As filed with the Securities and Exchange Commission on June 2, 2004.
Registration Statement No. 33-_____________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________________________________________
FIRST MERCHANTS CORPORATION
(Exact name of registrant as specified in its charter)
INDIANA 35-1544218
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
200 East Jackson Street, Muncie, Indiana 47305
(Address of Principal Executive Offices)
FIRST MERCHANTS CORPORATION
2004 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
______________________________________________________
Larry R. Helms With a copy to:
Senior Vice President David R. Prechtel, Esq.
First Merchants Corporation Bingham McHale, LLP
200 East Jackson Street 2700 Market Tower
Muncie, Indiana 47305 10 West Market Street
Indianapolis, Indiana 46204
(Name and address of agent for service) (317) 635-8900
765-747-1530
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
----------------------------------------------------------------------------------------------------------------------
Amount Proposed Proposed Amount of
Title of securities to be maximum offering maximum aggregate registration
to be registered registered(1) price per share(2) offering price(2) fee
----------------------------------------------------------------------------------------------------------------------
Common Stock,
no par value 400,000 Shares $23.535 $9,414,000 $1,192.75
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the "Act") this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein. Furthermore, pursuant to Rule
416(a) of the Act, there are being registered such additional shares as
may be issuable as a result of stock splits and stock dividends on, and
similar capital changes to, the registered securities.
(2) The registration fee has been calculated pursuant to Rule 457(c)
and (h) on the basis of $23.535 per share, which was average of the
high and low prices reported for First Merchants Corporation's
common stock by the NASDAQ National Market System on June 26, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The information required by Part I to be contained in this Item is omitted from
this Registration Statement in accordance with the Introductory Note to Part I
of Form S-8.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION.
The information required by Part I to be contained in this Item is omitted from
this Registration Statement in accordance with the Introductory Note to Part I
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by First Merchants Corporation (the
"Registrant") (SEC File No. 0-17071) with the Securities Exchange Commission
("Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated herein by reference:
(a) Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2003, as filed with the Commission on March 15, 2004.
(b) Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2004, as filed with the Commission on May 10, 2004.
(c) Registrant's Current Reports on Form 8-K filed with the
Commission on January 21, 2004, February 13, 2004, March 5, 2004, April 22,
2004, and April 27, 2004.
(d) The description of the Registrant's Common Stock contained in
the Registrant's Form 8-A filed with the Commission, and all amendment and
reports filed for the purpose of updating such description.
All documents filed by the Registrant or the Plan pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment indicating that
all of the securities offered hereby have been sold or deregistering all such
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 those documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As an Indiana corporation, the Registrant is subject to Indiana law.
Section 23-1-37-1 et seq. of the Indiana Business Corporation Law contains
detailed provisions on indemnification of directors and officers of an Indiana
corporation against expenses, judgments, settlements, penalties and fines
incurred with respect to certain proceedings.
The Registrant's Articles of Incorporation, as amended, and By-Laws,
as amended, provide that the Registrant will indemnify any person who is or was
a director, officer or employee of the Registrant or of any other corporation
for which he is or was serving in any capacity at the request of the Registrant
against all liability and expense that may be incurred in connection with,
resulting from or arising out of any claim, action, suit or proceeding with
respect to which such director, officer or employee is wholly successful or
acted in good faith in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Registrant or such other corporation and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
that his conduct was unlawful. A director, officer or employee of the Registrant
is entitled to be indemnified as a matter of right with respect to those claims,
actions, suits or proceedings where he has been wholly successful. In all other
cases, such director, officer or employee will be indemnified only if the Board
of Directors of the Registrant (acting by a quorum consisting of directors who
are not parties to or who have been wholly successful with respect to such
action) or independent legal counsel finds that he has met the standards of
conduct set forth above. This indemnification is to the full extent and
according to the procedures and requirements of Indiana law.
Section 18(k) of the Federal Deposit Insurance Act (the "FDI Act")
and the regulations promulgated thereunder, generally prohibits the Registrant
from making indemnification payments to a director or officer with regard to any
administrative proceeding successfully brought by a federal banking agency
against the director or officer.
