As filed with the Securities and Exchange Commission on November 22, 2000.
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
RETIREMENT SAVINGS 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, LLP
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>
<TABLE>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------
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 20,000 Shares $22.81 $456,200 $121.00
</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.
(2) The registration fee has been calculated pursuant to Rule 457(c) and
(h) on the basis of $22.81 per share, which was the last sale reported
for First Merchants Corporation's common stock by the NASDAQ National
Market System on November 15, 2000.
<PAGE>
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, 1999.
(b) First Merchants Corporation Retirement Savings Plan's (the "Plan")
Annual Report on Form 11-K for the fiscal year ended December 31, 1999.
(c) 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.
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-3 (Registration No. 333-33244)
which became effective April 26, 2000, and all amendment and reports filed for
the purpose of updating such description.
All documents field 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.
<PAGE>
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 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.
<PAGE>
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 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 ARTICLES V, VII AND IX OF
REGISTRANT'S ARTICLES OF
INCORPORATION AND THE
ARTICLES OF AMENDMENT
THERETO ARE INCORPORAED BY
REFERENCE TO EXHIBIT 3.1 OF
REGISTRANT'S QUARTERLY
REPORT ON FORM 10-Q FOR
THE QUARTER ENDED
JUNE 30, 1999.
4.02 ARTICLES III AND IV OF
FIRST MERCHANTS
CORPORATION'S BYLAWS AND
AMENDMENTS THERETO ARE
INCORPORATED BY REFERENCE
TO EXHIBIT 3.2 OF
REGISTRANT'S QUARTERLY
REPORT ON FORM 10-Q FOR THE
QUARTER ENDED JUNE 30,
1997.
<PAGE>
4.03 FIRST MERCHANTS
CORPORATION'S JOINDER
AGREEMENT FOR RETIREMENT
SAVINGS PLAN AND RELATED
SUMMARY PLAN DESCRIPTION.
(5) . . . . . . . . . . . . . . . 5.01 OPINION OF BINGHAM SUMMERS
WELSH & SPILMAN, LLP
5.02 INTERNAL REVENUE SERVICE
DETERMINATION LETTER
(23) . . . . . . . . . . . . . . . 23.01 CONSENT OF OLIVE LLP,
INDEPENDENT
PUBLIC ACCOUNTANTS
23.02 CONSENT OF BINGHAM SUMMERS
WELSH & SPILMAN, LLP
(INCLUDED IN EXHIBIT 5.01)
(24) . . . . . . . . . . . . . . . 24.01 POWER OF ATTORNEY (SEE
SIGNATURE PAGE)
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.
<PAGE>
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 offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) 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 November 17, 2000.
FIRST MERCHANTS CORPORATION
By: /s/ Michael L. Cox
---------------------------
Michael L. Cox, President
and Chief Executive Officer
488065
<PAGE>
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 November 17, 2000 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/ James L. Thrash Senior Vice President, Chief Financial Officer
-------------------------
James L. Thrash (Principal Financial and Accounting Officer)
/s/ Stephan S. Anderson Chairman of the Board of Directors
-------------------------
Stephan S. Anderson
/s/ James F. Ault Director
-------------------------
James F. Ault
/s/ Thomas B. Clark Director
-------------------------
Thomas B. Clark
/s/ David A. Galliher Director
-------------------------
David A. Galliher
/s/ Barry J. Hudson Director
-------------------------
Barry J. Hudson
/s/ John E. Worthen Director
-------------------------
John E. Worthen
<PAGE>
/s/ Norman M. Johnson Director
-------------------------
Norman M. Johnson
/s/ George A. Sissel Director
-------------------------
George A. Sissel
/s/ Robert M. Smitson Director
-------------------------
Robert M. Smitson
/s/ Frank A. Bracken Director
-------------------------
Frank A. Bracken
/s/ Roger M. Arwood Director
-------------------------
Roger M. Arwood
Director
Dennis A. Bieberich
Pursuant to the requirements of the Securities Act of 1933, the First
Merchants Corporation Retirement Savings Plan's Administrative Committee 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 November 17, 2000.
FIRST MERCHANTS CORPORATION RETIREMENT
SAVINGS PLAN ADMINISTRATIVE COMMITTEE
By: /s/ Kimberly J. Ellington
---------------------------
Kimberly J. Ellington
488065
<PAGE>
3
(#490815)(4690-34648)
(#490815)(4690-34648)
EXHIBIT 4.03
JOINDER AGREEMENT FOR
FIRST MERCHANTS CORPORATION
RETIREMENT SAVINGS PLAN
AND RELATED SUMMARY PLAN DESCRIPTION
JOINDER AGREEMENT
FOR
FIRST MERCHANTS BANK, N.A.
PROTOTYPE PLAN AND TRUST AGREEMENT
(PROFIT SHARING WITH 401(k) NON-STANDARDIZED)
Letter Serial No. D340713e
NOTE: This Joinder Agreement may only be used in conjunction with basic plan
document #01.
(01/94) PLAN 004
<PAGE>
<TABLE>
<S> <C> <C>
C O N T E N T S
Item Page
1. EMPLOYER INFORMATION 1
2. PLAN INFORMATION 2
3. EMPLOYEE 2
4. ELIGIBILITY REQUIREMENTS 3
5. RETIREMENT AGES AND DATE OF DISTRIBUTION 4
6. VESTING SCHEDULE 5
7. OPTIONAL FORMS OF PAYMENT 7
8. DEATH BENEFIT 8
9. COMPENSATION 9
10. EMPLOYEE CONTRIBUTIONS 10
11. EMPLOYER CONTRIBUTIONS AND ALLOCATION FORMULA 12
12. FORFEITURES 19
13. TERMINAL ALLOCATIONS 19
14. VALUATION DATES AND ALLOCATION OF GAIN OR LOSS 20
21
15. ROLLOVER CONTRIBUTIONS AND DIRECT TRANSFERS
16. HOURS OF EMPLOYMENT 21
17. ELIGIBILITY SERVICE 22
18. VESTING SERVICE 23
19. LIFE INSURANCE 24
20. LOANS 24
21. HARDSHIP WITHDRAWALS 25
22. INVESTMENT OPTIONS 25
23. DISABILITY 26
24. LIMITATIONS ON ALLOCATIONS 26
25. PROVISIONS RELATING TO PRIOR PLAN 27
26. AGENT FOR SERVICE OF LEGAL PROCESS 28
27. PLAN ADMINISTRATOR 28
28. TRUSTEE 28
29. DOMESTIC RELATIONS ORDERS 28
DISCLAIMER AND WARNING 29
SIGNATURES 30
SPECIAL INSTRUCTIONS ABOUT SUBMISSION TO INTERNAL REVENUE
SERVICE 30
ADDITIONAL INFORMATION ABOUT THE PROTOTYPE PLAN 30
</TABLE>
(490815)(4690-34648)
<PAGE>
JOINDER AGREEMENT FOR
FIRST MERCHANTS BANK, N.A.
PROTOTYPE PLAN AND TRUST AGREEMENT
(PROFIT SHARING WITH 401(k) NON-STANDARDIZED)
By execution of this Joinder Agreement, the Employer designated below
hereby establishes a profit sharing with 401(k) plan for its eligible Employees
as provided in this Joinder Agreement and First Merchants Bank, N.A. Prototype
Plan and Trust Agreement (basic plan document #01). Any capitalized terms used
herein shall have the meaning set forth in the Prototype Plan.
1. EMPLOYER INFORMATION
Name: First Merchants Corporation EIN: 35-1544218
Address: 200 East Jackson Street
Muncie, IN 47305-2814
Form of Business Organization:
( x ) corporation ( ) electing "S" corporation
( ) sole proprietor ( ) partnership
Employer's taxable year ends on each December 31
Is the Employer a member of a controlled or affiliated group of employers
within the meaning of Section 414 (b), (c), (m), or (o) of the Internal
Revenue Code?
|X| Yes |_| No
If the answer to this question is "Yes", then list below the name and EIN
of all other employers in the group (attach separate sheet if necessary):
First United Bank, 35-0303750
Union County National Bank of Liberty, 35-0721690
Randolph County Bank, 35-0600850
First Merchants Bank, N.A., 35-0508403
Pendleton Banking Company, 35-0574300
The employers in this group may adopt this Plan by resolution. The Plan
maintained by the Employer named above and any adopting employers shall be
treated as a single plan.
<PAGE>
2. PLAN INFORMATION
Plan Name: Retirement Savings Plan Plan No.: 002
Plan Year and Limitation Year will be the 12 consecutive month period
beginning each January 1 (specify month and day only).
( ) This is a new Plan with an effective date of .
----------------------
( x ) This is an amended Plan.
The effective date of the original Plan was1/1/91.
The effective date of the amended Plan is 1/1/98.
Name of any "Prior Plan": -------------------------------------------------
(For an amended Plan, pay close attention to Items 7(D) and 25.)
3. EMPLOYEE (Section 1.01(k) of the Prototype Plan)
An employee eligible to participate in the Plan is defined as follows:
( ) Each employee of the Employer.
( ) Each salaried employee of the Employer.
( ) Each employee of the Employer who is not salaried.
( ) Each employee of the Employer who is not subject to a collective
bargaining agreement to which the Employer is a party, the
negotiation for which included retirement benefits as a subject of
good faith bargaining.
( ) Each employee of the Employer who is a member of a bargaining unit
covered by the Plan pursuant to a collective bargaining
agreement in effect between such bargaining unit and the Employer.
( x ) (Specify) each employee of First Merchants Corporation, First
Merchants Bank NA, Pendleton Banking Company, First United Bank,
Union County National Bank, and Randolph County Bank.
<PAGE>
Employees of affiliated employers and leased employees must be included as
employees of the Employer in determining whether the coverage requirements
of Section 410 of the Internal Revenue Code are met even if they are not
defined as Employees under the Employer's plan.
4. ELIGIBILITY REQUIREMENTS (Section 2.01 of the Prototype Plan)
------------------------
Complete A, B, and C.
A. Age and/or Service Requirements. Each Employee shall become a
--------------------------------
Participant on the Participation Date as of which he has met
the following requirements.
( x ) Attained his 21st birthday (not over 21st);
( x ) Completed one (1) year of Eligibility Service (as
defined in Item 17 of this Joinder Agreement).
The service requirement cannot be more than 1 year. If a
fractional year is used, an employee will not be required to
complete any specified number of Hours of Employment to
receive credit for such fractional year.
If Item 4(B) provides for a single Participation Date per Plan Year,
the maximum age and service requirements above must each be reduced by
1/2 year.
B. Participation Date. (Select one choice)
-------------------
( ) Two Participation Dates per Plan Year. Participation
Date means the ___________ (first or last day of Plan
Year) not prior to the Effective Date or the
____________ (enter date which is 6 months after
preceding date) coincident with or next following the
date on which an Employee first satisfies the
requirements of Item 4(A) above.
( ) One Participation Date per Plan Year. Participation
Date means the (first or last day of Plan Year)
coincident with or next following the date on which an
Employee first satisfies the requirements of Item 4(A)
above.
( x ) Multiple Participation Dates. Participation Date means
the following: 1/1, 4/1, 7/1, and 10/1 (must include
-------------------------
first or last day of Plan Year and the date 6 months
thereafter).
<PAGE>
C. Waiver of Participation.
The Plan |X| shall |_| shall not allow an Employee or
Participant to waive participation in the Plan by completing a
written waiver form provided by the Plan Administrator.
