Registration Statement No. 33-_____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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
1999 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 Summers Welsh &
200 East Jackson Street Spilman
Muncie, Indiana 47305 2700 Market Tower
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)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
Title of each class Amount Proposed Proposed Amount of
of securities to be maximum offering maximum aggregate registration
to be registered registered(1) price per unit(2) offering price(2) fee
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
no par value 250,000 Shares $23.6875 $5,921,875 $1,647
</TABLE>
(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 16(b)
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 $23.6875 per share, which was the last sale reported for First
Merchants Corporation's common stock by the NASDAQ National Market System
on June 1, 1999.
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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 information heretofore filed with the Securities Exchange
Commission ("Commission") pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), is incorporated herein by reference:
(a) First Merchants Corporation's (the "Registrant") Annual Report on Form
10-K for the fiscal year ended December 31, 1998, File No. 0-17071.
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the Annual
Report referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, and all amendment and reports
filed for the purpose of updating such description, File No. 0-17071
All documents field by the Registrant or the First Merchants Corporation 1999
Employee Stock Purchase Plan ("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.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEMS 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Indiana Business Corporation Law ("IBCL"), the provisions of which govern
the Registrant, empowers an Indiana corporation to indemnify present and former
directors, officers, employees, or agents or any person who may have served at
the request of the corporation as a director, officer, employee, or agent of
another corporation ("Eligible Persons") against liability incurred in any
proceeding, civil or criminal, in which the Eligible Person is made a party by
reason of being or having been in any such capacity, or arising out of his
status as such, if the individual acted in good faith and reasonably believed
that (a) the individual was acting in the best interests of the corporation, or
(b) if the challenged action was taken other than in the individual's official
capacity as an officer, director, employee or agent, the individual's conduct
was at least not opposed to the corporation's best interests, or (c) if in a
criminal proceeding, either the individual had reasonable cause to believe his
conduct was lawful or no reasonable cause to believe his conduct was unlawful.
The IBCL further empowers a corporation to pay or reimburse the reasonable
expenses incurred by an Eligible Person in connection with the defense of any
such claim, including counsel fees; and, unless limited by its Articles of
Incorporation, the corporation is required to indemnify an Eligible Person
against reasonable expenses if he is wholly successful in any such proceeding,
on the merits or otherwise. Under certain circumstances, a corporation may pay
or reimburse an Eligible Person for reasonable expenses prior to final
disposition of the matter. Unless a corporation's articles of incorporation
otherwise provide, an Eligible Person may apply for indemnification to a court
which may order indemnification upon a determination that the Eligible Person is
entitled to mandatory indemnification for reasonable expenses or that the
Eligible Person is fairly and reasonably entitled to indemnification in view of
all the relevant circumstances without regard to whether his actions satisfied
the appropriate standard of conduct.
Before a corporation may indemnify any Eligible Person against liability or
reasonable expenses under the IBCL, a quorum consisting of directors who are not
parties to the proceeding must (1) determine that indemnification is permissible
in the specific circumstances because the Eligible Person met the requisite
standard of conduct, (2) authorize the corporation to indemnify the Eligible
Person and (3) if appropriate, evaluate the reasonableness of expenses for which
indemnification is sought. If it is not possible to obtain a quorum of
uninvolved directors, the foregoing action may be taken by a committee of two or
more directors who are not parties to the proceeding, special legal counsel
selected by the Board or such a committee, or by the shareholders of the
corporation.
In addition to the foregoing, the IBCL states that the indemnification it
provides shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any provision of the articles of incorporation
or bylaws, resolution of the board of directors or shareholders, or any other
authorization adopted after notice by a majority vote of all the voting shares
then issued and outstanding. The IBCL also empowers an Indiana corporation to
purchase
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and maintain insurance on behalf of any Eligible Person against any liability
asserted against or incurred by him in any capacity as such, or arising out of
his status as such, whether or not the corporation would have had the power to
indemnify him against such liability.
The Registrant's Articles of Incorporation provide that the Registrant will
indemnify any person who is or was a director, officer, employee or agent 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 or 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, employee or agent 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, employee or agent will be indemnified only if the Board of
Directors of the Registrant or independent legal counsel finds that he has met
the standards of conduct set forth above.
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
DESCRIPTION OF THE REGISTRANT'S COMMON
STOCK (INCORPORATED BY REFERENCE TO THE
REGISTRANT'S REGISTRATION STATEMENT ON
FORM 8-A AND ALL AMENDMENTS AND REPORTS
FILED FOR THE PURPOSE OF UPDATING SUCH
DESCRIPTION, FILE NO. 0-17071).
4.02 FIRST MERCHANTS CORPORATION 1999
EMPLOYEE STOCK PURCHASE PLAN.
(5) .................... 5.01 OPINION OF BINGHAM SUMMERS WELSH &
SPILMAN
(15) NOT APPLICABLE
(23) ................... 23.01 CONSENT OF OLIVE, LLP, INDEPENDENT
PUBLIC ACCOUNTANTS
5
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23.02 CONSENT OF BINGHAM SUMMERS WELSH
& SPILMAN (PROVIDED IN EXHIBIT 5.01)
(24) 24.01 POWER OF ATTORNEY (SEE SIGNATURE PAGE)
(99) NOT APPLICABLE
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 of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that paragraphs (l)(i) and (l)(ii) shall 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 the registration statement.
