<PAGE>
As Filed with the Securities and Exchange Commission on June 10, 1994
- ---------------------------------------------------------------------------
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 of (I.R.S. Employer
incorporation or organization) Identification No.)
200 East Jackson
Muncie, Indiana 47305
(Address of Principal Executive Offices
Including Zip Code)
-----------------------------
FIRST MERCHANTS CORPORATION 1994 STOCK OPTION PLAN
(Full title of the plan)
Larry R. Helms With a Copy to: David R. Prechtel, Esq.
200 E. Jackson Bingham Summers Welsh &
Muncie, IN 47305 Spilman
(317) 747-1530 2700 Market Tower
(Name, address and telephone 10 West Market Street
number, including area code, of Indianapolis, IN 46204
agent for service)
-----------------------------
Page 1 of 24 Pages Exhibit Index is on Page 16
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Title of Amount Proposed Proposed Amount of
Securities to to be Maximum Maximum Registration
be Registered Registered Offering Aggregate Fee
Price Offering
Per Share (1) Price (1)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Options issued
pursuant to the
First Merchants
Corporation
1994 Stock
Option Plan 210,000 $29.50 $6,195,000 $2,136.20
Options
Common Stock,
No Par Value 210,000 Shares $29.50 $6,195,000 $2,136.20
--------
Total $4,272.41
--------
--------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<FN>
(1) Estimated solely for purpose of calculating the registration
fee in accordance with Rule 457.
</TABLE>
<PAGE>
PROSPECTUS
FIRST MERCHANTS CORPORATION
1994 STOCK OPTION PLAN
-------------------------
210,000 Shares of Common Stock
No Par Value
-------------------------
Employees of First Merchants Corporation (the "Company") and such of its
subsidiaries as shall be designated by the Compensation Committee of the
Company's Board of Directors (the "Committee") and directors of the Company are
hereby offered the opportunity to participate in the First Merchants Corporation
1994 Stock Option Plan (the "Plan").
A description of the Plan is set forth in this Prospectus. Generally, the
Plan provides for the issuance of Incentive Stock Options ("Incentive Stock
Options") and Non-Qualified Stock Options ("Non-Qualified Stock Options")
(collectively "Options") to acquire up to an aggregate of 210,000 shares of the
no par value common stock of the Company ("Common Stock"). The Plan will be
administered by the Committee who will, subject to the terms of the Plan,
designate key employees of the Company and its subsidiaries to receive Options,
and determine the number of Options to be issued, the exercise price, the terms
of the Options and the allocation thereof among key employees. Non-Qualified
Stock Options to purchase 400 shares of Common Stock will automatically be
granted to all non-employee directors of the Company each July 1 during the term
of the Plan.
This Prospectus relates to the Options to be issued to employees of the
Company and its designated subsidiaries and the Company's directors pursuant to
the Plan, as well as the distribution by the Plan of shares of the Company's
Common Stock pursuant thereto.
No person has been authorized to give any information or to make any
representations other than those in this Prospectus in connection with the offer
contained in this Prospectus, and if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. This Prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any security other than the securities offered
by this Prospectus, nor does it constitute an offer to sell or a solicitation of
an offer to buy the securities by anyone in any jurisdiction in which such offer
or solicitation is not authorized or in which the person making such offer is
not qualified to do so, or to any person to whom it is unlawful to make such an
offer or solicitation in such jurisdiction. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implications that the information herein is correct as of any time
subsequent to the date hereof.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES THAT
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
The date of this Prospectus is June 14, 1994.
<PAGE>
THE COMPANY
The Company's principal executive office is located at 200 East Jackson
Street, Muncie, Indiana 47305 and its telephone number is (317) 747-1500.
SUMMARY OF THE PLAN
The following information summarizes certain features of the Plan. This
summary is qualified in its entirety by reference to the official text of the
Plan, a copy of which may be obtained from the Company in the manner described
under "ADDITIONAL INFORMATION."
GENERAL INFORMATION
The Plan was adopted by the Board of Directors of the Company on
December 14, 1993 and approved by the shareholders of the Company on March 31,
1994. The effective date of the Plan is July 1, 1994. The purpose of the Plan
is to promote the long-term success of the Company and its subsidiaries, and to
attract, retain, and motivate key employees and directors while creating a
long-term mutuality of interest with shareholders.
