Table of Contents
UNDER
THE SECURITIES ACT OF 1933
FIRST MERCHANTS CAPITAL TRUST III
FIRST MERCHANTS CAPITAL TRUST IV
FIRST MERCHANTS CAPITAL TRUST V
Indiana Delaware Delaware Delaware (State or other jurisdiction of incorporation or organization) | 35-1544218 51-6523250 26-6841632 26-6841652 (I.R.S. Employer ID No.) |
Muncie, Indiana 47305
(765) 747-1500
Executive Vice President and
Chief Financial Officer
First Merchants Corporation
200 East Jackson Street
Muncie, Indiana 47305
(765) 747-1500
Michael J. Messaglia, Esq.
Krieg DeVault LLP
One Indiana Square, Suite 2800
Indianapolis, Indiana 46204
(317) 636-4341
Large accelerated filer o | Accelerated filer þ | Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
Proposed Maximum | Amount of | |||||||||||||||||||||
Amount to be | Offering price per | Aggregate Offering | Registration Fee | |||||||||||||||||||
Title of each class of securities to be registered | registered | unit | Price (1) | (2)(8) | ||||||||||||||||||
Common Stock, $.125 stated value per share, of First Merchants Corporation (3) | — | — | — | — | ||||||||||||||||||
Preferred Stock, no par value, of First Merchants Corporation (3) | — | — | — | — | ||||||||||||||||||
Debt Securities of First Merchants Corporation (3) | — | — | — | — | ||||||||||||||||||
Purchase Contracts of First Merchants Corporation (4) | — | — | — | — | ||||||||||||||||||
Units of First Merchants Corporation, First Merchants Capital Trust III, First Merchants Capital Trust IV, and/or First Merchants Capita l Trust V (5) | — | — | — | — | ||||||||||||||||||
Warrants of First Merchants Corporation (6) | — | — | — | — | ||||||||||||||||||
Depositary Shares of First Merchants Corporation (3) | — | — | — | — | ||||||||||||||||||
Junior Subordinated Debentures of First Merchants Corporation (3)(7) | — | — | — | — | ||||||||||||||||||
Capital Securities of First Merchants Capital Trust III, First Merchants Capital Trust IV, and First Merchants Capital Trust V (7) | — | — | — | — | ||||||||||||||||||
Guarantees of First Merchants Corporation (7) | — | — | — | — | ||||||||||||||||||
Fixed Rate Cumulative Perpetual Preferred Stock, Series A of First Merchants Corporation (“Series A Preferred Stock”) | 116,000 | $ | 1,000 | $ | 116,000,000 | (8) | $ | 6,472.80 | (9) | |||||||||||||
Warrant to Purchase 991,453 shares of Common Stock of First Merchants Corporation issued to United States Department of the Treasury (“Treasury Warrant”) (10) | n/a | n/a | n/a | n/a | ||||||||||||||||||
Common Stock, $.125 stated value per share, of First Merchants Corporation, issuable upon exercise of the Treasury Warrant (10) | 991,453 | $ | 17.55 | (11) | $ | 17,400,000.15 | $ | 970.92 | (9) | |||||||||||||
TOTAL | $ | 350,000,000 | $ | 19,530.00 | (12) | |||||||||||||||||
(1) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act, and exclusive of accrued interest, distributions and dividends, if any. Subject to Rule 462(b) under the Securities Act, the aggregate public offering price of all securities registered hereby will not exceed $350,000,000. Such amount represents the issue price rather than the principal amount of any debt securities issued at an original issue discount. | |
(2) | Other than with respect to the Series A Preferred Stock, the Treasury Warrant and the common stock underlying the Treasury Warrant, not specified as to each class of securities to be registered hereunder pursuant to General Instruction II(D) to Form S-3 under the Securities Act. | |
(3) | Such indeterminate principal amount of debt securities, preferred stock or common stock as may, from time to time, be issued (i) at indeterminate prices or (ii) upon conversion, redemption, exercise or exchange of securities registered hereunder, to the extent any such securities are, by their terms, convertible into or exchangeable for other securities registered hereunder. In the event registrant elects to offer to the public fractional interests in its shares of preferred stock registered hereunder, depositary shares, evidenced by depository receipts issued pursuant to a deposit agreement, will be distributed to those persons purchasing fractional interests and the shares of preferred stock will be issued to the depository under any such agreement. | |
(4) | Such indeterminate number of purchase contracts as may, from time to time, be issued at indeterminate prices obligating holders to purchase from or sell to us, and obligating us to sell or purchase from the holders, a specific number of shares of common stock, preferred stock, debt securities or depositary shares of First Merchants Corporation or trust preferred securities of First Merchants Capital Trust III, First Merchants Capital Trust IV, or First Merchants Capital Trust V at a future date or dates. | |
(5) | Such indeterminate number of units as may, from time to time, be issued at indeterminate prices, each representing ownership of one or more of the securities described herein. | |
(6) | Warrants may be sold separately or together with debt securities, preferred stock, common stock or depositary shares of First Merchants Corporation or trust preferred securities of First Merchants Capital Trust III, First Merchants Capital Trust IV, or First Merchants Capital Trust V. Includes an indeterminate number of debt securities, shares of preferred stock, shares of common stock or depositary shares of First Merchants Corporation or trust preferred securities of First Merchants Capital Trust III, First Merchants Capital Trust IV, or First Merchants Capital Trust V to be issuable upon the exercise of warrants for such securities. | |
(7) | Such indeterminate amount of trust preferred securities issued by First Merchants Capital Trust III, First Merchants Capital Trust IV, and First Merchants Capital Trust V and guarantees issued by First Merchants Corporation as may, from time to time, be issued (i) at indeterminate prices or (ii) upon conversion or exchange of securities registered hereunder, to the extent any such securities are, by their terms, convertible into or exchangeable for other securities registered hereunder. In the event registrant elects to offer to the public fractional interests in its shares of trust preferred securities registered hereunder, depository shares, evidenced by depository receipts issued pursuant to a deposit agreement, will be distributed to those persons purchasing fractional interests and the shares of trust preferred securities will be issued to the depository under any such agreement. Pursuant to Rule 457(n) under the Securities Act, no additional registration fee is due for guarantees. |
(8) | Calculated in accordance with Rule 457(a) under the Securities Act and includes such additional number of shares of Series A Preferred Stock, of a currently indeterminable amount, as may from time to time become issuable by reason of stock splits, stock dividends, or similar transactions, which additional shares of Series A Preferred Stock are being registered hereunder pursuant to Rule 416 under the Securities Act. The Series A Preferred Stock is being offered on a resale basis by the selling securityholder hereunder. | |
(9) | The securities being registered are included among the securities registered that were registered in connection with the original filing of this registration statement. In addition, the registration fees related to the foregoing securities, including the securities include within the securities being included on this Pre-Effective Amendment No. 1 to Registration Statement on S-3 (File No. 333-158334), were paid at the time of the initial filing of this registration statement. | |
(10) | There are being registered hereunder (i) a warrant for the purchase of 991,453 shares of common stock, $.125 stated value per share, of First Merchants Corporation with an initial exercise price of $17.55 per share, (ii) the 991,453 shares of such common stock issuable upon exercise of such warrant, and (iii) such additional number of shares of such common stock, of a currently indeterminable amount, as may from time to time become issuable by reason of stock splits, stock dividends, and certain anti-dilution provisions set forth in such warrant, which shares of common stock are being registered hereunder pursuant to Rule 416. The warrant and underlying common stock are being offered on a resale basis by the selling securityholder hereunder. | |
(11) | Pursuant to Rule 457(g) under the Securities Act, the offering price per unit is calculated based upon the price at which the Treasury Warrant may be exercised. | |
(12) | The registration fee was paid in connection with the initial filing of this registration statement. As result, no additional registration fee is due in connection with the filing of this Pre-Effective Amendment No. 1 to Registration Statement on Form S-3 File No. 333-158334. | |
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• | common stock, preferred stock, depositary shares, debt securities, warrants, purchase contracts and units of First Merchants Corporation; and | ||
