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As filed with the Securities Exchange Commission on September 29, 2023 Registration No. 333- |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_______________
FIFTH THIRD BANCORP
(Exact Name of Registrant as Specified in its Charter)
_______________
38 Fountain Square Plaza,
Cincinnati, Ohio 45263
(Address, including zip code, of Registrant’s Principal Executive Offices)
Fifth Third Bancorp Unfunded Deferred Compensation Plan for Non-Employee Directors
The Fifth Third Bancorp Nonqualified Deferred Compensation Plan
(Full Title of Plans)
Susan B. Zaunbrecher
Executive Vice President and Chief Legal Officer
Fifth Third Bancorp
38 Fountain Square Plaza
MD 10907F
Cincinnati, Ohio 45263
(513) 534-4300
(Name, address, and telephone number, including area code, of agent for service)
With a copy to:
H. Samuel Lind, Esq.
Fifth Third Bancorp
38 Fountain Square Plaza
MD 10907F
Cincinnati, Ohio 45263
(513) 534-4300
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one)
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Large accelerated filer | ☒ | Accelerated filer | ☐ |
Non-accelerated filer | ☐ | Smaller reporting company | ☐ |
| | Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
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EXPLANATORY NOTE
This Registration Statement on Form S-8 (this “Registration Statement”) is being filed to register an additional $75,000,000 of unsecured obligations of Fifth Third Bancorp to pay deferred compensation in the future (“Deferred Compensation Obligations”) in accordance with the terms of the Fifth Third Bancorp Unfunded Deferred Compensation Plan for Non-Employee Directors and The Fifth Third Bancorp Nonqualified Deferred Compensation Plan.
The Company registered $32,000,000 of Deferred Compensation Obligations on a Form S-8 Registration Statement (File No. 333-214542) (the “Original Registration Statement”) filed with the Securities and Exchange Commission (the “SEC”) on November 10, 2016. The Company registered an additional $45,000,000 of Deferred Compensation Obligations on a Form S-8 Registration Statement (File No. 333-227468) filed with the SEC on September 21, 2018 and an additional $50,000,000 of Deferred Compensation Obligations on a Form S-8 Registration Statement (File No. 333-251914) filed with the SEC on January 6, 2021 (together, the “Additional Registration Statements”). Pursuant to General Instruction E of Form S-8, the contents of the Original Registration Statement and the Additional Registration Statements are incorporated herein by reference, except that the provisions contained in Part II of the Original Registration Statement and the Additional Registration Statements are modified as set forth in this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents that Fifth Third Bancorp (the “Company” or “Fifth Third”) has filed with the Securities and Exchange Commission (the “Commission”) under the Securities Exchange Act of 1934 (the “Exchange Act”) are incorporated by reference into this Registration Statement:
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| • | the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022; |
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| • | the Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2023 and June 30, 2023; |
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| • | the Company’s Current Reports on Form 8-K filed with the Commission on January 23, 2023, January 27, 2023, March 6, 2023, April 21, 2023, June 14, 2023, July 24, 2023, July 27, 2023, and August 21, 2023. |
In addition, all reports and other documents subsequently filed (but not furnished) by the Company pursuant to Sections 13(a), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents with the Commission. Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement, or in any other subsequently filed document that also is or is deemed to be incorporated by reference in this Registration Statement, modifies or supersedes such prior statement. Any statement contained in this Registration Statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document that is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
No document or information deemed to be furnished and not filed in accordance with rules of the Commission shall be deemed to be incorporated herein by reference unless such document or information expressly provides to the contrary.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Obligations offered hereby has been passed upon by Thompson Hine LLP. A copy of their opinion is attached as Exhibit 5.1 to this Registration Statement.
ITEM 8. EXHIBITS
EXHIBIT INDEX
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Exhibit
No. | | Description |
| |
| 4.1 | | |
| 4.2 | | |
| 5.1 | | |
| 23.1 | | |
| 23.2 | | |
| 24.1 | | Power of Attorney (set forth on signature page)* |
| 107 | | |
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company has duly caused this Registration Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cincinnati, State of Ohio on September 29, 2023.
