set forth in Section II of this Agreement shall be true
and correct in all material respects as of the date of this
Agreement and at and as of the Closing Date (as hereinafter
defined) as if each such representation and warranty was given on
and as of the Closing Date, except (i) for any such
representations and warranties made as of a specified date, which
shall be true and correct in all material respects as of such
date and (ii) for breaches of representations and warranties
which would not have, or would not reasonably be expected to
have, a material adverse effect on the business or operations of
Suburban Bancorp or the Thrift Subsidiary taken as a whole.
2. Suburban Bancorp shall have performed all of the
obligations required of it under the terms of this Agreement in
all material respects, except for breaches of obligations which
would not have, or would not reasonably be expected to have, any
material adverse effect on the business or operations of Suburban
Bancorp and the Thrift Subsidiary taken as a whole.
3. Housley, Kantarian & Bronstein, P.C., counsel for
Suburban Bancorp and the Thrift Subsidiary, shall have delivered
an opinion addressed to Fifth Third in substantially the form
appended hereto as Appendix B.
4. The aggregate amount of consolidated shareholders'
equity (including Common Stock, Additional Paid-In Capital and
Retained Earnings and excluding Treasury Stock) of Suburban
Bancorp immediately prior to the Effective Time, as shown by and
reflected in its books and records of accounts on a consolidated
basis in accordance with generally accepted principles,
consistently applied, shall not be less than $25,721,000. The
separate shareholders' equity of Thrift Subsidiary immediately
prior to the Effective Time, as shown by and reflected in its
books and records of accounts on a separate basis in accordance
with generally accepted accounting principles, consistently
applied, shall not
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be less than such shareholders' equity as reflected in Thrift
Subsidiary's June 30, 1996 Thrift Financial Report. For purposes
of this subparagraph 4 to Section VI.B., (A) any expenses or
accruals after the date hereof relating to (i) the adjustments
contemplated by Section IV.B.(i) herein, (ii) termination or
funding of any of Suburban Bancorp's or the Thrift Subsidiary's
Benefit Plans, as contemplated herein, (iii) acceleration of
vesting under any of the Suburban Bancorp or the Thrift
Subsidiary Benefit Plans, (iv) expenses associated with the
Merger or (v) market value adjustments to the investment
portfolio of Suburban Bancorp and the Thrift Subsidiary shall be
excluded for purposes of calculation of Suburban Bancorp's and
the Thrift Subsidiary's shareholders' equity as contemplated
herein, and (B) the amount of the special assessment imposed by
the FDIC, pursuant to the Deposit Insurance Funds Act of 1996, on
Thrift Subsidiary as of September 30, 1996, and paid thereafter
shall be added back to the shareholders' equity of Suburban
Bancorp and the Thrift Subsidiary for purposes of determining
each of their shareholders' equity as of immediately prior to the
Effective Time.
5. Fifth Third's independent certified public
accountants shall have reviewed the unaudited consolidated
financial statements of Suburban Bancorp as at the end of the
month immediately preceding the Effective Time, as well as the
unaudited separate financial statements of the Thrift Subsidiary
as of the same date, performed such other auditing procedures as
may be requested by Fifth Third and reported in good faith that
they are not aware of any material modifications which would have
a material adverse effect on the financial condition of Suburban
Bancorp or the Thrift Subsidiary that should be made in order for
such financial statements to (i) be in conformity with generally
accepted accounting principles, consistently applied, excluding
the presentation of footnotes, and (ii) accurately state the
financial condition and results of operations of Suburban Bancorp
and each of the Thrift Subsidiary, and such modifications, in
either case, would have a material adverse effect on the
financial condition of Suburban Bancorp or any of the Thrift
Subsidiary.
6. The receipt of a certificate from Suburban Bancorp
and each of the Thrift Subsidiary, executed by the chief
executive officer and chief financial officer of each, dated the
Closing Date, certifying to their best knowledge and belief that:
(i) all of the representations and warranties set forth in
Section II hereof were true and correct as of the date of this
Agreement and as of the Closing Date in all material respects,
except (y) for any such representations and warranties made as of
a specified date, which shall be true and correct in all material
respects as of such date and (z) for breaches of representations
and warranties which would not have, or would not reasonably be
expected to have, a material adverse effect on the business or
operations of Suburban Bancorp and the Thrift Subsidiary taken as
a whole; and (ii) it has met and fully complied in all material
respects with all of the obligations required of it under the
terms of this Agreement and the Agreement of Merger, except for
breaches of obligations which would not have, or would not
reasonably be expected to have, any material adverse effect on
the business or operations of Suburban Bancorp and the Thrift
Subsidiary taken as a whole.
7. The total issued and outstanding shares of Suburban
Bancorp Common Stock shall not exceed 1,590,885 shares and all
options to purchase Suburban Bancorp Common Stock shall have been
exercised and fully paid prior to the Closing Date or
arrangements
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regarding the outstanding stock options under the Suburban
Bancorp Stock Option Plan have been made as provided in Section
V.D. of this Agreement.
C. Conditions to the Obligations of Suburban Bancorp:
The obligation of Suburban Bancorp to consummate the transactions
provided for herein and in the Agreement of Merger is subject to
the fulfillment at or prior to the Effective Time of each of the
following conditions unless waived by Suburban Bancorp in a
writing delivered to Fifth Third which specifically refers to the
condition or conditions being waived:
1. All of the representations and warranties of Fifth
Third set forth in Section III of this Agreement shall be true
and correct in all material respects as of the date of this
Agreement and at and as of the Closing Date as if each such
representation and warranty was given on and as of the Closing
Date, except (i) for any such representations and warranties made
as of a specified date, which shall be true and correct in all
material respects as of such date and (ii) for breaches of
representations and warranties which would not have, or would not
reasonably be expected to have, a material adverse effect on the
consolidated business or operations of Fifth Third.
2. Fifth Third shall have performed all of the
obligations required of it under the terms of this Agreement and
the Agreement of Merger in all material respects, except for
breaches of obligations which would not have, or would not
reasonably be expected to have, any material adverse effect on
the consolidated business or operations of Fifth Third.
3. Paul L. Reynolds, counsel for Fifth Third, shall have
delivered an opinion addressed to Suburban Bancorp in
substantially the form appended hereto as Appendix C.
4. The receipt of a certificate from Fifth Third,
executed by its chief executive officer and chief financial
officer, dated the Closing Date, certifying to their best
knowledge and belief that: (i) all of the representations and
warranties set forth in Section III were true and correct as of
the date of this Agreement and as of the Closing Date, except (y)
for any such representations and warranties made as of a
specified date, which shall be true and correct in all material
respects as of such date and (z) for breaches of representations
and warranties which would not have, or would not reasonably be
expected to have, a material adverse effect on the consolidated
business or operations of Fifth Third; and, (ii) Fifth Third has
met and fully complied in all material respects with all of the
obligations required of it under the terms of this Agreement and
the Agreement of Merger, except for breaches of obligations which
would not have, or would not reasonably be expected to have, any
material adverse effect on the business or operations of Fifth
Third.