• | preferred securities of First Merchants Capital Trust III, First Merchants Capital Trust IV and First Merchants Capital Trust V, junior subordinated debentures of First Merchants Corporation, and guarantees by First Merchants Corporation of the preferred securities of First Merchants Capital Trust III, First Merchants Capital Trust IV and First Merchants Capital Trust V. |
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The information in this prospectus is not complete and may be changed. This prospectus is included in a registration statement that we filed with the Securities and Exchange Commission. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Preferred Stock
Depositary Shares
Debt Securities
Warrants
Purchase Contracts
Units
Treasury Warrant
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• | our annual report on Form 10-K, as amended, for the fiscal year ended December 31, 2008; | ||
• | our current reports on Form 8-K filed with the SEC on January 2, 2009, January 26, 2009, February 9, 2009, February 17, 2009, February 23, 2009, March 5, 2009 and March 31, 2009, respectively; and | ||
• | the description of our common stock contained in our Form 8-A Registration Statement filed with the SEC on July 18, 1988 pursuant to Section 12 of the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”), including any amendment or report filed with the SEC for the purpose of updating such description. |
200 East Jackson Street
Muncie, Indiana 47308-0792
Attention: Ms. Cynthia Holaday, Shareholder Relations Officer
(765) 747-1500
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• | First Merchants Bank, National Association in Delaware, Hamilton, Marion, Henry, Randolph, Union, Fayette, Wayne, Butler (OH), Jay, Adams, Wabash, Howard, and Miami counties; | ||
• | First Merchants Bank of Central Indiana, National Association in Madison County; | ||
• | Lafayette Bank and Trust Company, National Association in Tippecanoe, Carroll, Jasper, and White counties; | ||
• | Commerce National Bank in in Franklin and Hamilton counties in Ohio; and | ||
• | Lincoln Bank in Brown, Clinton, Hendricks, Johnson, Montgomery, and Morgan counties. |
• | investing in, or extending credit to, our operating subsidiaries; | ||
• | investments at the holding company level; | ||
• | reducing or refinancing existing debt; | ||
• | possible acquisitions; | ||
• | stock repurchases; and | ||
• | other purposes as described in any prospectus supplement. |
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AND CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
For the Years Ended December 31, | ||||||||||||||||||||
2008 | 2007 | 2006 | 2005 | 2004 | ||||||||||||||||
Consolidated ratio of earnings to fixed charges: | ||||||||||||||||||||
Including deposit interest | 2.22 | 2.50 | 2.69 | 3.07 | 3.26 | |||||||||||||||
Excluding deposit interest | 1.32 | 1.36 | 1.43 | 1.65 | 1.81 | |||||||||||||||
Consolidated ratio of earnings to combined fixed charges and preferred stock dividends: | ||||||||||||||||||||
Including deposit interest | 2.22 | 2.50 | 2.69 | 3.07 | 3.26 | |||||||||||||||
Excluding deposit interest | 1.32 | 1.36 | 1.43 | 1.65 | 1.81 |
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(a) | shares of common stock are not entitled to a vote if such shares are owned, directly or indirectly, by another corporation and we own, directly or indirectly, a majority of the shares entitled to vote for directors of such corporation;provided,however, such limitation on voting does not limit our power to vote shares of our common stock held by us in or for an employee benefit plan or in any other fiduciary capacity, or | ||
(b) | to the extent shares are control shares acquired in a control share acquisition within the meaning of Chapter 42 of the Indiana Business Corporation Law, such shares have voting rights only to the extent granted by resolution approved by our shareholders in accordance with Section 23-1-42-9 of the Indiana Business Corporation Law. |
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• | the designation of that series and the number of shares offered; | ||
• | the amount of the liquidation preference, if any, per share or the method of calculating the amount; | ||
• | the initial public offering price at which shares of that series will be issued; | ||
• | the dividend rate, if any, or the method of calculating the rate and the dates on which dividends will begin to cumulate, if applicable; | ||
• | any redemption or sinking fund provisions; | ||
• | any conversion or exchange rights; | ||
• | any voting or additional rights, preferences, privileges, qualifications, limitations and restrictions; | ||
• | any securities exchange listing; | ||
• | the relative ranking and preferences of that series as to dividend rights and rights upon liquidation, dissolution or winding up of First Merchants; and | ||
• | any other terms of that series. |
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• | any bank holding company may be required to obtain Federal Reserve Board approval, and any foreign bank, and any company that controls a foreign bank, that has certain types of U.S. banking operations may be required to obtain Federal Reserve Board approval under the International Banking Act of 1978, to acquire 5% or more of that series of preferred stock; and | ||
• | any person other than a bank holding company may be required to obtain Federal Reserve Board approval under the Change in Bank Control Act of 1978 to acquire 10% or more of that series of preferred stock. |
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• | amend our articles of incorporation or the articles of amendment for the Series A Preferred Stock to authorize or create or increase the authorized amount of, or any issuance of, any shares of, or any securities convertible into or exchangeable or exercisable for shares of, any class or series of stock ranking senior to the Series A Preferred Stock with respect to the payment of dividends and/or the distribution of assets on any liquidation, dissolution or winding up of First Merchants; or | ||
• | amend our articles of incorporation or the articles of amendment for the Series A Preferred Stock in a way that materially and adversely affect the rights, preferences, privileges or voting powers of the Series A Preferred Stock; or | ||
• | consummate a binding share exchange or reclassification involving the Series A Preferred Stock or a merger or consolidation of First Merchants with another entity, unless (i) the shares of Series A Preferred Stock remain outstanding or, in the case of a merger or consolidation in which First Merchants is not the surviving or resulting entity, are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and (ii) the shares of Series A Preferred Stock remaining outstanding or such preference securities, have such rights, preferences, privileges, voting powers, limitations and restrictions, taken as a whole, as are not materially less favorable than the rights, preferences, privileges, voting powers, limitations and restrictions of the Series A Preferred Stock prior to consummation of the transaction, taken as a whole; |
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• | classification as senior or subordinated debt securities and the specific designation; | ||
• | aggregate principal amount, purchase price and denomination; | ||
• | currency in which the debt securities are denominated and/or in which principal, and premium, if any, and/or interest, if any, is payable; | ||
• | date of maturity; | ||
• | the interest rate or rates or the method by which the interest rate or rates will be determined, if any; | ||
• | the interest payment dates, if any; | ||
• | the place or places for payment of the principal of and any premium and/or interest on the debt securities; | ||
• | any repayment, redemption, prepayment or sinking fund provisions, including any redemption notice provisions; | ||
• | whether we will issue the debt securities in registered form or bearer form or both and, if we are offering debt securities in bearer form, any restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those debt securities in bearer form; | ||
• | whether we will issue the debt securities in definitive form and under what terms and conditions; | ||
• | the terms on which holders of the debt securities may convert or exchange these securities into or for common or preferred stock or other securities of ours offered hereby, into or for common or preferred stock or other securities of an entity affiliated with us or |
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debt or equity or other securities of an entity not affiliated with us, or for the cash value of our stock or any of the above securities, the terms on which conversion or exchange may occur, including whether conversion or exchange is mandatory, at the option of the holder or at our option, the period during which conversion or exchange may occur, the initial conversion or exchange price or rate and the circumstances or manner in which the amount of common or preferred stock or other securities issuable upon conversion or exchange may be adjusted; |