The Plan |X| shall |_| shall not allow a Participant to waive
his eligibility to make Salary Savings Contributions and
nondeductible Employee contributions, if applicable, under the
Plan and to receive any Employer matching contributions under
the Plan by completing a written waiver form provided by the
Plan Administrator.
The effects of waiving participation in the Plan and/or
waiving Salary Savings Contributions, nondeductible Employee
contributions and Employer matching contributions are
described in Section 2.05 of the Prototype Plan.
5. RETIREMENT AGES AND DATE OF DISTRIBUTION (Sections 1.01(h), 1.01(r),
----------------------------------------
1.01(t), 6.03, and 14.07 of the Prototype Plan)
Complete A and B. C, D, and E apply to all plans. Complete F if desired.
A. Normal Retirement Age shall be attained by a Participant upon reaching:
( x ) his 65th birthday (not to exceed 65th).
( ) the later of his birthday (not to exceed 65th) or
-----------
the (not to exceed 5th) anniversary of his earliest
-----------
Participation Date.
B. Early Retirement Age (indicate"N/A" if a requirement is not
applicable):
( x ) shall be attained by a Participant upon reaching his 55th
birthday and completing 10 years of Vesting Service.
( ) shall have no meaning in the Employer's Plan.
C. During any period of employment after attaining Normal Retirement Age,
a Participant shall continue sharing in allocations of Employer
contributions, forfeitures, and gains or losses in the same manner as
other Participants.
D. A Participant who has terminated his employment with the Employer shall
be entitled to request the distribution of his vested interest in the
Plan at any time after termination of employment with the Employer.
<PAGE>
E. Each Participant is entitled to defer distribution until a distribution
is required in accordance with Section 401(a)(9) of the Internal
Revenue Code after age 70 1/2, except that a Participant whose Vested
Account Balance does not exceed $3,500 shall receive a lump sum
distribution as soon as practicable after his termination of employment
with the Employer.
F. ( ) A Participant who has reached age (not less than age 591/2)
----
and completed years of participation shall be entitled to make an
-----
election to receive all or a portion of his vested Account Balance
in a lump sum while still employed by the Employer. The Participant
should specify the Valuation Date to be used in determining his vested
Account Balance, subject to such nondiscriminatory rules as may be
established by the Employer. Such a distribution shall be permitted
(select one):
( ) one time only.
( ) no more than time(s) each Plan Year.
----
6. VESTING SCHEDULE (Section 5.02 of the Prototype Plan)
----------------
Select one schedule under A, unless the Employer elects in D that the
Top-Heavy vesting schedule shall apply at all times. Select one schedule
under B and C. Complete D.
A. Non-Top-Heavy Vesting Schedule. Select one of the following
---------------------------------
vesting schedules, unless the Employer chooses to have the
Top-Heavy schedule apply at all times.
The value of a Participant's Regular Account (attributable to
Employer regular contributions) shall become vested as determined by
the number of completed years of Vesting Service (as defined in Item
18 of this Joinder Agreement) as follows:
COMPLETED YEARS OF VESTING SERVICE
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
1 2 3 4 5 6 7
- - - - - - -
( x ) 20% 40% 60% 80% 100%
( ) ______ ______ ______ ______ ______ ______ 100%
(at (at (at (at
least least least least
20%) 40%) 60%) 80%)
</TABLE>
<PAGE>
<TABLE>
B. The value of a Participant's interest in the Plan attributable to Employer matching contributions shall be:
COMPLETED YEARS OF VESTING SERVICE
<S> <C> <C> <C> <C> <C> <C> <C>
1 2 3 4 5 6 7
- - - - - - -
( x ) 20% 40% 60% 80% 100%
( ) ______ ______ ______ ______ ______ ______ 100%
(at (at (at (at
least least least least
20%) 40%) 60%) 80%)
</TABLE>
( ) Full and immediate
If Employer regular contributions are elected under Item 11 of this
Joinder Agreement, then the vesting schedule for matching
contributions must be the same as for regular contributions if they
will be allocated to the Regular Account.
C. Top-Heavy Vesting Schedule. (A Top-Heavy vesting schedule must
-----------------------------
be selected, even if the Employer is not currently Top-Heavy and
does not foresee becoming Top-Heavy.)
The value of a Participant's Regular Account (attributable to
Employer contributions) shall become vested as determined by the
number of completed years of Vesting Service (as defined in Item 18
of this Joinder Agreement) as follows:
COMPLETED YEARS OF VESTING SERVICE
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
1 2 3 4 5 6
- - - - - -
( ) ---- ---- ---- ---- ---- ----
( x ) 20% 40% 60% 80% 100% 100%
(at (at (at (at
least least least least
20%) 40%) 60%) 80%)
</TABLE>
( ) Full and immediate
D. Select one of the following choices:
|X| The Top-Heavy vesting schedule shall apply at all times.
<PAGE>
|_| The Top-Heavy vesting schedule shall apply in the first Plan
Year that the Employer's Plan is Top-Heavy and every Plan Year
thereafter, regardless of the Plan's Top-Heavy status.
|_| The Top-Heavy vesting schedule shall apply in the Plan Years
that the Employer's Plan is Top-Heavy and the non-Top-Heavy
vesting schedule shall apply in the Plan Years that the
Employer's Plan is not Top-Heavy.
NOTE: If the third option is elected, any change in the vesting schedule,
which occurs when the Employer's Plan ceases to be Top-Heavy, shall be
subject to Section 5.08 of the Prototype Plan.
If the original Effective Date of the Plan is prior to January 1, 1989, any
vesting schedule in effect prior to that date shall continue to apply to a
Participant unless and until he is credited with at least one Hour of
Employment on or after the beginning of the 1989 Plan Year.
A Participant shall in any event be 100% vested upon attaining Normal
Retirement Age (as defined in Item 5(A)) while employed by the Employer, or
upon attaining Early Retirement Age (if defined in Item 5(B)) while
employed by the Employer, or upon retiring due to a Disability (if defined
in Item 23), or upon death while employed by the Employer. Also, a
Participant is always 100% vested in his Salary Savings Contributions,
Qualified Nonelective Contributions, fail-safe contributions, nondeductible
Employee contributions, rollover contributions, and direct transfers, if
any.
If the vesting schedule is less generous for any Participant than the
schedule under the Prior Plan, Section 5.08 of the Prototype Plan shall
apply.
7. OPTIONAL FORMS OF PAYMENT (Section 6.02, 6.04, 6.05, and 13.01 of the
----------------------------------
Prototype Plan)
Select A or B. Select C if desired. Complete D if applicable. Always
complete E.
A. ( ) The Plan shall offer annuities, lump sums and installments
in accordance with Section 6.02. The rules regarding
joint and survivor annuities and spousal consent in Sections
6.01, 6.02 and 6.09 shall apply to all amounts payable
under the Plan.
B. ( x ) The Plan shall offer the following form(s) of payment as
provided in Section 13.01:
<PAGE>
|_| a lump sum payment.
|X| A lump sum payment and installments. (Complete Item 7(C)
below if desired.)
Article XIII containing the provisions relating the "profit sharing
exception" to the joint and survivor annuity rules shall apply to all amounts
payable under the Plan. (See the following Item 7(D) for special rules if a
previous option is eliminated.)
C. ( ) The provision of Section 6.05(e) regarding installment-type
withdrawals shall be available under the Plan. The
minimum withdrawal shall be % of the Vested Account
--------
Balance determined as of termination of employment, and
no more than such withdrawals shall be permitted
--------------
in any Plan Year.
D. ( ) The election made in A or B represents an amendment of the
previous optional forms of payment under the Plan and
will result in the elimination of an optional form of benefit
previously available under the plan. Previously, the
following additional form(s) of payment was available under
the Plan (specify):_______________________________________
-----------------------------------------------------------
-----------------------------------------------------------
Under Sections 8.01(e) and 9.10 of the Prototype Plan, the
Plan must continue to make available any previous option with
respect to amounts attributable to contributions made before
the previous option was eliminated by amendment. Accordingly,
the above prior options will be available with respect to any
contributions made with respect to a Plan Year that began
prior to (the date inserted cannot be earlier than the date of
execution of the amendment that eliminated the prior options;
if no date is inserted, then it is assumed that such date of
execution applies). The joint and survivor annuity rules will
continue to apply to prior accrued benefits if such an
amendment eliminated annuity forms of payment.
In any event, if the Vested Account Balance of a terminated Participant
does not exceed $3,500, it will be automatically cashed out as provided in
Section 6.08 of the Prototype Plan.
E. Distributions shall be made in (select one):
( x ) cash.
( ) cash or property, as requested by the Participant and agreed
to by the Trustee pursuant to Section 6.04(b) of the Prototype
Plan.
<PAGE>
8. DEATH BENEFIT (Section 6.09 or 13.03 of the Prototype Plan)
-------------
The death benefit under the Plan depends in part on whether the joint and
survivor annuity rules in Section 6.01, 6.02 and 6.09 or the profit sharing
exception rules in Article XIII are applicable. (Complete A if Item 7(A) of
the Joinder Agreement is selected or if annuities were previously
available.)
A. Death Benefit with Respect to Any Amount to Which the Joint and
Survivor Annuity Rules (Section 6.01, 6.02 and 6.09) Are Applicable. A
death benefit in the form of a Qualified Preretirement Survivor
Annuity shall be paid to surviving spouse of any married Participant
who dies, by applying the following amount to purchase such an annuity
(select 1 or 2):
1. ( ) 50% of the Vested Account Balance.
2. ( ) 100% of the Vested Account Balance.
If option 1 is selected above, the other 50% of the Vested Account
Balance is payable to the Participant's designated Beneficiary (who
can, but need not, be the Participant's spouse). If no election is
made, then it shall be deemed that option 1 was selected.
In any event, a surviving spouse may elect payment in another form
that is available under the Plan within a reasonable time after the
Participant's death. Also, a spouse may consent (in writing, witnessed
by a Plan representative or notary public) to the designation of a
nonspouse beneficiary to receive the death benefit otherwise payable
to the spouse.
B. Death Benefit with Respect to Any Amount to Which the Joint and
Survivor Annuity Rules Are Not Applicable Pursuant to the Article XIII
Profit Sharing Exception Rules. With respect to any amounts subject to
Article XIII, the surviving spouse of a married Participant is
entitled to 100% of the Participant's Vested Account Balance payable
in a lump sum, unless the surviving spouse has consented in writing
(witnessed by a Plan representative or notary public) to the
designation of a nonspouse Beneficiary by the Participant.
Note on Beneficiary Designation: If the Participant is not married at date
of death, then the entire Vested Account Balance is payable to his
designated Beneficiary. If a Participant fails to designate a Beneficiary
and has no surviving spouse, then the Plan provides that his descendants,
per stirpes, receive any death benefit. If no descendants survive and the
Participant makes no other designation, his estate is his Beneficiary.
<PAGE>
9. COMPENSATION (Section 1.01(e) of the Prototype Plan)
------------
Compensation as defined in Section 1.01(e) of the Prototype Plan shall be
subject to modifications specified in this Item 9, as indicated below, if
any:
A. ( ) For all purposes under the Plan (except for purposes of the
limitations contained in Article XI), Compensation shall include
Employer contributions made pursuant to a salary reduction
agreement which are not includible in the gross income of the
Employee under Section 125, 402(a)(8), 402(h) or 403(b) of the
Internal Revenue Code.