5. Fifth Third shall have registered its shares of
Common Stock to be issued to the Suburban Bancorp shareholders
hereunder and pursuant to the Agreement of Merger with the SEC
pursuant to the Securities Act of 1933, as amended, and with all
applicable state securities authorities. The registration
statement with respect thereto shall have been
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declared effective by the SEC and all applicable state securities
authorities and no stop order shall have been issued. The shares
of Fifth Third Common Stock to be issued to the Suburban Bancorp
shareholder hereunder shall have been authorized for trading on
the National Market System of the National Association of
Securities Dealers upon official notice of issuance.
6. Fifth Third's Trust Department, as the Exchange
Agent, will acknowledge in writing to Suburban Bancorp that it is
in receipt of (i) certificates representing a whole number of
shares of Fifth Third Common Stock to be issued to the
shareholders of Suburban Bancorp pursuant to this Agreement, and
(ii) sufficient cash to be paid to the Suburban Bancorp
shareholders for fractional shares, and such cash as may be
payable if Fifth Third elects the cash payment procedure set
forth in Section VIII.A.7. herein.
VII. ADDITIONAL COVENANTS
A. The Thrift Subsidiary shall be merged with and into Fifth
Third Bank, to be effective the Effective Time. The parties
hereto agree to cooperate with one another to effect such merger.
Upon consummation of any merger of the Thrift Subsidiary, the
separate corporate existence of the Thrift Subsidiary shall cease
by operation of law.
B. 1. Fifth Third shall use its best efforts to employ at
Fifth Third or other Fifth Third subsidiaries or affiliates as
many of the Suburban Bancorp and Thrift Subsidiary employees who
desire employment within the Fifth Third holding company system
as possible, to the extent of available positions and consistent
with Fifth Third's standard staffing levels and personnel
policies; provided that such continuing employees will not be
subject to any exclusion or penalty for pre-existing conditions
that were covered under the Thrift Subsidiary's medical plan
immediately prior to the Effective Time or any waiting period
relating to coverage under Fifth Third's medical plan. Each
employee of Suburban Bancorp and the Thrift Subsidiary who
becomes an employee of Fifth Third or any of its subsidiaries or
affiliates at or immediately subsequent to the Merger shall be
entitled to participate in all employee benefit plans sponsored
by Fifth Third or its subsidiaries or affiliates on the same
terms and to the same extent as similarly situated employees. If
the Suburban Federal Savings Bank 401(k) Profit Sharing Plan is
merged into the Fifth Third Bancorp Master Profit Sharing Plan,
then upon said merger, service taken into account under the
Suburban Federal Savings Bank 401(k) Profit Sharing Plan shall
count as service taken into account for all purposes under the
Fifth Third Bancorp Master Profit Sharing Plan, otherwise such
employees shall not receive past service credit under the Master
Profit Sharing Plan. Employees shall receive past service credit
under the Fifth Third Bancorp Master Retirement Plan for
eligibility and vesting purposes but not for benefit accrual
purposes. For all other purposes other than the qualified
benefit plans discussed above, prior service with Suburban
Bancorp or Thrift Subsidiary shall be taken into account for
purposes of determining eligibility and vesting, if applicable,
of benefits.
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2. Those employees who do not have an employment or
severance agreement and who are not to be employed by Fifth Third
or who are terminated or voluntarily resign after being notified
that, as a condition of employment, such employee must work at a
location more than thirty (30) miles from such employee's former
location of employment or that such employee's salary will be
decreased, in any case and in both cases, within six months after
the Effective Time, and who sign and deliver a termination and
release agreement in the form attached as Appendix VII.B.2
hereto, shall be entitled to severance pay equal to, in the case
of senior officers (vice president and above, including the
Secretary and Treasurer of the Thrift Subsidiary) of Suburban
Bancorp or the Thrift Subsidiary, twelve (12) week's pay; in the
case of all other employees, one (1) week of pay for each year of
service with a minimum of four (4) weeks and a maximum of eight
(8) weeks pay; for those purposes, if there has been a break in
an employee's period of employment, the prior period shall be
added to the current period of employment. Suburban Bancorp may,
in addition, pay up to $55,000.00 in additional severance
benefits to certain employees of Suburban Bancorp or Thrift
Subsidiary as the executive officers of Suburban Bancorp, in
consultation with Fifth Third, may determine. Fifth Third shall
provide sufficient notification to Suburban Bancorp of those
employees it will not be hiring in order that such employees
terminated by Suburban Bancorp can be given appropriate notice of
termination in advance of the effectiveness thereof and Fifth
Third shall provide limited out placement services and assistance
to such employees through Fifth Third's Human Resources
Department. Nothing contained in this Paragraph VII.B.2 shall be
construed or interpreted to limit or modify in any way Fifth
Third's at will employment policy.
3. Any officer of Suburban Bancorp or the Thrift
Subsidiary who has an employment or severance agreement with
Suburban Bancorp or the Thrift Subsidiary (each a "Contract
Officer") shall receive as of the Effective Time, the severance
or termination payments provided for in their respective
employment agreements ("Contract Payments") as their sole
severance payments from Suburban Bancorp and Fifth Third in
connection with the Merger. As a condition to receiving their
Contract Payments each Contract Officer shall sign and deliver to
Fifth Third a termination and release agreement. All such
agreements shall be in the form attached hereto as Appendix
VII.B.3. Notwithstanding the foregoing or any other provision of
this Agreement, in no event shall any Contract Officer receive
any payment that would be considered an "Excess Parachute
Payment" pursuant to Section 280(G) of the Code.
4. Fifth Third agrees to honor the obligations, in
effect on the Effective Time, of Suburban Bancorp and the Thrift
Subsidiary under the Director Retirement Plans that is described
in the schedules provided under Section II.Q. hereof.
Notwithstanding the foregoing, on or before the Effective Time,
Suburban Bancorp and the Thrift Subsidiary may (following prior
consultation with and review by Fifth Third of the proposed
actions) contribute to a grantor trust associated with the
Directors Retirement Plan amounts projected by the Thrift
Subsidiary to be sufficient to enable the trust to satisfy the
obligations, after the Effective Time, of Suburban Bancorp and
the Thrift Subsidiary under the Non-qualified plans. The trustee
of said trust shall be a financial institution selected by
Suburban Bancorp (subject
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to Fifth Third's approval which shall not be unreasonably
withheld); provided that all expenses of the administration of
such trust will be paid from the assets of the Director
Retirement Plan.
5. Subject to normal credit evaluation and standard loan
guidelines, a Fifth Third subsidiary bank will provide financing
to qualified option holders to allow them to fully exercise all
outstanding options as set forth herein.