• | information as to the methods for determining the amount of principal or interest payable on any date and/or the currencies, securities or baskets of securities, commodities or indices to which the amount payable on that date is linked; | ||
• | any agents for the debt securities, including trustees, depositories, authenticating or paying agents, transfer agents or registrars; | ||
• | the depository for global certificated securities, if any; and | ||
• | any other specific terms of the debt securities, including any additional events of default or covenants, and any terms required by or advisable under applicable laws or regulations. |
• | the terms and conditions of any restrictions on our ability to create, assume, incur or guarantee any indebtedness for borrowed money that is secured by a pledge, lien or other encumbrance; and | ||
• | the terms and conditions of any restrictions on our ability to merge or consolidate with any other person or to sell, lease or convey all or substantially all of our assets to any other person. |
• | the terms and conditions, if any, by which the securities holders may declare the principal of all debt securities of each affected |
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series and interest accrued thereon to be due and payable immediately; and |
• | the terms and conditions, if any, under which all of the principal of all debt securities and interest accrued thereon shall be immediately due and payable. |
• | whether the purchase contracts obligate the holder to purchase or sell, or both, our debt securities, common stock, preferred stock or depositary shares, as applicable, and the nature and amount of each of those securities, or method of determining those amounts; | ||
• | whether the purchase contracts are to be prepaid or not; | ||
• | whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of our common stock or preferred stock; |
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• | any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts; | ||
• | United States federal income tax considerations relevant to the purchase contracts; and | ||
• | whether the purchase contracts will be issued in fully registered global form. |
• | the designation and the terms of the units and of any combination of the securities constituting the units, including whether and under what circumstances those securities may be held or traded separately; | ||
• | any additional terms of the agreement governing the units; | ||
• | any additional provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities constituting the units; | ||
• | any applicable United States federal income tax consequences; and | ||
• | whether the units will be issued in fully registered form. |
• | the offering price; | ||
• | the designation, aggregate principal amount and terms of the debt securities purchasable upon exercise of the debt warrants and the price at which such debt securities may be purchased upon such exercise; | ||
• | the designation, number of shares and terms of the preferred stock purchasable upon exercise of the preferred stock warrants and the price at which such shares of preferred stock may be purchased upon such exercise; | ||
• | the designation, number of shares and terms of the common stock purchasable upon exercise of the common stock warrants and the price at which such shares of common stock may be purchased upon such exercise; | ||
• | if applicable, the designation and terms of the debt securities, preferred stock or common stock with which the warrants are issued and the number of warrants issued with each such debt security or share of preferred stock or common stock; | ||
• | if applicable, the date on and after which the warrants and the related debt securities, preferred stock or common stock will be separately transferable; | ||
• | the date on which the right to exercise the warrants shall commence and the date on which such right shall expire; | ||
• | whether the warrants will be issued in registered or bearer form; | ||
• | a discussion of certain federal income tax, accounting and other special considerations, procedures and limitations relating to the warrants; and |
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• | any other terms of the warrants. |
• | the issuance of the stock dividend to holders of common stock or preferred stock, respectively; | ||
• | a combination, subdivision or reclassification of common stock or preferred stock, respectively; or | ||
• | any other event described in the applicable prospectus supplement. |
• | declare and pay a dividend or make a distribution on its common stock in shares of common stock, | ||
• | subdivide or reclassify the outstanding shares of common stock into a greater number of shares, or | ||
• | combine or reclassify the outstanding shares of common stock into a smaller number of shares. | ||
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• | participants, who in turn act only on behalf of participants or indirect participants, and | ||
• | certain banks, trust companies and other persons approved by it, |
• | DTC notifies us that it is unwilling or unable to continue as depositary for that global security or if DTC ceases to be a clearing agency registered under the Exchange Act when DTC is required to be so registered; | ||
• | we execute and deliver to the relevant registrar, transfer agent, trustee and/or warrant agent an order complying with the requirements of the applicable indenture, trust agreement or warrant agreement that the global security will be exchangeable for definitive securities in registered form; or |
• | there has occurred and is continuing a default in the payment of any amount due in respect of the securities or, in the case of debt securities, an event of default or an event that, with the giving of notice or lapse of time, or both, would constitute an event of default with respect to these debt securities. |
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• | 116,000 shares of Series A Preferred Stock with an aggregate liquidation amount of $116,000,000; | ||
• | the Treasury Warrant representing the right to purchase 991,453 shares of our common stock, representing beneficial ownership of approximately 4.5% of our common stock as of March 31, 2009; and | ||
• | 991,453 shares of our common stock issuable upon exercise of the Warrant, which shares, if issued, would represent ownership of approximately 4.5% of our common stock as of March 31, 2009. | ||
• | through agents to the public or to investors; | ||
• | to underwriters for resale to the public or to investors; | ||
• | directly to investors; or | ||
• | through a combination of any of these methods of sale. |
• | the name or names of any agents or underwriters; | ||
• | the purchase price of the securities being offered and the proceeds we will receive from the sale; | ||
• | any over-allotment options under which underwriters may purchase additional securities from us; | ||
• | any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; | ||
• | any initial public offering price; | ||
• | any discounts or concessions allowed or re allowed or paid to dealers; and | ||
• | any securities exchanges or markets on which such securities may be listed. |
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The information in this prospectus is not complete and may be changed. This prospectus is included in a registration statement that we filed with the Securities and Exchange Commission. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
FIRST MERCHANTS CAPITAL TRUST IV
FIRST MERCHANTS CAPITAL TRUST V
First Merchants Corporation
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• | sell capital securities (representing undivided beneficial interests in the trust) to the public; and | ||
• | sell common securities to us. |
• | will pay principal and interest on our junior subordinated debentures, subject to the payment of our more senior debt; | ||
• | may choose to distribute our junior subordinated debentures pro rata to the holders of the related capital securities and common securities if we dissolve the related capital trust; and | ||
• | will fully and unconditionally guarantee payments and other distributions due on the capital securities of each trust, on a junior subordinated basis, to the extent such trust has funds available therefore from payments on the junior subordinated debentures held by such trust, which, together with our junior subordinated debentures, will constitute our unconditional guarantee of the capital securities. |
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• | all of the voting securities of the trusts will be owned by us, a reporting company under the Securities Exchange Act; | ||
• | the Trusts have no independent operations other than issuing securities representing undivided beneficial interests in the assets of the respective Trusts and investing the proceeds thereof in junior subordinated debentures issued by us; and | ||