B. ( ) Since this Joinder Agreement is adopted as an amendment of a
Prior Plan for purposes of complying with the Tax Reform Act of
1986, the above definition shall only be effective for Plan
Years beginning on or after, 19 . (The date inserted cannot
be later than the first day of the first Plan Year after this
-------
Joinder Agreement is signed by the Employer in order to comply
with the Tax Reform Act of 1986.)
C. ( x ) Compensation shall exclude amounts paid to a
Participant prior to his Participation Date for
purposes of Article XIV (including 401(k) and
401(m) testing and the determination of the
actual amount of any contribution that is
based on a percentage of Compensation) but not
for purposes of Article XI or XII.
D. ( x ) Compensation shall be modified to include employer
contributions made pursuant to a salary reduction
agreement which are not includable in the gross in
come of the employee under Section 125 and 401(a) 8
of the Internal Revenue Code and to exclude bonuses
and commissions for purposes of allocating the
following Employer contribution(s) in Item 11(B) of
this Joinder Agreement.
|X| Regular Contributions
|_| Qualified Nonelective Contributions
|X| Fail-Safe Contributions
E. ( x ) Compensation shall be modified as follows: For
the purpose of 401(k) and 401(m) testing,
compensation shall include contributions made
pursuant to a salary reduction agreement under
Section 125 and 401(a)8 of the Internal Revenue Code
in addition to bonuses and commissions.
<PAGE>
In any event, a Participant's Compensation must be limited to $200,000 (as
may be adjusted for cost-of-living increases) for any Plan Year beginning
on or after January 1, 1989; and for this purpose the spouse and any lineal
descendants under age 19 of a Participant who is a 5% owner or who is among
the 10 highest paid Highly Compensated Employees are aggregated with that
Participant and treated as a single Participant for purposes of this
$200,000 limit. This paragraph is further subject to the Compensation
limitations provided in Section 1.01(e) of the Prototype Plan.
10. EMPLOYEE CONTRIBUTIONS (Section 3.02 and Article XIV of the Prototype Plan)
----------------------
Complete A and B.
A. Salary Savings Contributions (pre-tax)
Complete 1, 2 and 3.
1. Amount of Salary Savings Contributions. Salary Savings
---------------------------------------
Contributions by a Participant shall
( x ) be permitted in any whole percentage of his Compensation
per payroll period as elected by the Participant up to a
maximum of 15%.
( x ) be permitted in any dollar amount per payroll period
as elected by the Participant up to a maximum of 15% of
his Compensation.
( ) not be permitted.
---
2. Changes or New Elections. Each Participant (including
Participants who elected to make no Salary Savings Contributions
when first eligible to do so) may change the amount of Salary
Savings Contributions previously elected as of the payroll
period which begins coincident with or next following (select
one):
( ) the first day of each Plan Year.
( ) the first day of each Plan Year and the date which is 6
months later.
( x ) the day following each Valuation Date as specified in
Item 14.
( ) (specify): ______________________________________________.
<PAGE>
3. Revocations. Each Participants may revoke his Salary Savings
------------
Contributions as of the payroll period which begins coincident
with or next following (select one):
( x ) the date he gives 10 days' prior written notice of the
revocation to the Employer.
( )(specify): _______________________________________________.
Any Participant who (1) terminates employment and is subsequently
reemployed by the Employer, (2) changes employment status and later becomes
an eligible Employee again, or (3) suspends Salary Savings Contributions
because of a hardship withdrawal may commence Salary Savings Contributions
as of his (1) date of reemployment as an Employee, (2) change in status, or
(3) suspension expires, whichever is applicable, after completing a new
election form as provided in Section 14.03(c) of the Prototype Plan.
NOTE: For each Plan Year, Salary Savings Contributions made by Highly
Compensated Employees (as defined in Section 1.01(n) of the Prototype Plan)
must satisfy an Actual Deferral Percentage test under Section 401(k) of the
Internal Revenue Code (as reflected in Article XIV of the Prototype Plan).
Failure to return any excess contributions (determined under that test) to
Highly Compensated Employees before the end of the Plan Year following the
year with respect to which they were originally contributed may cause the
Plan to lose its tax-qualified status.
B. Nondeductible Employee Contributions (after-tax)
Nondeductible Employee Contributions shall
( ) be permitted.
( x ) not be permitted effective ______________________.
---
The provisions governing Nondeductible Employee Contributions are
described in Section 3.02 of the Prototype Plan.
<PAGE>
NOTE: For each Plan Year, Nondeductible Employee Contributions (and
any Matching Contributions) made by Highly Compensated Employees (as
defined in Section 1.01(n) of the Prototype Plan) must satisfy a
Contribution Percentage test under Section 401(m) of the Internal
Revenue Code (as reflected in Article XIV of the Prototype Plan).
Failure to return any excess aggregate contributions (determined under
that test) to Highly Compensated Employees before the end of the Plan
Year following the Plan Year with respect to which they were
originally contributed may cause the Plan to lose its tax-qualified
status.
11. EMPLOYER CONTRIBUTIONS AND ALLOCATION FORMULA (Section 3.01 and
---------------------------------------------
4.03 of the Prototype Plan)
Complete A. Complete B(4) if applicable. Complete C if Plan is integrated.
Complete D if applicable. E applies to all plans.
A. Determination of Amount of Annual Employer Contribution. For each Plan
Year (ending on or after the Effective Date), the Employer shall
contribute to the Trust Fund, subject to the limitations imposed in
Article XI of the Prototype Plan, a discretionary amount determined by
the Employer by the end of the Plan Year (or if the Plan Year coincides
with the Employer's taxable year, by the due date, including
extensions, for filing the Employer's federal income tax return for
such year). Any contribution actually paid after the end of the Plan
Year to which it relates should be designated in writing to have been
made with respect to the prior Plan Year. In any event, the Employer
contribution for each Plan Year shall at least be equal to an amount
necessary to fund the following amounts (select one or more uses for
such Employer contribution).
1. ( x ) Salary Savings Contributions. An amount equal to the
------------------------------
amount of Salary Savings Contributions, if any, elected
for such Plan Year by all eligible Employees in
accordance with the preceding Item 10 of this Joinder
Agreement. (Note: Even though such amounts are designed
under Item 10 entitled "Employee Contributions," they
are treated as an Employer contribution for income tax
deduction purposes and for certain other purposes as
specified in the Prototype Plan.)
2. ( x ) Matching Contributions for Salary Savings Contributions.
----------------------------------------------------------
An amount equal to a percentage of certain Salary
Savings Contributions made by eligible Employees,
determined as follows (select one):
( x ) 25% of Salary Savings Contributions for the Plan
Year that are eligible to receive a matching
contribution.
( ) a discretionary percentage of Salary Savings
Contributions for the Plan Year that are eligible
to receive a matching contribution, as determined
by the Employer.
<PAGE>
Maximum. If matching contributions are elected above, the
following Salary Savings Contributions made on behalf of a
Participant for a Plan Year shall be eligible for such
matching contributions (select one):
( ) All Salary Savings Contributions.
( x ) Salary Savings Contributions not in excess of 5%
of the Participant's Compensation for the Plan
Year.
( ) Salary Savings Contributions not in excess of
$ .
-----------
( ) Matching Contributions for Nondeductible Employee
--------------------------------------------------
Contributions. An amount equal to a percentage of
-------------
certain Nondeductible Employee Contributions made
by eligible Employees, determined as follows
(select one):
( ) % of Nondeductible Employee
-------------
Contributions for the Plan Year that are
eligible to receive a matching
contribution.
( ) a discretionary percentage of
Nondeductible Employee Contributions for
the Plan Year that are eligible to
receive a matching contribution, as
determined by the Employer.
Maximum. If matching contributions are elected
above, the following Nondeductible Employee
Contributions made by a Participant for a Plan
Year shall be eligible for such matching
contributions (select one):
( ) All Nondeductible Employee Contributions.
( ) Nondeductible Employee Contributions
not in excess of ________% of the
Participant's Compensation for the Plan
Year.
( ) Nondeductible Employee Contributions not
in excess of $_____________.
3. ( ) Regular Contributions. An amount determined by the
----------------------
Employer in the manner indicated below (select one):
<PAGE>
( ) Discretionary Contributions. The amount
-----------------------------
determined by the Employer for each Plan Year.
Note: A discretionary contribution may be
allocated on an integrated basis if so indicated
in Item 11(B)(3).
( ) Non-integrated Formula. % of the
----------------------- --------
Compensation of all Participants for such
Plan Year who are entitled to share in the
allocation of Employer contributions as specified
in Item 11(B)(3).
( ) Integrated Formula. % of the Compensation of
------------------- ---
each Participant for such Plan Year, plus %
--------
of each Participant's Compensation in excess of th
Taxable Wage Base (as defined in Item 11(C)),
taking into account only Participants entitled to
share in the allocation of Employer contributions
as specified in Item 11(B)(3). Note: The
percentage amount inserted in the second blank
cannot exceed the lesser of the amount in the
first blank or 5.7% (or such lesser Excess
Percentage determined in accordance with Item
11(C) if the Taxable Wage Base is less than the
maximum that can be specified in Item 11(C)(1)).
Any amounts contributed pursuant to this
integrated formula may not be taken into account
for purposes of the tests under Sections 401(k)
and 401(m) of the Internal Revenue Code described
in Sections 14.04 and 14.05 or the Prototype Plan.
4. ( ) Qualified Nonelective Contributions. An amount equal to
------------------------------------
% of the Compensation (as elected in Item 9
---------
of this Joinder Agreement, but disregarding any
amounts paid prior to the Participation Date) of
each Participant who is eligible for qualified nonelective
contributions; any such amount shall be 100% vested when
made notwithstanding any election of another vesting
schedule in Item 6 of this Joinder Agreement.
5. ( x ) Fail-Safe Contributions. That percentage, if any, as
-------------------------
designated by the Employer by the due date of its tax
return, including extensions, for the taxable year in
which the Employer contributions for the Plan Year will
be deducted, of the Compensation of each Participant who
is eligible for fail-safe contributions.
For Plan Years beginning on or after January 1, 1986, Employer
contributions may be made without regard to Net Profits.
<PAGE>
B. Allocation of Annual Employer Contributions.
--------------------------------------------
1. Salary Savings Contributions. For each Plan Year, Salary Savings
------------------------------
Contributions shall be allocated among the Salary Savings
Accounts of those Participants who made Salary Savings
Contributions in accordance with their elections for the Plan
Year.
2. Matching Contributions. Any matching contributions shall be
allocated to the |X| Regular Accounts |_| Fail-Safe Accounts
(select Fail-Safe Accounts if matching contributions are 100%
vested and the Regular Account is subject to a vesting schedule)
of those Participants who are eligible to share in the allocation
of matching contributions.
( x ) Participants who made any Salary Savings Contributions
------------------------------
during the Plan Year shall be entitled to share in the
allocation of matching contributions in proportion to
the Salary Savings Contributions for the Plan Year of
each such Participant as follows (select one or more):
( x ) Any Participant (including a former Employee)
who received any Compensation during the Plan
Year, regardless of how many Hours of Employment
------------------------------------------
he was credited with.
---------------------
( ) Any Participant (including a former Employee) who
received any Compensation during the Plan Year and
who was credited with more than 500 Hours of
----------------------
Employment for such Plan Year.
----------
( ) Any Participant (including a former Employee) who
received any Compensation during the Plan Year and
who was credited with 1,000 or more Hours of
----------------------
Employment for such Plan Year.
----------
( ) Any Participant who is employed on the last day of
the Plan Year.