C. (i) From and after the Effective Time, Fifth Third shall
assume the obligations of Suburban Bancorp and Thrift Subsidiary
or any of their subsidiaries arising under applicable Delaware
and Federal law in existence as of the date hereof or as amended
prior to the Effective Time and under the Suburban Bancorp
Certificate of Incorporation and Bylaws or Thrift Subsidiary
Charter or Bylaws as in effect on the date hereof to indemnify ,
defend and hold harmless each person who is now, or has been at
any time prior to the date hereof or who become, prior to the
Effective Time, an officer or director of Suburban Bancorp,
Thrift Subsidiary, or any of their subsidiaries (the "Indemnified
Parties") against losses, claims, damages, costs, expenses
(including reasonable attorneys' fees), liabilities or judgements
or amounts that are paid in settlement (which settlement shall
require the prior written consent of Fifth Third) of or in
connection with any claim, action, suit, proceeding or
investigation (a "Claim") in which an Indemnified Party is, or is
threatened to be made, a party or a witness based in whole or in
part on or arising in whole or in part out of the fact that such
person is or was a director or officer of Suburban Bancorp, the
Thrift Subsidiary or any of their subsidiaries if such Claim
pertains to any matter or fact arising, existing or occurring
prior to the Effective Time (including, without limitation, the
merger and the transactions contemplated by this Agreement),
regardless of whether such Claim is asserted or claimed prior to,
at or after the Effective Time. Fifth Third shall pay expenses
in advance of the final disposition of any such action or
proceeding to each Indemnified Party to the full extent permitted
by law and under the Suburban Bancorp Certificate of
Incorporation or Bylaws or Thrift Subsidiary's Charter or Bylaws.
Fifth Third's assumption of the indemnification obligations of
Suburban Bancorp, Thrift Subsidiary or any of their subsidiaries
as provided herein shall continue for a period of five years
after the Effective Time or, in the case of claims asserted prior
to the fifth anniversary of the Effective Time until such matters
are finally resolved. Any Indemnified Party wishing to claim
indemnification under this provision, upon learning of any Claim
shall notify Fifth Third (but the failure to so notify Fifth
Third shall not relieve Fifth Third from any liability which
Fifth Third may have under this section except to the extent
Fifth Third is materially prejudiced thereby). Notwithstanding
the foregoing, the Indemnified Parties as a group may retain only
one law firm to represent them with resect to each matter under
this section unless there is, under applicable standards of
professional conduct, a conflict on any one significant issue
between the positions of any two or more Indemnified parties.
(ii) From and after the Effective Time, the directors,
officers and employees of Suburban Bancorp and its subsidiaries
who become directors, officers or employees of Fifth Third or any
of its subsidiaries, except for the indemnifications rights set
forth in
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subparagraph (i) above, shall have indemnification rights with
prospective application only. The prospective indemnification
rights shall consist of such rights to which directors, officers
or employees of Fifth Third or the subsidiary by which such
person is employed are entitled under the provisions of the
Articles of Incorporation of Fifth Third or similar governing
documents of Fifth Third or its applicable subsidiaries, as in
effect from time to time after the Effective Time, as applicable,
and provisions of applicable law as in effect form time to time
after the Effective Time.
(iii) The obligations of Fifth Third provided under this
Section VII.C. are intended to benefit, and be enforceable
against Fifth Third directly by, the Indemnified parties, and
shall be binding on all respective successors of Fifth Third.
(iv) Fifth Third shall also purchase and keep in force for a
five year period, a policy of directors' and officers' liability
insurance in the amount of $25 million to provide coverage for
acts or omissions of the type currently covered by Suburban
Bancorp's existing directors' and officers' liability insurance
for acts or omission occurring on or prior to the Effective Time,
but only to the extent such insurance may be purchased or kept in
full force on commercially reasonable terms taking into account
the cost thereof and the benefits provided thereby. It is agreed
that such costs shall be commercially reasonable so long as they
do not exceed 200% of the costs currently paid for such coverage
by Suburban Bancorp.
D. Fifth Third will not disclose to others, shall not use in
respect of its (or any of its subsidiaries) business operations,
and will hold in confidence any non-public, confidential
information disclosed to it by Suburban Bancorp concerning
Suburban Bancorp or the Thrift Subsidiary. Suburban Bancorp will
not disclose to others, shall not use in respect of its (or any
of its subsidiaries) business operations, and will hold in
confidence any non-public, confidential information disclosed to
it concerning Fifth Third or any of its affiliates. In the event
the Merger is not completed, all non-public financial statements,
documents and materials, and all copies thereof, shall be
returned to Suburban Bancorp or Fifth Third, as the case may be,
and shall not be used by Fifth Third or Suburban Bancorp, as the
case may be, in any way detrimental to Suburban Bancorp or Fifth
Third.
E. All notices under this Agreement or under the Agreement of
Merger shall be in wiring and shall be sufficient in all respects
if delivered in person or mailed by certified mail, return
receipt requested, with postage prepaid and addressed, if to
Suburban Bancorp to Mr. Joseph F. Hutchison, President and Chief
Executive Officer, Suburban Bancorp Bancorporation, Inc., 10869
Montgomery Road, Cincinnati, Ohio 45242, with a copy to Housley,
Kantarian & Bronstein, P.C., 1220 19th Street, N.W., Suite 700,
Washington, D.C. 20036, Attention: Harry K. Kantarian, Esq.; if
to Fifth Third, to Mr. George A. Schaefer, Jr., President and
Chief Executive Officer, Fifth Third Bancorp, 38 Fountain Square
Plaza, Cincinnati, Ohio 45263, with a copy to Paul L. Reynolds,
Esq., Vice President and General Counsel, Fifth Third Bank, Legal
Division, 38 Fountain Square Plaza, 2nd Floor, Cincinnati,
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Ohio 45263. Such notices shall be deemed to be received when
delivered in person or when deposited in the mail by certified
mail, return receipt requested with postage prepaid.
F. This Agreement, together with the written instruments
specifically referred to herein and such other written agreements
delivered by Fifth Third or Suburban Bancorp to each other
pursuant hereto constitute the entire agreement between the
parties with regard to the transactions contemplated herein and
supersede any prior agreements, whether oral or in writing,
including that certain letter from Fifth Third to Suburban
Bancorporation, Inc., dated February 13, 1997. This Agreement
may be hereafter amended only by a written instrument executed by
each of the parties pursuant to Section X hereof.
G. During the period from the date of this Agreement to the
Effective Time, except with the prior approval of Fifth Third,
Suburban Bancorp shall not, and shall not permit its
representatives to, directly or indirectly, subject to the
exercise by the Directors of Suburban Bancorp of their fiduciary
duties, initiate, solicit, negotiation with, encourage
discussions with, provide information to, or agree to a
transaction with, any corporation, partnership, person or other
entity or group concerning any merger of either Suburban Bancorp
or the Thrift Subsidiary or any sale of substantial assets, sale
of shares of capital stock (or securities convertible or
exchangeable into or otherwise evidencing, or any agreement or
instrument evidencing, the right to acquire capital stock) or
similar transaction involving Suburban Bancorp or the Thrift
Subsidiary (any such transaction being referred to herein as an
"Acquisition Transaction"). Subject to the exercise by the
Directors of Suburban Bancorp of their fiduciary duties, Suburban
Bancorp promptly shall communicate to Fifth Third the terms of
any proposal which it may receive in respect of an Acquisition
Transaction and any request by or indication of interest on the
part of any third party with respect to initiation of any
Acquisition Transaction or discussions with respect thereto.