The Plan provides for the issuance of Options to acquire the Company's
Common Stock. The Plan will be administered by the Committee who will, subject
to the terms of the Plan, designate key employees of the Company or any
subsidiary to receive Options, and determine the number of Options to be issued,
the exercise price, the term of the Options, and the allocation thereof among
key employees. Non-Qualified Options to purchase 400 shares of common stock
shall automatically be granted to all non-employee directors of the Company each
July 1 during the term of the Plan. No Options may be issued pursuant to the
Plan after June 30, 1999.
The Plan provides that the exercise price of Options may not be less than
the fair market value of the shares upon grant of the Option, and that the price
may be paid in cash, shares of the Company's Common Stock owned by the optionee
or a combination thereof. The exercise price of Non-Qualified Stock Options
granted to non-employee directors shall be the fair market value of the shares
upon grant of the Option. Shares of Common Stock of the Company to be issued
under the Plan shall be made available at the discretion of the Board, either
from authorized but unissued shares or from issued shares reacquired by the
Company. The aggregate number of shares of Common stock that may be issued
under the Plan shall not exceed 210,000 shares. Where Options are for any
reason canceled, or expire or terminate unexercised, the shares covered by such
Options shall again be available for grant of Options.
Options become fully exercisable six months after the date of grant. The
shares covered by an Option may be purchased on or after the exercise dates and
in such amounts as the Committee may determine, provided that in no event may an
Option be exercisable more than 10 years from the date of grant. Further, all
Options outstanding will become exercisable upon a change in control (as defined
in the Plan) of the Company.
An Option granted under the Plan may not be transferred except by will or
the laws of descent and distribution and, during the lifetime of the employee or
director to whom granted, may be exercised only by such employee or director, or
his or her guardian or legal representative.
Page 2
<PAGE>
Upon the termination of an Option holder's employment (for any reason other
than retirement, disability, death or termination for deliberate, willful or
gross misconduct), Option privileges shall be limited to the shares which were
immediately purchasable at the date of such termination and such Option
privileges shall expire unless exercised before the date of such termination.
If an Option holder's employment is terminated for deliberate, willful or gross
misconduct, as determined by the Board, all rights under the Option shall expire
upon receipt of the notice of such termination.
In the event of an Option holder's retirement or disability, Option
privileges shall apply to those shares immediately purchasable at the date of
separation from service. The Committee, in its sole discretion, may provide
that any Options outstanding but not yet exercisable upon the separation of the
Option holder may become exercisable in accordance with a schedule determined by
the Committee; provided, however, that in the event of retirement no options
shall become exercisable until at least six months after grant. Option
privileges under Incentive Stock Options shall expire unless exercised within
three months from the date of separation, but no later than the date on which
the Option terminates. Option privileges under Non-Qualified Stock Options
shall expire unless exercised within five years from the date of separation, but
no later than the date on which the Option terminates.
Upon the death of an Option holder, Option privileges shall apply to those
shares which were immediately purchasable at the time of death. Option
privileges shall expire unless exercised by legal representatives or
beneficiaries within one year after the date of the employee's or director's
death, but no later than the date on which the Option terminates.
In the event of a reorganization, recapitalization, stock split, stock
dividend, combination of shares, merger, consolidation, rights offering, or any
other change in the corporate structure of the Company, the Committee shall make
such adjustments, if any, as are appropriate in the number and kind of shares
authorized by the Plan, in the number and kind of shares covered by the Options
granted and in the Option price.
The Board may discontinue the Plan at any time and may from time to time
amend or revise the terms of the Plan as permitted by applicable statutes,
except that it may not revoke or alter, in a manner unfavorable to the holders,
any Options then outstanding, or amend the Plan without shareholder approval so
as to materially: (i) increase the benefits accruing to participants under the
Plan; (ii) increase the number of securities which may be issued under the Plan;
(iii) modify the requirements as to eligibility for participation in the Plan;
or (iv) increase the cost of the Plan to the Company. In addition, Plan
provisions relating to non-employee directors may not be amended more than once
every six months, other than to comport with changes in the Internal Revenue
Code, the Employee Retirement Income Security Act of 1974, or the rules
thereunder.