( ) Participants who made any Nondeductible Employee
-----------------------
Contributions
-------------
during the Plan Year shall be entitled to share in the
allocation of matching contributions in proportion to the
Nondeductible Employee Contributions for the Plan Year of each
such Participant as follows (select one or more):
( ) Any Participant (including a former Employee)
who received any Compensation during the Plan
Year, regardless of how many Hours of Employment
------------------------------------------
he was credited with.
---------------------
( ) Any Participant (including a former Employee) who
received any Compensation during the Plan Year and
who was credited with more than 500 Hours of
----------------------
Employment for such Plan Year.
----------
<PAGE>
( ) Any Participant (including a former Employee) who
received any Compensation during the Plan Year and
who was credited with 1,000 or more Hours of
----------------------
Employment for such Plan Year.
----------
( ) Any Participant who is employed on the last day of
the Plan Year.
NOTE: Participants who are entitled to a Terminal Allocation may be
entitled to the allocation of matching contributions (see Item 13 of this
Joinder Agreement).
3. Regular Employer Contributions. Any regular contributions shall be
allocated among the Regular Accounts of those Participants who
were employed by the Employer during the Plan Year and who are
entitled to share in the allocation in proportion to the
Compensation for the Plan Year of each such Participant as follows
(select one or more):
( ) Any Participant (including a former Employee)
who received any Compensation during the Plan
Year, regardless of how many Hours of Employment
------------------------------------------
he was credited with.
---------------------
( ) Any Participant (including a former Employee) who
received any Compensation during the Plan Year and
who was credited with more than 500 Hours of
------------
Employment for such Plan Year.
----------
( ) Any Participant (including a former Employee) who
received any Compensation during the Plan Year and
who was credited with 1,000 or more Hours of
----------------------
Employment for such Plan Year.
----------
( ) Any Participant who is employed on the last day of
the Plan Year.
NOTE: Participants who are entitled to a Terminal Allocation may be
entitled to share in the allocation of regular contributions (see Item
13 of this Joinder Agreement).
Regular contributions shall be allocated as follows (select one):
( ) Non-integrated allocation: For contribution
---------------------------
formulas intended to be allocated on a non-
integrated basis, the annual contribution shall
be allocated in proportion to the Compensation for
the Plan Year of each Participant entitled to
share in the allocation. (See Item 9(C) of the
Joinder Agreement for whether pre-Participation
Date Compensation is counted for this purpose.)
( ) Integrated allocation: For a discretionary
-----------------------
contribution intended to be allocated on an
integrated basis, the amount allocated to the
Regular Account of each such Participant shall
equal the sum of (a) and (b), as follows:
<PAGE>
a. each such Participant's Integrated
Contribution Amount (as defined in Item
11(C) below) (or a pro rata portion thereof
if the total contribution is less than the
sum of all Participant's Integrated
Contribution Amounts); and
b. a pro rata share of any discretionary
contribution amount remaining after each
such Participant's Integrated Contribution
Amount is so allocated, with the pro rata
share being based on each such Participant's
Compensation for the Plan Year.
4. Qualified Nonelective Contributions. Any Qualified Nonelective
Contributions shall be allocated to the |_| Fail-Safe Accounts |_|
Regular Accounts (select Regular Accounts if the Regular Accounts
provide for 100% vesting) for any Participant who was eligible to
make Salary Savings Contributions for the Plan Year in proportion
to the Compensation for the Plan Year of each such Participant.
NOTE: Participants who are entitled to receive a Terminal
Allocation may be entitled to share in the allocation of qualified
nonelective contributions (see Item 13 of this Joinder Agreement).
5. Fail-Safe Contributions. Any Fail-Safe Contributions shall be
allocated to the Fail-Safe Account of each Participant who is
employed by the Employer on the last day of the Plan Year and who
is a Non-Highly Compensated Employee (as defined in Section
14.02(1) of the Prototype Plan) for the Plan Year in proportion to
the Compensation for the Plan Year of each such Participant. NOTE:
Participants who are entitled to receive a Terminal Allocation may
be entitled to share in the allocation of fail-safe contributions
(see Item 13 of this Joinder Agreement).
C. Definitions and Special Rules for Integrated Plans.
---------------------------------------------------
(C must be completed if Plan is integrated.)
1. "Taxable Wage Base" means, with respect to each Plan Year:
( ) Maximum. The maximum amount of earnings which may be
considered wages under Section 3121(a)(1) of the
Internal Revenue Code for the calendar year ending
within or coincident with such Plan Year.
( ) Lesser Amount. A lesser amount determined as follows
--------------
(specify):
-------------------------------------------------------
-------------------------------------------------------
<PAGE>
2. "Excess Percentage" shall mean 5.7% (or such lesser amount
specified by the Employer prior to the end of the Plan Year)
if the maximum Taxable Wage Base is specified above. If a
lesser amount is elected above for the Taxable Wage Base, then
the "Excess Percentage" shall mean the amount indicated below
based on what percentage of the maximum Taxable Wage Base is
actually used pursuant to the above election, as follows:
a. If the Taxable Wage Base elected above is less than
the greater of $10,000 or 20% of the maximum Taxable
Wage Base for such Plan Year, then the Excess
Percentage for such Plan Year shall be 5.7% (or such
lesser amount specified by the Employer prior to the
end of the Plan Year).
b. If the Taxable Wage Base elected above is at least
the greater of $10,000 or 20% of the maximum Taxable
Wage Base for such Plan Year, but is not more than
80% of the maximum Taxable Wage Base for such Plan
Year, then the Excess Percentage for such Plan Year
shall be 4.3% (or such lesser amount specified by the
Employer prior to the end of the Plan Year).
c. If the Taxable Wage Base elected above is more than
80% of the maximum Taxable Wage Base for such Plan
Year but is less than the maximum Taxable Wage Base
for such Plan Year, then the Excess Percentage for
such Plan Year shall be 5.4% (or such lesser amount
specified by the Employer prior to the end of the
Plan Year).
3. "Integrated Contribution Amount" shall mean, for purposes of
the preceding Item 11(B)(4), with respect to any Participant
for a Plan Year, the sum of (a) the product of his
Compensation up to the Taxable Wage Base for such Plan Year
multiplied by the Excess Percentage for such Plan Year, plus
(b) the product of his Compensation in excess of the Taxable
Wage Base for such Plan Year multiplied by two times the
Excess Percentage for such Plan Year.
D. Top-Heavy Minimum Contributions. If the Employer is required to make a
minimum top-heavy contribution as provided in Section 12.03 of the
Prototype Plan and the Employer maintains more than one defined
contribution plan (including a Paired Plan), then the contributions
from all such plans shall be aggregated for purposes of Section 12.03
and any required minimum contribution shall be made first under the
Employees' Pension plan. (Indicate which plan; if no plan is indicated,
any required minimum contribution will be made in this Prototype Plan
or split equally between Paired Plans.)
<PAGE>
If the Employer's Plan is Top-Heavy and it maintains one or more
defined benefit plans, the top-heavy minimum contribution requirement
shall be met by providing a 5% minimum contribution in this Plan,
unless otherwise specified as follows: Defined Benefit Plan.
E. Discontinuance or Suspension of Contributions. The Employer shall have
the right in its sole and final discretion to discontinue completely or
suspend temporarily for a definite or indefinite period its
contributions under the Prototype Plan at any time or from time to time
(subject to any required top-heavy contributions), but such suspension
should be indicated by executing a new Joinder Agreement prior to the
end of the affected Plan Year if a stated rate of contributions is
specified above. Upon complete discontinuance of Employer
contributions, the rights of Participants shall be 100% vested to the
extent provided in Section 8.03(b) of the Prototype Plan.
12. FORFEITURES (Sections 4.04, 4.10, 5.04 and 6.08 of the Prototype Plan)
-----------
Complete A and B unless 100% immediate vesting for all Accounts.
A. Any amounts attributable to Employer contributions that are not vested
in accordance with the schedule specified in Item 6 of this Joinder
Agreement at the date that a Participant terminates employment with the
Employer shall be transferred to a Forfeiture Suspense Account. Any
such amounts shall be forfeited:
( x ) When the Participant receives (or is deemed to receive) his
entire vested interest in the Plan or the date when he incurs 5
consecutive 1-year Breaks in Service, whichever occurs earlier.
( ) When the Participant incurs 5 consecutive 1-year Breaks in
Service. (Section 5.04(b) of the Prototype Plan shall be
disregarded.)
B. Any forfeitures arising during a Plan Year, as specified above (or in
accordance with Section 4.10 of the Prototype Plan regarding unclaimed
benefits) shall be used as follows:
( ) Forfeitures shall be reallocated to the Regular Accounts of
all active Participants employed on the last day of the
Plan Year and of all Participants who are entitled to a
Terminal Allocation of forfeitures in proportion to their
Compensation for the Plan Year. See Item 9(C) of the
Joinder Agreement for whether pre-Participation Date
Compensation is counted.
( x ) Forfeitures for any Plan Year shall be used as soon as possible
to reduce future Employer contributions.
( ) Allocated in the same manner as if it were a regular
contribution in the Plan. (This choice will only be available if
the Employer chose the integrated allocation formula in Item
11(B)(4) above.)
<PAGE>
13. TERMINAL ALLOCATIONS (Sections 1.01(dd) and 4.03 of the Prototype Plan)
--------------------
Each Participant who made any Salary Savings Contributions for a Plan Year
shall receive an allocation thereof. Terminal Allocations of any other
Employer contributions (and forfeitures, if applicable)
|_| shall not be made.
------------------
|X| shall be made as follows (indicate A and/or B, or C, from the
list of alternatives below beside each type of Employer
contributions. "N/A" may be inserted if a particular type of
contribution is not available under the Plan):
Matching Contributions for Salary Savings Contributions: A
-------------------------------------------------------- ---
Matching Contributions for Nondeductible
---------------------------------------- ---
Employee Contributions:
----------------------- ---
Fail-Safe Contributions: A
------------------------ ---
Regular Contributions:
---------------------- ---
Qualified Nonelective Contributions:
Alternatives for Terminal Allocations of a particular type of
Employer contribution as specified above:
A. Any Participant whose employment is terminated for reasons
of retirement, death, or Disability before the end of the
---------- ----- ----------
Plan Year.
B. Any Participant whose employment is terminated for any
reason before the end of the Plan Year if he was credited
with at least 1,000 Hours of Employment for such Plan Year.
---------------------------------------
C. Any Participant (including a former Employee) who
received any Compensation during the Plan Year and who
was credited with more than 500 Hours of Employment for
such Plan Year.
NOTE: A Participant who terminates employment with a 0% vested
interest in his Regular Account will not be eligible to receive a
Terminal Allocation.
<PAGE>
14. VALUATION DATES AND ALLOCATION OF GAIN OR LOSS
----------------------------------------------
(Sections 1.01(ff) and 4.02 of the Prototype Plan)
Complete A.
A. Valuation Date. Valuation Date shall mean the last day of each Plan
----------------
Year and any additional dates specified by the Employer as follows:
3/31, 6/30 and 9/30. (insert additional Valuation Date(s) or "none").
B. Method for Allocating Gain or Loss. Allocation of gain or loss to all
-------------------------------------
Participant Accounts shall be based on the account balance as of the
immediately preceding Valuation Date with such appropriate adjustments as
directed by the Employer.
15. ROLLOVER CONTRIBUTIONS AND DIRECT TRANSFERS
-------------------------------------------
(Section 3.03 and 3.04 of the Prototype Plan)
Rollover Contributions. (Select A, B, or C.)