H. Fifth Third and Suburban Bancorp shall each indemnify and
hold the other harmless for any claim, liability or expense
(including reasonable attorneys' fees) arising from a
misstatement or omission in the applications submitted to
regulatory agencies for approval of the transaction contemplated
by this Agreement relating to the indemnifying party which is
based or made in reliance upon any representation, warranty, or
covenant of such party in this Agreement or any certification,
document, or other information furnished or to be furnished by
such party pursuant to this Agreement. From and after Closing
Date, this subsection shall be of no further force or effect.
I. Upon the request of Fifth Third and at the sole option of
Fifth Third, Suburban Bancorp and the Thrift Subsidiary shall
execute and deliver to Midwest Payment Systems, Inc. ("MPS") an
agreement to convert all electronic funds transfer ("EFT")
related services to MPS and the Jeanie system. Such Agreement
shall provide that MPS will be the exclusive provider of such
services to Suburban Bancorp and the Thrift Subsidiary for a
period of five (5) years from the date such agreements are
executed. Fifth Third agrees that the cost of the conversion of
Suburban Bancorp and the Thrift Subsidiary to EFT provided by MPS
and conversion to the Jeanie system (including, without
limitation, the cost of all card reissue,
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signage and penalties relating to terminating its current EFT
relationships) will be paid by Fifth Third. Fifth Third further
agrees that the costs and fees to Suburban Bancorp and the Bank
Subsidiaries for the Jeanie service shall not exceed those
charged by the current EFT service provider of Suburban Bancorp
and the Thrift Subsidiary, subject to any increases in such costs
and fees which would otherwise be permitted under their current
EFT processing agreements. In the event this Agreement is
terminated prusuant to Section VIII hereof for any reason except
a material breach or default by Suburban Bancorp, and if, in such
instance, Suburban Bancorp desires to convert to another provider
of EFT services, Fifth Third shall pay all costs and expenses
associated with such conversion,provided, however, such costs and
expenses are reasonable when compared to costs and expenses
ordinarily charged in the EFT services industry. In no event
shall Suburban Bancorp or the Thrift Subsidiary be required to
take any actions pursuant to this Paragraph I or otherwise under
this Agreement or the Agreement of merger that are contrary to
any applicable law, regulation, rule or order or which constitute
a breach of the fiduciary duties of the directors of Suburban
Bancorp or the Thrift Subsidiary.
J. [INTENTIONALLY LEFT BLANK.]
K. Fifth Third and Suburban Bancorp shall agree with each
other as to the form and substance of any press release related
to this Agreement and the Agreement of Merger or the transactions
contemplated hereby and thereby, and shall consult with each
other as to the form and substance of other public disclosures
related thereto, provided, however, that nothing contained herein
shall prohibit either party from making any disclosure which its
counsel deems required by law.
L. Each party hereto shall bear and pay all costs and
expenses incurred by it in connection with the transactions
contemplated by this Agreement and the Agreement of Merger,
including, without limitation, fees, costs and expenses of its
own financial consultants, investment bankers, accountants and
counsel, without reduction or modification in the number of
shares of Fifth Third Common Stock to be issued hereunder. The
expenses of printing and mailing the prospectus/proxy statement
shall be paid by Fifth Third.
M. 1. Between the date hereof and the Closing Date,
Suburban Bancorp shall promptly advise Fifth Third in writing of
any fact that, if existing or known at the date hereof, would
have been required to be set forth or disclosed in or pursuant to
this Agreement or of any fact that, if existing or known at the
date hereof, would have made any of the representations contained
herein untrue to any material extent, and which in each case,
would be likely to have a material adverse effect on Suburban
Bancorp and its subsidiaries, taken as a whole.
2. Between the date hereof and the Closing Date, Fifth
Third shall promptly advise Suburban Bancorp in writing of any
fact that, if existing or known at the date hereof, would have
been required to be set forth or disclosed in or pursuant to this
Agreement or of any fact that, if existing or known at the date
hereof, would have made any of the
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representations contained herein untrue to any material extent,
and which in each case, would be likely to have a material
adverse effect on Suburban Bancorp and its subsidiaries, taken as
a whole.
VIII. TERMINATION
A. This Agreement may be terminated at any time prior to the
Effective Time by written notice delivered by Fifth Third to
Suburban Bancorp or by Suburban Bancorp to Fifth Third in the
following instances:
1. By Fifth Third or Suburban Bancorp, if there has been
to the extent contemplated in Section VI.B.1. and 2. and Section
VI.C.1. and 2. herein, a material misrepresentation, a material
breach of warranty or a material failure to comply with any
covenant on the part of the other party with respect to the
representations, warranties, and covenants set forth herein and
such misrepresentations, breach or failure to comply has not been
cured (if capable of cure) within thirty (30) days after receipt
of written notice, provided, the party in default shall have no
right to terminate for its own default.
2. By Fifth Third or Suburban Bancorp, in each case
taken as a whole, if the business or assets or financial
condition of the other party shall have materially and adversely
changed from that in existence at December 31, 1996, other than
any such change attributable to or resulting from any change in
law, regulation or generally accepted accounting principles,
changes in interest rates, economic, financial or market
conditions affecting the banking or thrift industry generally or
changes that may occur as a consequence of actions or inactions
that either party hereto is expressly obligated to take under
this Agreement.
3. By Fifth Third or Suburban Bancorp, if the merger
transaction contemplated herein has not been consummated by
December 31, 1997, provided the terminating party is not in
material breach or default of any representations, warranty or
covenant contained herein on the date of such termination.
4. By the mutual written consent of Fifth Third and
Suburban Bancorp.
5. By Fifth Third if any event occurs which renders
impossible of satisfaction in any material respect one or more of
the conditions to the obligations of Fifth Third to effect the
Merger set forth in Sections VI.A. and B. herein and non-
compliance is not waived by Fifth Third.
6. By Suburban Bancorp if any event occurs which renders
impossible of satisfaction in any material respect one or more of
the conditions of the obligations of Suburban Bancorp to effect
the Merger as set forth in Sections VI.A. and C. herein and non-
compliance is not waived by Suburban Bancorp.