FIFTH THIRD BANCORP
By:/s/ Timothy N. Spence
Timothy N. Spence
President and Chief Executive Officer
POWERS OF ATTORNEY
The undersigned officers and directors do hereby constitute and appoint Timothy N. Spence, with full power of substitution and re-substitution, as our true and lawful attorney-in-fact and agent, to do any and all acts and things in our name and behalf in our capacities as directors and officers, and to execute any and all instruments for us and in our names in the capacities indicated below, that such person may deem necessary or advisable to enable the Company to comply with the Securities Act and any rules, regulations and requirements of the Commission in connection with this Registration Statement, including specifically, but not limited to, power and authority to sign for us, any of us, in the capacities indicated below, any and all amendments hereto (including post-effective amendments); and we do hereby ratify and confirm all that said attorney-in-fact and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on September 29, 2023.
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| Name | Title |
/s/ Timothy N. Spence Timothy N. Spence | President, Chief Executive Officer and Director (Principal Executive Officer) |
/s/ James C. Leonard James C. Leonard | Executive Vice President and Chief Financial Officer (Principal Financial Officer) |
/s/ Mark D. Hazel Mark D. Hazel | Executive Vice President and Controller (Principal Accounting Officer) |
/s/ Nicholas K. Akins Nicholas K. Akins | Chair of the Board |
/s/ B. Evan Bayh III B. Evan Bayh III | Director |
/s/ Jorge L. Benitez Jorge L. Benitez | Director |
/s/ Katherine B. Blackburn Katherine B. Blackburn | Director |
/s/ Emerson L. Brumback Emerson L. Brumback | Director |
/s/ Linda W. Clement-Holmes Linda W. Clement-Holmes | Director |
/s/ C. Bryan Daniels C. Bryan Daniels | Director |
/s/ Laurent Desmangles Laurent Desmangles | Director |
/s/ Mitchell S. Feiger Mitchell S. Feiger | Director |
/s/ Thomas H. Harvey Thomas H. Harvey | Director |
/s/ Gary R. Heminger Gary R. Heminger | Director |
/s/ Eileen A. Mallesch Eileen A. Mallesch | Director |
/s/ Michael B. McCallister Michael B. McCallister | Director |
/s/ Kathleen A. Rogers Kathleen A. Rogers | Director |
Marsha C. Williams | Director |
EXHIBIT 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
FIFTH THIRD BANCORP
(Exact Name of Registrant as Specified in its Charter)
Table 1 – Newly Registered Securities
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| Security Type | Security Class Title | Fee Calculation Rule | Amount Registered(1) | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee |
| Other | Deferred compensation obligations(1) | 457(h) | $75,000,000 | 100% | $75,000,000 | $110.20 per $1,000,000 | $8,265 |
| Total Offering Amounts | $75,000,000 | | $8,265 |
| Total Fee Offsets | | | $0.00 |
| Net Fee Due | | | $8,265 |
(1) The Deferred Compensation Obligations are unsecured obligations of Fifth Third Bancorp to pay deferred compensation in the future in accordance with the terms of the Fifth Third Bancorp Unfunded Deferred Compensation Plan for Non-Employee Directors and The Fifth Third Bancorp Nonqualified Deferred Compensation Plan. Deferred Compensation Obligations will be paid in cash.
September 29, 2023
Fifth Third Bancorp
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Ladies and Gentlemen:
We have acted as special Ohio counsel to Fifth Third Bancorp, an Ohio corporation (the “Company”), in connection with the Company’s registration with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), on Form S-8 (the “Registration Statement”) of $75,000,000 of deferred compensation obligations (the “Obligations”) that may be offered to certain eligible directors and employees of the Company and its subsidiaries pursuant to the Fifth Third Bancorp Unfunded Deferred Compensation Plan for Non-Employee Directors, as amended (“Director Plan”), and The Fifth Third Bancorp Nonqualified Deferred Compensation Plan, as amended (the “Employee Plan” and, together with the Director Plan, the “Plans”). For this purpose, we have assumed that the Director Plan is maintained primarily for the purpose of providing deferred compensation to non-employee directors and the Employee Plan is maintained primarily for the purpose of providing deferred compensation to a select group of management or highly compensated employees.