-----------------------
A. ( ) Only Employees participating in the Plan shall be permitted to
make rollover contributions
B. ( x ) Any Employee may make rollover contributions, even if he has
not yet met the eligibility requirements, as specified
in Item 4 of this Joinder Agreement.
C. ( ) Rollover contributions are not permitted.
---
NOTE: Rollover contributions must be made within 60 days after the
Employee receives a distribution qualifying for rollover.
Direct Transfers. (Select D, E, or F.)
-----------------
D. ( ) Only Employees participating in the Plan are permitted to make
direct transfer.
E. ( x ) Any Employee may make a direct transfer, even if he has not
yet met the eligibility requirements, as specified in
Item 4 of this Joinder Agreement.
F. ( ) Direct transfers are not permitted.
---
16. HOURS OF EMPLOYMENT (Section 1.01(o) of the Prototype Plan)
-------------------
Hours of Employment shall be determined under the Plan on the basis of the
method selected below. (Select one method.)
<PAGE>
( x ) On the basis of actual hours for which an employee is paid or
entitled to payment.
( ) On the basis of days worked:
----
An employee shall be credited with 10 Hours of
Employment if under Section 1.01(o) of the Prototype
Plan such employee would be credited with at least one
Hour of Employment during the day.
( ) On the basis of weeks worked:
-----
An employee shall be credited with 45 Hours of
Employment if under Section 1.01(o) of the Prototype
Plan such employee would be credited with at least one
Hour of Employment during the week.
( ) On the basis of semi-monthly payroll periods:
-----------------------------
An employee shall be credited with 95 Hours of
Employment if under Section 1.01(o) of the Prototype
Plan such employee would be credited with at least one
Hour of Employment during the semi-monthly payroll
period.
( ) On the basis of months worked:
------
An employee shall be credited with 190 Hours of
Employment if under Section 1.01(o) of the Prototype
Plan such employee would be credited with at least one
Hour of Employment during the month.
17. ELIGIBILITY SERVICE (Sections 1.01(bb) and 2.02(c) of the Prototype Plan)
-------------------
A year of Eligibility Service is credited to a Participant at the end of
each computation period in which the Participant is credited with at least
1,000 Hours of Employment. The first computation period used to credit
Eligibility Service shall be the 12 consecutive month period beginning on
his date of employment.
Complete A and B. Complete C, if applicable.
A. The second and all succeeding computation periods used to credit
Eligibility Service shall be:
( x ) the Plan Year.
( ) the 12 consecutive month period beginning with each anniversary
date of employment.
B. ( ) The Rule of Parity shall not apply to Eligibility Service.
---------
This means that if a former employee is reemployed by
the Employer after incurring a Break in Service, he shall,
in all cases, receive credit upon his reemployment for
------------
his Eligibility Service earned prior to such Break in Service.
<PAGE>
( ) A Pre-1985 Rule of Parity shall apply to Eligibility Service.
-----
This means pre-1985 Eligibility Service will be
disregarded under the prior rules and a Rule of Parity will not
---
apply thereafter. (Optional only for a Plan whose
original effective date is before January 1, 1985)
( x ) A Pre- and Post-1985 Rule of Parity shall apply to Eligibility
-----
Service. This allows a plan to disregard pre-1985
Eligibility Service under prior rules (if the Plan was in
effect) and to disregard any subsequent Eligibility
Service under the new 5 consecutive break-in-service rule.
(Optional for any Plan)
C. Service with Union County National Bank of Liberty, First United
Bank, Randolph County Bank, Pendleton Banking Company, and First
Merchants Bank shall be considered Service with the Employer for
purposes of determining Eligibility Service.
(Optional for any Plan)
18. VESTING SERVICE (Section 1.01(bb) of the Prototype Plan)
---------------
A year of Vesting Service is credited to a Participant for each Plan Year
of employment in which the Participant is credited with at least 1,000
Hours of Employment, subject to the following rules:
Select one choice under A. Complete other applicable items.
A. ( ) The Rule of Parity shall not apply to Vesting Service. This
---------
means that If a former employee is reemployed by the
Employer after incurring a Break in Service, he shall, in all
cases, receive credit upon his reemployment for his Vesting
Service earned prior to such Break in Service.
( ) A Pre-1985 Rule of Parity shall apply to Vesting Service.
-----
This means pre-1985 Vesting Service will be disregarded
under the prior rules and a Rule of Parity will not
apply thereafter. (Optional only for a Plan whose original
effective date is before January 1, 1985)
( x ) A Pre- and Post-1985 Rule of Parity shall apply to Vesting
-----
Service. This allows a plan to disregard pre-1985
Vesting Service under prior rules (if the Plan was in effect)
and to disregard any subsequent Vesting Service under the new
5 consecutive break-in-service rule. (Optional for any Plan)
B. If the Plan was established prior to the effective date of
ERISA, then Participant's employment with the Employer which
occurred prior to incurring a pre-ERISA break in service |_|
shall |_| shall not be considered for the purpose of
determining his Vesting Service. (Required for a pre-1975 Plan
with an original Effective Date prior to 1976)
<PAGE>
C. Service with Union County National Bank of Liberty, First
United Bank, Randolph County Bank, Pendleton Banking Company &
First Merchants Bank (insert name of predecessor employer if
desired) shall be considered Service with the Employer for
purposes of determining Vesting Service. (Optional for any
Plan)
D. Service prior to (insert any date that is not later than the
Plan's original Effective Date, provided that this restriction
has always been in the Plan) shall not be counted as Vesting
Service under the Plan. (Optional for any Plan)
E. A Participant's employment for any period of time during which
the Employer did not maintain this Prototype Plan or a
predecessor plan |X| shall |_| shall not be considered for the
purpose of determining his Vesting Service. Exclusion of
service under this paragraph may require demonstration of
nondiscrimination by a turn over test.
F. Vesting Service earned before the Participant attained age 18
(not more than age 18) shall be disregarded in determining his
vested percentage. Any Vesting Service disregarded prior to
age 22 during Plan Years beginning on or before January 1,
1985, may continue to be disregarded. Exclusion of service
under this paragraph may require demonstration of
nondiscrimination by a turn over test.
19. LIFE INSURANCE (Section 4.06 of the Prototype Plan)
--------------
Select A or B.
A. ( ) The Employer elects to make the purchase of individual contracts
of life insurance available to Participants, subject to the
overall limits set forth in Section 4.06 of the Prototype Plan.
B. ( x ) The Employer elects not to make the purchase of individual
contracts of life insurance available to Participants.
In the case of an Owner Employee or Partner Employee, contributions which
are allocable to life, accident, health or other insurance premiums may
not be deductible.
If insurance is purchased under the Plan, then the Employer should
instruct the Trustee regarding how insurance premiums are to be charged
against the Participant's account balance and how the allocation of gain
or loss to such account should be adjusted. If a Participant has life
insurance in the Plan, the Participant may take the life insurance as part
of his distribution (with spousal consent required if Section 6.02 of the
Prototype Plan applies).
<PAGE>
20. LOANS (Section 4.08 of the Prototype Plan)
-----
Select A or B.
A. ( ) Employees participating in the Plan shall be permitted to
apply for loans in accordance with Section 4.08 of the
Prototype Plan. The maximum number of loans that any
Participant may have outstanding at any time shall be ----- .
The minimum amount of a loan shall be $ (insert
-----------
any desired minimum equal to or less than $1,000).
Loans shall be treated as
|_| a segregated portion of the Participant's Account(s).
|_| a general asset of the Trust Fund.
B. ( x ) Employees participating in the Plan shall not be permitted to
---------
apply for loans.
NOTE: Loans cannot be permitted by the Employer to a Participant in the
Plan who is an Owner Employee or if the Employer is an electing S
corporation to a Participant who owns more than 5% of the Employer's
outstanding stock.
21. HARDSHIP WITHDRAWALS (Section 14.07 of the Prototype Plan)
--------------------
Hardship withdrawals |_| shall not |X| shall be permitted in accordance
with Section 14.07 of the Prototype Plan and the following election(s) in
this Joinder Agreement. Also note that if loans are permitted in Item 20
of this Joinder Agreement, the maximum number of loans permitted must be
exhausted before a hardship withdrawal can be permitted.
If hardship withdrawals are permitted, then they shall only be available
from the following Account(s) (may choose both), and the amount available
from those Accounts may be further limited or not available at all as
provided in Section 14.07 of the Prototype Plan:
( x ) Salary Savings Account
( ) vested portion of Regular Account
22. INVESTMENT OPTIONS (Section 7.03 of the Prototype Plan)
------------------
Select A or B.
A. ( ) Employees participating in the Plan shall not be permitted to
---------
direct investment of their Account(s).
<PAGE>
B. ( x ) Employees participating in the Plan shall be permitted to
-----
direct investment of their Account(s) as follows (select
one or both):
( ) All Participants who are within 5 years of Normal
Retirement Age as specified in Item 5(A) of this
Joinder Agreement (whether or not they are still
employed by the Employer) shall be permitted to
direct investment of all their Accounts in any
---
special investment fund made available to them in
accordance with rules adopted by the Employer.
( x ) All Participants shall be permitted to direct
investment of the following Account(s) among the
investment funds made available to them in
accordance with rules adopted by the Employer of
the following Account(s) (select one or more if
this item is applicable):
( x ) Salary Savings Account
( ) Nondeductible Employee Contribution
Account
( x ) Regular Account
( x ) Rollover Account
( x ) Direct Transfer Account
( x ) Fail-Safe Account
23. DISABILITY (Section 1.01(f) of the Prototype Plan)
----------
Complete A and B.
A. Definition of Disability (select one, if desired)
------------------------
1. ( ) "Disability" means a disability as determined for
purposes of the Federal Social Security Act which
qualifies the Participant for permanent disability
insurance payments in accordance with such Act.
2. ( x ) "Disability" means a disability determined on the
basis of medical evidence satisfactory to the Employer
which prevents the Participant from performing the
ordinary functions of this regular employment or
occupation with the Employer.
3. ( ) "Disability" has no meaning under the Prototype Plan.
B. Continued Payments to Non-Highly Compensated Participants Who Are
Disabled Under Social Security Definition
-----------------------------------------
<PAGE>
If a Social Security definition of Disability is used under the Plan
by electing A(1) above, then the Employer |_| shall |_| shall not
continue to make contributions on behalf of a non-highly compensated
disabled Participant for each Plan Year that the Participant is still
disabled and under the age of years. (If this sentence is not
completed, then no such contributions shall be made.)
24. LIMITATIONS ON ALLOCATIONS (Section 11.02, 11.03, 11.04 and 12.05 of the
--------------------------
Prototype Plan)
(If the Employer maintains or ever maintained another qualified plan in
which any Participant in this Plan is or was a participant or could
possibly become a participant, the Employer must complete the appropriate
parts of this Item 24. The Employer must also complete this Item 24 if it
maintains a welfare benefit fund, as defined in Section 419(e) of the
Internal Revenue Code, or an individual medical account, as defined in
Section 415(1)(2) of the Internal Revenue Code, under which amounts are
treated as Annual Additions with respect to any Participant in this Plan.)
A. If the Participant is covered by another qualified defined contribution
plan maintained by the Employer, other than a Master or Prototype Plan
(Section 11.03 of the Prototype Plan):
( ) The provisions of Section 11.02(d), (e) and (f) of the Prototype
Plan regarding the treatment of amounts in excess of the Annual
Addition limits shall apply as if the other plan were a
Master or Prototype Plan. (The preceding sentence shall
apply if no method is indicated in the following sentence.)