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7. By Suburban Bancorp if it determines by a vote of the
majority of the members of its Board of Directors at any time
during the ten (10) day period commencing two (2) days after the
Determination Date if both of the following conditions are
satisfied:
(i) the product of (x) the Average Closing Price
of Fifth Third Common Stock and (y) the Exchange
Ratio of .24357, is less than the Book Value Per
Share of the Suburban Bancorp Common Stock; and,
(ii) (x) the number obtained by dividing the
Average Closing Price by the Starting Price shall be
less than (y) the number obtained by dividing the
Index Price on the Determination Date by the Index
Price on the Starting Date and subtracting 0.10 from
the quotient in this clause (ii)(y);
If Suburban Bancorp elects to terminate this Agreement
pursuant to this Section VII.A.7., it shall give notice to Fifth
Third by the end of the ten (10) day period referenced at the
beginning of this Section VII.A.7., provided such notice may be
withdrawn at any time. If such notice is given, Fifth Third will
have the option to elect to increase the Exchange Ratio such that
the product of the Exchange Ratio as so adjusted and the Average
Closing Price equals the Book Value Per Share of the Suburban
Bancorp Common Stock (the "Adjusted Exchange Ratio") in which
event this Agreement will not terminate. If Fifth Third elects
to increase the Exchange Ratio it will notify Suburban Bancorp in
writing within five (5) days of the date that Suburban Bancorp
elects to terminate the Agreement. Fifth Third will have the
further option in lieu of adjusting the Exchange Ratio, to pay
cash (if in doing so it does not render impossible of
satisfaction the condition precedent set forth in Section VI.A.3.
herein) to the Suburban Bancorp shareholders for each outstanding
share of Suburban Bancorp Common Stock (in addition to .24357
shares of Fifth Third Common Stock) in an amount equal to the
difference between the (x) the Book Value Per Share of the
Suburban Bancorp Common Stock and (y) the product obtained by
multiplying the Average Closing Price of Fifth Third Common Stock
by .24357.
For purposes of this Paragraph VIII.A., the following terms
shall have the meaning indicated:
"Average Closing Price" shall mean the average of the per
share closing prices of the Fifth Third Common Stock as
reported on the NASDAQ National Market System for the 20
consecutive full trading days ending on the Determination
Date as reported The Wall Street Journal, expressed in
decimal figures carried to five figures.
"Book Value Per Share of the Suburban Bancorp Common Stock"
shall mean the consolidated shareholders' equity of
Suburban Bancorp as of February 28, 1997, determined in
conformity with generally accepted accounting principles
and on a consistent basis with prior periods, divided by
the number of issued and outstanding shares of Suburban
Bancorp Common Stock as of the date of calculation of
shareholders' equity.
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"Determination Date" shall mean the date which is the later
of (i) the date of the Suburban Bancorp shareholder meeting
held to vote on the Merger and (ii) the date the last
governmental approval required to consummate the Merger has
been received and all governmental waiting periods before
the Merger can be consummated shall have expired.
"Index Group" means the 11 bank holding companies listed
below, the common stock of all of which shall be publicly
traded and as to which there shall not have been a publicly
announced proposal since the Starting Date and before the
Determination Date for any such company to be acquired or
for such company to acquire another company or companies in
transactions with a value exceeding 25% of the acquiror's
market capitalization. In the event that any such company
is removed from the Index Group, the weights (which shall
be determined based upon the number of outstanding shares
of common stock) shall be redistributed proportionately for
purposes of determining the Index Price. The eleven (11)
bank holding companies and the weights attributed to them
are as follows:
BANK HOLDING COMPANY MARKET CAPITALIZATION WEIGHTED
FACTOR
($ MILLION)
First Chicago NBD Corporation 19,181 20.12%
First of America Bank Corp. 3,756 3.94%
Huntington Bancshares Inc. 4,104 4.30%
KeyCorp 12,318 12.92%
Mercantile Bancorporation Inc. 3,357 3.52%
National City Corporation 11,132 11.67%
Old Kent Financial Corporation 2,259 2.37%
Banc One Corporation 19,446 20.39%
PNC Bank Corp. 14,785 15.51%
Provident Bancorp Inc. 1,465 1.54%
Star Banc Corporation 3,547 3.72%
-------- ------
95,349 100.0%
"Index Price," on a given date, means the weighted average
(weighted in accordance with the Weighing Factors above,
which were calculated with reference to the
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market capitalizations listed above) of the closing prices
on such date of the common stock of the companies
comprising the Index Group.
"Starting Date" means February 13, 1997.
"Starting Price" means $80.00 per share.
If Fifth Third or any company belonging to the Index Group
declares or effects a stock dividend, reclassification,
recapitalization, split-up, combination, exchange of shares or
similar transaction between the Starting Date and the
Determination Date, the prices for the common stock of such
company shall be appropriately adjusted for the purposes of
applying this Paragraph VIII.A.7.
B. If Suburban Bancorp shareholders, acting at a meeting held
for the purpose of voting upon this Agreement and the Agreement
of Merger, fail to approve such agreements in the manner required
by law, then this Agreement and the Agreement of Merger shall be
deemed to be automatically terminated.
C. Upon termination as provided in this Section, this
Agreement and the Agreement of Merger, except for the provisions
of Paragraphs D, H, K and L of Section VII hereof shall be void
and of no further force or effect, and, except as provided in
Paragraph H of Section VII hereof, neither party hereto not in
material breach or default of its representations, warranties and
covenants hereunder shall have any liability of any kind to the
other party including but not limited to liability for expenses
incurred by the other party in connection with this transaction;
provided that no such termination shall relieve a breaching party
from liability for any uncured willful breach of a covenant,
undertaking, representation or warranty giving rise to such
termination.
IX. CLOSING AND EFFECTIVE TIME
The consummation of the transactions contemplated by this
Agreement shall take place at a closing to be held at the offices
of Fifth Third in Cincinnati, Ohio on a Friday which is as soon
as is reasonably possible following the date that all of the
conditions precedent to closing set forth in Section VI hereof,
including the waiting period required by any banking or bank
holding company regulatory agency after its approval of the
Merger is issued before the transaction may be consummated, have
been fully met or effectively waived (the "Closing Date").
Pursuant to the filing of articles or a certificate of merger
(which shall be acceptable to Suburban Bancorp and Fifth Third)
with the Secretaries of the States of Ohio and Delaware in
accordance with law and this Agreement, the Merger provided for
herein shall become effective at the close of business on said
day (the "Effective Time"). By mutual agreement of the parties,
the closing may be held at any other time or place or on any
other date and the effectiveness of the Merger (and the Effective
Time) may be changed by such mutual agreement. None of the
representations, warranties and agreements in this
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Agreement or in any instrument delivered pursuant to this
Agreement shall survive the Effective Time, except for agreements
of the parties which by their terms are intended to be performed
after the Effective Time.
X. AMENDMENT
This Agreement may be amended, modified or supplemented by the
written agreement of Suburban Bancorp and Fifth Third upon the
authorization of each company's respective Board of Directors at
any time before or after approval of the Merger and this
Agreement by the shareholders of Suburban Bancorp, but after any
such approval by the shareholders of Suburban Bancorp no
amendment shall be made (without further shareholder approval)
which changes in any manner adverse to such shareholders the
consideration to be provided to such shareholders pursuant to
this Agreement and the Agreement of Merger.
XI. GENERAL
This Agreement was made in the State of Ohio and shall be
interpreted under the laws of the United States and the State of
Ohio. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns but except as
specifically set forth herein or as contemplated in Sections
V.D., V.E.1, VII.B.2, VII.B.3, VII.B.4 and VII.B.5 none of the
provisions hereof shall be binding upon and inure to the benefit
of any other person, firm or corporation whomsoever. Neither
this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned or transferred by operation of law or
otherwise by any party hereto without the prior written consent
of the other party hereto; provided, however, that the merger or
consolidation of Fifth Third shall not be deemed an assignment
hereunder if Fifth Third is the surviving corporation in such
merger or consolidation and its Common Stock shall thereafter
continue to be publicly traded and issuable to Suburban Bancorp
shareholders pursuant to the terms of this Agreement.