• | our obligations to provide certain indemnities in respect of and be responsible for certain costs, expenses, debts and liabilities of the Trusts under the indenture and pursuant to the trust agreement, the guarantee, the junior subordinated debentures and the expense agreement, taken together, constitute a full and unconditional guarantee of payments due on the capital securities. |
• | our annual report on Form 10-K, as amended, for the fiscal year ended December 31, 2008; | ||
• | our current reports on Form 8-K filed with the SEC on January 2, 2009, January 26, 2009, February 9, 2009, February 17, 2009, February 23, 2009, March 5, 2009 and March 31, 2009, respectively; and | ||
• | the description of our common stock contained in our Form 8-A Registration Statement filed with the SEC on July 18, 1988 pursuant to Section 12 of the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”), including any amendment or report filed with the SEC for the purpose of updating such description. |
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200 East Jackson Street
Muncie, Indiana 47308-0792
Attention: Ms. Cynthia Holaday, Shareholder Relations Officer
(765) 747-1500
• | First Merchants Bank, National Association in Delaware, Hamilton, Marion, Henry, Randolph, Union, Fayette, Wayne, Butler (OH), Jay, Adams, Wabash, Howard, and Miami counties; | ||
• | First Merchants Bank of Central Indiana, National Association in Madison County; | ||
• | Lafayette Bank and Trust Company, National Association in Tippecanoe, Carroll, Jasper, and White counties; | ||
• | Commerce National Bank in in Franklin and Hamilton counties in Ohio; and | ||
• | Lincoln Bank in Brown, Clinton, Hendricks, Johnson, Montgomery, and Morgan counties. |
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• | issue and sell capital securities and common securities; | ||
• | use the gross proceeds from the sale of the capital securities and common securities to purchase a corresponding series of our junior subordinated debentures; | ||
• | maintain their status as grantor trusts for federal income tax purposes; and | ||
• | engage in other activities that are necessary or incidental to these purposes. |
• | appoint the trustees; | ||
• | replace or remove the trustees; and | ||
• | increase or decrease the number of trustees. |
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• | investing in, or extending credit to, our operating subsidiaries; | ||
• | investments at the holding company level; | ||
• | reducing or refinancing existing debt; | ||
• | possible acquisitions; | ||
• | stock repurchases; and | ||
• | other purposes as described in any prospectus supplement. |
AND CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
For the Years Ended December 31, | ||||||||||||||||||||
2008 | 2007 | 2006 | 2005 | 2004 | ||||||||||||||||
Consolidated ratio of earnings to fixed charges: | ||||||||||||||||||||
Including deposit interest | 2.22 | 2.50 | 2.69 | 3.07 | 3.26 | |||||||||||||||
Excluding deposit interest | 1.32 | 1.36 | 1.43 | 1.65 | 1.81 | |||||||||||||||
Consolidated ratio of earnings to combined fixed charges and preferred stock dividends: | ||||||||||||||||||||
Including deposit interest | 2.22 | 2.50 | 2.69 | 3.07 | 3.26 | |||||||||||||||
Excluding deposit interest | 1.32 | 1.36 | 1.43 | 1.65 | 1.81 |
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• | the title; | ||
• | any limit on the aggregate principal amount that may be issued; | ||
• | the date(s) on which the principal is payable or the method of determining that date; | ||
• | the interest rate, if any, the interest payment dates, any rights we may have to defer or extend an interest payment date, and the regular record date for any interest payment or the method by which any of the foregoing will be determined; | ||
• | the place(s) where payments shall be payable and where the junior subordinated debentures can be presented for registration of transfer or exchange, and the place(s) where notices and demands to or on us can be made; | ||
• | any period(s) within which or date(s) on which, price(s) at which and the terms and conditions on which the junior subordinated debentures can be redeemed, in whole or in part, at our option or at the option of a holder of the junior subordinated debentures; | ||
• | our or any holder’s obligation or right, if any, to redeem, purchase or repay the junior subordinated debentures and other related terms and provisions; | ||
• | the minimum denominations in which any junior subordinated debentures will be issued; | ||
• | if other than in U.S. dollars, the currency in which the principal, premium and interest, if any, that the junior subordinated debentures will be payable or denominated; | ||
• | any provisions that restrict us, directly or indirectly, from redeeming or purchasing any of our outstanding securities, making any payments of principal, interest or dividends thereon, or making any payments pursuant to any guarantee of any securities issued by a subsidiary; | ||
• | the circumstances constituting events of default or covenants, and any additions, modifications or deletions in the events of default or covenants specified in the indenture; | ||
• | the portion of the principal amount that will be payable at declaration of acceleration of the maturity; | ||
• | any additions or changes to the indenture as will be necessary to facilitate the issuance of a series of junior subordinated debentures in bearer form, registrable or not registrable for the principal, and with or without interest coupons; | ||
• | the index or indices used to determine the amount of payments of interest, principal, and premium (if any), on any junior subordinated debentures and how these amounts will be determined; | ||
• | the terms and conditions under which temporary global securities are exchanged for definitive junior subordinated debentures of the same series; | ||
• | whether the junior subordinated debentures will be issued in global form and, in that case, the terms and the depositary for these global securities; | ||
• | the paying agent; | ||
• | the terms on which holders of the debt securities may convert or exchange these securities into or for common or preferred stock or other securities of ours, into or for common or preferred stock or other securities of an entity affiliated with us or debt or equity or other securities of an entity not affiliated with us, or for the cash value of our stock or any of the above securities, the terms on which conversion or exchange may occur, including whether conversion or exchange is mandatory, at the option of the holder or at our option, the period during which conversion or exchange may occur, the initial conversion or exchange price or rate and the circumstances or manner in which the amount of common or preferred stock or other securities issuable upon conversion or exchange may be adjusted; | ||
• | the form of trust agreement and guarantee agreement; | ||
• | the relative degree, if any, to which the junior subordinated debentures shall be senior or subordinated to other junior subordinated debentures or any of our other indebtedness in right of payment; and | ||
• | any other terms of the junior subordinated debentures consistent with the provisions of the indenture. |
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• | repurchases, redemptions or other acquisitions of shares of our capital stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors or consultants; | ||
• | repurchases of shares of First Merchants’ common stock pursuant to a contractually binding requirement to buy stock existing prior to the commencement of the extension period, including under a contractually binding stock repurchase plan; | ||
• | as a result of an exchange or conversion of any class or series of First Merchants’ capital stock for any other class or series of our capital stock; | ||
• | the purchase of fractional interests in shares of First Merchants’ capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged; | ||
• | purchase of First Merchants’ capital stock in connection with the distribution thereof; | ||
• | any declaration of a dividend in connection with any rights plan, or the issuance of rights, stock or other property under any rights plan, or the redemption or repurchase of rights pursuant thereto; or | ||
• | any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock. |
• | in whole at any time or in part from time to time; or | ||
• | upon the occurrence of a Tax Event, an Investment Company Event or a Regulatory Capital Event, as each is defined below, in whole (but not in part) at any time within 90 days of the occurrence of the Tax Event, the Investment Company Event or Regulatory Capital Event. |
• | amendment to, or change (including any announced prospective change) in, the laws (or any regulations under those laws) of the United States or any political subdivision or taxing authority affecting taxation; or | ||