( ) Excess amounts shall be disposed of as follows:
-----------------------------------------------------------------
-----------------------------------------------------------------
(Provide the method under which the plans will limit total
Annual Additions to the Maximum Permissible Amount and will
properly reduce any Excess Amount, without any Employer
discretion.)
B. If the Participant is or has ever been a participant in a defined
benefit plan maintained by the Employer (or by certain predecessor
employers), the Combined Plan Limitation described in Section
11.04 of the Prototype Plan shall be met as follows (Section 11.04
of the Prototype Plan): reduction in the Participant's benefits
under the Defined Benefit Plan.
C. If the Employer maintains both defined contribution and defined
benefit plans and the Employer wants to use 125% in the
denominator of the Defined Benefit Fraction and Defined
Contribution Fraction in calculating the benefit limitations of
Section 11.04 of the Prototype Plan when the plans are Top-Heavy,
then the minimum allocation referred to in Item 11(D) of this
Joinder Agreement must comply with Section 12.05 of the Prototype
Plan.
<PAGE>
25. PROVISIONS RELATING TO PRIOR PLAN (Section 9.10 of the Prototype Plan)
---------------------------------
Complete this Item 25 only if the Employer's execution of this Joinder
Agreement constitutes an amendment of some Prior Plan, including a prior
joinder agreement for this Prototype Plan.
( x ) The computation of Vesting Service under Section
1.01(bb) of the Prototype Plan is at least as generous for
all Participants as the Prior Plan, and Section 9.10(b)
shall not be applicable to the Employer's Plan created by
adopting this Prototype Plan.
( ) Because of a difference in computation periods or some
other difference in determining Service under such Prior
Plan, Section 9.10(b) shall be applicable to the Employer's
Plan created by adopting this Prototype Plan.
If the Limitation Year is changed, special rules may apply as set forth in
Sections 9.10(b) and 11.05(i) of the Prototype Plan. Also, see Item 7 of
the Joinder Agreement results in the elimination of an optional form of
payment.
26. AGENT FOR SERVICE OF LEGAL PROCESS
The agent for service of legal process with respect to the Employer's Plan
shall be:
Name: First Merchants Corporation
Address: 200 East Jackson Street
Muncie, IN 47305-2814
Telephone: (765) 747-1500
27. PLAN ADMINISTRATOR
The Employer's plan administrator (who is authorized to issue instructions
to the Trustee) shall be:
Name: First Merchants Corporation
Address: 200 East Jackson Street
Muncie, IN 47305-2814
Telephone: (765) 747-1500
<PAGE>
28. TRUSTEE
The Trustee shall be:
Name: First Merchants Bank, N.A.
Address: 200 East Jackson Street
Muncie, IN 47305-2814
Telephone: (765) 747-1339
29. DOMESTIC RELATIONS ORDERS (Section 9.14 of the Prototype Plan)
-------------------------
Payment to an alternate payee pursuant to a Qualified Domestic Relations
Order may be made (select one):
( x ) only after the Employer determines the order to be
qualified and after the Participant has attained Earliest
Retirement Age (as defined in Section 9.14(e) of the Prototype
Plan). This means that payment cannot be made to an alternate
payee until after the Participant either has terminated
employment or has attained age 50.
( ) at any date after the order is determined to be qualified,
even though the Participant is still employed by the
Employer and has not yet attained age 50. However, the
alternate payee's written consent to the payment is required
if the amount payable exceeds $3,500 and is to be paid while
the Participant is still employed by the Employer and
under age 50. Any such consent must be witnessed by a Plan
representative or a notary public.
DISCLAIMER AND WARNING
This Joinder Agreement and the Prototype Plan are furnished for the
consideration of the Employer and its legal and financial advisors. The Sponsor
advises the Employer to consult with its own attorney and financial advisors on
the legal and tax implications of this Prototype Plan and Joinder Agreement.
Nothing herein should be construed as constituting legal or tax advise.
Failure to fill out the Joinder Agreement properly may result in the
disqualification of the Plan. The Sponsor disclaims any responsibility for any
adverse consequences that may arise due to the Employer's failure to properly
complete the Joinder Agreement.
The execution of this Joinder Agreement incorporates the provisions set
forth above in First Merchants Bank, N.A. Prototype Plan and Trust Agreement,
and supersedes any Joinder Agreement previously in effect with respect to this
Employer.
<PAGE>
FIRST MERCHANTS CORPORATION OF
MUNCIE, INDIANA
Dated: 12/31/98 By /s/Stefan S. Anderson, Chairman
-------- --------------------------------
"Employer"
ATTEST:
/s/Sheilah M. Doyle
-------------------
<PAGE>
First Merchants Bank, N.A., Indiana, as Trustee, hereby accepts the Trust
created herein.
FIRST MERCHANTS BANK, N.A.
By /s/L. I. Villegas, Vice President
---------------------------------
"Trustee"
ATTEST:
/s/ Mary Terhune
----------------
SPECIAL INSTRUCTIONS ABOUT
SUBMISSION TO INTERNAL REVENUE SERVICE
The adopting Employer may not rely on an opinion letter issued by the National
Office of the Internal Revenue Service as evidence that the plan is qualified
under Section 401 of the Internal Revenue Code. In order to obtain reliance with
respect to plan qualification, the Employer must apply to the appropriate key
district officer for a determination letter.
When submitting this Joinder Agreement to the appropriate Internal Revenue
Service Key District Director for a determination letter, the Employer must
include the adoption agreement for all its qualified master and prototype
defined contribution and defined benefit plans, and a copy of the Section 415
provisions in any individually-designed qualified defined contribution or
defined benefit plan.
ADDITIONAL INFORMATION ABOUT THE PROTOTYPE PLAN
1. This Joinder Agreement may only be used in conjunction with basic
plan document #01.
2. This Joinder Agreement and the accompanying Prototype Plan may
only be used by an adopting employer with the consent of the
Sponsor. Any questions about the Plan may be directed to the
Sponsor at the following address or telephone number:
First Merchants Bank, N.A.
200 East Jackson Street
Muncie, IN 47305-2814
Telephone: (765) 747-1339
<PAGE>
The above information can be updated from time to time by revising
the above and providing notice to any current adopting Employer.
3. The Sponsor will notify any Employer (that it has accepted as an
adopting Employer of the Prototype Plan) of any amendments that
the Sponsor may adopt with regard to the Plan or of its
discontinuance or abandonment of the Prototype Plan.
4. Any alteration or addition of choices available in this Joinder
Agreement may result in an Employer's Plan being treated by the
Internal Revenue Service as an individually designed plan that
should seek a determination letter on Form 5301.
5. The Sponsor is using this Joinder Agreement and the accompanying
Prototype Plan for its adopting employers with the
permission of McCready and Keene, Inc. (Actuaries and Employee
Benefit Consultants), P.O. Box 50460, Indianapolis,
Indiana 46250. The format of this Joinder Agreement and the
accompanying Prototype Plan may not be used by any other
sponsoring organization without the written permission of
McCready and Keene, Inc. McCready and Keene, Inc., has
submitted this plan for IRS approval in conjunction with the IRS
Mass Submitter Program pursuant to Rev. Proc. 89-9.
McCready and Keene, Inc., shall have no further responsibility
with regard to this Joinder Agreement after it makes any
changes required by the IRS in connection with such submission.
<PAGE>
FIRST MERCHANTS CORPORATION
RETIREMENT SAVINGS PLAN
SUMMARY PLAN DESCRIPTION
INTRODUCTION
First Merchants Corporation (the "employer") maintains the First
Merchants Corporation Retirement Savings Plan (the "plan") for the purpose of
providing you with retirement benefits. (This plan is in addition to the
employer's defined benefit pension plan.) The purpose of this document is to
acquaint you with the provisions of the plan and to advise you of your rights as
a participant under the plan.
The actual plan document is a detailed legal document, written in
accordance with federal law. Should this summary of the plan differ in any way
from the provisions of the plan, the terms of the plan document, and not this
summary, will govern.
This summary of the plan is based on the plan as restated effective
January 1, 1998. On August 8, 2000, the Board of Directors voted to add an
additional investment option of employer common stock to the plan's menu of
investment options This Summary Plan Description generally only applies to those
participants employed on or after January 1, 2001. However, if you quit before
January 1, 2001, and still have a vested account balance in this plan, the
payment of your account balance will be governed by the terms of this Summary
Plan Description.
All references to "employer" shall include any adopting employer noted
on page 4, unless specifically indicated otherwise.
<PAGE>
TABLE OF CONTENTS
Introduction 2
Table of Contents 3
Important Information 4
Participation 6
Your Contributions 6
The Employer's Contributions 8
Your Accounts and Plan Accounting 9
Vesting Rules 11
Distributions 12
Loans and Withdrawals 13
Miscellaneous 14
Claims Procedure 15
ERISA Rights 16
<PAGE>
IMPORTANT INFORMATION
Sponsoring Employer: First Merchants Corporation
200 East Jackson Street
Muncie, Indiana 47305-2814
EIN: 35-1544218
Phone: 765.747.1500
Adopting Employers: First Merchants Bank, N.A.
200 East Jackson Street
Muncie, Indiana 47305-2814 EIN: 35-0508403
First United Bank
790 Mill Street
Middletown, Indiana 47356-9302
EIN: 35-0303750
Randolph County Bank
Post Office Box 67
Winchester, Indiana 47394-0067
EIN: 35-0600850
Union County National Bank of Liberty Post
Office Box 217 Liberty, Indiana 47352-0217
EIN: 35-1721690
Madison Community Bank
Post Office Box 1368
Anderson, Indiana 46015-1368
EIN: 35-0574300
The First National Bank of Portland 112 West
Main Street Portland, Indiana 47371
EIN: 35-0310290
Decatur Bank & Trust Company 520 North 13th
Street Post Office Box 988 Decatur, IN 46733
EIN: 35-1128432
<PAGE>
Name of Plan: First Merchants Corporation Retirement Savings Plan
Plan Number: 002
Type of Plan: Profit sharing plan with 401(k) feature
Plan Year: January 1 to December 31
Type of Administration: The plan administrator is the sponsoring employer.
The plan administrator administers the plan
according to the terms of the plan and trust.
Name, Address and Telephone Number of Trustee:
First Merchants Bank, N.A.
200 East Jackson Street
Muncie, Indiana 47305-2814
Phone: 765.747.1500
Service of Legal Process: Legal process may be served upon the plan
administrator or the trustee.
<PAGE>
PARTICIPATION
Can I participate in this plan?
Yes, all employees of the employer (including all adopting employers) are
eligible to participate in the plan. Leased employees and independent
contractors are not eligible to participate in this plan.
When can I participate in this plan?
You will become a participant in the plan on the January 1, April 1, July
1, or October 1 coincident with or next following the date you have
attained age 21 and have completed one year of eligibility service. A year
of eligibility service means a 12-month period in which you are credited
with 1,000 hours. The 12-month period is measured from your date of hire
or any subsequent calendar year. (Note: If you worked for a bank that was
acquired by First Merchants Corporation, that prior service will generally
be counted as eligibility service for purposes of this plan.)
Example: You are age 25 and are hired on August 1, 2000. If you are
credited with 1,000 hours by July 31, 2001, then you will become a
participant in the plan on October 1, 2001.
What happens if I quit working?