The directors and officers of the Registrant are covered by an
insurance policy indemnifying them against certain civil liabilities, including
liabilities under the federal securities laws, which might be incurred by them
in such capacity.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Securities Act") may be permitted to directors, officers or
persons controlling the Registrant pursuant to the foregoing provisions, First
Merchants has been informed that, in the opinion of the Commission, this
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are being filed as part of this Registration Statement:
EXHIBIT NUMBER
ASSIGNED IN
REGULATION S-K EXHIBIT
ITEM 601. . . . . . . . NUMBER DESCRIPTION OF EXHIBIT
(4) . . . . . . . . . . 4.01 ARTICLES V, VII AND IX OF REGISTRANT'S
ARTICLES OF INCORPORATION AND THE
ARTICLES OF AMENDMENT THERETO ARE
INCORPORATED BY REFERENCE TO EXHIBIT
3.1 OF REGISTRANT'S QUARTERLY REPORT
ON FORM 10-Q FOR THE QUARTER ENDED JUNE
30, 1999, AS FILED WITH THE COMMISSION
ON AUGUST 16, 1999.
4.02 ARTICLES III AND IV OF FIRST MERCHANTS
CORPORATION'S BYLAWS AND AMENDMENTS
THERETO ARE INCORPORATED BY REFERENCE
TO EXHIBIT 3(b) OF REGISTRANT'S ANNUAL
REPORT ON FORM 10-K FOR THE FISCAL YEAR
ENDED DECEMBER 31, 2003, AS FILED WITH
THE COMMISSION ON MARCH 15, 2004.
4.03* FIRST MERCHANTS CORPORATION 2004
EMPLOYEE STOCK PURCHASE PLAN
(5) . . . . . . . . . . 5.01* OPINION OF BINGHAM MCHALE, LLP
(23) . . . . . . . . . 23.01* CONSENT OF BKD LLP, INDEPENDENT PUBLIC
ACCOUNTANTS
23.02* CONSENT OF BINGHAM MCHALE, LLP
(INCLUDED IN EXHIBIT 5.01)
(24) . . . . . . . . . 24.01* POWER OF ATTORNEY (SEE SIGNATURE PAGE)
______________________________
* Filed herewith
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to section 230.424(b)
if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, That paragraphs (1)(i) and (1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to section 13(a) or section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Muncie, State of Indiana, on June 1, 2004.
FIRST MERCHANTS CORPORATION
By: /s/ Michael L. Cox
-----------------------------------------------------
Michael L. Cox, President and Chief Executive Officer
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Michael L. Cox and Larry R. Helms and
each or any of them (with full power to act alone), his or her true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto those
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that those attorneys-in-fact and
agents, or their substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on June 1, 2004 by the following persons
in the capacities indicated:
Signature Capacity
With Registrant
/s/ Michael L. Cox
----------------------- President, Chief Executive Officer and Director
Michael L. Cox (Principal Executive Officer)
/s/ Mark K. Hardwick
----------------------- Senior Vice President and Chief Financial Officer
Mark K. Hardwick (Principal Financial and Accounting Officer)
/s/ Roger M. Arwood
----------------------- Executive Vice President, Chief Operating Officer and
Director Roger M. Arwood
/s/ Stefan S. Anderson
----------------------- Chairman of the Board of Directors
Stefan S. Anderson
/s/ James F. Ault
----------------------- Director
James F. Ault
/s/ Thomas B. Clark
----------------------- Director
Thomas B. Clark
/s/ Barry J. Hudson
----------------------- Director
Barry J. Hudson
/s/ Norman M. Johnson
----------------------- Director
Norman M. Johnson
/s/ Robert M. Smitson
----------------------- Director
Robert M. Smitson
/s/ Frank A. Bracken
----------------------- Director
Frank A. Bracken
/s/ Blaine A. Brownell
----------------------- Director
Blaine A. Brownell
/s/ Richard A. Boehning
----------------------- Director
Richard A. Boehning
/s/ Robert T. Jeffares
----------------------- Director
Robert T. Jeffares
/s/ Thomas D. McAuliffe
----------------------- Director
Thomas D. McAuliffe
/s/ Jean L. Wojtowicz
----------------------- Director
Jean L. Wojtowicz
Pursuant to the requirements of the Securities Act of 1933, the
undersigned, being all of the members of the Compensation and Human Resources
Committee of the Board of Directors of First Merchants Corporation (the
committee responsible for administering the 2004 Employee Stock Purchase Plan)
have duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Muncie, State of Indiana,
on June 1, 2004.