XII. COUNTERPARTS
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original for all purposes but
such counterparts taken together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Affiliation Agreement as of the date hereinabove set forth.
FIFTH THIRD BANCORP
(SEAL) By: /s/ Robert P. Niehaus
_______________________________
Robert P. Niehaus
Executive Vice President
Attest: /s/ Paul L. Reynolds
________________________________
Paul L. Reynolds
Assistant Secretary
SUBURBAN BANCORPORATION, INC.
(SEAL) By: /s/ Joseph F. Hutchison
________________________________
Name: Joseph F. Hutchison
Title: President
Attest: /s/ John A. Buchheid
________________________________
Name: John A. Buchheid
Title: Secretary
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OMITTED SCHEDULES IN SCHEDULE 1 UNDER SECTION II
Schedule E Re certain changes
Schedule F Re certain litigation
Schedule G Re certain distributions
Schedule H Re certain tax returns
Schedule I Re certain agreements
Schedule J Re certain loan losses
Schedule L Re certain agreements
Schedule M Re certain corporate charters and bylaws
Schedule Q Re certain benefit plans
Schedule S Re certain proceedings and claims
APPENDIX A
________________________, 1997
THE FOLLOWING OPINION IS INTENDED TO BE RENDERED UPON THE CLOSING
OF THE TRANSACTION DESCRIBED THEREIN IN SUBSTANTIALLY THE FORM
PRESENTED, ASSUMING NO CHANGES IN THE FACTS OR THE LAW UPON WHICH
SUCH OPINION IS BASED, AND SUBJECT TO RECEIPT, REVIEW AND
APPROVAL OF FINAL DOCUMENTS
Fifth Third Bancorp
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Suburban Bancorporation, Inc.
10869 Montgomery Road
Cincinnati, Ohio 45242
Dear Sirs:
As counsel for Fifth Third Bancorp, we have been requested to
render our opinion with respect to certain Federal income tax
consequences of the merger of Suburban Bancorporation, Inc.
("Suburban") with and into Fifth Third Bancorp ("Fifth Third"),
as more fully described in the Affiliation Agreement, dated as of
____________________, 1997, between Fifth Third and Suburban (the
Affiliation Agreement").
We have reviewed the terms of the proposed transaction as set
forth in the Affiliation Agreement and have received
representations from certain executive officers of Fifth Third
and Suburban relating to various factual matters relevant to the
opinions expressed herein. Our opinion is based on the
Affiliation Agreement, the facts set forth in such
representations and on our analysis of the applicable provisions
of the Internal Revenue Code of 1986, as amended (the "Code"),
Treasury Regulations, Internal Revenue Service Rulings, and
judicial decisions interpreting the Code as in effect on the date
hereof. We have not independently verified the factual matters
set forth in the representations.
Based upon and subject to the foregoing, our opinion is as
follows:
1. The merger of Suburban with and into Fifth Third will
constitute a reorganization within the meaning of Section
368(a)(1)(A) of the Code and, for purposes thereof, Fifth
Third and Suburban will each qualify as a 'party to a
reorganization" within the meaning of Section 368(b) of
the Code;
2. No gain or loss will be recognized by Suburban as a
consequence of the merger;
3. No gain or loss will be recognized by Fifth Third on the
receipt by Fifth Third of substantially all the assets of
Suburban and the assumption by Fifth Third of Suburban's
liabilities;
4. No gain or loss will be recognized by the shareholders of
Suburban who receive solely Fifth Third Common Stock in
exchange for shares of Suburban Common Stock pursuant to
the
Affiliation Agreement (disregarding for this purpose any
cash received for any fractional share interest in Fifth
Third Common Stock to which they may be entitled);
5. The tax basis of Fifth Third Common Stock received by
Suburban shareholders in the merger will be, in each
instance, the same as the federal income tax basis of the
Suburban Common Stock surrendered in exchange therefor
disregarding for this purpose any cash received in lieu of
a fractional share interest and increased by the amount of
cash received that was treated as a dividend (if any);
6. The holding period of Fifth Third Common Stock (including
any fractional share) received by a Suburban shareholder
will include, in each case, the period during which the
Suburban Common Stock surrendered in exchange therefor was
held, provided that the Suburban Common Stock was held as
a
capital asset by such shareholder on the date of the
exchange; and
7. Holders of Suburban Common Stock who receive cash in lieu
of fractional shares of Fifth Third Common Stock will be
treated as having received such fractional share of Fifth
Third Common Stock and then as having received such cash
in redemption of such fractional share subject to the
provisions of Section 302 of the Code.
We consent to the filing of the form of this opinion as an
exhibit to the Registration Statement filed in connection with
the merger.
Very truly yours,
By: __________________________
APPENDIX B
[Substantive Provisions of Legal Opinion to be provided by
Housley, Kantarian & Bronstein, P.C., may be issued
in ABA Opinion Accord format]
_________________________, 1997
Fifth Third Bancorp
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Gentlemen:
[Introductory Paragraph to be included]
We are of the opinion that:
1. Suburban Bancorporation, Inc. ("Suburban") is duly
incorporated, validly existing and in good standing as a
corporation under the corporate laws of the State of
Delaware and has all the requisite corporate power and
authority to consummate the Merger.
2. Suburban is a registered savings and loan holding company
under the Home Owners' Loan Act, 12 U.S.C. Subsection
1467a et seq., as amended, and has all requisite corporate
power and authority to conduct the business in which it is
engaged as such business is described in Suburban's Annual
Report on Form 10-K for the year ended June 30, 1996.
3. Suburban Federal Savings Bank ("Thrift Subsidiary") is duly
incorporated and validly existing as a federal savings bank
organized and existing under the laws of the United Sates
and has all the requisite corporate power and authority to
conduct the savings bank business in which it is engaged as
such business is described in Suburban's Annual Report on
Form 10-K for the year ended June 30, 1996.
4. The Affiliation Agreement and the Merger have been duly
approved and adopted by the Board of Directors and
shareholders of Suburban as required by law and by the
Certificate of Incorporation and Bylaws of Suburban.
5. The Affiliation Agreement has been duly executed and
delivered by Suburban and (assuming due approval and
execution thereof by Fifth Third) constitutes the valid and
binding obligation of Suburban enforceable against Suburban
in accordance with
____________, 1997
Page 2
their respective terms, except to the extent that (i)
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent
conveyance of other laws relating to or from time to time
affecting the enforcement of creditors' rights generally or
the rights of creditors of savings and loan holding
companies, the accounts of whose subsidiaries are insured
by the Federal Deposit Insurance Corporation and (ii) the
availability of certain remedies may be precluded by
general principles of equity.