Once you stop working for the employer, you will remain a participant in
the plan until you receive your vested account balance. If you are later
rehired, you will generally participate immediately upon your rehire
unless you were not vested in any portion of your employer contribution
account when you quit. If you quit before you ever became a participant in
this plan and are later rehired, you will generally be treated as a new
employee. Because of these complicated rules, you should ask the Human
Resources Department for specific information on your participation in the
plan in the event you are rehired.
YOUR CONTRIBUTIONS
Can I make contributions to the plan?
Yes. If you wish, you may make "before-tax" contributions to the plan by
electing (on a form provided by the employer) to reduce your compensation
by a designated whole percentage from 1% to 15%, or in any dollar amount
(provided it does not exceed 15% of your compensation). This amount,
called a "401(k) deferral" or a "401(k) contribution," will be contributed
to the plan by your employer. The contributions you make will not be
subject to federal income tax until they are actually paid to you. These
amounts will, however, be subject to Social Security
<PAGE>
(FICA) taxes like all other compensation from the employer. For purposes
of making 401(k) contributions, your compensation is based on all your
earnings, including 401(k) deferrals and section 125 cafeteria plan
contributions.
Can I change the amount I contribute to the plan?
Yes. You may change the percentage of your 401(k) contributions by filing
a new election form with the employer. You may change your deferral rate
only as of the first day of each quarter, but you can stop your 401(k)
contributions at any time. Your request will be processed as soon as
possible thereafter, but you should allow approximately 10 days to
complete the change. Your 401(k) contributions will only be made by way of
payroll deduction. Forms to make these elections may be obtained from the
Human Resources Department and contain the rules for the timing of the
elections.
How much can I contribute to the plan?
Federal law limits the amount of 401(k) deferrals you can make in any
calendar year. For the year 2001, the maximum deferral you can make is
$10,500. (The limit will be increased in future years in accordance with
cost-of-living adjustments published by the IRS.) This limit, however,
applies to all contributions you make to all plans (including any 403(b)
plan) in a calendar year on a before-tax basis. Therefore, if you are
employed by another employer and have pre-tax contributions made on your
behalf to another plan, you must inform the Human Resources Department
before March 1 of the following year and direct them to have the excess
(if any) returned to you by April 15 so as to avoid any income tax
penalties.
Section 415 of the Internal Revenue Code also limits the amount of total
contributions that can be added to your accounts for any year. Beginning
in 1998, contributions to the plan (both employer and employee
contributions) cannot exceed the lesser of 25% of your total compensation
for the calendar year or $30,000. (This dollar amount will be increased as
permitted by the IRS regulations to reflect any cost-of-living
adjustments). You will be notified if you exceed these limits in this
plan. If you exceed the limits, then a portion of your 401(k)
contributions (plus earnings) will be refunded to you to correct any
excess.
Also, certain IRS discrimination testing may mean that highly compensated
employees are limited in their 401(k) contributions or may have a certain
portion of their 401(k) contributions refunded to them. Highly compensated
employees are generally those employees who made more than $85,000
(increased periodically to reflect any cost-of-living adjustments) in the
prior calendar year or any employee who owns more than 5% of the stock of
the employer. If you are adversely affected by this discrimination
testing, the employer will notify you.
<PAGE>
Can I make a rollover contribution to the plan?
Yes. You can make a rollover contribution, provided it is made within 60
days after you receive the distribution. You can even make a rollover
contribution to the plan prior to becoming an actual participant. Only
distributions from another qualified plan in which you participated can be
rolled over to this plan (but not money from a tax-deferred annuity/403(b)
plan). Any rollover contribution you make will be credited to a separate
rollover account for you until you qualify for payment from this plan. You
are always 100% vested in your rollover account.
For more information on rollovers (or a direct transfer), please talk to
the Human Resources Department.
THE EMPLOYER'S CONTRIBUTIONS
What kinds of contributions will the employer make to this plan?
The employer will make a matching contribution each year. No other
contributions are permitted under this plan.
What is the matching contribution?
The matching contribution is based on your 401(k) contributions each
calendar year. The rate of matching contributions is currently fixed at
25%, and the amount of your 401(k) contributions that are eligible for a
match is limited to 5% of your compensation. This means that the maximum
matching contribution that you receive is limited to 1.25% of your
compensation (5% x 25%), provided you are deferring at the rate of at
least 5%.
In order to receive a matching contribution on your 401(k) contributions,
you must make 401(k) deferrals during the calendar year. Even if you quit
or retire during the year, you will be entitled to a matching
contribution.
The matching contribution will be allocated based on your compensation for
the period of time in which you were an eligible participant in the plan.
This means that compensation prior to your participation date is excluded.
Your compensation is based on your taxable earnings reported in Box 1 of
Form W-2 for the calendar year, plus any 401(k) contributions and section
125 cafeteria plan contributions, but excludes commissions and bonuses. In
addition, compensation in excess of $170,000 cannot be considered for the
2001 calendar year. (This compensation cap is increased periodically by
the IRS based on cost-of-living increases.)
<PAGE>
Example: You contribute $1,000 in 401(k) contributions for the year, and
your compensation for the year 2000 (exclusive of bonuses and commissions)
is $20,000. Your account would be credited with a matching contribution of
$250 (25% x $1,000). Any 401(k) contributions in excess of $1,000 (5% of
$20,000) would not be eligible for a match under the plan.
YOUR ACCOUNTS AND PLAN ACCOUNTING
Where do my contributions go?
After your 401(k) deferrals are deducted from your paycheck, the employer
sends them immediately to First Merchants Bank, N.A., for investment. By
law, the matching contributions do not have to be deposited until the due
date of the employer's tax return for that year (including any
extensions). However, it is the employer's current practice to deposit the
matching contribution on a quarterly basis.
Can I direct where my accounts are invested?
Yes. You may direct the investment of your accounts, in increments of 5%,
on a quarterly basis. You will be given information about the investment
funds that are available in the trust fund at the time you enroll and once
a year thereafter (or more frequently upon your request). Currently, the
following funds are made available to you:
FMB Income Fund (bonds)
FMB Growth Fund (stocks)
FMB Managed Fund
FMB Fixed Value Fund
Small Company Equity Fund
International Equity Fund
As of January 1, 2001, an employer stock fund is also being made available
to you as an investment option. This fund consists solely of First
Merchants Corporation common stock. You can invest up to 25% of your
current account balance in this stock fund, and you can also elect to
invest up to 25% of future contributions (401(k) deferrals, matching
contributions, and any rollover money) in employer stock. (Note: There is
no percentage limitation or restriction as to your investment in the other
funds made available under this plan.)
The employer intends that the plan (except for the employer
stock fund) comply with Section 404(c) of the Employee Retirement
Income Security Act of 1974, as amended (ERISA), which makes you
responsible for your own directed investments. Compliance with these
rules and regulations shifts investment responsibility (including
liability for any losses) from the employer and trustee to you. Contact
the Human Resources Department if you have questions about directed
investments under the plan or if you need additional information about
the plan's investment funds.
<PAGE>
Do I have to invest any portion of my accounts in employer stock?
No! Whether you invest any portion of your account balance in employer
stock is totally your decision. If you are still employed by the
employer, your decision will in no way have any bearing on your
employment relationship. Further, the employer is committed to keeping
all your investment decisions confidential.
To that end, investment election forms will be maintained in the
trustee's trust department with access limited to only the Vice
President & Employee Benefits Officer, and the Record-keeping Manager.
Further, when such investment elections are entered into the plan's
computerized data bank, there is a security code feature that only
these individuals have access to. Management and the Board of Directors
will not be allowed to access (nor request reports of) information
regarding any participant's individual elections in employer stock.
However, the total investment in employer common stock under the plan
will be reported on the employer's Form 5500 filing that is sent each
year to the Department of Labor. Periodically, the Board of Directors
and executive management will be provided with information as to the
aggregate investment of accounts in employer stock.
Do I have any shareholder rights with respect to such stock?
Yes. Once employer stock is allocated to your account, then you become
an indirect First Merchants shareholder. Any dividends paid with
respect to such stock will be credited to your employer stock account.
Also, any voting rights (such as the election of the Board of Directors
tender offers, etc.) will be passed through to you. You will receive
the same information and have the same rights as if you owned the stock
directly.
How often will I receive a statement of my accounts?
After the end of each quarter, you will receive a statement showing the
beginning balance of your accounts, your contributions, the employer
contributions, rollover contributions (if any), investment earnings for
the period, and your ending balance. However, we specifically reserve
the right to make corrections on your statement. If you notice any
errors on your statement, please contact the Human Resources Department
immediately.
<PAGE>
How are my accounts credited with trust gain or loss?
The investment gain or loss for the plan year for each fund is determined
and allocated on a quarterly basis. The employer stock account will be
valued based on the stock's closing price on NASDAQ as of the last day of
the quarter (March 31, June 30, September 30, or December 31).
VESTING RULES
When am I "vested" in my accounts?
Your are always 100% vested in your 401(k) contribution account and your
rollover account. "Vested" means you have a legal right to the money that
can never be taken away. (But remember, the plan has other rules that
control when the money can actually be paid to you from the plan.)
Your matching contribution account under the plan becomes vested if you
die, become disabled, or reach normal retirement age while still employed
by the employer. "Normal retirement age" is your 65th birthday.
"Disability" means a mental or physical disability resulting from bodily
injury, disease, or mental disorder which prevents you from continuing any
gainful occupation with the employer. Disability is determined solely by
the employer based on medical evidence.
You can also become vested in your matching contribution account based on
the number of years of vesting service you complete, as follows:
Years of Vesting Service Vested Percentage
Less than 1 year 0%
1 year 20%
2 years 40%
3 years 60%
4 years 80%
5 years or more 100%
The portion that is forfeited (if any) when you quit will be applied
towards the employer's matching contribution for other participants.
<PAGE>
How is my vesting service determined?
You earn one year of vesting service for each calendar year in which you
work at least 1,000 hours for any adopting employer. In all cases,
however, service prior to age 18 is not counted. (Note: In most cases,
prior service with an acquired bank will count as vesting service under
this plan.)
How are my hours determined?
For purposes of the plan, you earn an hour for each hour you are paid by
the employer. You also earn an hour for each hour of paid absences (such
as vacation, holidays, illness, or other absences that are paid by the
employer but you do not actually work). However, you cannot earn more than
501 hours for any period during which you do not actually work.
Can I lose my vesting service?
Yes, in certain circumstances. However, if you are at least partially
vested in your matching contribution account when you quit, then you can
never lose your prior vesting service if you are rehired. Please ask the
Human Resources Department for information if this affects you when you
are rehired.
Can I have my forfeitures restored?
Yes. If you are rehired before incurring 5 one-year breaks in service, you
can have any forfeited amounts restored to your account provided you repay
to the plan the total amount of your prior payment from the plan. (A break
in service is any calendar year in which you are credited with 500 hours
of service or less.) This repayment will be credited to your accounts
under the plan. If you are rehired, please ask the Human Resources
Department for more information if you think this applies to you.
DISTRIBUTIONS
When can I be paid?
Payment can generally only be made after you stop working for the
employer. Upon your retirement, death, disability or other termination of
employment, payment of your vested accounts under the plan can be
processed after the next quarterly valuation date (March 31, June 30,
September 30, and December 31).
Example: If you quit on October 15, 2000, you can immediately request a
payment from the plan. However, your request for payment will not be
processed until the December 31, 2000 valuation is completed in February
of 2001. You will not share in any earnings (or loss) after December 31,
2000 if you are paid in the first quarter of 2001.