ELIGIBILITY
The Committee will designate key employees of the Company or its
subsidiaries (First Merchants Bank, N.A., First United Bank and Pendleton
Banking Company) to receive Options under the Plan. No employee may be issued
Options (see "ERISA and Federal Income Taxes") if such employee owns Company
Common Stock possessing more than 10% of the total combined voting power of all
classes of
Page 3
<PAGE>
stock of the Company, and the aggregate fair market value of the Common Stock
subject to Options which are exercisable by the employee for the first time
during that calendar year exceeds $100,000.
RESTRICTIONS ON REOFFERS OR RESALES
This Prospectus has been prepared in accordance with the requirements of
Form S-8 and, accordingly, does not cover reoffers or resales of shares of
Common Stock acquired pursuant to the Plan. Plan participants who acquire such
shares pursuant to the Plan who are deemed to be affiliates of the Company may
only resell or reoffer shares acquired pursuant to the Plan under an exemption
from the registration requirements of the Securities Act of 1933 (the "1933
Act") or pursuant to a prospectus which meets the requirements of General
Instruction C of Form S-8. The exemption provided by Rule 144 under the 1933
Act would be available to such affiliates so long as the Company continues to be
in compliance with the reporting requirements and if the affiliate satisfies the
other requirements of that rule. For purposes of the 1933 Act, in general, an
"affiliate" of a company is "a person" (as defined in the 1933 Act) that
"directly or indirectly . . . controls" such company.
Participants who are not deemed to be affiliates of the Company may sell
shares of Common Stock acquired pursuant to the Plan free from restriction,
other than the general prohibition of federal and state securities laws on
trading securities while in possession of material non-public information
concerning the Company.
ADMINISTRATION
The Plan is administered by the Committee which consists of three or more
non-employee members of the Board of Directors of the Company (the "Board") all
of whom shall be "disinterested persons" as such term is defined in the rules of
the Securities and Exchange Commission, as amended from time to time. The
Committee shall have full authority to establish regulations for the
administration of the Plan and to make any other determination it deems
necessary to administer the Plan. The members of the Committee serve for one-
year periods and may be removed at any time by the Board.
INVESTMENT OF FUNDS
Shares of Common Stock to be issued by the Company pursuant to the Plan may
be authorized but unissued shares or shares reacquired by the Company on the
open market or from private parties who may be affiliates of the Company. No
fees, commissions, or other charges, except reasonable interest charges for
deferred payment of the purchase price shall be paid to purchase Common Stock
from private parties who may be affiliates of the Company.
ERISA AND FEDERAL INCOME TAXES
The provisions of the federal income tax laws relating to the Plan are
complex, subject to amendment and to various interpretations. The following
statement is intended only as a summary of the Company's interpretation of the
principal federal income tax consequences of participation in the Plan. Plan
participants are advised to consult their personal tax consultant regarding the
federal, state, local and other tax consequences applicable to them.
Page 4
<PAGE>
The Plan is not and will not be qualified under Section 401(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and is not subject to
any provisions of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). The Plan provides that the Committee may determine whether
the Options to be issued are to be Incentive Stock Options under Section 422A of
the Internal Revenue Code of 1986, as amended, or Non-qualified Stock Options.
Assuming the Options are not traded on an established market at the time they
are granted, the issuance of Options will not cause any federal income tax
consequences to the recipient or the Company. The difference between the
purchase price and the fair market value of any Common Stock purchased through
the exercise of a Non-qualified Stock Option is includable, on the exercise
date, as ordinary income to the optionee for federal income tax purposes. This
difference is not includable in the optionee's gross income for Common Stock
purchased through the exercise of an Incentive Stock Option until that Common
Stock is sold, unless a disqualifying disposition occurs. The Company may
deduct for federal income tax purposes the difference between the purchase price
and the fair market value of any Common Stock purchased through the exercise of
a Non-qualified Stock Option at the time the difference is included in the
optionee's gross income. No deduction is permitted in connection with an
Incentive Stock Option unless a disqualifying disposition occurs.
ADDITIONAL INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and, in accordance therewith,
files reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information can be inspected and copied at the public reference offices of
the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N. W.,
Washington, D.C. 20549 and at the Commission's regional offices located at
Northwest Atrium Center, 500 West Meridian Street, Suite 1400, Chicago, Illinois
60611-2511; and at 7 World Trade Center, 13th Floor, New York, New York 10048.
Copies of such material can also be obtained from the Public Reference Section
of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates.
