Confirmation of Forward Sale Transaction



 EXHIBIT 4.1 

 

 

 January 24, 2011 
  

			
	To:	 	Fifth Third Bancorp
		 	Fifth Third Center
		 	Cincinnati, Ohio 45263
		
	From:    	 	JPMorgan Chase Bank, National Association
		 	125 London Wall
		 	London EC2Y 5AJ
		 	England
		
	From:    	 	J.P. Morgan Securities LLC,
		 	Solely as Agent
		 	tel: (212) 622-5270
		 	fax: (212) 622-0105

  

			
	  	  	 

 Dear Sirs, 
 The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the transaction entered into between us on the Trade Date specified below (the
“Transaction”). This Confirmation constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. 
  

	1.	The definitions and provisions contained in the 2000 ISDA Definitions (the “2000 Definitions”) and the 2002 ISDA Equity Derivatives Definitions (the
“2002 Definitions” and, together with the 2000 Definitions, the “Definitions”), each as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any
inconsistency between the 2002 Definitions and the 2000 Definitions, the 2002 Definitions will govern. In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern. 


This Confirmation evidences a complete and binding agreement between Party A and Party B as to the terms of the Transaction to which this
Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if Party A and Party B had executed an agreement in such form on
the Trade Date (but without any Schedule except for the election of the laws of the State of New York as the governing law). In the event of any inconsistency between provisions of that Agreement and this Confirmation, this Confirmation will prevail
for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no Transaction other than the Transaction to which this Confirmation relates shall be governed by the Agreement. For purposes of the 2002
Definitions, the Transaction is a Share Forward Transaction. 
 JPMorgan Chase Bank, National Association 

Organised under the laws of the United States as a National Banking Association 

Main Office 1111 Polaris Parkway, Columbus, Ohio 43271 
 Registered as a branch in England & Wales branch No. BR000746 
 Registered
Branch Office 125 London Wall, London EC2Y 5AJ 
 Authorised and regulated by the Financial Services Authority 

  
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 Party A and Party B each represents to the other that it has entered into the Transaction in
reliance upon such tax, accounting, regulatory, legal, and financial advice as it deems necessary and not upon any view expressed by the other. 
  

	2.	The terms of the particular Transaction to which this Confirmation relates are as follows: 


 

			
	 General Terms:
	  	
		
	 Party A:
	  	JPMorgan Chase Bank, National Association, London Branch
		
	 Party B:
	  	Fifth Third Bancorp
		
	 Trade Date:
	  	January 24, 2011
		
	 Effective Date:
	  	January 25, 2011
		
	 Base Amount:
	  	Initially, 12,142,857 Shares. On each Settlement Date, the Base Amount shall be reduced by the number of Settlement Shares for such Settlement Date.
		
	 Maturity Date:
	  	January 20, 2012 (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day), subject to extension if a Settlement Date on such date is deferred
as provided in clause (ii) of the first proviso to the definition of Settlement Date below.
		
	 Forward Price:
	  	On the Effective Date, the Initial Forward Price, and on any other day, the Forward Price as of the immediately preceding calendar day multiplied by the sum of (i) 1 and
(ii) the Daily Rate for such day; provided that on each Forward Price Reduction Date, the Forward Price in effect on such date shall be the Forward Price otherwise in effect on such date, minus the Forward Price Reduction Amount for
such Forward Price Reduction Date.
		
	 Initial Forward Price:
	  	USD $13.58 per Share.
		
	 Daily Rate:
	  	For any day, (i)(A) USD-Federal Funds Rate for such day, minus (B) the Spread, divided by (ii) 365.
		
	 USD-Federal Funds Rate
	  	For any day, the rate set forth for such day opposite the caption “Federal funds”, as such rate is displayed on the page “FedsOpen <Index> <GO>”
on the BLOOMBERG Professional Service, or any successor page; provided that if no rate appears for any day on such page, the rate for the immediately preceding day for which a rate appears shall be used for such day.
		
	 Spread:
	  	100 basis points
		
	 Forward Price Reduction Date:
	  	March 29, 2011, June 28, 2011, September 28, 2011 and December 28, 2011.


  
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	 Forward Price Reduction Amount:
	  	  
 For each Forward Price Reduction Date, the Forward Price
Reduction Amount set forth opposite such date on Schedule I.

		
	 Shares:
	  	Common Stock, without par value, of Party B (also referred to herein as the “Issuer”) (Exchange identifier: “FITB”).
		
	 Exchange:
	  	NASDAQ Global Select Market.
		
	 Related Exchange(s):
	  	All Exchanges.
		
	 Clearance System:
	  	DTC.
		
	 Calculation Agent:
	  	JPMorgan Chase Bank, National Association.
		
	 Settlement Terms:
	  	
		
	 Settlement Date:
	  	Any Scheduled Trading Day following the Effective Date and up to and including the Maturity Date, as designated by (a) Party A pursuant to “Termination Settlement”
below or (b) Party B in a written notice (a “Settlement Notice”) that satisfies the Settlement Notice Requirements and is delivered to Party A (i) at least three Scheduled Trading Days prior to such Settlement Date, which may be the
Maturity Date, if Physical Settlement applies, and (ii) at least 15 Scheduled Trading Days prior to such Settlement Date, which may be the Maturity Date, if Cash Settlement or Net Share Settlement applies; provided that (i) subject to clause
(ii) below, the Maturity Date shall be a Settlement Date if on such date the Base Amount is greater than zero, and (ii) if Cash Settlement or Net Share Settlement applies, any Settlement Date, including a Settlement Date on the original Maturity
Date, shall, if Party A is unable to completely unwind its hedge during the Unwind Period due to (A) the restrictions applicable in connection with compliance with Rule 10b-18 under the Exchange Act as if such rule were applicable to Party A’s
(or its affiliate’s) purchases during the Unwind Period, (B) the existence of any Suspension Day or Disrupted Day, or (C) the inability of Party A, in its sole reasonable judgment, to unwind its hedge during the Unwind Period, be deferred until
the third Scheduled Trading Day following the date on which Party A is able to completely unwind its hedge (provided that such deferral shall not extend beyond the 30th Scheduled Trading Day after the Settlement Date designated in the
Settlement Notice, such 30th Scheduled Trading Day being a Settlement Date to which (x) Cash Settlement or Net Share Settlement, as applicable, will apply with respect to the portion of such Settlement Shares as to which Party A reasonably
determines that it has unwound its hedge during the Unwind Period, and (y) Physical Settlement will apply with respect to the remainder of such Settlement Shares) (the “Deferral Procedure”); provided further that if Cash Settlement
or Net Share Settlement applies and Party A shall have fully unwound its hedge during an Unwind Period by a date that is more than