<PAGE>
You may elect to defer your payment, but generally not beyond the April 1
of the calendar year following the later of 1) the calendar year in which
you attain age 70-1/2 or 2) the calendar year in which you quit or retire.
A form for making an election on the timing and form of payment of your
plan benefits is available from the Human Resources Department.
How will I be paid?
If your vested account balance does not exceed $5,000, your benefits will
be paid in a single payment via check. If you make a timely election, you
can also elect a direct rollover to an IRA (individual retirement account)
or to another qualified employer retirement plan.
If your account balance exceeds $5,000, you have three payment options:
cash payment (via check), direct rollover to an IRA (individual retirement
account) or to another qualified employer retirement plan, or installment
payments.
What happens to my money if I die before I am paid?
If you die, your vested account balance will be paid to your designated
beneficiary or beneficiaries. If you have not properly named a
beneficiary, or you fail to name someone, then the plan will pay your
account balance to your surviving spouse. If you do not have a spouse,
then it will be paid to your descendants, per stirpes. If you have no
descendants, then your account balance will be paid to your estate.
Whom may I name as my beneficiary?
If you are single, you may name anyone as your beneficiary. If you are
married, your spouse is automatically your beneficiary. However, you may
name a nonspouse beneficiary provided your spouse consents in writing.
Your spouse's consent must be witnessed by a notary public or plan
representative. If you divorce, your designation of a former spouse as
beneficiary will generally remain in effect until you revoke it or
remarry.
LOANS AND WITHDRAWALS
Can I request a loan from the plan?
No.
If I am still working, can I withdraw my money from the plan?
No. You generally must stop working for the employer in order to
receive payment from the plan. However, the plan does provide for
withdrawals if you have a "hardship."
When can I have a hardship withdrawal?
<PAGE>
If you need funds for the purchase of a principal residence, college
education expenses, medical expenses, or to avoid eviction from your
home, you may qualify for a hardship withdrawal. You will need to
demonstrate, however, that you have satisfied the criteria for a
"hardship" and that funds are not readily available to you from other
sources. Only your 401(k) contributions (without earnings) can be
withdrawn. The law also requires that your 401(k) deferrals be stopped
for 12 months after the withdrawal.
Is a withdrawal subject to income tax?
Yes. A withdrawal is subject to regular federal and state income taxes,
as well as an early distribution 10% excise tax if you are under age
59-1/2. Tax information will be given to you at the time of any
withdrawal. You are also encouraged to talk to your personal tax advisor
for specific information.
MISCELLANEOUS
Can my account balance be affected by a divorce decree?
Yes, if the employer determines the domestic relations order to be a
"qualified" order. If the employer receives a domestic relations order
requiring payment of all, or any portion, of your account balance to a
former spouse or child, the employer will decide whether the order is
"qualified" under complicated IRS rules. Any amounts paid under this
type of order will be subtracted from your account balance. (Note:
Payment under a qualified domestic relations order can generally only be
made after you quit or reach age 50.) You should contact the Human
Resources Department immediately if you have concerns about a potential
order.
What happens if I have a period of military service?
If you are rehired by the employer within 90 days of being discharged
from the military, IRS rules permit you to make up your 401(k) deferrals
that you could not make while you were in the military. If you make
401(k) deferrals for the period you were gone, then matching
contributions from the employer will also be made up for you. If you are
a veteran who has been rehired, please contact the Human Resources
Department for more information about your rights.
Can the plan be changed?
Yes. The sponsoring employer may amend the entire plan or any part of
the plan at any time. By doing so, your rights under the plan may be
either enhanced or diminished. However, no amendment may reduce your
vested interest in the plan (determined on the date of the amendment) or
divert any assets of the trust for purposes other than for the exclusive
benefit of participants and their beneficiaries.
<PAGE>
Can the employer terminate the plan?
Yes. The sponsoring employer may terminate the plan at any time. Upon
termination of the plan, all account balances will become 100% vested.
All account balances which were already fully vested at the time of plan
termination will remain fully vested. Upon termination of the plan,
distribution will be made even if you are still employed by the
employer.
Is this plan insured by the government?
No. This plan is a defined contribution plan, also sometimes referred to
as an individual account plan, and thus not insured by the Pension
Benefit Guaranty Corporation (PBGC).
CLAIMS PROCEDURE
How do I file a claim under the plan?
All claims for benefits under the plan must be made in writing to the
sponsoring employer (see page 4 for the address). The sponsoring employer
has the authority to interpret the plan and make factual findings to
determine the benefits payable to you. Benefits under this plan will only
be paid if the sponsoring employer decides in its discretion that you (or
your beneficiary) are entitled to them.
If the sponsoring employer believes your claim should be denied, you will
be notified in writing of the denial within 90 days after the sponsoring
employer receives the claim. The notice will set forth the specific
reasons for the denial and inform you of your right to request a review
and reconsideration of the sponsoring employer's decision.
If you believe you have submitted all of the available and relevant
information, you (or if you desire to be represented, your counsel) may
appeal the decision of the claim to the sponsoring employer within 60
days after the date of the denial. The sponsoring employer will decide
whether or not to approve the claim within 60 days after receipt of the
request for review. The sponsoring employer's decision on review will
again be in writing, will include specific reasons for the decision and
will refer to pertinent provisions of the plan on which the decision is
based. The sponsoring employer's decision will be final and binding,
unless determined to be arbitrary and capricious.
<PAGE>
ERISA RIGHTS
Do I have any rights under the plan that are protected by law?
As a participant in the plan, you are entitled to certain rights and
protections under ERISA. ERISA provides that all plan participants shall
be entitled to:
(1) Examine all plan documents and copies of all documents filed
with the U.S. Department of Labor (such as detailed annual reports and
plan descriptions) without charge at the sponsoring employer's office.
(2) Obtain copies of all plan documents and other plan
information by submitting a written request to the committee. The
sponsoring employer may make a reasonable charge for the copies.
(3) Receive a summary of the plan's annual financial report. The
sponsoring employer is required by law to furnish each participant with a
copy of this summary annual report.
(4) Obtain a statement telling you whether you have a vested
right to your plan benefits and, if so, what your vested benefits are
now. If you do not have a vested right to benefits, the statement will
tell you how many more years you must work to obtain a vested right. This
statement must be requested in writing and is not required to be given
more than once a year. The sponsoring employer must provide the statement
free of charge.
In addition to creating rights for plan participants, ERISA imposes
duties upon the people who are responsible for the operation of the plan.
The people who operate your plan, called "fiduciaries" of the plan, have
a duty to do so prudently and in the interest of you and other plan
participants and beneficiaries. No one, including your employer, may fire
you or otherwise discriminate against you in any way to prevent you from
obtaining your plan benefit or exercising your rights under ERISA.
<PAGE>
Under ERISA, there are steps you can take to enforce the above
rights. For instance, if you request materials from the plan
administrator and do not receive them within 30 days, you may
file suit in a federal court. In such a case, the court may
require the employer to provide the materials and pay you up
to $110 a day until you receive the materials, unless the
materials were not sent because of reasons beyond the control
of the employer. If you have a claim for benefits which is
denied or ignored, in whole or in part, you may file suit in a
state or federal court. If it should happen that plan
fiduciaries misuse the plan's money, or if you are
discriminated against for asserting your rights, you may seek
assistance from the U. S. Department of Labor, or you may file
suit in a federal court. The court will decide who should pay
court costs and legal fees. If you are successful, the court
may order the person you have sued to pay these costs and
fees. If you lose, the court may order you to pay these costs
and fees, for example, if it finds your claim is frivolous.
If you have any questions about the plan, you should contact the Human
Resources Department. If you have any questions about this statement or
about your rights under ERISA, you should contact the nearest office of
the Pension and Welfare Benefits Administration, U.S. Department of
Labor, listed in your telephone directory or the Division of Technical
Assistance and Inquiries, Pension and Welfare Benefits Administration,
U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C.
20210.
<PAGE>
EXHIBIT 5.01
OPINION OF BINGHAM SUMMERS WELSH & SPILMAN, LLP
November 17, 2000
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"), 20,000 of the
Company's authorized but unissued shares of common stock (the "Common Shares")
issuable under the First Merchants Corporation Retirement Savings 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.
<PAGE>
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, LLP
<PAGE>
EXHIBIT 5.02
INTERNAL REVENUE SERVICE
DETERMINATION LETTER
Internal Revenue Service Department of the Treasury
District Director SeqNr: 0016180
Cincinnati Service Center Letter 835 (DO/CG)
P.O. Box 2508
Cincinnati, OH 45201
Employer Identification Number:
35-1544218
Date: May 7, 1998 DLN:
17007068049008
Person to Contact:
FIRST MERCHANTS CORPORATION CINDY PERRY
C/O JON H. MOLL Contact Telephone Number:
201 EAST JACKSON ST., STE 400 (513) 241-5199
MUNCIE, IN 47305-2847 Plan Name:
RETIREMENT SAVINGS PLAN
Plan Number:
002
Dear Applicant:
We have made a favorable determination on your plan, identified above, based on
the information supplied. Please keep this letter in your permanent records.
Continued qualification of the plan under its present form will depend on its
effect in operation. (See section 1.401-1(b)(3) of the Income Tax Regulations.)
We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable determination
letter, points out some events that may affect the qualified status of your
employee retirement plan, and provides information on the reporting requirements
for your plan. It also describes some events that automatically nullify it. It
is very important that you read the publication.
This letter relates only to the status of your plan under the Internal Revenue
Code. It is not a determination regarding the effect of other federal or local
statutes.
This determination letter is applicable for the amendment(s) dated on December
30, 1996.
This plan has been mandatorily disaggregated, permissively aggregated, or
restructured to satisfy the nondiscrimination requirements.
<PAGE>
-2-
FIRST MERCHANTS CORPORATION
This plan satisfies the nondiscrimination in amount requirement of section
1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based safe
harbor described in the regulations.
This plan satisfies the nondiscriminatory current availability requirements of
section 1.401(a)(4)-4(b) of the regulations with respect to those benefits,
rights and features that are currently available to all employees in the plan's
coverage group. For this purpose, the plan's coverage group consists of those
employees treated as currently benefitting for purposes of demonstrating that
the plan satisfies the minimum coverage requirements of section 410(b) of the
Code.
Except as otherwise specified this letter may not be relied upon with respect to
whether the plan satisfies the qualification requirements as amended by the
Uruguay Round Agreements Act, Pub. L. 103-465, and by the Small Business Job
Protection Act of 1996 (SBJPA), Pub. L. 104-108, other than the requirements of
Code section 401(a)(26).
This letter considers the amendments required by the Tax Reform of 1986, except
as otherwise specified in this letter.
The requirement for employee benefits plans to file summary plan descriptions
(SPD) with the U.S. Department of Labor was eliminated effective August 5, 1997.
For more details, call 1-800-998-7542 for a free copy of the SPD card.
We have sent a copy of this letter to your representative as indicated in the
power of attorney.
If you have questions concerning this matter, please contact the person whose
name and telephone number are shown above.
Sincerely yours,
/s/ C. Ashley Bullard
------------------------
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
Letter 835 (DO/CG)
490284
<PAGE>
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of (i) our report dated January 22, 2000 with respect to
the consolidated financial statements of First Merchants Corporation which
appears on page 14 of the 1999 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, 1999, and (ii) our
report dated August 18, 2000 with respect to the financial statements of the
First Merchants Corporation Retirement Savings Plan included in its Annual
Report on Form 11-K for the year ended December 31, 1999.
Olive LLP
Indianapolis, Indiana
November 17, 2000