FIRST MERCHANTS CORPORATION 2004 EMPLOYEE
STOCK PURCHASE PLAN
By: /s/ Robert M. Smitson Member of Compensation
Robert M. Smitson and Human Resources Committee
By: /s/ Stefan S. Anderson Member of Compensation
Stefan S. Anderson and Human Resources Committee
By: /s/ Frank A. Bracken Member of Compensation
Frank A. Bracken and Human Resources Committee
By: /s/ Thomas B. Clark Member of Compensation
Thomas B. Clark and Human Resources Committee
By: /s/ Norman M. Johnson Member of Compensation
Norman M. Johnson and Human Resources Committee
INDEX TO EXHIBITS
REGULATION S-K EXHIBIT
ITEM 601. . . . . . . . NUMBER DESCRIPTION OF EXHIBIT
------------------------ ------------- -------------------------------------
(4) . . . . . . . . . . 4.01 ARTICLES V, VII AND IX OF REGISTRANT'S
ARTICLES OF INCORPORATION AND THE
ARTICLES OF AMENDMENT THERETO ARE
INCORPORATED BY REFERENCE TO EXHIBIT
3.1 OF REGISTRANT'S QUARTERLY REPORT
ON FORM 10-Q FOR THE QUARTER ENDED
JUNE 30, 1999, AS FILED WITH THE
COMMISSION ON AUGUST 16, 1999.
4.02 ARTICLES III AND IV OF FIRST MERCHANTS
CORPORATION'S BYLAWS AND AMENDMENTS
THERETO ARE INCORPORATED BY REFERENCE
TO EXHIBIT 3(b) OF REGISTRANT'S ANNUAL
REPORT ON FORM 10-K FOR THE FISCAL
YEAR ENDED DECEMBER 31, 2003, AS FILED
WITH THE COMMISSION ON MARCH 15, 2004.
4.03* FIRST MERCHANTS CORPORATION
2004 EMPLOYEE STOCK PURCHASE PLAN
(5) . . . . . . . . . . 5.01* OPINION OF BINGHAM MCHALE, LLP
(23) . . . . . . . . . . 23.01* CONSENT OF BKD LLP, INDEPENDENT
PUBLIC ACCOUNTANTS
23.02* CONSENT OF BINGHAM MCHALE, LLP
(INCLUDED IN EXHIBIT 5.01)
(24) . . . . . . . . . . 24.01* POWER OF ATTORNEY (SEE SIGNATURE
PAGE)
______________________________
* Filed herewith
EXHIBIT 4.03
FIRST MERCHANTS CORPORATION
2004 EMPLOYEE STOCK PURCHASE PLAN
INTRODUCTION
The First Merchants Corporation 2004 Employee Stock Purchase Plan
(the "Plan") was adopted by the Board of Directors (the "Board") of First
Merchants Corporation (the "Company") on December 9, 2003, subject to approval
of the Company's shareholders at their annual meeting on April 22, 2004. The
effective date of the Plan shall be July 1, 2004, if it is approved by the
shareholders. The purpose of the Plan is to provide eligible employees of the
Company and its subsidiaries a convenient opportunity to purchase shares of
common stock of the Company through annual offerings financed by payroll
deductions. As used in this Plan, "subsidiary" means a corporation or other form
of business association of which shares (or other ownership interests) having
50% or more of the voting power are, or in the future become, owned or
controlled, directly or indirectly, by the Company. The Plan may continue until
all the stock allocated to it has been purchased or until after the fifth
offering is completed, whichever is earlier. The Board may terminate the Plan at
any time, or make such amendment of the Plan as it may deem advisable, but no
amendment may be made without the approval of the Company's shareholders if it
would materially: (i) increase the benefits accruing to participants under the
Plan; (ii) modify the requirements as to eligibility for participation in the
Plan; (iii) increase the number of shares which may be issued under the Plan,
(iv) increase the cost of the Plan to the Company; or (v) alter the allocation
of Plan benefits among participating employees. The Plan is not qualified under
Section 401(a) of the Internal Revenue Code of 1986 (the "Code") and is not
subject to any provisions of the Employee Retirement Income Security Act of 1974
(ERISA). It is the Company's intention to have the Plan qualify as an "employee
stock purchase plan" under Section 423 of the Code, and the provisions of the
Plan shall be construed so as to extend and limit participation in a manner
consistent with the requirements of that Section of the Code.