The Company has filed with the Commission in Washington, D.C. a
registration statement on Form S-8 (the "Registration Statement") under the 1933
Act, with respect to the securities offered hereby. This Prospectus does not
contain all the information set forth in the Registration Statement and the
Exhibits relating thereto. For further information with respect to the Company
and the securities offered by this Prospectus, reference is made to such
Registration Statement and Exhibits.
Statements contained in this Prospectus as to the contents of any document
are not necessarily complete. In each instance reference is hereby made to the
copy of such document filed as an exhibit to the Registration Statement for a
full statement of the provisions thereof and each such statement in this
Prospectus is qualified in all respects by such reference.
The Company hereby undertakes to provide, without charge, to each person to
whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the following documents
which are incorporated in this Prospectus by reference, other than exhibits to
such documents:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1993.
Page 5
<PAGE>
(2) All reports filed by the Company pursuant to Sections 13(a) or
15(d) of the 1934 Act since December 31, 1993.
(3) The description of the Company's Common Stock which is contained
in the registration statement on Form 8-A filed by the Company under
Section 12 of the 1934 Act, including any amendment or report filed for the
purpose of updating such description.
(4) All documents filed by the Company regarding the Plan pursuant to
Sections 13, 14 or 15(d) of the 1934 Act, subsequent to the date of the
Prospectus and prior to the filing of a post-effective amendment to the
Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold.
The Company will also provide, without charge, to each person to whom a
copy of this Prospectus has been delivered, on the written or oral request of
any such person a copy of such other documents required to be delivered pursuant
to Rule 428(b) of the 1933 Act. Participants in the Plan should direct
requests for such copies and any other information about the Plan and the
Committee to Larry R. Helms, First Merchants Corporation, 200 East Jackson
Street, Box 792, Muncie, Indiana 47305 (Telephone: (317) 747-1500).
LEGAL OPINIONS
Certain legal matters relating to the validity of the securities offered
hereby have been passed upon for the Company by Bingham Summers Welsh & Spilman,
2700 Market Tower, 10 West Market Street, Indianapolis, Indiana 46204-2982.
Page 6
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have heretofore been filed by the Company
with the Commission, are incorporated by reference and shall be deemed to be a
part hereto.
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1993.
(2) All reports filed by the Company pursuant to Sections 13(a) or
15(d) of the 1934 Act since December 31, 1993.
(3) The description of the Company's Common Stock which is contained
in the registration statement on Form 8-A filed by the Company under Section 12
of the 1934 Act, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Company regarding the Plan pursuant to Sections
13, 14, or 15(d) of the 1934 Act, subsequent to the date of the Prospectus and
prior to the filing of a post-effective amendment to the Registration Statement
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such 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.
The Articles of Incorporation of the Registrant provide indemnification
protection in favor of all officers and directors of the Registrant and its
subsidiaries, except for the acts or omissions of such officers and directors
not performed in good faith or in the best interests of the Registrant.
In addition, under the provisions of the Indiana Business Corporation Law
("Corporate Act"), directors are not liable for any action taken as a director,
or any failure to take any action, unless (i) the director has breached or
failed to perform the duties of the director's office in compliance with IC
23-1-35; and (ii) the breach or failure to perform constitutes willful
misconduct or recklessness. The Corporate Act also allows indemnification of
officers and directors if:
1. the individual's conduct was in good faith; and
2. the individual reasonably believed:
Page 7
<PAGE>
A) in the case of conduct in the individual's official
capacity with the corporation, that the individual's
conduct was in its best interests; and
B) in all other cases, that the individual's conduct was at
least not opposed to its best interests; and
3. in the case of any criminal proceeding, the individual either:
A) had reasonable cause to believe that the individual's
conduct was lawful; or
B) had no reason to believe the individual's conduct was
unlawful.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "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 Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
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 in connection with the securities being registered hereby) is asserted
against the Registrant by such director, officer, or controlling person in
connection with the securities registered hereby, 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 Act and will
be governed by the final adjudication of such issue.
The directors and officers of the Registrant are covered by insurance
policies indemnifying against certain liabilities, including certain liabilities
arising under the Act, which might be incurred by them in such capacities and
against which they cannot be indemnified by the Registrant.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
Page 8
<PAGE>
Item 8. EXHIBITS.