  
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		  	three Scheduled Trading Days prior to a Settlement Date specified above, either Party A or Party B may, by written notice to the other party, specify any Scheduled Trading Day prior
to such originally specified Settlement Date as the Settlement Date.
		
	 Settlement Shares:
	  	With respect to any Settlement Date, a number of Shares, not to exceed the Base Amount, designated as such by Party B in the related Settlement Notice or by Party A pursuant to
“Termination Settlement” below; provided that on the Maturity Date the number of Settlement Shares shall be equal to the Base Amount on such date; provided further that if a Settlement Date has been specified for a number of
Shares equal to the Base Amount on or prior to the Maturity Date and such Settlement Date has been deferred pursuant to the Deferral Procedure, until a date later than the original Maturity Date, the number of Settlement Shares on the original
Maturity Date shall be zero.
		
	 Settlement:
	  	Physical Settlement, Cash Settlement or Net Share Settlement, at the election of Party B as set forth in a Settlement Notice that satisfies the Settlement Notice Requirements;
provided that Physical Settlement shall apply (i) if no Settlement Method is validly selected, (ii) with respect to any Settlement Shares in respect of which Party A is unable, in its sole reasonable judgment, to unwind its hedge by the end
of the Unwind Period in a manner that, in the sole reasonable judgment of Party A, is consistent with the requirements for qualifying for the safe harbor provided by Rule 10b-18 under the Exchange Act or due to the lack of sufficient liquidity in
the Shares on any Exchange Business Day during the Unwind Period or (iii) to any Termination Settlement Date (as defined below under “Termination Settlement”).
		
	 Settlement Notice Requirements:
	  	  
 Notwithstanding any other provision hereof, a Settlement Notice
delivered by Party B that specifies Cash Settlement or Net Share Settlement will not be effective to establish a Settlement Date or require Cash Settlement or Net Share Settlement unless Party B delivers to Party A with such Settlement Notice a
representation signed by Party B substantially in the following form: “As of the date of this Settlement Notice, Party B is not aware of any material nonpublic information concerning itself or the Shares, and is designating the date contained
herein as a Settlement Date and, if applicable, is electing Cash Settlement or Net Share Settlement, in each case, in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws.”

		
	 Unwind Period:
	  	Each Exchange Business Day that is not a Suspension Day during the period from and including the first Exchange Business Day following the date Party B validly elects Cash
Settlement or Net Share Settlement in respect of a Settlement


  
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		  	Date through the third Scheduled Trading Day preceding such Settlement Date (or the immediately preceding Exchange Business Day if such Scheduled Trading Day is not an Exchange
Business Day); subject to “Termination Settlement” below. If any Exchange Business Day during an Unwind Period is a Disrupted Day, the Calculation Agent shall make commercially reasonable adjustments to the terms of the Transaction
(including, without limitation, the Cash Settlement Amount and the 10b-18 VWAP) to account for the occurrence of such Disrupted Day.
		
	 Suspension Day:
	  	Any Exchange Business Day on which Party A reasonably determines based on the advice of counsel that Cash Settlement may violate applicable securities laws. Party A shall notify
Party B if it receives such advice from its counsel.
		
	 Market Disruption Event:
	  	Section 6.3(a)(ii) of the 2002 Definitions is hereby amended by replacing clause (ii) in its entirety with “(ii) an Exchange Disruption, or” and inserting immediately
following clause (iii) the phrase “; in each case that the Calculation Agent determines is material.”
		
	 Exchange Act:
	  	The Securities Exchange Act of 1934, as amended from time to time.
		
	 Physical Settlement:
	  	On any Settlement Date in respect of which Physical Settlement applies, Party B shall deliver to Party A through the Clearance System the Settlement Shares for such Settlement
Date, and Party A shall deliver to Party B, by wire transfer of immediately available funds to an account designated by Party B, an amount in cash equal to the Physical Settlement Amount for such Settlement Date, on a delivery versus payment basis.
If, on any Settlement Date, the Shares to be delivered by Party B to Party A hereunder are not so delivered (the “Deferred Shares”), and a Forward Price Reduction Date occurs during the period from, and including, such Settlement Date to,
but excluding, the date such Shares are actually delivered to Party A, then the portion of the Physical Settlement Amount payable by Party A to Party B in respect of the Deferred Shares shall be reduced by an amount equal to the Forward Price
Reduction Amount for such Forward Price Reduction Date, multiplied by the number of Deferred Shares.
		
	 Physical Settlement Amount:
	  	For any Settlement Date in respect of which Physical Settlement applies, an amount in cash equal to the product of (i) the Forward Price on such Settlement Date and (ii) the
number of Settlement Shares for such Settlement Date.
		