ADMINISTRATION
The Plan is administered by the Compensation and Human Resources
Committee (the "Committee"), which consists of two or more members of the Board,
none of whom are eligible to participate in the Plan and all of whom are
"non-employee directors," as such term is defined in Rule 16b-3(b)(3) of the
Securities and Exchange Commission, under the Securities Exchange Act of 1934,
as amended (the "1934 Act"). The Committee shall prescribe rules and regulations
for the administration of the Plan and interpret its provisions. The Committee
may correct any defect, reconcile any inconsistency or resolve any ambiguity in
the Plan. The actions and determinations of the Committee on matters relating to
the Plan are conclusive. The Committee and its members may be addressed in care
of the Company at its principal office. The members of the Committee do not
serve for fixed periods but may be appointed or removed at any time by the
Board.
STOCK SUBJECT TO THE PLAN
An aggregate of 400,000 shares of common stock, without par value, of
the Company (the "Common Stock") is available for purchase under the Plan.
Shares of Common Stock which are to be delivered under the Plan may be obtained
by the Company by authorized purchases on the open market or from private
sources, or by issuing authorized but unissued shares of Common Stock. In the
event of any change in the Common Stock through recapitalization, merger,
consolidation, stock dividend or split, combination or exchanges of shares or
otherwise, the Committee may make such equitable adjustments in the Plan and the
then outstanding offering as it deems necessary and appropriate including, but
not limited to, changing the number of shares of Common Stock reserved under the
Plan and the price of the current offering. If the number of shares of Common
Stock that participating employees become entitled to purchase is greater than
the number of shares of Common Stock available, the available shares shall be
allocated by the Committee among such participating employees in such manner as
it deems fair and equitable. No fractional shares of Common Stock shall be
issued or sold under the Plan.
ELIGIBILITY
All employees of the Company and such of its subsidiaries as shall be
designated by the Committee will be eligible to participate in the Plan. No
employee shall be eligible to participate in the Plan if his or her customary
employment is less than 20 hours per week. No employee shall be eligible to
participate in an offering unless he or she has been continuously employed by
the Company or subsidiary for at least six months as of the first day of such
offering. No employee shall be eligible to participate in the Plan if,
immediately after an option is granted under the Plan, the employee owns more
than five percent (5%) of the total combined voting power or value of all
classes of shares of the Company or of any parent or subsidiary of the Company.
OFFERINGS, PARTICIPATING, DEDUCTIONS
The Company may make up to five offerings of 12 months' duration each
to eligible employees to purchase Common Stock under the Plan. An eligible
employee may participate in such offering by authorizing at any time prior to
the first day of such offering a payroll deduction for such purpose in whole
dollar amounts, up to a maximum of twenty percent (20%) of his or her basic
salary or wages, excluding any bonus, overtime, incentive or other similar
extraordinary remuneration received by such employee. The Committee may at any
time suspend an offering if required by law or if determined by the Committee to
be in the best interests of the Company. The Company will maintain or cause to
be maintained payroll deduction accounts for all participating employees. All
funds received or held by the Company or its subsidiaries under the Plan may be,
but need not be, segregated from other corporate funds. Payroll deduction
accounts will be credited with interest at such rates and intervals as the
Committee shall determine from time to time. Any balance remaining in any
employee's payroll deduction account at the end of an offering period will be
refunded to the employee. Each participating employee will receive a statement
of his or her payroll deduction account and the number of shares of Common Stock
purchased therewith following the end of each offering period. Subject to rules,
procedures and forms adopted by the Committee, a participating employee may at
any time during the offering period increase, decrease or suspend his or her
payroll deduction, or may withdraw the entire balance of his or her payroll
deduction account and thereby withdraw from participation in an offering. Under
the initial rules established by the Committee, payroll deductions may not be
altered more than once in each offering period and withdrawal requests may be
received on or before the last day of such offering. In the event of a
participating employee's retirement, death or termination of employment, his or
her participation in any offering under the Plan shall cease, no further amounts
shall be deducted pursuant to the Plan, and the balance in the employee's
account shall be paid to the employee, or, in the event of the employee's death,
to the employee's beneficiary designated on a form approved by the Committee
(or, if the employee has not designated a beneficiary, to his or her estate).