(2) That for the purpose of determining any liability under the Securities
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.
(4) 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 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
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<PAGE>
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 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.
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, hereunto duly
authorized, in the City of Muncie, State of Indiana, on June 3, 1999.
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.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on June 3, 1999 by the following persons
in the capacities indicated:
Signature Capacity
With Registrant
/s/ Michael L. Cox President, Chief Executive Officer and Director
- -------------------------- (Principal Executive Officer)
Michael L. Cox
/s/ James L. Thrash Senior Vice President, Chief Financial Officer
- -------------------------- (Principal Financial and Accounting Officer)
James L. Thrash
/s/ Stephan S. Anderson Chairman of the Board of Directors
- --------------------------
Stephan S. Anderson
/s/ Thomas B. Clark Director
- --------------------------
Thomas B. Clark
/s/ David A. Galliher Director
- --------------------------
David A. Galliher
/s/ John E. Worthen Director
- --------------------------
John E. Worthen
/s/ Norman M. Johnson Director
- --------------------------
Norman M. Johnson
/s/ George S. Sissel Director
- --------------------------
George S. Sissel
/s/ Robert M. Smitson Director
- --------------------------
Robert M. Smitson
/s/ Frank A. Bracken Director
- --------------------------
Frank A. Bracken
/s/ Ted J. Mongtomery Director
- --------------------------
Ted J. Mongtomery
/s/ Michael D. Wickersham Director
- --------------------------
Michael D. Wickersham
Pursuant to the requirements of the Securities Act of 1933, the Members of
the Compensation and Human Resources Committee (i.e. the plan administrator) has
duly caused
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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 3,
1999.
FIRST MERCHANTS CORPORATION
1999 EMPLOYEE STOCK PURCHASE PLAN
By: /s/ Robert M. Smitson
-----------------------------
Robert M. Smitson
By: /s/ Frank A. Bracken
-----------------------------
Frank A. Bracken
By: /s/ Thomas B. Clark
-----------------------------
Thomas B. Clark
By: /s/ Norman M. Johnson
-----------------------------
Norman M. Johnson
9
EXHIBIT 4.02
FIRST MERCHANTS CORPORATION
1999 EMPLOYEE STOCK PURCHASE PLAN
INTRODUCTION
The First Merchants Corporation Employee Stock Purchase Plan (the "Plan") was
adopted by the Board of Directors (the "Board") of First Merchants Corporation
(the "Company") on February 9, 1999, subject to approval of the Company's
shareholders at their annual meeting on April 14, 1999. The effective date of
the Plan shall be July 1, 1999, 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
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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 250,000 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
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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 a stock certificate representing such shares will be issued.
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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
average price 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. However, if the Common Stock is listed on a national
securities exchange, "Fair Market Value" 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 such exchange. If the Common Stock is neither
listed on such date on a national securities exchange nor traded in the
over-the-counter market, "Fair Market Value" is defined as the fair market value
of a share on such date as determined in good faith by the Committee.
TRANSFER OF INTERESTS, STOCK CERTIFICATES
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.
Certificates for Common Stock purchased under the Plan may be registered 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. An employee who is a resident of a
jurisdiction which does not recognize such a joint tenancy may have certificates
registered in the employee's name as tenant in common with a member of the
employee's family, without right of survivorship.
13
EXHIBIT 5.01
June 3, 1999
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"), 250,000 of the
Company's authorized but unissued shares of common stock (the "Common Shares")
issuable under the First Merchants Corporation 1999 Employee Stock Purchase Plan
(the "Plan").
In connection therewith, we have investigated those questions of law as we
have deemed necessary or appropriate for purposes of this opinion. We have also
examined originals, or copies certified or otherwise identified to our
satisfaction, of those documents, corporate or other records, certificates and
other papers that we deemed necessary to examine for purposes of this opinion,
including:
1. The Company's Articles of Incorporation, together with amendments
thereto;
2. The Bylaws of the Company, as amended to date;
3. Resolutions relating to the Plan and the Common Shares adopted by the
Company's Board of Directors (the "Resolutions");
4. The Registration Statement; and
5. The Plan.
We have also relied, without investigation as to the accuracy thereof, on oral
and written communications from public officials and officers of the Company.
For purposes of this opinion, we have assumed (i) the genuineness of all
signatures of all parties other than the Company; (ii) the authenticity of all
documents submitted to us as originals and the conformity to authentic originals
of all documents submitted to us as certified or photostatic copies; (iii) that
the Resolutions have not and will not be amended, altered or superseded prior to
the issuance of the Common Shares; and (iv) that no changes will occur in the
applicable law or the pertinent facts prior to the issuance of the Common
Shares.
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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 SUMMERS WELSH & SPILMAN
15
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 15, 1999 which appears on page
17 of the 1998 Annual Report to Shareholders of First Merchants Corporation,
which is incorporated by reference in First Merchants Corporation's Annual
Report on Form 10-K for the year ended December 31, 1998.
Olive, LLP
Indianapolis, Indiana
June 3, 1999