• | interpretation or application of the laws enumerated in the preceding bullet point or regulations, by any court, governmental agency or regulatory authority; |
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• | the trust is, or will be within 90 days of the date of the opinion of counsel, subject to U.S. federal income tax on interest received on the junior subordinated debentures; | ||
• | interest payable by us to the trust on the junior subordinated debentures is not, or will not be within 90 days of the date of the opinion of counsel, deductible, in whole or in part, for U.S. federal income tax purposes; or | ||
• | the trust is, or will be within 90 days of the date of the opinion of counsel, subject to more than a minimal amount of other taxes, duties, assessments or other governmental charges. |
• | change (including any announced prospective change) in law or regulation; or | ||
• | change (including any announced prospective change) in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority, |
• | as a result of any amendment to, or change (including any prospective change) in, laws or any applicable regulation of the United States and any political subdivision; or | ||
• | as a result of any official or administrative pronouncement or action or judicial decision interpreting or applying the laws or regulations, which amendment is effective or announced on or after the date of issuance of the capital securities, |
• | pay dividends or distributions in additional shares of capital stock; | ||
• | make payments under the guarantee of the series of the capital securities and the common securities; | ||
• | declare or pay a dividend in connection with the implementation of a shareholders’ rights plan, or issue stock under such a plan or repurchase such rights; and | ||
• | purchase common stock for issuance pursuant to any employee benefit plans. |
• | To evidence the succession of another person to First Merchants; | ||
• | to convey, transfer, assign, mortgage or pledge any property to or with the debenture trustee or surrender any right or power conferred upon us in the junior subordinated debenture indenture; | ||
• | to add to the covenants of First Merchants for the benefit of other holders of all or any series of securities; | ||
• | to add any additional events of default for the benefit of other holders of all or any series of securities; | ||
• | to change or eliminate any of the provisions of the junior subordinated debenture indenture, provided that any such change or elimination shall not apply to any outstanding securities, or shall become effective only when there is no security outstanding of any series created prior to the execution of the supplemental indenture that is entitled to the benefit of such provision; | ||
• | to fix any ambiguity, defect or inconsistency, provided that the change does not materially adversely affect the interest of any holder of any series of junior subordinated debentures or, in the case of corresponding junior subordinated debentures, the interest of a holder of any related capital securities so long as they remain outstanding; and | ||
• | to qualify or maintain the qualification of the indenture under the Trust Indenture Act. |
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• | change the maturity date of any series of junior subordinated debentures (except as otherwise specified in the applicable prospectus supplement), or reduce the principal amount, rate of interest, or extend the time of payment of interest; | ||
• | reduce the percentage in principal amount of junior subordinated debentures of any series necessary to modify the indenture; | ||
• | modify some provisions of the indenture relating to modification or waiver, except to increase the required percentage; or | ||
• | modify the provisions of the indenture relating to the subordination of the junior subordinated debentures of any series in a manner adverse to the holders. |
• | default in the payment of the principal of or premium, if any, on any junior subordinated debentures; | ||
• | the default in the payment of interest on a junior subordinated debt security of that series in full for a period of 30 days after the conclusion of a period consisting of up to five consecutive years, or such longer period as specified in the applicable prospectus supplement, commencing with the earliest quarter for which interest (including deferred payments) has not been paid in full; | ||
• | the trust shall have voluntarily or involuntarily dissolved, wound-up its business or otherwise terminated its existence, except in connection with (i) the distribution of the junior subordinated debentures of that series to holders of the capital securities, (ii) the redemption of all of the related outstanding capital securities or (iii) certain mergers, consolidations or amalgamations; | ||
• | certain events in bankruptcy, insolvency or reorganization regarding us or our banking subsidiaries; or | ||
• | any other event of default that may be specified for the junior subordinated debentures of that series when that series is created. |
• | a default in the payment of principal or interest (unless the default has been cured or a sum sufficient to pay all matured installments of principal and interest has been deposited with the trustee); or | ||
• | a default in a covenant or provision of the indenture which cannot be modified or amended without the consent of the holders of each outstanding junior subordinated debentures. |
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• | the successor is organized under the laws of the United States or any state or the District of Columbia, and expressly assumes all of our obligations under the indenture; | ||
• | immediately after the transaction, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, shall have occurred and be continuing; | ||
• | this transaction is permitted under the related trust agreement and the related guarantee and does not give rise to any breach or violation of the related trust agreement or the related guarantee; and | ||
• | other conditions prescribed in the indenture are met. |
• | have become due and payable; or | ||
• | will become due and payable within one year, and | ||
• | we deposit with the trustee money sufficient to pay and discharge the entire indebtedness on the junior subordinated debentures; | ||
• | we deliver to the trustee officers’ certificates and opinions of counsel; and | ||
• | we comply with some other requirements under the indenture, |
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• | a default in any payment on any Senior Debt, or any other default under which the maturity of any Senior Debt has been accelerated; and | ||
• | any judicial proceeding relating to the defaults which shall be pending. |
• | of the same issue and series; | ||
• | in any authorized denominations; | ||
• | in a like principal amount; | ||
• | of the same date of issuance and maturity; and | ||
• | bearing the same interest rate. |
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• | issue, register the transfer of, or exchange any junior subordinated debentures of any series during a period beginning on the business day that is 15 days before the day of mailing of notice of redemption of any junior subordinated debentures that is selected for redemption and ending at the close of business on the day of mailing of the relevant notice; or | ||
• | transfer or exchange any junior subordinated debentures selected for redemption, except, the unredeemed portion of any junior subordinated debentures being redeemed in part. |
• | check mailed to the address of the person entitled to it at the address appearing in the securities register (except in the case of global junior subordinated debentures); or | ||
• | transfer to an account maintained by the person entitled to it as specified in the securities register, so long as we receive proper transfer instructions by the regular record date. |
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• | the name of the capital securities; | ||
• | the dollar amount and number of capital securities issued; | ||
• | the annual distribution rate(s) (or method of determining this rate(s)), the payment date(s) and the record dates used to determine the holders who are to receive distributions; | ||
• | the date from which distributions shall be cumulative; | ||
• | the optional redemption provisions, if any, including the prices, time periods and other terms and conditions for which the capital securities shall be purchased or redeemed, in whole or in part; | ||
• | the terms and conditions of any right to convert or exchange the capital securities into or for common or preferred stock or other securities of ours, into or for common or preferred stock or other securities of an entity affiliated with us or debt or equity or other securities of an entity not affiliated with us, or for the cash value of our stock or any of the above securities, the terms on which conversion or exchange may occur, including whether conversion or exchange is mandatory, at the option of the holder or at our option, the period during which conversion or exchange may occur, the initial conversion or exchange price or rate and the circumstances or manner in which the amount of common or preferred stock or other securities issuable upon conversion or exchange may be adjusted; | ||