6. The execution, delivery and performance of the Affiliation
Agreement does not violate (i) the Certificate of
Incorporation or Bylaws of Suburban, or (ii) the Federal
Stock Charter or Bylaws of Thrift Subsidiary.
7. All issued and outstanding shares of the capital stock of
Suburban have been duly authorized and validly issued
(assuming the receipt of proper consideration therefor) and
are nonassessable. To our actual knowledge, Suburban owns
of record all of the ___________ outstanding shares of the
capital stock of Thrift Subsidiary.
8. To our actual knowledge, all approvals required to be
obtained by Suburban or Thrift Subsidiary in connection
with the Merger provided for in the Affiliation Agreement
have been obtained from the appropriate regulatory
authorities.
Very truly yours,
APPENDIX C
Paul L. Reynolds
Counsel
___________________, 1997
Suburban Bancorporation, Inc.
10869 Montgomery Road
Cincinnati, Ohio 45242
Gentlemen:
The undersigned has acted as counsel to Fifth Third Bancorp in
connection with the transactions provided for in the Affiliation
Agreement dated as of ________________, 1997, ("Affiliation
Agreement") by and between Fifth Third Bancorp ("Fifth Third")
and Suburban Bancorporation, Inc. ("Suburban"). This opinion is
rendered to you pursuant to paragraph 3 of Section VI.C. of the
Affiliation Agreement.
I have examined and are familiar with originals or copies,
certified or otherwise, identified to our satisfaction, of such
statutes, regulations, documents, corporate records, and
certificates of public officials and corporate officers as we
have deemed necessary for the purposes of this opinion, including
but not limited to the following: (a) the Second Amended
Articles of Incorporation of Fifth Third, as amended; (b) the
Code of Regulations, as amended, of Fifth Third; and, (c) the
record of all actions taken by the Board of Directors and
Executive Committee of the Board of Directors of Fifth Third in
connection with any matters covered by this opinion.
I have made such examination of Ohio and Federal law as I deem
relevant for the purposes of this opinion, but I have not made
any review of the laws of any state other than Ohio.
Accordingly, I express no opinion as to the laws of any state or
jurisdiction other than the United States of America and the
State of Ohio.
Based upon and subject to the foregoing, I am of the opinion
that:
1. Fifth Third is duly incorporated, validly existing and in
good standing as a corporation under the laws of Ohio, and
has all the requisite power and authority to consummate the
transactions provided for in the Affiliation Agreement and
the Agreement of Merger. Fifth Third is a registered bank
holding company under the Bank Holding Company Act
of 1956, as amended, 12 U.S.C. Subsection 1841 et seq., and
has all requisite corporate power and authority to conduct
the business in which it is engaged and as now conducted by
it.
____________, 1997
Page 2
2. The Affiliation Agreement and the transactions provided
for therein have been duly approved by the Directors of
Fifth Third, and no action is required to be taken by the
shareholders of Fifth Third to authorize, approve or adopt
the Affiliation Agreement or the transactions provided
for therein.
3. The Affiliation Agreement has been duly executed and
delivered by Fifth Third and constitutes the valid and
binding obligation of Fifth Third enforceable against
Fifth Third in accordance with its respective terms,
except to the extent that (i) enforceability thereof may
be limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance or other laws relating to or from
time to time affecting the enforcement of creditors'
rights generally or the rights of creditors of bank
holding companies, the accounts of whose subsidiaries are
insured by the Federal Deposit Insurance Corporation and
(ii) the availability of certain remedies may be precluded
by general principles of equity.
4. Fifth Third has taken all necessary and required corporate
action to authorize the issuance or transfer of the shares
of its Common Stock to be received by holders of the
Common Stock of Suburban as a result of the merger of
Suburban with and into Fifth Third and, when so issued or
transferred, such shares will be legally and validly
issued and outstanding, fully paid and nonassessable and
will not upon such transfer or issuance be subject to the
preemptive rights of any shareholder of Fifth Third, and
such shares have been registered under the Securities Act
of 1933, as amended.
5. The registration statement filed with the Securities and
Exchange Commission under the Securities Act of 1933, as
amended, Registration No. 33-64871 (the "Registration
Statement"), by Fifth Third to register the shares of
Common Stock of Fifth Third being offered to the
shareholders of Suburban in the merger provided for in the
Affiliation Agreement and the Agreement of Merger has been
declared effective and no stop order has been issued and
no proceeding for the purpose has been initiated or, to my
best knowledge, contemplated or threatened by the
Securities and Exchange Commission.
6. The Registration Statement and the Proxy Statement/
Prospectus included therein at the time it became
effective complied as to form with the Securities Act of
1993, as amended, and the rules and regulations
thereunder.
____________, 1997
Page 2
7. All necessary approvals for the transactions provided for
in the Affiliation Agreement and the Agreement of Merger
have been obtained from the appropriate regulatory
authorities.
Very truly yours,
FIFTH THIRD BANCORP
Paul L. Reynolds
Counsel
PLR:km
Appendix V.E.9.
MERGER AGREEMENT
BETWEEN
FIFTH THIRD AND SUBURBAN BANCORP
Operational Problems with Suburban's ESOP and 401k Plan
-------------------------------------------------------
Description and Timetable for Proceeding
Target Date Responsible Action to be Taken
for Action Party
- ---------- ----------- -------------------
1-2 weeks after Send Fifth Third draft
Agreement (A) Suburban VCR application for remedying
problems with 401k Plan and ESOP.
3-4 weeks after Fifth Third Provide comments on VCR
Agreement Application
4-5 weeks after Suburban File VCR Application with
Agreement Internal Revenue Service
Subsequent Actions Both Parties Suburban (via Housely Kantarian)
to respond to IRS comments on VCR
application, but only after prior
approval/review by Fifth Third
Explanatory Footnotes
- ---------------------
(A) The term "Agreement" refers to the date of execution of
the merger agreement between Fifth Third and Suburban
Bancorp.
APPENDIX VII.B.2. (DATE)
SEPARATION AGREEMENT AND
GENERAL RELEASE OF ALL CLAIMS
In consideration of the mutual covenants contained herein, the
sufficiency of which are hereby acknowledged, (NAME) ("you") and
Fifth Third Bank, including its officers, directors and
predecessor, (NAME OF PREDECESSOR), (collectively, "Fifth Third")
agree as follows:
Your job assignments are eliminated as of (DATE). As a severance
package, you are being offered an amount based on the schedule
set forth in the enclosed Severance Pay Plan which is
incorporated herein by reference.
If you choose this, your written acceptance of this Agreement and
Plan must be returned to (NAME OF HR REP.) no later than 8:00
a.m. on (DATE).
If you choose this, you also agree to fully cooperate with Fifth
Third and its customers through the date that your job will be
eliminated as described above. If you fail to cooperate to Fifth
Third's satisfaction as reasonably determined by Fifth Third, you
will be deemed to have voluntarily resigned your position, and
the waiver and releases in favor of Fifth Third in this Agreement
shall remain in full force and effect.