Exhibit No. Description of Exhibit
- ----------- ----------------------
4. First Merchants Corporation
1994 Stock Option Plan.
5. Opinion of Bingham Summers
Welsh & Spilman relating to legality
of securities being registered.
15. None
23.a. Consent of Bingham Summers
Welsh & Spilman.*
23.b. Consent of Geo. S. Olive & Co.
24. Power of Attorney included in
"Signatures" section.
25-29. None.
- --------------------------
*Included in opinion.
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 of 1933;
(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;
(iii) To include any material information with respect to the plan
or distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
Page 9
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and each filing of the Plan's annual reports
pursuant to section 15(d) of the Securities Exchange Act of 1934) 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
of 1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Stefan S. Anderson and Larry R. Helms and each of them his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his 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 said
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 and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Page 10
<PAGE>
SIGNATURES
THE REGISTRANT.
Pursuant to the requirements of the 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 10, 1994.
FIRST MERCHANTS CORPORATION
By:/s/ Stefan S. Anderson
--------------------------
Stefan S. Anderson
President
Page 11
<PAGE>
Pursuant to the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities and on the dates
indicated.
Signature Capacity Date
--------- -------- ----
/s/ Stefan S. Anderson Director, Chairman and June 10, 1994
- -------------------------- Principal Executive Officer
Stefan S. Anderson
/s/ Robert M. Smitson Director and Vice Chairman June 10, 1994
- --------------------------
Robert M. Smitson
/s/ Thomas B. Clark Director June 10, 1994
- --------------------------
Thomas B. Clark
/s/ Michael L. Cox Director June 10, 1994
- --------------------------
Michael L. Cox
/s/ David A. Galliher Director June 10, 1994
- --------------------------
David A. Galliher
/s/ Dr. Thomas K. Gardiner Director June 10, 1994
- --------------------------
Dr. Thomas K. Gardiner
/s/ Hurley C. Goodall Director June 10, 1994
- --------------------------
Hurley C. Goodall
/s/ John W. Hartmeyer Director June 10, 1994
- --------------------------
John W. Hartmeyer
/s/ Nelson W. Heinrichs Director June 10, 1994
- -------------------------
Nelson W. Heinrichs
/s/ Jon H. Moll Director June 10, 1994
- ------------------------
Jon H. Moll
/s/ Joseph E. Wilson Director June 10, 1994
- ------------------------
Joseph E. Wilson
/s/ Robert F. Wisehart Director June 10, 1994
- ----------------------
Robert F. Wisehart
/s/ John E. Worthen Director June 10, 1994
- ------------------------
John E. Worthen
/s/ James L. Thrash Principal Financial June 10, 1994
- ------------------------ and Principal Accounting
James L. Thrash Officer
Page 12
<PAGE>
THE PLAN.
Pursuant to the requirements of the Securities Act of 1933, the Plan 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 the 10th day of June, 1994.
FIRST MERCHANTS CORPORATION 1994 STOCK
OPTION PLAN
By:/s/ Thomas B. Clark
--------------------------------------
Thomas B. Clark,
Compensation Committee Member
By:/s/ John W. Hartmeyer
--------------------------------------
John W. Hartmeyer,
Compensation Committee Member
By:/s/ Robert M. Smitson
--------------------------------------
Robert M. Smitson,
Compensation Committee Member
Page 13
<PAGE>
EXHIBIT INDEX
Exhibit No. Decription of Exhibit Form S-8 Page
- ----------- --------------------- -------------
4. First Merchants Corporation
1994 Stock Option Plan. 17
5. Opinion of Bingham Summers
Welsh & Spilman relating to legality
of securities being registered. 22
15. None
23.a. Consent of Bingham Summers
Welsh & Spilman. *
23.b. Consent of Geo. S. Olive & Co. 24
24. Power of Attorney included in
"Signatures" section.
25-29. None.
- --------------------------
*Included in opinion.
Page 14
<PAGE>
Exhibit No. 4
FIRST MERCHANTS CORPORATION
1994 STOCK OPTION PLAN
I. PURPOSE
The purposes of the First Merchants Corporation 1994 Stock Option
Plan (the "PLAN") are to promote the long-term success of First Merchants
Corporation (the "COMPANY") and its subsidiaries, and to attract, retain, and
motivate key employees and directors while creating a long-term mutuality of
interest with shareholders.