	 Cash Settlement:
	  	On any Settlement Date in respect of which Cash Settlement applies, if the Cash Settlement Amount for such Settlement Date is a positive number, Party A will pay such Cash
Settlement Amount to Party B. If the Cash Settlement Amount is a negative number, Party B will pay the absolute value of


  
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		  	such Cash Settlement Amount to Party A. Such amounts shall be paid on the Settlement Date.
		
	 Cash Settlement Amount:
	  	For any Settlement Date in respect of which Cash Settlement applies, an amount determined by the Calculation Agent equal to the difference between (1) the product of (i) (A) the
average Forward Price over the applicable Unwind Period (calculated assuming no reduction to the Forward Price for any Forward Price Reduction Date that occurs during the Unwind Period, except as set forth in clause (2) below), minus (B) the
average of the 10b-18 VWAP prices per Share on each Exchange Business Day during such Unwind Period, multiplied by (ii) the number of Settlement Shares for such Settlement Date, minus (2) the product of (i) the Forward Price Reduction
Amount for any Forward Price Reduction Date that occurs during such Unwind Period, multiplied by (ii) the number of Settlement Shares with respect to which Party A has not unwound its hedge as of such Forward Price Reduction
Date.
		
	 Net Share Settlement:
	  	On any Settlement Date in respect of which Net Share Settlement applies, if the number of Net Share Settlement Shares is a (i) negative number, Party A shall deliver a number of
Shares to Party B equal to the absolute value of the Net Share Settlement Shares, or (ii) positive number, Party B shall deliver to Party A the Net Share Settlement Shares; provided that if Party A reasonably determines in its good faith
judgment that it would be required to deliver Net Share Settlement Shares to Party B, Party A may elect to deliver a portion of such Net Share Settlement Shares on one or more dates prior to the applicable Settlement Date.
		
	 Net Share Settlement Shares:
	  	For any Settlement Date in respect of which Net Share Settlement applies, a number of Shares equal to (a) the number of Settlement Shares for such Settlement Date, minus
(b) the number of Shares Party A actually purchases during the Unwind Period for a total purchase price equal to the difference between (1) the product of (i) the average Forward Price over the applicable Unwind Period (calculated assuming no
reduction to the Forward Price for any Forward Price Reduction Date that occurs during the Unwind Period, except as set forth in clause (2) below), multiplied by (ii) the number of Settlement Shares for such Settlement Date, minus (2)
the product of (i) the Forward Price Reduction Amount for any Forward Price Reduction Date that occurs during such Unwind Period, multiplied by (ii) the number of Shares with respect to which Party A has not unwound its hedge as of such
Forward Price Reduction Date.
		
	 10b-18 VWAP:
	  	For any Exchange Business Day during the Unwind Period which is not a Suspension Day, the volume-weighted average price at which the Shares trade as reported in the composite
transactions for the Exchange on such Exchange Business Day, excluding (i) trades that do not settle regular way, (ii) opening (regular way) reported trades on the Exchange on such


  
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		  	Exchange Business Day, (iii) trades that occur in the last ten minutes before the scheduled close of trading on the Exchange on such Exchange Business Day and ten minutes before
the scheduled close of the primary trading session in the market where the trade is effected, and (iv) trades on such Exchange Business Day that do not satisfy the requirements of Rule 10b-18(b)(3), as reasonably determined in good faith by the
Calculation Agent. Party B acknowledges that Party A may refer to the Bloomberg Page “FITB <Equity> AQR SEC” (or any successor thereto), in its discretion, for such Exchange Business Day to determine the 10b-18 VWAP.
		
	 Settlement Currency:
	  	USD.
		
	 Failure to Deliver:
	  	Inapplicable.
		
	 Adjustments:
	  	
		
	 Method of Adjustment:
	  	Calculation Agent Adjustment.
		
	 Account Details:
	  	
		
	 Payments to Party A:
	  	To be advised under separate cover or telephone confirmed prior to each Settlement Date.
		
	 Payments to Party B:
	  	To be advised under separate cover or telephone confirmed prior to each Settlement Date.
		
	 Delivery of Shares to Party A:
	  	To be advised.
		
	 Delivery of Shares to Party B:
	  	To be advised.

  

	3.	Other Provisions: 


Conditions to Effectiveness: 
 The effectiveness of this Confirmation on the Effective Date shall be subject to (i) the condition that the representations and warranties of Party B contained in the Underwriting Agreement dated
January 20, 2011 among Party B and J.P. Morgan Securities LLC as representative of the several underwriters party thereto (the “Underwriting Agreement”) and any certificate delivered pursuant thereto by Party B are true and correct on
the Effective Date as if made as of the Effective Date, (ii) the condition that Party B has performed all of the obligations required to be performed by it under the Underwriting Agreement on or prior to the Effective Date, (iii) the
condition that Party B has delivered to Party A opinion of counsel dated as of the Trade Date with respect to matters set forth in Section 3(a) of the Agreement, (iv) the satisfaction of all of the conditions set forth in Section 6 of
the Underwriting Agreement and (v) the condition that neither of the following has occurred (A) in Party A’s sole reasonable judgment, Party A (or its affiliate) is unable to borrow and deliver for sale a number of Shares equal to the
Base Amount, or (B) in Party A’s sole reasonable judgment, Party A (or its affiliate) would incur a stock loan cost of more than a rate equal to 100 basis points per annum to borrow and deliver for sale a number of Shares equal to the Base
Amount (in which event this Confirmation shall be effective but the Base Amount for the Transaction shall be the number of Shares an affiliate of Party A is required to deliver in accordance with Section 2(c) of the Underwriting Agreement,
unless Party B has agreed in writing 

  
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on or prior to the Effective Date to reimburse Party A for its costs in borrowing and delivering for sale such number of Shares in excess of a rate equal to 100 basis points per annum).