• | the terms and conditions, if any, under which the junior subordinated debentures are distributed to you by the trust; | ||
• | any securities exchange on which the capital securities are listed; | ||
• | whether the capital securities are to be issued in book-entry form and represented by one or more global certificates, and if so, the depositary for the global certificates and the specific terms of the depositary arrangements; and | ||
• | any other relevant rights, preferences, privileges, limitations or restrictions of the capital securities. |
• | the trust of the related series of capital securities and common securities is the holder of all the junior subordinated debentures; | ||
• | a Tax Event related to the trust has occurred and is continuing; and | ||
• | we have elected, and have not revoked our election to pay Additional Sums for the capital securities and common securities, |
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• | To maintain directly or indirectly 100% ownership of the common securities of the trust to which the junior subordinated debentures have been issued, provided that some successors which are permitted under the indenture, may succeed to our ownership of the common securities; | ||
• | not to voluntarily terminate, wind-up or liquidate any trust, except: |
• | with prior approval of the Federal Reserve Board if then so required under applicable capital guidelines or policies of the Federal Reserve Board; or | ||
• | in connection with a distribution of the junior subordinated debentures to the holders of the capital securities in liquidation of a trust, or in connection with some mergers, consolidations or amalgamations permitted by the related trust agreement; and | ||
• | to use our reasonable efforts, consistent with the terms and provisions of the related trust agreement, to cause the trust to remain classified as a grantor trust and not as an association taxable as a corporation for United States federal income tax purposes. |
• | repurchases, redemptions or other acquisitions of shares of our capital stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors or consultants; | ||
• | repurchases of shares of First Merchants common stock pursuant to a contractually binding requirement to buy stock existing prior to the commencement of the extension period, including under a contractually binding stock repurchase plan; | ||
• | as a result of an exchange or conversion of any class or series of First Merchants’ capital stock for any other class or series of our capital stock; | ||
• | the purchase of fractional interests in shares of First Merchants’ capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged; | ||
• | purchase of First Merchants’ capital stock in connection with the distribution thereof; | ||
• | any declaration of a dividend in connection with any rights plan, or the issuance of rights, stock or other property under any rights plan, or the redemption or repurchase of rights pursuant thereto; or | ||
• | any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock. |
• | on or after the date as specified in the applicable prospectus supplement, in whole at any time or in part, from time to time; | |
• | at any time, in whole (but not in part), upon the occurrence of a Tax Event, an Investment Company Event or a Capital Treatment; |
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or | ||
• | as is otherwise specified in the applicable prospectus supplement. |
• | for a redemption of any series of capital securities and common securities, capital securities and common securities of the series having a Liquidation Amount equal to that portion of the principal amount of corresponding junior subordinated debentures to be contemporaneously redeemed. The Like Amount will be allocated to the common securities and to the capital securities based upon their relative Liquidation Amounts. The proceeds will be used to pay the redemption price of the capital securities and common securities; and | ||
• | for a distribution of corresponding junior subordinated debentures to holders of any series of capital securities and common securities, corresponding junior subordinated debentures having a principal amount equal to the Liquidation Amount of the related capital securities and common securities. |
• | unless otherwise provided in the applicable prospectus supplement, $1,000 per capital security and common security. |
• | the series of capital securities will no longer be deemed to be outstanding; | ||
• | DTC, or its nominee, as the record holder of the series of capital securities, will receive a registered global certificate or certificates representing the corresponding junior subordinated debentures to be delivered upon the distribution; and | ||
• | certificates representing the series of capital securities not held by DTC or its nominee will be deemed to represent the corresponding junior subordinated debentures. Those certificates will bear accrued and unpaid interest in an amount equal to the accrued and unpaid distributions on the series of capital securities until the certificates are presented to the administrative trustees of the applicable trust or their agent for transfer or reissuance. |
• | redeemed at the redemption price with the applicable proceeds from the contemporaneous redemption of the corresponding junior subordinated debentures; and | ||
• | payable on each date of redemption only to the extent that the related trust has funds on hand available for the payment of the redemption price. |
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• | our bankruptcy, dissolution or liquidation; | ||
• | our decision to dissolve the trust and to cause the distribution of a Like Amount of the junior subordinated debentures directly to the holders of the capital securities and common securities. For this distribution, we must, if required, receive the prior approval of the Federal Reserve Board and an opinion of independent counsel that the distribution of the junior debt securities will not be |
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taxable to the holders; | |||
• | the redemption of all of the capital securities and common securities of a trust; and | ||
• | a court order for the dissolution of a trust is entered. |
• | a Like Amount of junior subordinated debentures; or | ||
• | if the distribution of the junior subordinated debentures is determined by the property trustee not to be practical, cash assets equal to the aggregate Liquidation Amount per capital security and common security specified in an accompanying prospectus supplement, plus accumulated and unpaid distributions from that date to the date of payment. |
• | to appoint one or more persons approved by the property trustee either to act as co-trustee, jointly with the property trustee, of all or any part of the trust property, or to act as a separate trustee of any trust property, in either case with the powers as provided in the instrument of appointment; and | ||
• | to vest in the person(s) any property, title, right or power deemed necessary or desirable, subject to the provisions of the applicable trust agreement. |
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• | the successor entity either: |
• | expressly assumes all of the obligations of the trust relating to the capital securities; or | ||
• | substitutes for the capital securities other securities with terms substantially similar to the capital securities (successor securities) so long as the successor securities have the same rank as the capital securities for distributions and payments upon liquidation, redemption and otherwise; |
• | we expressly appoint a trustee of the successor entity who has the same powers and duties as the property trustee of the trust as it relates to the junior subordinated debentures; | ||
• | the successor securities are listed or will be listed on the same national securities exchange or other organization that the capital securities are listed on; | ||
• | the merger event does not cause the capital securities or successor securities to be downgraded by any national statistical rating organization; | ||
• | the merger event does not adversely affect the rights, preferences and privileges of the holders of the capital securities or successor securities in any material way; | ||
• | the successor entity has a purpose substantially similar to that of the trust; and | ||
• | before the merger event, we have received an opinion of counsel stating that: |
• | the merger event does not adversely affect the rights of the holders of the capital securities or any successor securities in any material way; | ||