II. ADMINISTRATION
The Plan shall be administered by the Compensation Committee (the
"COMMITTEE"), consisting of three or more non-employee members of the Board
of Directors of the Company (the "BOARD"), all of whom shall be
"DISINTERESTED PERSONS" as such term is defined in the rules of the
Securities and Exchange Commission, as amended from time to time. The
Committee shall have full authority to establish regulations for the
administration of the Plan and to make any other determination it deems
necessary to administer the Plan, except as expressly provided in the Plan.
III. ELIGIBILITY FOR AWARD
Non-employee directors of the Company who are serving as directors
on the date of grant shall automatically receive options under the Plan, as
provided in Section IV. In addition, the Committee shall designate key
employees (not non-employee directors) of the Company or any subsidiary of
the Company to receive options under the Plan.
IV. ALLOTMENT OF SHARES
Shares of common stock of the Company to be issued under the Plan
shall be made available, at the discretion of the Board, either from
authorized but unissued shares or from issued shares reacquired by the
Company. The aggregate number of shares of common stock that may be issued
under the Plan shall not exceed 210,000 shares. Where options are for any
reason canceled, or expire or terminate unexercised, the shares covered by
such options shall again be available for grant of options within the limits
provided by the preceding sentence. Options may be allotted to eligible
employees (not non-employee directors) at such times and in such amounts as
the Committee, in its sole discretion, may determine, provided, however, that
in the case of options which are intended to be incentive stock options
("INCENTIVE STOCK OPTIONS") within the meaning of Section 422 of the Internal
Revenue Code of 1986 (the "CODE"):
(i) the option holder, at the time the option is granted, shall
not own common stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company,
and
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(ii) the aggregate Fair Market Value (determined at the time the
option is granted) of the stock with respect to which the
options are exercisable for the first time by an individual
during any calendar year (under all such plans of the Company
and any parent or subsidiary corporations) shall not exceed
$100,000.
Options to purchase 400 shares of common stock, which shall be
options that do not qualify as Incentive Stock Options ("NON-QUALIFIED STOCK
OPTIONS"), shall automatically be granted to all non-employee directors of
the Company each July 1 during the term of the Plan. However, if at any time
insufficient shares remain available for allotment to non-employee directors
in accordance with the preceding sentence, the number of options allotted to
each such director shall be reduced proportionally.
V. GRANTING OF OPTIONS
All options granted under the Plan shall be in such form as the
Committee may from time to time approve. The Committee shall determine in
each case whether the options are Incentive Stock Options or Non-Qualified
Stock Options; provided, however, options granted to non-employee directors
must be Non-Qualified Stock Options. All options granted under the Plan shall
be subject to the following terms and conditions:
(a) OPTION PRICE. The option price per share with respect to each
option granted to a non-employee director shall be equal to 100% of the Fair
Market Value of the common stock at the date the option is granted. The
Commit- tee shall determine the option price per share with respect to each
option granted to an eligible employee; provided, however, the option price
shall not be less than 100% of the Fair Market Value of the common stock at
the date the option is granted.
(b) PERIOD OF OPTION. Unless a shorter period is fixed by the
Committee or another provision of this Plan, each option may be exercised
during a period of ten years from the date the option was granted.
(c) PAYMENT. The option price shall be payable in cash, by tender
to the Company of shares of Company stock owned by the option holder, or by
any combination thereof. No shares shall be issued until full payment has
been made. A holder of an option shall have none of the rights of a
shareholder until the shares are issued.
(d) EXERCISE OF OPTIONS. The shares covered by an option may be
purchased on such installments and on such exercise dates as the Committee
may determine, provided, however, that no option shall become exercisable
until at least six months after grant unless disability of the option holder
occurs before the expiration of the six-month period. Any shares not
purchased on the applicable exercise date may be purchased thereafter at any
time prior to the final expiration of the option. In no event shall any
option be exercisable after the expiration of ten years from the date upon
which the option was granted. Each option shall become exercisable according
to terms set by the Committee at the time of grant, except as specified in
Section VI (Acceleration of Exercisability on Change of Control). The
Committee may direct that an option become exercisable in installments, which
need not be annual installments, over a period which may be less than the
term of the option. At such time as an installment shall become exercisable,
it may be exercised at any time thereafter in whole or in part until the
expiration or termination of the option. The
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Committee may, in its sole discretion, prescribe shorter or longer time
periods and additional requirements with respect to exercise of an option.