 Representations and Agreements of Party B: 
 Party B (i) has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of entering into the Transaction; (ii) has consulted with its
own legal, financial, accounting and tax advisors in connection with the Transaction; and (iii) is entering into the Transaction for a bona fide business purpose. 
 Party B is not and has not been the subject of any civil proceeding of a judicial or administrative body of competent jurisdiction that could reasonably be expected to impair materially Party B’s
ability to perform its obligations hereunder. 
 Additional Representations, Warranties and Agreements of Party B: Party
B hereby represents and warrants to, and agrees with, Party A as of the date hereof that: 
  

	 	(a)	Any Shares, when issued and delivered in accordance with the terms of the Transaction, will be duly authorized and validly issued, fully paid and nonassessable, and the
issuance thereof will not be subject to any preemptive or similar rights. 

  

	 	(b)	Party B has reserved and will keep available at all times, free from preemptive rights, out of its authorized but unissued Shares, solely for the purpose of issuance
upon settlement of the Transaction as herein provided, the full number of Shares as shall be issuable at such time upon settlement of the Transaction. All Shares so issuable shall, upon such issuance, be accepted for listing or quotation on the
Exchange. 

  

	 	(c)	Party B agrees to provide Party A at least 30 days’ written notice (an “Issuer Repurchase Notice”) prior to executing any repurchase of Shares by Party B
or any of its subsidiaries (or entering into any contract that would require, or give the option to, Party B or any of its subsidiaries, to purchase or repurchase Shares), whether out of profits or capital or whether the consideration for such
repurchase is cash, securities or otherwise (an “Issuer Repurchase”), that alone or in the aggregate would result in the Base Amount Percentage (as defined below) being (i) equal to or greater than 7.5% of the outstanding Shares and
(ii) greater by 0.5% or more than the Base Amount Percentage at the time of the immediately preceding Issuer Repurchase Notice (or in the case of the first such Issuer Repurchase Notice, greater than the Base Amount Percentage as of the later
of the date hereof or the immediately preceding Settlement Date, if any). The “Base Amount Percentage” as of any day is the fraction (1) the numerator of which is the Base Amount and (2) the denominator of which is the number of
Shares outstanding on such day. 

  

	 	(d)	No filing with, or approval, authorization, consent, license registration, qualification, order or decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the execution, delivery and performance by Party B of this Confirmation and the consummation of the Transaction (including, without limitation, the issuance and delivery of Shares on any Settlement Date) except
(i) such as have been obtained under the Securities Act of 1933, as amended (the “Securities Act”), and (ii) as may be required to be obtained under state securities laws. 


 

	 	(e)	Party B agrees not to make any Issuer Repurchase if, immediately following such Issuer Repurchase, the Base Amount Percentage would be equal to or greater than 8.0%.


  

	 	(f)	Party B is not insolvent, nor will Party B be rendered insolvent as a result of the Transaction. 


  
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	 	(g)	Neither Party B nor any of its affiliates shall take or refrain from taking any action (including, without limitation, any direct purchases by Party B or any of its
affiliates or any purchases by a party to a derivative transaction with Party B or any of its affiliates), either under this Confirmation, under an agreement with another party or otherwise, that might cause any purchases of Shares by Party A or any
of its affiliates in connection with any Cash Settlement or Net Share Settlement of the Transaction not to meet the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act if such purchases were made by Party B.


  

	 	(h)	Party B will not engage in any “distribution” (as defined in Regulation M under the Exchange Act (“Regulation M”)) that would cause a
“restricted period” (as defined in Regulation M) to occur during any Unwind Period. 

  

	 	(i)	Party B is an “eligible contract participant” (as such term is defined in Section 1a(12) of the Commodity Exchange Act, as amended).


  

	 	(j)	In addition to any other requirements set forth herein, Party B agrees not to elect Cash Settlement or Net Share Settlement if, in the reasonable judgment of either
Party A or Party B, such settlement or Party A’s related market activity would result in a violation of the U.S. federal securities laws or any other federal or state law or regulation applicable to Party B. 


Covenant of Party B: 
 Unless the provisions set forth below under “Private Placement Procedures” shall be applicable, the parties acknowledge and agree that any Shares delivered by Party B to Party A on any
Settlement Date will be newly issued Shares and when such Shares previously delivered by Party B are delivered by Party A (or an affiliate of Party A) to securities lenders from whom Party A (or an affiliate of Party A) borrowed Shares in connection
with hedging its exposure to the Transaction will be freely saleable without further registration or other restrictions under the Securities Act, in the hands of those securities lenders, irrespective of whether such stock loan is effected by Party
A or an affiliate of Party A. Accordingly, Party B agrees that the Shares that it delivers to Party A on each Settlement Date will not bear a restrictive legend and that such Shares will be deposited in, and the delivery thereof shall be effected
through the facilities of, the Clearance System. 
 Covenants of Party A: 

 

	 	(a)	Unless the provisions set forth below under “Private Placement Procedures” shall be applicable, Party A shall use any Shares delivered by Party B to Party A
on any Settlement Date to return to securities lenders to close out open Share loans created by Party A or an affiliate of Party A in the course of Party A’s or such affiliate’s hedging activities related to Party A’s exposure under
this Confirmation. 

  

	 	(b)	In connection with bids and purchases of Shares in connection with any Cash Settlement or Net Share Settlement of the Transaction, Party A shall conduct its activities,
or cause its affiliates to conduct their activities, in a manner consistent with the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act, as if such provisions were applicable to such purchases. 


Insolvency Filing: 
 Notwithstanding anything to the contrary herein, in the Agreement or in the Definitions, upon any Insolvency Filing in respect of the Issuer, the Transaction shall automatically terminate on the date
thereof without further liability of either party to this Confirmation to the other party (except for any liability in respect of any breach of representation or covenant by a party under this Confirmation prior to the date of such Insolvency
Filing). 