• | following the merger event, neither the trust nor the successor entity will be required to register as an investment company under the Investment Company Act; and | ||
• | we own all of the common securities of the successor entity and guarantee the successor entity’s obligations under the successor securities in the same manner provided by the related guarantee. |
• | to fix any ambiguity or inconsistency; or | ||
• | to modify, eliminate or add provisions to the trust agreement as shall be necessary to ensure that each trust shall at all times be classified as a grantor trust for U.S. federal income tax purposes. |
• | change the amount and/or timing or otherwise adversely affect the method of payment of any distribution or Liquidation Amount on the capital securities or common securities; | ||
• | restrict your right or the right of the common security holder to institute suit for enforcement of any distribution or Liquidation Amount on the capital securities or common securities. |
• | direct the time, method and place of conducting any proceeding for any remedy available to the trustee or executing any trust or |
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power conferred on the trustee relating to the corresponding junior subordinated debentures; | |||
• | waive any past default as provided in the indenture; | ||
• | cancel an acceleration of the principal of the corresponding junior subordinated debentures; or | ||
• | agree to any change in the indenture or the corresponding junior subordinated debentures. |
• | take some action as directed by us; and | ||
• | if not so directed, take whatever action the property trustee deems advisable and in your best interests, and in the best interests of the holders of the capital securities and common securities of the applicable trust and will have no liability except for its own bad faith, negligence or willful misconduct. |
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• | the trust will not be deemed to be an investment company required to be registered under the Investment Company Act or to fail to be classified as a grantor trust for U.S. federal income tax purposes; | ||
• | the corresponding junior subordinated debentures will be treated as our indebtedness for U.S. federal income tax purposes. |
• | any accumulated and unpaid distributions required to be paid on the capital securities, to the extent that the trust has applicable funds available to make the payment; | ||
• | the redemption price and all accrued and unpaid distributions to the date of redemption on the capital securities called for redemption, to the extent that the trust has funds available to make the payment; or | ||
• | in the event of a voluntary or involuntary dissolution, winding up or liquidation of the trust (other than in connection with a distribution of corresponding junior subordinated debentures to you or the redemption of all the related capital securities), the lesser of: |
• | the aggregate of the Liquidation Amount specified in the applicable prospectus supplement for each capital security plus all accrued and unpaid distributions on the capital securities to the date of payment; and | ||
• | the amount of assets of the trust remaining available for distribution to you. |
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THE CORRESPONDING JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEES
• | the aggregate principal amount of each series of corresponding junior subordinated debentures will be equal to the sum of the aggregate Liquidation Amount of the related capital securities and common securities; | ||
• | the interest rate and interest and other payment dates on each series of corresponding junior subordinated debentures will match the distribution rate and distribution and other payment dates for the related capital securities; | ||
• | we shall pay for any and all costs, expenses and liabilities of operating the trust except the trust’s obligations to holders of its capital securities under the capital securities; and | ||
• | the trust agreement provides that the trust will not engage in any activity that is inconsistent with the limited purposes of the trust. |
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• | participants, who in turn act only on behalf of participants or indirect participants, and | ||
• | certain banks, trust companies and other persons approved by it, |
• | DTC notifies us that it is unwilling or unable to continue as depositary for that global security or if DTC ceases to be a clearing agency registered under the Exchange Act when DTC is required to be so registered; | ||
• | we execute and deliver to the relevant registrar, transfer agent, trustee and/or warrant agent an order complying with the requirements of the applicable indenture, trust agreement or warrant agreement that the global security will be exchangeable for definitive securities in registered form; or | ||
• | there has occurred and is continuing a default in the payment of any amount due in respect of the securities or, in the case of debt securities, an event of default or an event that, with the giving of notice or lapse of time, or both, would constitute an event of default with respect to these debt securities. |
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• | through agents to the public or to investors; | ||
• | to underwriters for resale to the public or to investors; | ||
• | directly to investors; or | ||
• | through a combination of any of these methods of sale. |
• | the name or names of any agents or underwriters; | ||
• | the purchase price of the securities being offered and the proceeds we will receive from the sale; | ||
• | any over-allotment options under which underwriters may purchase additional securities from us; | ||
• | any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; | ||
• | any initial public offering price; | ||
• | any discounts or concessions allowed or reallowed or paid to dealers; and | ||
• | any securities exchanges or markets on which such securities may be listed. |
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• | every obligation of the person for money borrowed; | ||
• | every obligation of the person evidenced by bonds, debt securities, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses; | ||
• | every reimbursement obligation of the person regarding letters of credit, bankers’ acceptances or similar facilities issued for the account of the person; | ||
• | every obligation of the person issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business); | ||
• | every capital lease obligation of the person; | ||
• | all indebtedness of the person whether incurred on, before, or after the date of the indenture, for claims relating to derivative products, including interest rate, foreign exchange rate and commodity-forward contracts, options and swaps and similar arrangements; and | ||
• | every obligation of the type referred to in the first through the sixth bullet points above of another person and all dividends of another person the payment of which, in either case, the person has guaranteed or is responsible or liable, directly or indirectly, as obligor or otherwise. |
• | any accumulated and unpaid distributions required to be paid on the capital securities, to the extent that the trust has applicable funds available to make the payment; | ||
• | the redemption price and all accrued and unpaid distributions to the date of redemption with respect to capital securities called for redemption, to the extent that the trust has funds available to make the payment; or | ||
• | in the event of a voluntary or involuntary dissolution, winding up or liquidation of the trust (other than in connection with a |
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distribution of corresponding junior subordinated debentures to you or the redemption of all the related capital securities), the lesser of: | |||
• | the aggregate of the Liquidation Amount specified in the prospectus supplement for each capital security plus all accrued and unpaid distributions on the capital securities to the date of payment; and | ||
• | the amount of assets of the trust remaining available for distribution to you. |
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SEC registration fee | $ | 19,530 | ||
Printing, engraving and postage expenses | 5,000 | |||
Legal fees and expenses | 50,000 | |||
Trustee fees and expenses | 15,000 | |||
Accounting fees and expenses | 2,000 | |||
Miscellaneous Expenses | 2,500 | |||
Total | $ | 94,030 |
* | All fees and expenses (other than the SEC registration fee) are estimated. |
Exhibit No. | Description | |
1.1 | Form of Underwriting Agreement of equity securities* | |
1.2 | Form of Underwriting Agreement for debt securities* | |
1.3 | Form of Underwriting Agreement for capital securities* | |
4.1 | Articles of Incorporation of First Merchants (incorporated by reference to Exhibit 3.1 of First Merchants’ Annual Report on Form 10-K/A filed with the SEC on March 31, 2009) | |