(e) NONTRANSFERABILITY OF OPTIONS. An option granted under the
Plan may not be transferred except by will or the laws of descent and
distribution and, during the lifetime of the employee or director to whom
granted, may be exercised only by such employee or director, or his or her
guardian or legal representative.
(f) TERMINATION OF EMPLOYMENT. Upon the termination of an option
holder's employment (for any reason other than retirement, disability, death
or termination for deliberate, willful or gross misconduct), option
privileges shall be limited to the shares which were immediately purchasable
at the date of such termination and such option privileges shall expire
unless exercised before the date of such termination. If an option holder's
employment is terminated for deliberate, willful or gross misconduct, as
determined by the Board, all rights under the option shall expire upon
receipt of the notice of such termination.
(g) RETIREMENT OR DISABILITY OF AN OPTION HOLDER. In the event of
an option holder's disability (within the meaning of Section 22(e)(3) of the
Code) or retirement as an employee or director, option privileges shall apply
to those shares immediately purchasable at the date of separation from
service. The Committee, in its sole discretion, may provide that any options
outstanding but not yet exercisable upon the separation of the option holder
may become exercisable in accordance with a schedule determined by the
Committee; provided, however, that in the event of retirement no options
shall become exercisable until at least six months after grant. Option
privileges under Incentive Stock Options shall expire unless exercised within
three months from the date of separation, but no later than the date on which
the option terminates. Option privileges under Non-Qualified Stock Options
shall expire unless exercised within five years from the date of separation,
but no later than the date on which the option terminates.
(h) DEATH OF OPTION HOLDER. Upon the death of an option holder,
option privileges shall apply to those shares which were immediately
purchasable at the time of death. Option privileges shall expire unless
exercised by legal representatives or beneficiaries within one year after the
date of the employee's or director's death, but no later than the date on
which the option terminates.
VI. ACCELERATION OF EXERCISABILITY ON CHANGE OF CONTROL
Upon a Change of Control of the Company, all options theretofore
granted and not previously exercisable shall become fully exercisable to the
same extent and in the same manner as if they had become exercisable by
passage of time in accordance with the provisions of the Plan relating to
periods of exercisability and to termination of employment.
A "CHANGE OF CONTROL" shall be deemed to have occurred if:
(i) any individual, entity or firm becomes the beneficial owner of
40% or more of the outstanding common stock of the Company, provided,
however, that such an event shall not constitute a Change of Control if such
shareholder has entered into an agreement with the Company, approved by the
Board, which materially restricts the right of such shareholder to direct or
influence the management or policies of the Company; or
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<PAGE>
(ii) in any solicitation of proxies from the security holders of
the Company, proxies are solicited by or on behalf of a person or entity
other than the Board and, upon the conclusion of such solicitation, nominees
of such person or entity are elected to one-half or more of the then
available positions on the entire Board.
The merger or consolidation of the Company with any other entity
shall not, as such, be regarded as a Change of Control for the purposes of
this Plan. The effect of such a merger or consolidation shall be determined
by the provisions of this Section.
VII. FAIR MARKET VALUE
"FAIR MARKET VALUE" shall mean the value of a share of common stock
on a particular date, determined as follows: (i) if the common stock is not
listed on such date on any national securities exchange, the average between
the highest "bid" and lowest "offered" quotations of a share on such date
(or, if none, on the most recent date on which there were bid and offered
quotations of a share), as reported by the National Association of Securities
Dealers Automated Quotation System, or other similar service selected by the
Committee; (ii) if the common stock is neither listed on such date on a
national securities exchange nor traded in the over-the-counter market, the
fair market value of a share on such date as determined in good faith by the
Committee; or (iii) if the common stock is listed on such date on one or more
national securities exchanges, the last reported sale price of a share on
such date as recorded on the composite tape system, or, if such system does
not cover the common stock, the last reported sale price of a share on such
date on the principal national securities exchange on which the common stock
is listed or, if no sale of common stock took place on such date, the last
reported sale price of a share on the most recent day on which a sale of a
share took place as recorded by such system or on such exchange, as the case
may be.
VIII. ADJUSTMENT IN THE EVENT OF RECAPITALIZATION
In the event of a reorganization, recapitalization, stock split,
stock dividend, combination of shares, merger, consolidation, rights
offering, or any other change in the corporate structure of the Company, the
Committee shall make such adjustments, if any, as are appropriate in the
number and kind of shares authorized by the Plan, in the number and kind of
shares covered by the options granted and in the option price.