  
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 The parties hereto agree and acknowledge that (1) at any point prior to any Insolvency
Filing in respect of Party B, Party B shall have the unilateral right to elect Physical Settlement of this Transaction pursuant to the provisions set forth above under the heading “Settlement Terms”; and (2) this Transaction shall
automatically terminate on the date of any Insolvency Filing pursuant to the provisions set forth in the immediately preceding paragraph solely to the extent that Party B failed to elect Physical Settlement of this Transaction pursuant to the
provisions set forth above under the heading “Settlement Terms” prior to the relevant Insolvency Filing. 

Extraordinary Dividends: 
 If an ex-dividend date for an Extraordinary Dividend occurs on or after the Trade Date and on or prior to the Maturity Date (or, if later, the last date on which Shares are delivered by Party B to Party A
in settlement of the Transaction), Party B shall pay an amount, as determined by the Calculation Agent, in cash equal to the product of such Extraordinary Dividend and the Base Amount to Party A on the earlier of (i) the date on which such
Extraordinary Dividend is paid by the Issuer to holders of record of the Shares or (ii) the Maturity Date. “Extraordinary Dividend” means the per Share amount of any cash dividend or distribution declared by the Issuer with respect to
the Shares that is specified by the board of directors of the Issuer as an “extraordinary” dividend. Party A and Party B agree that such specification, or the lack thereof, by the board of directors of the Issuer shall be conclusive and
binding upon them as to whether any cash dividend or distribution is, or is not, an “Extraordinary Dividend.” 

Acceleration Events: 
 The following events shall each constitute an “Acceleration Event”: 
  

	 	(a)	Stock Borrow Events. In the sole reasonable judgment of Party A, Party A (or its affiliate) (i) is unable to hedge Party A’s exposure to the
Transaction because of the lack of sufficient Shares being made available for Share borrowing by lenders, or (ii) would incur a stock loan cost of more than a rate equal to 100 basis points per annum to borrow Shares to hedge Party A’s
exposure to the Transaction (unless Party B has agreed in writing on or prior to the second Exchange Business Day following notice from Party A that it would incur such cost to reimburse Party A for its stock loan costs in borrowing Shares to hedge
Party A’s exposure to the Transaction in excess of a rate equal to 100 basis points per annum) (each, a “Stock Borrow Event”); 

  

	 	(b)	Dividends and Other Distributions. On any day occurring after the Trade Date Party B declares a distribution, issue or dividend to existing holders of the Shares
of (i) any cash dividend (other than an Extraordinary Dividend) to the extent all cash dividends having an ex-dividend date during the period from and including any Forward Price Reduction Date (with the Trade Date being a Forward Price
Reduction Date for purposes of this clause (b) only) to but excluding the next subsequent Forward Price Reduction Date exceeds, on a per Share basis, the Forward Price Reduction Amount set forth opposite the first date of any such period on
Schedule I or (ii) share capital or securities of another issuer acquired or owned (directly or indirectly) by Party B as a result of a spin-off or other similar transaction or (iii) any other type of securities (other than Shares), rights
or warrants or other assets, for payment (cash or other consideration) at less than the prevailing market price on the applicable date as reasonably determined by Party A (each, a “Dividend Event”); 


 

	 	(c)	ISDA Early Termination Date. Either Party A or Party B has the right to designate an Early Termination Date pursuant to Section 6 of the Agreement
(including, without limitation, as a result of any failure by Party B to pay any amount in reimbursement of Party A’s costs in borrowing Shares that Party B has agreed to pay pursuant to the terms hereof); 


  
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	 	(d)	Other ISDA Events. The announcement of any event that if consummated, would result in an Extraordinary Event or the occurrence of any Change in Law or a
Delisting; provided that in case of a Delisting, in addition to the provisions of Section 12.6(a)(iii) of the 2002 Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not
immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors); and provided further that the
definition of “Change in Law” provided in Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) immediately preceding the words “a party to such Transaction” in the fifth line of such Section, adding
the following language “or (C) due to the effectiveness or implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010,” (ii) replacing the phrase “the interpretation” in the third line
thereof with the phrase “or public announcement of the formal interpretation, or the informal interpretation of any governmental agency or any self-regulatory organization,” and (iii) immediately following the word
“Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by Party A on the Trade Date”; or 

  

	 	(e)	Ownership Event. In the sole reasonable judgment of Party A, on any day, the Share Amount for such day exceeds the Post-Effective Limit for such day (if any
applies) (each, an “Ownership Event”). 

 For purposes of clause (e) above, the “Share
Amount” as of any day is the number of Shares that Party A and any person whose ownership position would be aggregated with that of Party A (Party A or any such person, a “Party A Person”) under any law, rule, regulation or regulatory
order that for any reason becomes applicable to ownership of Shares after the Trade Date (“Applicable Laws”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of
ownership of under the Applicable Laws, as determined by Party A in its reasonable discretion. The “Post-Effective Limit” means (x) the minimum number of Shares that would give rise to reporting or registration obligations or other
requirements (including obtaining prior approval from any person or entity) of a Party A Person, or would result in an adverse effect on a Party A Person, under the Applicable Laws, as determined by Party A in its reasonable discretion, minus
(y) 1% of the number of Shares outstanding. 
 Termination Settlement: 