In connection with this opinion, we have examined and relied upon the originals, or copies identified to our satisfaction, of each of the following agreements and documents:
(i) each of the Plans;
(ii) the Amended Articles of Incorporation of the Company filed with the Secretary of State of the State of Ohio on April 16, 2021 (the “Articles”);
(iii) a good standing certificate dated September 28, 2023 issued by the Secretary of State of the State of Ohio with respect to the Company; and
(iv) a certificate of an Assistant Secretary of the Company dated September 29, 2023 certifying a copy of the Articles and resolutions adopted by the Board of Directors of the Company by unanimous written consent (the “Certificate”).
We also have examined originals or copies, certified or otherwise identified to our satisfaction, of such other documents, corporate records, certificates of public officials and officers of the Company and other instruments as we have deemed necessary or advisable for purposes of this opinion.
In our examination, we have assumed the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or facsimile copies and the authenticity of the originals of such copies. As to any facts material to this opinion, we have relied, without independent verification, upon the Certificate and other oral or written statements of officers and other representatives of the Company and others, including public officials.
Based upon the foregoing and subject to qualifications hereinafter set forth, it is our opinion that:
1. The Obligations, when issued in accordance with the terms of the Plans, will be binding obligations of the Company enforceable against the Company in accordance with their terms and the terms of the Plans, except as such enforceability: (a) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights and remedies of creditors generally and (b) is subject to the effect of general principles of equity, whether applied by a court of law or equity.
2. By its express terms, the Employee Plan potentially results in a deferral of income by employees for periods extending to separation from service or beyond. Accordingly, the Employee Plan is an “employee pension benefit plan” described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
Fifth Third Bancorp
September 29, 2023
Page 2
(“ERISA”). However, as the Employee Plan is unfunded and maintained primarily for the purpose of providing deferred compensation to a select group of management of highly compensated employees, the Employee Plan is subject to parts 1 and 5 of Title I of ERISA, but not to any other provisions of ERISA.
Parts 1 and 5 of Title 1 of ERISA do not impose any specific written requirements on non-qualified deferred compensation arrangements such as the Employee Plan as a condition to compliance with the applicable provisions of ERISA. Further, the operation of the Employee Plan pursuant to the written provisions of the Employee Plan will not cause the Employee Plan to fail to comply with parts 1 or 5 of Title 5 of ERISA.
On the basis of the foregoing, we are of the opinion that the written provisions of the Employee Plan comply with the requirements of ERISA pertaining to such provisions. We are also of the opinion that the Director Plan is not subject to ERISA. Further, neither Plan is designed or operated with the purpose of satisfying the requirements for qualification under Section 401(a) of the Internal Revenue Code of 1986, as amended.
We are members of the Bar of the State of Ohio, and we express no opinion as to any matter governed by any laws other than those of the State of Ohio and, solely to the extent expressly provided in opinion #2 above, the federal laws of the United States. No opinion is given with respect to the application of any Ohio banking, securities or tax laws or regulations.
This opinion is limited to the conclusions specifically stated herein, and no opinion may be inferred or implied beyond such specific conclusions. We disclaim any undertaking or obligation to advise you of any changes in the matters covered by this opinion that may come to our attention after the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement; however, in giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
Sincerely,
/s/ Thompson Hine LLP
DAN; LAR
EXHIBIT 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated February 24, 2023 relating to (1) the consolidated financial statements of Fifth Third Bancorp and subsidiaries (the “Bancorp”), and (2) the effectiveness of the Bancorp’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of the Bancorp for the year ended December 31, 2022.
/s/ Deloitte & Touche LLP
Cincinnati, Ohio
September 29, 2023
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