4.2 | By-Laws of First Merchants (incorporated by reference to Exhibit 3.2 of First Merchants’ Annual Report on Form 10-K/A filed with the SEC on March 31, 2009) | |
4.3 | Form of Senior Indenture* | |
4.4 | Form of Subordinated Indenture* | |
4.5 | Form of Junior Subordinated Debenture Indenture* | |
4.6 | Form of Deposit Agreement* |
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Exhibit No. | Description | |
4.7 | Form of Senior Debt Security* | |
4.8 | Form of Subordinated Debt Security * | |
4.9 | Form of Junior Subordinated Debenture (included in Exhibit 4.5)* | |
4.10 | Form of Depositary Share (included in Exhibit 4.6)* | |
4.11 | Form of Purchase Contract Agreement* | |
4.12 | Form of Pledge Agreement* | |
4.13 | Form of Debt Warrant Agreement, including form of Debt Warrant Certificate* | |
4.14 | Form of Preferred Stock Warrant Agreement, including form of Preferred Stock Warrant Certificate* | |
4.15 | Form of Common Stock Warrant Agreement, including form of Common Stock Warrant Certificate* | |
4.16 | Certificate of Trust of First Merchants Capital Trust III (incorporated by reference to Exhibit 4.5 to Pre-Effective Amendment No. 1 to Registration Statement No. 333-75748, filed with the SEC on April 3, 2002) | |
4.17 | Certificates of Trust of First Merchants Capital Trust IV and First Merchants Capital Trust V (together with First Merchants Capital Trust III, the “Trusts”)** | |
4.18 | Amended and Restated Trust Agreement No. 1 of First Merchants Capital Trust III** | |
4.19 | Trust Agreements of First Merchants Capital Trust IV and First Merchants Capital Trust V** | |
4.20 | Form of Amended and Restated Trust Agreement for the Trusts (the “Amended and Restated Trust Agreements”)* | |
4.21 | Form of Guarantee Agreement for the Trusts (the “Guarantee Agreements”)* | |
4.22 | Certificate of Amendment to Certificate of Trust of First Merchants Capital Trust III** | |
4.23 | Letter Agreement, dated February 20, 2009, between First Merchants Corporation and the United States Department of the Treasury, which includes the Securities Purchase Agreement-Standard Terms attached thereto (incorporated by reference to Exhibit 10.1 of First Merchants’ Current Report on Form 8-K filed with the SEC on February 23, 2009) | |
4.24 | Form of Certificate for the First Merchants Corporation Fixed Rate Cumulative Perpetual Preferred Stock, Series A (incorporated by reference to Exhibit 4.1 of First Merchants’ Current Report on Form 8-K filed with the SEC on February 23, 2009) | |
4.25 | Warrant to Purchase 991,453 Shares of Common Stock of First Merchants Corporation (incorporated by reference to Exhibit 4.2 of First Merchants’ Current Report on Form 8-K filed with the SEC on February 23, 2009) | |
5.1 | Opinion of Krieg DeVault LLP | |
5.2 | Opinion of Richards, Layton & Finger, P.A., special Delaware counsel to the Trusts* | |
8.1 | Opinion of counsel as to certain federal income tax matters* | |
12.1 | Computation of Consolidated Ratio of Earnings to Fixed Charges and Consolidated Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends** | |
23.1 | Consent of BKD, LLP | |
23.2 | Consent of Krieg DeVault LLP (included in Exhibit 5.1) | |
23.3 | Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2)* | |
24.1 | Power of Attorney of Directors of First Merchants Corporation** | |
25.1 | Form T-1 Statement of Eligibility of Trustee under the Senior Indenture, the Subordinated Indenture, the Junior Subordinated Debenture Indenture, the Amended and Restated Trust Agreements, and the Guarantee Agreements* |
* | To be filed by post-effective amendment or by current report on Form 8-K. | |
** | Previously filed with the initial filing of this Registration Statement (Commission File No. 333-158334) | |
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First Merchants Corporation (Registrant) | ||||
By: | /s/ Michael C. Rechin | |||
Michael C. Rechin | ||||
Director, President and Chief Executive Officer (Principal Executive Officer) | ||||
First Merchants Capital Trust III First Merchants Capital Trust IV First Merchants Capital Trust V | ||||
By: | First Merchants Corporation, as Depositor | |||
By: | /s/ Michael C. Rechin | |||
Michael C. Rechin | ||||
President and Chief Executive Officer | ||||
/s/ Mark K. Hardwick | Date: April 24, 2009 | ||
Mark K. Hardwick | |||
Executive Vice President and Chief Financial Officer | |||
(Principal Financial and Accounting Officer) | |||
Directors: | Richard A. Boehning, Thomas B. Clark, Michael L. Cox, Roderick English, Dr. Jo Ann M. Gora, William L. Hoy, Barry J. Hudson, Charles E. Schalliol(Chairman of the Board), Terry L. Walker, Jean L. Wojtowicz |
By: | /s/ Mark K. Hardwick | Date: April 24, 2009 | ||
Mark K. Hardwick | ||||
Executive Vice President and Chief Financial Officer | ||||
As Attorney-in-Fact* | ||||
* | Pursuant to authority granted by powers of attorney, a copy of which is filed herewith as Exhibit 24.1. |
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Table of Contents
Exhibit No. | Description | |
1.1 | Form of Underwriting Agreement of equity securities* | |
1.2 | Form of Underwriting Agreement for debt securities* | |
1.3 | Form of Underwriting Agreement for capital securities* | |
4.1 | Articles of Incorporation of First Merchants (incorporated by reference to Exhibit 3.1 of First Merchants’ Annual Report on Form 10-K/A filed with the SEC on March 31, 2009) | |
4.2 | By-Laws of First Merchants (incorporated by reference to Exhibit 3.2 of First Merchants’ Annual Report on Form 10-K/A filed with the SEC on March 31, 2009) | |
4.3 | Form of Senior Indenture* | |
4.4 | Form of Subordinated Indenture* | |
4.5 | Form of Junior Subordinated Debenture Indenture* | |
4.6 | Form of Deposit Agreement* | |
4.7 | Form of Senior Debt Security* | |
4.8 | Form of Subordinated Debt Security * | |
4.9 | Form of Junior Subordinated Debenture (included in Exhibit 4.5)* | |
4.10 | Form of Depositary Share (included in Exhibit 4.6)* | |
4.11 | Form of Purchase Contract Agreement* | |
4.12 | Form of Pledge Agreement* | |
4.13 | Form of Debt Warrant Agreement, including form of Debt Warrant Certificate* | |
4.14 | Form of Preferred Stock Warrant Agreement, including form of Preferred Stock Warrant Certificate* | |
4.15 | Form of Common Stock Warrant Agreement, including form of Common Stock Warrant Certificate* | |
4.16 | Certificate of Trust of First Merchants Capital Trust III (incorporated by reference to Exhibit 4.5 to Pre-Effective Amendment No. 1 to Registration Statement No. 333-75748, filed with the SEC on April 3, 2002) | |
4.17 | Certificates of Trust of First Merchants Capital Trust IV and First Merchants Capital Trust V (together with First Merchants Capital Trust III, the “Trusts”)** | |
4.18 | Amended and Restated Trust Agreement No. 1 of First Merchants Capital Trust III** | |
4.19 | Trust Agreements of First Merchants Capital Trust IV and First Merchants Capital Trust V** | |
4.20 | Form of Amended and Restated Trust Agreement for the Trusts (the “Amended and Restated Trust Agreements”)* | |
4.21 | Form of Guarantee Agreement for the Trusts (the “Guarantee Agreements”) * | |
4.22 | Certificate of Amendment to Certificate of Trust of First Merchants Capital Trust III** | |
4.23 | Letter Agreement, dated February 20, 2009, between First Merchants Corporation and the United States Department of the Treasury, which includes the Securities Purchase Agreement-Standard Terms attached thereto (incorporated by reference to Exhibit 10.1 of First Merchants’ Current Report on Form 8-K filed with the SEC on February 23, 2009) | |
4.24 | Form of Certificate for the First Merchants Corporation Fixed Rate Cumulative Perpetual Preferred Stock, Series A (incorporated by reference to Exhibit 4.1 of First Merchants’ Current Report on Form 8-K filed with the SEC on February 23, 2009) | |
4.25 | Warrant to Purchase 991,453 Shares of Common Stock of First Merchants Corporation (incorporated by reference to Exhibit 4.2 of First Merchants’ Current Report on Form 8-K filed with the SEC on February 23, 2009) | |
5.1 | Opinion of Krieg DeVault LLP | |
5.2 | Opinion of Richards, Layton & Finger, P.A., special Delaware counsel to the Trusts* | |
8.1 | Opinion of counsel as to certain federal income tax matters* | |
12.1 | Computation of Consolidated Ratio of Earnings to Fixed Charges and Consolidated Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends** | |
23.1 | Consent of BKD, LLP | |
23.2 | Consent of Krieg DeVault LLP (included in Exhibit 5.1) | |
23.3 | Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2)* | |
24.1 | Power of Attorney of Directors of First Merchants Corporation** | |
25.1 | Form T-1 Statement of Eligibility of Trustee under the Senior Indenture, the Subordinated Indenture, the Junior Subordinated Debenture Indenture, the Amended and Restated Trust Agreements, and the Guarantee Agreements* |
* | To be filed by post-effective amendment or by current report on Form 8-K. | |
** | Previously filed with the initial filing of this Registration Statement (Commission File No. 333-158334) | |
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