Exhibit 99(e)
FORM OF ELECTION
To be completed and received by:
First Merchants Bank, National Association
200 East Jackson Street, Box 792
Muncie, Indiana 47305
Attention: Brian Edwards
No Later Than
5:00 p.m. on ______, 2003
IMPORTANT
An executed and completed Form of Election must be received by First Merchants
Bank, National Association, at the address indicated above, by 5:00 p.m.,
Muncie, Indiana time, on _______, 2003, in order to make a valid Election.
Missing the election deadline is the same as making no election.
PLEASE FOLLOW CAREFULLY THE INSTRUCTIONS SET FORTH ON PAGES 2 THROUGH 4.
Questions and requests for assistance or additional copies of this Form of
Election may be directed to Brian Edwards, First Merchants Bank, National
Association, 200 East Jackson Street, Box 792, Muncie, Indiana 47305, Telephone:
(765) 741-7278.
Ex. 99(e)-1
INSTRUCTIONS
1. DELIVERY OF FORMS OF ELECTION.
The method you choose to deliver this Form of Election to First Merchants
Bank, National Association is at your option and risk. We have enclosed a
self-addressed, stamped envelope for your convenience.
2. DESCRIPTION OF ELECTION.
This Form of Election is being provided to shareholders of CNBC Bancorp
("CNBC") in accordance with the Agreement of Reorganization and Merger dated
August 28, 2002 (the "Merger Agreement"), between CNBC and First Merchants
Corporation, Muncie, Indiana ("First Merchants"). A description of the
consideration and election options relating to the merger is contained in (i)
the Proxy Statement-Prospectus dated ______, 2003, which accompanies this Form
of Election, relating to the CNBC special meeting of shareholders to be held on
________, 2003, which was sent to all CNBC shareholders of record as of
________, 2002, and (ii) the Merger Agreement attached as Appendix A to the
Proxy Statement-Prospectus.
Election. In order to make an election to receive either (i) 1.01 shares
of First Merchants common stock ("Option 1"), subject to possible upward or
downward adjustment as provided in the Merger Agreement, or (ii) $29.57 in cash
("Option 2") for each CNBC common share, you should complete Section A by
checking the appropriate option. You may elect Option 1 (stock) for all of your
CNBC common shares, Option 2 (cash) for all of your CNBC common shares, or a
combination of Option 1 (stock) for a portion of your CNBC common shares and
Option 2 (cash) for a portion of your CNBC common shares. For each option, you
must specifically indicate in the blank provided by each option the number of
your CNBC common shares for which you wish to elect either Option 1 (stock) or
Option 2 (cash). Failure to indicate the number of shares for which you wish to
elect either Option 1 (stock) or Option 2 (cash) will result in an invalid
election and will be treated as if you elected Option 1 (stock) for all shares
you own. You must also supply your taxpayer identification number and provide
the certification contained in Section B on page 6. Failure to furnish the
taxpayer identification number and the certification may result in backup
withholding on payments due to you. See Instruction 4.
If you elect Option 1 (stock) and the application of the 1.01 conversion
ratio to your CNBC common shares results in fractional shares of First Merchants
common stock, you will receive cash for the fractional shares. No fractional
shares of First Merchants common stock will be issued to CNBC shareholders. The
price of the fractional shares for which you will receive cash will equal the
average of the mid-point between the bid and ask prices of the common stock of
First Merchants as reported by Bloomberg, L.P. for the thirty (30) NASDAQ
trading days preceding the fifth (5th) calendar day prior to the closing date of
the merger of CNBC into First Merchants pursuant to the Merger Agreement.
The 1.01 conversion ratio is subject to possible upward or downward
adjustment as described in the Merger Agreement and the Proxy
Statement-Prospectus.
Ex. 99(e)-2
Oversubscriptions. If the elections submitted by CNBC shareholders under
Option 2 (cash) would entitle CNBC's shareholders to receive in the aggregate
less than $24,561,693 in cash, all valid Option 1 (stock) elections and Option 2
(cash) elections of CNBC shareholders will be honored. If (i) the elections
submitted by CNBC shareholders under Option 2 (cash) would entitle CNBC
shareholders to receive in the aggregate $24,561,693 or more in cash or (ii) the
merger would not satisfy the "continuity of interest" rule applicable to
tax-free reorganizations under the Internal Revenue Code of 1986, as amended
(Continuity of Interest Rule), due to the amount of cash that would be paid in
connection with the merger, some of the Option 2 (cash) elections of the CNBC
shareholders will be converted into Option 1 (stock) elections.
The ten (10) Option 2 (cash) elections covering the largest number of CNBC
common shares will be converted into Option 1 (stock) elections first; provided
that the Option 2 (cash) elections will be converted into Option 1 (stock)
elections only to the extent necessary so that the total remaining number of
CNBC common shares covered by Option 2 (cash) elections will result in cash
payments of less than $24,561,693 and will satisfy the Continuity of Interest
Rule. If it is necessary to convert the ten (10) largest Option 2 (cash)
elections to Option 1 (stock) elections (in their entirety) and the conversion
does not result in cash payments to CNBC shareholders of less than $24,561,693
and satisfy the Continuity of Interest Rule, then the next ten (10) largest
Option 2 (cash) elections will also be converted into Option 1 (stock) elections
on the same pro rata basis as applied to the ten (10) largest Option 2 (cash)
elections. This methodology will continue to be applied to Option 2 (cash)
elections until the remaining number of CNBC common shares covered by Option 2
(cash) elections will result in cash payments of less than $24,561,693 and will
satisfy the Continuity of Interest Rule.