PURCHASE, LIMITATIONS, PRICE
Each employee participating in any offering under the Plan will be
granted an option, upon the effective date of such offering, for as many full
shares of Common Stock as the amount of his or her payroll deduction account at
the end of any offering period can purchase. No employee may be granted an
option under the Plan which permits his or her rights to purchase Common Stock
under the Plan, and any other stock purchase plan of the Company or a parent or
subsidiary of the Company qualified under Section 423 of the Code, to accrue at
a rate which exceeds $25,000 of Fair Market Value of such Common Stock
(determined at the time the option is granted) for each calendar year in which
the option is outstanding at any time. As of the last day of the offering
period, the payroll deduction account of each participating employee shall be
totaled. If such account contains sufficient funds to purchase one or more full
shares of Common Stock as of that date, the employee shall be deemed to have
exercised an option to purchase the largest number of full shares of Common
Stock at the offering price. Such employee's account will be charged for the
amount of the purchase and the employee's book entry stock account will be
credited with the number of shares of Common Stock purchased. The Committee
shall determine the purchase price of the shares of Common Stock which are to be
sold under each offering, which price shall be the lesser of (i) an amount equal
to 85 percent of the Fair Market Value of the Common Stock at the time such
option is granted, or (ii) an amount equal to 85 percent of the Fair Market
Value of the Common Stock at the time such option is exercised. "Fair Market
Value" of a share of Common Stock on a given date is defined as the last
reported sale price of a share on such date, or if no sale took place, the last
reported sale price of a share of stock on the most recent day on which a sale
of a share of stock took place as recorded on the Nasdaq Stock Market or
national securities exchange on which the Common Stock of the Company is listed
on such date. If the Common Stock of the Company isn't listed on such date on
the Nasdaq Stock Market or a national securities exchange, "Fair Market Value"
is defined as the fair market value of a share on such date as determined in
good faith by the Committee.
STOCK ACCOUNTS, TRANSFER OF INTERESTS
Shares of Common Stock purchased under the Plan may be registered in the
name of a nominee or held in such other manner as the Committee determines to be
appropriate. A book entry stock account will be established in each
participating employee's name. Each participating employee will be the
beneficial owner of the Common Stock purchased under the Plan and credited to
his or her stock account, and he or she will have all rights of beneficial
ownership in such Common Stock. The Company or its nominee will retain custody
of the Common Stock purchased under the Plan until specifically requested in
writing by the participating employee to be sold, transferred or delivered. A
participating employee may request that a stock certificate, representing all or
part of the shares of Common Stock credited to his or her stock account, be
issued and delivered to the participating employee at any time. No option, right
or benefit under the Plan may be transferred by a participating employee other
than by will or the laws of descent and distribution, and all options, rights
and benefits under the Plan may be exercised during the participating employee's
lifetime only by such employee or the employee's guardian or legal
representative. There are no restrictions imposed by or under the Plan upon the
resale of shares of Common Stock issued under the Plan. Certain officers of the
Company are subject to restrictions under Section 16(b) of the 1934 Act. With
respect to such officers, transactions under the Plan are intended to comply
with all applicable conditions of Rule 16b-3 or its successors under the 1934
Act. To the extent any provision of the Plan or action by the Committee fails to
so comply, it shall be deemed null and void if permitted by law and deemed
advisable by the Committee. Beneficial ownership of the shares of Common Stock
purchased under the Plan may be held only in the name of the participating
employee, or, if such employee so indicates on his or her authorization form, in
his or her name jointly with a member of his or her family, with right of
survivorship. A participating employee who is a resident of a jurisdiction which
does not recognize such a joint tenancy may hold shares in the employee's name
as tenant in common with a member of his or her family, without right of
survivorship.