Upon the occurrence of any Acceleration Event, Party A shall have the right to designate, upon at least one Scheduled Trading Day’s
notice, any Scheduled Trading Day following such occurrence to be a Settlement Date hereunder (a “Termination Settlement Date”) to which Physical Settlement shall apply, and to select the number of Settlement Shares relating to such
Termination Settlement Date; provided that (i) in the case of an Acceleration Event arising out of an Ownership Event, the number of Settlement Shares so designated by Party A shall not exceed the number of Shares necessary to reduce the
Share Amount to the Post-Effective Limit, (ii) in the case of an Acceleration Event arising out of a Stock Borrow Event the number of Settlement Shares so designated by Party A shall not exceed the number of Shares as to which such Stock Borrow
Event exists and (iii) in the case of an Acceleration Event arising out of a Dividend Event that occurs during an Unwind Period, Party A may designate a Termination Settlement Date only if, in its sole reasonable judgment, the ex-date for the
relevant dividend or distribution will occur during such Unwind Period (in which case such ex-date will be the Termination Settlement Date in respect of such Acceleration Event, and up until such ex-date Party A will use commercially reasonable
efforts to unwind its hedge with respect to as many Settlement Shares as possible prior to such ex-date, notwithstanding any intervening determination by Party A that the ex-date will (or may) occur during such Unwind Period). If, upon designation
of a Termination Settlement Date by Party A pursuant to the preceding sentence, Party B fails to deliver the Settlement Shares relating 

  
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to such Termination Settlement Date when due or otherwise fails to perform obligations within its control in respect of the Transaction, it shall be an Event of Default with respect to Party B
and Section 6 of the Agreement shall apply. If an Acceleration Event occurs during an Unwind Period relating to a number of Settlement Shares to which Cash Settlement or Net Share Settlement applies, then on the Termination Settlement
Date relating to such Acceleration Event, notwithstanding any election to the contrary by Party B, Cash Settlement or Net Share Settlement shall apply to the portion of the Settlement Shares relating to such Unwind Period as to which Party A has
unwound its hedge and Physical Settlement shall apply in respect of (x) the remainder (if any) of such Settlement Shares and (y) the Settlement Shares designated by Party A in respect of such Termination Settlement Date. 

Private Placement Procedures 
 If Party B is unable to comply with the provisions of “Covenant of Party B” above because of a change in law or a change in the policy of the Securities and Exchange Commission or its staff, or
Party A otherwise determines that in its reasonable opinion any Settlement Shares to be delivered to Party A by Party B may not be freely returned by Party A or its affiliates to securities lenders as described under “Covenant of Party B”
above, then delivery of any such Settlement Shares (the “Restricted Shares”) shall be effected pursuant to Annex A hereto, unless waived by Party A. 
 Rule 10b5-1: 
 It is the intent of Party A and Party B that following any
election of Cash Settlement or Net Share Settlement by Party B, the purchase of Shares by Party A during any Unwind Period comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act and that this Confirmation shall be interpreted to
comply with the requirements of Rule 10b5-1(c). 
 Party B acknowledges that (i) during any Unwind Period Party B does not
have, and shall not attempt to exercise, any influence over how, when or whether to effect purchases of Shares by Party A (or its agent or affiliate) in connection with this Confirmation and (ii) Party B is entering into the Agreement and this
Confirmation in good faith and not as part of a plan or scheme to evade compliance with federal securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act. 

Party B hereby agrees with Party A that during any Unwind Period Party B shall not communicate, directly or indirectly, any Material
Non-Public Information (as defined herein) to any EDG Personnel (as defined below). For purposes of the Transaction, “Material Non-Public Information” means information relating to Party B or the Shares that (a) has not been widely
disseminated by wire service, in one or more newspapers of general circulation, by communication from Party B to its shareholders or in a press release, or contained in a public filing made by Party B with the Securities and Exchange Commission and
(b) a reasonable investor might consider to be of importance in making an investment decision to buy, sell or hold Shares. For the avoidance of doubt and solely by way of illustration, information should be presumed “material” if it
relates to such matters as dividend increases or decreases, earnings estimates, changes in previously released earnings estimates, significant expansion or curtailment of operations, a significant increase or decline of orders, significant merger or
acquisition proposals or agreements, significant new products or discoveries, extraordinary borrowing, major litigation, liquidity problems, extraordinary management developments, purchase or sale of substantial assets, or other similar information
For purposes of the Transaction, “EDG Personnel” means any employee on the trading side of the Equity Derivatives Group of J.P. Morgan Securities LLC and does not include Messrs. David Aidelson, Greg Batista, David Seaman, James Rothschild
and Elliot Chalom (or any other person or persons designated from time to time by the Compliance Group of Party). 

  
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 Maximum Share Delivery: 

Notwithstanding any other provision of this Confirmation, in no event will Party B be required to deliver on any Settlement Date, whether
pursuant to Physical Settlement, Net Share Settlement, Termination Settlement or any Private Placement Settlement, more than a number of Shares equal to twice the initial Base Amount to Party A, subject to reduction by the amount of any Shares
delivered by Party B on any prior Settlement Date. 
 Transfer and Assignment: 

Party A may assign or transfer any of its rights or delegate any of its duties hereunder to any affiliate of Party A or any entity
organized or sponsored by Party A without the prior written consent of Party B. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Party A to purchase, sell, receive or deliver any Shares or other
securities to or from Party B, Party A may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Party A’s obligations in respect of the Transaction and any such designee
may assume such obligations. Party A shall be discharged of its obligations to Party B to the extent of any such performance. 

Matters Relating to Agent: 
 Each party agrees and acknowledges that (i) J.P. Morgan Securities LLC, as agent, (the “Agent”) acts solely as agent on a disclosed basis with respect to the transactions contemplated
hereunder, and (ii) the Agent has no obligation, by guaranty, endorsement or otherwise, with respect to the obligations of either Party B or Party A hereunder, either with respect to the delivery of cash or Shares, either at the beginning or
the end of the transactions contemplated hereby. In this regard, each of Party A and Party B acknowledges and agrees to look solely to the other for performance hereunder, and not to the Agent. 