As a result of such provisions, certain CNBC shareholders may receive less
or no cash and more or all First Merchants common stock for their CNBC common
shares than they elected based on the choices made by the other CNBC
shareholders.
No Election. CNBC common shares for which a Form of Election is not timely
received or ever received or which are otherwise invalid elections will be
treated as if the holder elected Option 1 (stock) for all shares owned. First
Merchants and CNBC shall mutually determine the validity of elections submitted
by CNBC's shareholders.
Change of Election. You can change your election by substituting a new
Form of Election to First Merchants Bank, National Association Attn: Brian
Edwards. It must be received prior to the election deadline. After the election
deadline, no changes may be made.
3. SHARES OWNED JOINTLY.
Shareholders who own their CNBC common shares jointly with another person
must make a joint election with that person. Sections A and B and, if
applicable, Section C must be completed on behalf of such joint owners. The
joint owners must both sign on page 8, and return this completed Form of
Election.
Ex. 99(e)-3
4. 30% BACKUP WITHHOLDING.
Under Federal income tax laws, First Merchants Bank, National Association
as the Exchange Agent must generally withhold 30% of interest, dividends and
certain other payments if a recipient of a cash payment for CNBC common shares
fails to furnish First Merchants Bank, National Association with the correct
taxpayer identification number and fails to certify that he or she is not
subject to backup withholding. Certain penalties may also apply. For most
individual taxpayers, the taxpayer identification number is their social
security number. Each CNBC shareholder should provide their taxpayer
identification number (or indicate that they are awaiting their taxpayer
identification number to be issued) and complete the certification in Section B
of this Form of Election and, if such is the case, check the box indicating that
they are not subject to backup withholding.
5. SPECIAL DEPOSIT INSTRUCTIONS.
Shareholders of CNBC who have accounts at Commerce National Bank or First
Merchants Bank, National Association may elect to have any cash distributable to
them upon surrender of their CNBC common shares deposited directly into their
account by completing the Special Deposit Instructions in Section C.
Ex. 99(e)-4
ELECTION AND TAX IDENTIFICATION NUMBER
In connection with the merger of CNBC with First Merchants, pursuant to
the Merger Agreement included and summarized in the Proxy Statement-Prospectus,
the registered holder of CNBC common shares, as indicated below, elects to
receive the consideration under the option indicated in Section A below from
First Merchants in exchange for their CNBC common shares.
The undersigned understands and agrees that all elections are subject to
the terms, conditions and limitations set forth in the Proxy
Statement-Prospectus, the Merger Agreement and the instructions set forth in
this Form of Election.
SECTION A: ELECTION
The undersigned CNBC shareholder hereby elects to receive the following
consideration under the Merger Agreement:
|_| Option 1 (First Merchants common stock) for ____ of my CNBC common
shares.
|_| Option 2 (cash only) for ____ of my CNBC common shares.
Ex. 99(e)-5
SECTION B: TAXPAYER IDENTIFICATION NUMBER SUBSTITUTE FORM W-9
1. Please provide your Taxpayer
Identification Number in the space
at right and certify by signing
and dating below. For most ____________________________
individual taxpayers, their
Taxpayer Identification Number is
their Social Security Number.
2. Check the box at right if you have |_|
filed IRS Form SS-4 and are
awaiting your Taxpayer
Identification Number to be issued
to you.
3. Check the box at right if you are |_|
NOT subject to withholding under
the provisions of Section
3406(a)(1)(C) of the Internal
Revenue Code because (a) you are
exempt from backup withholding, or
(b) the Internal Revenue Service
has not notified you that you are
subject to backup withholding as a
result of your failure to report
all interest or dividends or (c)
the Internal Revenue Service has
notified you that you are no
longer subject to backup
withholding.
CERTIFICATION - Under the penalties of perjury, I certify that the information
provided in this Section B is true, correct and complete, and that I am a U.S.
person (including a U.S. resident alien).
Date: _________________________, 2003
Sign Here:
-------------------------------
Printed:
---------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS INFORMATION MAY RESULT IN PENALTIES
IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP WITHHOLDING OF 30% ON CASH
PAYMENTS DUE TO YOU. SEE INSTRUCTIONS 2 AND 4.
Ex. 99(e)-6
SECTION C: SPECIAL DEPOSIT INSTRUCTIONS
Complete the following ONLY if any cash you receive as a part of the
consideration for your CNBC common shares is to be deposited into your account
at Commerce National Bank or First Merchants Bank, National Association.
DEPOSIT CHECK INTO: (Check one box)
|_| Commerce National Bank
|_| First Merchants Bank, National Association
Account Number _____________________________ for the credit of the
shareholder(s). Said account is registered in the name of___________________.
Ex. 99(e)-7
The undersigned hereby represents and warrants to First Merchants and CNBC
that the undersigned has full power and authority to submit this Form of
Election. The election(s) made herein shall survive the death or incapacity of
the undersigned. The undersigned understands and agrees that election options
are subject to the terms, conditions, and limitations set forth in the Proxy
Statement-Prospectus, the Merger Agreement and in the instructions set forth in
this Form of Election.
Dated: _______________________, 2003
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Number of Shares Held
[Label Here]
- ----------------------------------
Signature of Shareholder
- ---------------------------------- -------------------------------
Printed Name Telephone Number
- ----------------------------------
Address
- ----------------------------------
Signature of Shareholder
- ---------------------------------- -------------------------------
Printed Name Telephone Number
- ----------------------------------
Address
Ex. 99(e)-8