EXHIBIT 5.01
OPINION OF BINGHAM MCHALE LLP
June 1, 2004
Board of Directors
First Merchants Corporation
200 East Jackson Street
Muncie, Indiana 47305
Gentlemen:
We have acted as counsel to First Merchants Corporation, an Indiana
corporation (the "Company"), in connection with the filing of a Registration
Statement on Form S-8 (the "Registration Statement"), with the Securities and
Exchange Commission (the "Commission") for the purposes of registering under the
Securities Act of 1933, as amended (the "Securities Act"), 400,000 of the
Company's authorized but unissued shares of common stock (the "Common Shares")
issuable under the First Merchants Corporation 2004 Employee Stock Purchase Plan
(the "Plan"). We are rendering the opinions contained herein in connection with
the requirements of the Securities Act.
In connection with the foregoing, we have been provided with and have
reviewed originals or copies, certified or otherwise identified to our
satisfaction, of the following documents:
A. The Registration Statement;
B. The Plan;
C. Resolutions of the Board of Directors of the Company (the
"Resolutions"), as certified by the Secretary of the
Company as of June 1, 2004;
D. The Articles of Incorporation of the Company, as certified by
the Secretary of the Company as of June 1, 2004;
E. The By-Laws of the Company, as certified by the Secretary of
Company as of June 1, 2004; and
F. Such other documents, instruments, and certificates as we have
deemed necessary or appropriate for the purpose of rendering
the opinions set forth herein.
For purposes of this opinion, we have examined the above documents and
have made such examination of Indiana law as we have deemed necessary and
appropriate. We have relied upon the above documents as to matters of fact.
Except as otherwise expressly stated herein, we have not independently checked
or verified the accuracy or completeness of the information set forth or
certified in such documents.
We further advise you that we have not made any special examination of,
and are not expressing any opinion regarding, the affairs or financial condition
of the Company.
In examining the above-listed items, we have assumed with respect to
all documents examined by us the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, and the conformity to the
originals of all documents submitted to us as certified, conformed,
representative, photostatic or telefacsimile copies. We also have assumed with
respect to all documents examined by us which contained facsimile signatures
that such signatures were the original signature of the party and have the same
force and effect as an original signature. Finally, we have assumed that the
Resolutions have not and will not be amended, altered or superseded prior to the
issuance of the Common Shares; and that no changes will occur in the applicable
law or the pertinent facts prior to the issuance of the Common Shares.
As to any facts material to our opinion which we did not independently
establish or verify, we have been furnished with, and have solely relied upon
certificates of officers of the Companies delivered to us in connection with
this opinion (the "Officers' Certificates"). With respect to matters relating to
the due incorporation or organization and valid existence of the Companies, we
have obtained and relied solely upon a certificate of existence for the Company
issued by the Indiana Secretary of State.
Based upon the foregoing and subject to the qualifications set forth
in this letter, we are of the opinion that the Common Shares are validly
authorized and, when (a) the pertinent provisions of the Securities Act and all
relevant state securities laws have been complied with and (b) the Common Shares
have been delivered against payment therefor as contemplated by the Plan, the
Common Shares will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or under the rules and regulations of the Commission relating
thereto.
Very truly yours,
BINGHAM MCHALE LLP
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
First Merchants Corporation on Form S-8 of our report dated January 21, 2004 of
our audits of the consolidated financial statements of First Merchants
Corporation as of December 31, 2003 and 2002 and for each of the three years in
the period ended December 31, 2003, which report is incorporated by reference in
First Merchants Corporation's Annual Report on Form 10-K for the year ended
December 31, 2003.
/s/ BKD, LLP
Indianapolis, Indiana
June 1, 2004