Indemnity 
 Party B agrees to indemnify Party A and its affiliates and their respective directors, officers, agents and controlling parties (Party A and each such affiliate or person being an “Indemnified
Party”) from and against any and all losses, claims, damages and liabilities, joint and several, incurred by or asserted against such Indemnified Party arising out of, in connection with, or relating to, the execution or delivery of this
Confirmation, the performance by the parties hereto of their respective obligations under the Transaction, any breach of any covenant or representation made by Party B in this Confirmation or the Agreement or the consummation of the transactions
contemplated hereby and will reimburse any Indemnified Party for all reasonable expenses (including reasonable legal fees and expenses) as they are incurred in connection with the investigation of, preparation for, or defense of any pending or
threatened claim or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto. Party B will not be liable under this Indemnity paragraph to the extent that any loss, claim, damage, liability or expense is
found in a final and nonappealable judgment by a court to have resulted from Party A’s gross negligence or willful misconduct. 
 Notice 
  

					
		 	Non-Reliance:	  	            Applicable
			
		 	Additional Acknowledgments:	  	            Applicable


  
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 Agreements and Acknowledgments 

Regarding Hedging
Activities:                                       
 Applicable 
  

	4.	The Agreement is further supplemented by the following provisions: 

 No Collateral or Setoff.: 
 Notwithstanding Section 6(f) or any other
provision of the Agreement or any other agreement between the parties to the contrary, the obligations of Party B hereunder are not secured by any collateral. Obligations under the Transaction shall not be set off against any other obligations of
the parties, whether arising under the Agreement, this Confirmation, under any other agreement between the parties hereto, by operation of law or otherwise, and no other obligations of the parties shall be set off against obligations under the
Transaction, whether arising under the Agreement, this Confirmation, under any other agreement between the parties hereto, by operation of law or otherwise, and each party hereby waives any such right of setoff. In calculating any amounts under
Section 6(e) of the Agreement, notwithstanding anything to the contrary in the Agreement, (a) separate amounts shall be calculated as set forth in such Section 6(e) with respect to (i) the Transaction and (ii) all other
Transactions, and (b) such separate amounts shall be payable pursuant to Section 6(d)(ii) of the Agreement. 

Status of Claims in Bankruptcy: 
 Party A acknowledges and agrees that this confirmation is not intended to convey to Party A rights with respect to the transactions contemplated hereby that are senior to the claims of common stockholders
in any U.S. bankruptcy proceedings of Party B; provided, however, that nothing herein shall limit or shall be deemed to limit Party A’s right to pursue remedies in the event of a breach by Party B of its obligations and agreements with
respect to this Confirmation and the Agreement; and provided further, that nothing herein shall limit or shall be deemed to limit Party A’s rights in respect of any transaction other than the Transaction. 

Limit on Beneficial Ownership: 
 Notwithstanding any other provisions hereof, Party A shall not be entitled to take delivery of any Shares deliverable hereunder (whether in connection with the purchase of Shares on any Settlement Date or
any Termination Settlement Date, any Private Placement Settlement or otherwise) to the extent (but only to the extent) that, after such receipt of any Shares hereunder, (i) the Share Amount would exceed the Post-Effective Limit, (ii) Party
A and its affiliates would directly or indirectly own or control, for purposes of the Bank Holding Company Act of 1956, as amended (the “BHCA”), in excess of 4.0% of the outstanding Shares, or (iii) Party A and each person subject to
aggregation of Shares with Party A under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder (the “Party A Group”) would directly or indirectly beneficially own (as such term is defined for purposes of
Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder) in excess of 7.5% of the then outstanding Shares (the “Threshold Number of Shares”). Any purported delivery hereunder shall be void and have no effect
to the extent (but only to the extent) that, after such delivery, (i) the Share Amount would exceed the Post-Effective Limit, (ii) Party A and its affiliates would directly or indirectly own or control, for purposes of the BHCA, in excess
of 4.0% of the outstanding Shares, or (iii) Party A Group would directly or indirectly so beneficially own in excess of the Threshold Number of Shares. If any delivery owed to Party A hereunder is not made, in whole or in part, as a result of
this provision, Party B’s obligation to make such delivery shall not be extinguished and Party B shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Party A gives notice to
Party B that, after such delivery, (i) the Share Amount would not exceed the Post-Effective Limit, (ii) Party A and its affiliates would not directly or indirectly own or control, for purposes of the BHCA, in excess of 4.0% of the
outstanding Shares, 

  
 14 









 
and (iii) Party A Group would not directly or indirectly so beneficially own in excess of the Threshold Number of Shares. 

In addition, notwithstanding anything herein to the contrary, if any delivery owed to Party A hereunder is not made, in whole or in part,
as a result of the immediately preceding paragraph, Party A shall be permitted to make any payment due in respect of such Shares to Party B in two or more tranches that correspond in amount to the number of Shares delivered by Party B to Party A
pursuant to the immediately preceding paragraph. 
 Wall Street Transparency and Accountability Act: 

In connection with Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”), the
parties hereby agree that neither the enactment of WSTAA or any regulation under the WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, shall limit or otherwise impair either party’s otherwise applicable rights to terminate,
renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the 2002
Definitions incorporated herein, or the Agreement (including, but not limited to, rights arising from Change in Law, any Acceleration Event or Illegality (as defined in the Agreement)). 