IX. AMENDMENTS AND DISCONTINUANCE
The Board may discontinue the Plan at any time and may from time to
time amend or revise the terms of the Plan as permitted by applicable
statutes, except that it may not revoke or alter, in a manner unfavorable to
the holders, any options then outstanding, or amend the Plan without
shareholder approval so as to materially: (i) increase the benefits accruing
to participants under the Plan; (ii) increase the number of securities which
may be issued under the Plan; (iii) modify the requirements as to eligibility
for participation in the Plan; or (iv) increase the cost of the Plan to the
Company. In addition, Plan provisions relating to non-employee directors may
not be amended more than once every six months, other than to comport with
changes in the Code, the Employee Retirement Income Security Act of 1974
(ERISA), or the rules thereunder.
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X. COMPLIANCE WITH RULE 16b-3
With respect to persons subject to Section 16 of the Securities
Exchange Act of 1934 (the "1934 Act"), 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 provisions 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.
XI. EFFECTIVE DATE AND TERM OF THE PLAN
The 1994 Stock Option Plan shall become effective on July 1, 1994,
subject to prior approval of the shareholders. No option shall be granted
pursuant to this Plan after June 30, 1999. However, options theretofore
granted may extend beyond that date in accordance with their terms and the
provisions of the Plan.
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Exhibit No. 5.
June 10, 1994
FIRST MERCHANTS CORPORATION
200 East Jackson Street
P. O. Box 792
Muncie, IN 47305-2814
Gentlemen:
You have requested our opinion in connection with the proposed
offering of options (the "Options") to be issued pursuant to the First Merchants
Corporation 1994 Stock Option Plan (the "Plan") and shares of First Merchants
Corporation (the "Company") common stock (the "Shares") to be issued to holders
of Options pursuant to the Plan which are covered by a Registration Statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Act"), filed with the Securities and Exchange Commission. With
respect to the Registration Statement, we have acted as special counsel to the
Company.
In connection with your request to us, we have been provided with the
following:
(1) The Articles of Incorporation and By-Laws of the Company;
(2) Minutes of a meeting of the Board of Directors of the Company on
December 14, 1993, and minutes of a meeting of the Shareholders of the
Company on March 31, 1994;
(3) A certificate from the Indiana Secretary of State certifying that the
Company is a duly organized and existing Indiana corporation; and
(4) A copy of the Plan.
For purposes of this opinion, we have examined the above documents and
have relied upon them as to matters of fact. We have not independently checked
to verify the accuracy or completeness of the information set forth or certified
in such documents.
In addition, we have reviewed such other documents as we have
considered necessary or appropriate for the purposes of this opinion.
In making our examination of documents executed by parties other than
officers and directors of the Company, we have assumed that such other parties
have the corporate power to enter into and perform all obligations thereunder,
and we have also assumed the due authorization, by all requisite corporate
action, of the execution and delivery of such documents and the validity and
binding effect thereof on such other parties.
We are qualified to practice law in the State of Indiana, and we do
not purport to be experts on, or to express an opinion herein concerning, any
law other than the law of the State of Indiana and the Federal law of the United
States.
<PAGE>
FIRST MERCHANTS CORPORATION
June 6, 1994
Page 17
Based upon our examination of the foregoing documents, subject to the
foregoing limitations and qualifications, we are of the opinion that:
(1) As of this date, the Company is a duly organized and existing
corporation under the laws of the State of Indiana, with the corporate
power and authority to conduct its business as currently conducted.
(2) The Shares, when issued as contemplated by the Plan and the
Registration Statement in exchange for payment therefor, will be duly
authorized, legally issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference made to us in the Registration
Statement and Prospectus forming a part thereof under the caption "Legal
Opinions". By giving this consent, we do not admit that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ Bingham Summers Welsh & Spilman
<PAGE>
Exhibit No. 23.b.
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the use of our report, dated January 21, 1994, incorporated herein
by reference which is included in the annual report on Form 10-K of First
Merchants Corporation for the year ended December 31, 1993.
/s/ Geo. S. Olive & Co. LLC
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Geo. S. Olive & Co. LLC
Indianapolis, Indiana
June 9, 1994