As additional consideration for receipt of the severance package,
you, on your behalf and on behalf of your heirs, executors,
successors, and assigns hereby release Fifth Third, as well as
all of its officers, directors, executives, managers and
employees, from any and all debts, claims, demands, rights,
actions, causes of action, suits, or damages, whatsoever and of
every kind of nature, whether known or unknown, against Fifth
Third and the others released herein, which relate to or arose
from your separation from Fifth Third as contemplated herein.
You also covenant not to sue or file or cause to be filed in any
complaint with any federal, state or local agency or in any court
against Fifth Third, or the others released herein, regarding any
matter related to your separation from employment with Fifth
Third, including but not limited to any claims which you may have
under Federal Law or any similar Ohio law, with respect to such
separation.
You agree that apart from your discussions with your personal
counsel and your immediate family, whom you will ask not to
divulge the terms of this Agreement, you will not disclose,
publicize or discuss either the terms of this Agreement or your
employment with and termination from Fifth Third with anyone
within or outside of Fifth Third unless required by subpoena or
any other legal compulsion, and you will give immediate notice to
Fifth Third of the receipt of any subpoena or other legal
document which might call upon you to disclose either any of the
contents of this Agreement or your employment with and
termination from Fifth Third.
You represent and warrant that you have returned to Fifth Third
the original and any copies of all keys, Fifth Third
identification cards, charge cards, equipment, papers, reports,
memorandum or other items of Fifth Third property on (DATE). You
acknowledge that Fifth Third has returned to you all items of
your personal property.
You and Fifth Third recognize and agree that nothing in this
Agreement constitutes an admission of liability or wrongdoing by
you or by Fifth Third or any of the others released herein.
Signed this ___ day of ____________, 1997.
Witnessed and accepted:
ACCEPTED AND AGREED TO:
FIFTH THIRD BANK
_____________________
(NAME) BY: _________________ DATE: _______
Effective Date: (DATE)
TERMINATION AND RELEASE AGREEMENT
This Agreement (the "Agreement") is made and entered into as of
the _____ day of _____________________, 1997, by and between
FIFTH THIRD BANCORP, an Ohio corporation ("Buyer") and
_______________ ("Individual").
RECITALS
--------
WHEREAS, Buyer has this date acquired the business and assets of
SUBURBAN BANCORPORATION and its subsidiaries ("Suburban");
WHEREAS, Suburban and its subsidiaries are engaged in the savings
bank business (the "Business");
WHEREAS, Individual is an Executive Officer of Suburban and,
pursuant to an existing contract of [employment] [Severance] (the
"Employment Contract"), will receive a significant pecuniary
benefit from the sale of Suburban to Buyer; and,
WHEREAS, in connection with the purchase of the Business and the
assets of Suburban by Buyer, Buyer and Suburban have entered into
an Affiliation Agreement, dated as of _________________, 1997,
(the "Acquisition Contract").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained and in accordance with the Acquisition
Contract, IT IS AGREED AS FOLLOWS:
1. TERMINATION OF CONTRACT. Individual and Suburban
acknowledge that the Employment Contract between them
shall be deemed terminated as of the date hereof and that
as of that date they shall have no further employment or
contractual relationship. Individual waives any right or
claim to reinstatement as an employee of Suburban.
2. TERMINATION OF EMPLOYMENT. In connection with termination
of such Employment Contract, Individual and Suburban agree
that Individual shall no longer be employed and shall no
longer serve as ____________________, effective as of the
date hereof.
3. PAYMENT. Simultaneously upon execution of this Agreement
Suburban has paid to Individual the amount of $_________,
as provided in the Employment Contract. Attached hereto
as Exhibit A is an itemization of the amounts being paid.
4. CONFIDENTIALITY. Fifth Third and Individual agree that
the
terms and conditions of this Agreement shall remain
confidential as between the parties and shall not be
disclosed to any other person except as required by law or
as the parties may mutually agree. Without limiting the
generality of the foregoing, neither Fifth Third nor
Individual will respond to or in any way participate in or
contribute to any public discussion, notice or other
publicity concerning, or in any way relating to, the
execution or the terms and conditions of this Agreement
except as required by law or as the parties may mutually
agree. Without limiting the generality of the foregoing,
Fifth Third and Individual specifically agree that neither
of them shall disclose information regarding this
Agreement to any current or former employee of Suburban
except as required by law or as the parties may mutually
agree. Fifth Third and Individual hereby agree that
disclosure by either in violation of the foregoing shall
constitute and be treated as a material breach of this
Agreement.
5. GENERAL RELEASE AND DISCHARGE. Except for those
obligations created by or arising out of this Agreement,
Individual, on behalf of himself and all others claiming
under him, hereby covenants not to sue and fully releases
and discharges Suburban and Buyer with respect to any
further payments to be made to the Individual under the
Employment Contract or with respect to the termination
thereof or arising out of or in any way connected with the
Individual's termination of employment hereunder.
6. FULL FORCE AND EFFECT. It is the intention of Individual
and Fifth Third, in executing this Agreement, that the
same shall be given full force and effect according to
each and all of its express terms and provisions.
7. COVENANT NOT TO DISCLOSE. Individual agrees that he will
not, directly or indirectly (without the Buyer's prior
written consent), use for himself or use for, or disclose
to, any party other than the Buyer, any secret,
proprietary or confidential information or data that is
not otherwise publicly available regarding the Business of
Suburban, including that of its subsidiaries, or any
secret, proprietary or confidential information or data
that is not otherwise publicly available regarding the
costs, uses, methods, applications, operations or
customers of Suburban.
8. SEVERABILITY. Any provision of this Agreement which is
deemed invalid, illegal or unenforceable in any
jurisdiction shall, as to that jurisdiction and subject to
this paragraph, be ineffective to the extent of such
invalidity, illegality or unenforceability, without
affecting in any way the remaining provisions hereof in
such jurisdiction or rendering that or any other
provisions of this Agreement invalid, illegal, or
unenforceable in any other jurisdiction. If any covenant
should be deemed invalid, illegal or unenforceable because
its scope is considered excessive, such covenant shall be
modified so that the scope of the covenant is reduced only
to the minimum extent necessary to render the modified
covenant valid, legal and enforceable.
9. COMPLETE AGREEMENT. This Agreement contains the entire
agreement between the parties hereto with respect to the
matters described herein and supersede all previous oral
and written discussions, agreements or understandings
between the parties hereto regarding such matters.
10. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the
State of Ohio.
11. INJUNCTIVE RELIEF. The parties hereto agree that damages
would be an inadequate remedy for Buyer in the event of
breach or threatened breach of this Agreement,
specifically, but not exclusively, breach or threatened
breach of Sections 4 and 7 hereof, and thus, in any such
event, either with or without pursuing any potential
damage remedies, Buyer may immediately obtain and enforce
an injunction prohibiting Individual from violating this
Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands as
of the date first set forth hereinabove.
FIFTH THIRD BANCORP
By: __________________________
Robert P. Niehaus
Executive Vice President
INDIVIDUAL
_____________________________
Name: ______________________