Miscellaneous: 
  

	 	(a)	Addresses for Notices. For the purpose of Section 12(a) of the Agreement: 


 

					
	 Address for notices or communications to Party A:

			
		 	 Email address:
	  	EDG_OTC_HEDGING__MS@jpmorgan.com
		 	 Subject line:
	  	“Corporate Trade Notice”
			
		 	 With a copy to:
	  	
			
		 	 Attention:
	  	Santosh Sreenivasan
		 	 Email address:
	  	santosh.sreenivasan@jpmorgan.com
	
	 Address for notices or communications to Party B:

			
		 	 Address:
	  	Fifth Third Bancorp
		 		  	Fifth Third Center
		 		  	Cincinnati, Ohio 45263
		 	 Attention:
	  	Treasurer
			
		 	 With a copy to:
	  	
			
		 	 Attention:
	  	James R. Hubbard, Esq.
		 	 Email address:
	  	jim.hubbard@53.com

  

	 	(b)	 Waiver of Right to Trial by Jury. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in
respect of any suit, action or proceeding relating to this Confirmation. Each party (i) certifies that no representative, agent or attorney of the other party has represented, expressly or otherwise, that such other party would not, in the
event of such a suit action or proceeding, seek to enforce the foregoing waiver and (ii)



  
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acknowledges that it and the other party have been induced to enter into this Confirmation by, among other things, the mutual waivers and certifications herein. 



 

	 	(c)	London Branch. Party A is entering into this Confirmation and the Agreement through its London branch. Notwithstanding the foregoing, Party A represents to Party B that
the obligations of Party A are the same as if it had entered into this Confirmation and the Agreement through its head or home office in New York. 

 Acknowledgements. 
 The parties hereto intend for: 

 

	 	(a)	the Transaction to be a “securities contract” as defined in Section 741(7) of Title 11 of the United States Code (the “Bankruptcy Code”),
qualifying for the protections under Section 555 of the Bankruptcy Code; 

  

	 	(b)	a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the
other party to constitute a “contractual right” as defined in the Bankruptcy Code; 

  

	 	(c)	Party A to be a “financial institution” within the meaning of Section 101(22) of the Bankruptcy Code; and 


 

	 	(d)	all payments for, under or in connection with the Transaction, all payments for the Shares and the transfer of such Shares to constitute “settlement payments”
as defined in the Bankruptcy Code. 

 Severability. 

If any term, provision, covenant or condition of this Confirmation, or the application thereof to any party or circumstance, shall be
held to be invalid or unenforceable in whole or in part for any reason, the remaining terms, provisions, covenants, and conditions hereof shall continue in full force and effect as if this Confirmation had been executed with the invalid or
unenforceable provision eliminated, so long as this Confirmation as so modified continues to express, without material change, the original intentions of the parties as to the subject matter of this Confirmation and the deletion of such portion of
this Confirmation will not substantially impair the respective benefits or expectations of parties to this Agreement; provided, however, that this severability provision shall not be applicable if any provision of Section 2, 5, 6 or 13 of the
Agreement (or any definition or provision in Section 14 to the extent that it relates to, or is used in or in connection with any such Section) shall be so held to be invalid or unenforceable. 

[Remainder of page intentionally left blank] 

  
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 Please confirm that the foregoing correctly sets forth the terms of our agreement by signing and returning this
Confirmation. 
  

			
	Yours faithfully,
	
	 J.P. MORGAN SECURITIES LLC,
 as agent for JPMorgan Chase Bank, National Association

		
	By:	 	 /s/ SANTOSH SREENIVASAN

	Name:  Santosh Sreenivasan
	Title:  Managing Director



Confirmed as of the date first written above: 
  

			
	FIFTH THIRD BANCORP
		
	By:	 	 /s/ DANIEL T. POSTON

	Name:  Daniel T. Poston
	Title: Executive Vice President and Chief Financial Officer









 

 

 ANNEX A 
 PRIVATE PLACEMENT PROCEDURES 
  

	(i)	If Party B delivers the Restricted Shares pursuant to this clause (i) (a “Private Placement Settlement”), then delivery of Restricted Shares by Party B
shall be effected in customary private placement procedures with respect to such Restricted Shares reasonably acceptable to Party A; provided that if, on or before the date that a Private Placement Settlement would occur, Party B has taken,
or caused to be taken, any action that would make unavailable either the exemption pursuant to Section 4(2) of the Securities Act for the sale by Party B to Party A (or any affiliate designated by Party A) of the Restricted Shares or the
exemption pursuant to Section 4(1) or Section 4(3) of the Securities Act for resales of the Restricted Shares by Party A (or any such affiliate of Party A) or Party B fails to deliver the Restricted Shares when due or otherwise fails to
perform obligations within its control in respect of a Private Placement Settlement, it shall be an Event of Default with respect to Party B and Section 6 of the Agreement shall apply. The Private Placement Settlement of such Restricted Shares
shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Party A, due diligence rights (for Party A or any designated buyer of the Restricted Shares by Party A), opinions and
certificates, and such other documentation as is customary for private placement agreements, all reasonably acceptable to Party A. In the case of a Private Placement Settlement, Party A shall, in its good faith discretion, adjust the amount of
Restricted Shares to be delivered to Party A hereunder and/or the Forward Price in a commercially reasonable manner to reflect the fact that such Restricted Shares may not be freely returned to securities lenders by Party A and may only be saleable
by Party A at a discount to reflect the lack of liquidity in Restricted Shares. Notwithstanding the Agreement or this Confirmation, the date of delivery of such Restricted Shares shall be the Clearance System Business Day following notice by Party A
to Party B of the number of Restricted Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery of Restricted Shares shall be due as set forth in the previous sentence and not be due on the Settlement Date or
Termination Settlement Date that would otherwise be applicable. 

  

	(ii)	If Party B delivers any Restricted Shares in respect of the Transaction, Party B agrees that (i) such Shares may be transferred by and among JPMorgan Chase Bank,
National Association and its affiliates and (ii) after the minimum “holding period” within the meaning of Rule 144(d) under the Securities Act has elapsed after the applicable Settlement Date, Party B shall promptly remove, or cause
the transfer agent for the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by Party A (or such affiliate of Party A) to Party B or such transfer agent of seller’s and broker’s
representation letters customarily delivered by Party A or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, each without any further requirement for the delivery of any certificate,
consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Party A (or such affiliate of Party A). 


  
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