As filed with the Securities and Exchange Commission on April 1, 2022
Registration Statement No. 333-261869
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO.1
ON FORM S-8, TO FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST MERCHANTS CORPORATION
(Exact name of registrant as specified in its charter)
| INDIANA | 6712 | 35-1544218 | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
200 East Jackson Street
Muncie, Indiana 47305
(765) 747-1500
(Address, including Zip Code, and telephone number, including area code, of registrant’s principal executive offices)
Level One Bancorp, Inc. 2007 Stock Option Plan
(Full title of the plan)
Mark K. Hardwick
Chief Executive Officer
First Merchants Corporation
200 East Jackson Street
Muncie, Indiana 47305
(765) 747-1500
(Name, address, including Zip Code, and telephone number, including area code, of agent for service)
With copies to:
Jeremy E. Hill
Bradley C. Arnett
Dentons Bingham Greenebaum LLP
2700 Market Tower
10 W. Market Street
Indianapolis, Indiana 46204
(317) 635-8900
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definition of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
First Merchants Corporation (“First Merchants” or the “Registrant”) hereby amends its Registration Statement on Form S-4 (File No. 333-261869) filed with the Securities and Exchange Commission (the “Commission”) on December 23, 2021, as amended by Amendment No. 1 filed with the Commission on January 10, 2022 (the “Form S-4”), which was declared effective at 4:00 pm Eastern Time on January 13, 2022, by filing this Post-Effective Amendment No. 1 on Form S-8 (this “Post-Effective Amendment” and, together with the Form S-4, the “Registration Statement”).
First Merchants filed the Form S-4 in connection with the merger contemplated by that certain Agreement and Plan of Merger, dated as of November 4, 2021 (the “Merger Agreement”), by and between First Merchants and Level One Bancorp, Inc. (“Level One”), pursuant to which, on April 1, 2022, Level One and First Merchants merged with First Merchants as the surviving company (the “Merger”).
Pursuant to the terms of the Merger Agreement, at the effective time of the Merger (the “Effective Time”), certain outstanding options to acquire Level One common stock (collectively, the “Level One Options”) granted and outstanding under the Level One Bancorp, Inc. 2007 Stock Option Plan as amended and restated April 15, 2015 and also amended on August 29, 2017 (collectively, the “2007 Option Plan”) were converted into corresponding awards with respect to shares of First Merchants’s common stock, no par value (“Common Stock”). The number of shares and exercise price of each converted First Merchants option corresponding to a Level One option were adjusted pursuant to the terms of the Merger Agreement.
This Registration Statement is being filed for the purpose of registering, under the Securities Act, 139,523 shares of Common Stock issuable following the Merger upon the exercise of the converted Level One Options originally granted under the 2007 Option Plan. Such shares were previously registered on the Form S-4 but will be subject to issuance pursuant to this Post-Effective Amendment.
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. A document containing the information specified in Part I will be sent or given to participants in each of the employee beneifit plans described herein as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Each such document and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 2. Registrant 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 the Registrant with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference (other than any portion of a Current Report on Form 8-K “furnished” pursuant to Item 2.02 or Item 7.01 of Form 8-K, including any exhibits included with such information, unless otherwise indicated therein, or any other information deemed to have been “furnished” rather than filed in accordance with the Commission’s rules):
| (a) | the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed on March 1, 2022 (the “Annual Report”); |
| (b) | the Registrant’s Current Reports on Form 8-K filed on February 8, 2022, February 9, 2022, February 24, 2022, March 22, 2022, March 24, 2022 and April 1, 2022; |
| (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; and |
| (d) | the description of the Registrant’s Common Stock set forth in the Form S-4, including any amendment or report filed with the Commission for the purpose of updating such description. |
All documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of this Registration Statement, and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that the Registrant is not incorporating by reference any documents or portions thereof that are not considered to be “filed” with the Commission.
Any statement contained in any document incorporated or deemed to be incorporated by reference herein will be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded will not be deemed, except as modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Registrant is an Indiana corporation. The Indiana Business Corporation Law permits a corporation to indemnify directors and officers against liabilities asserted against or incurred by them while serving as such or while serving at the corporation’s request as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise if (i) the individual’s conduct was in good faith, and (ii) the individual reasonably believed (A) in the case of conduct in the individual’s official capacity, that the individual’s conduct was in the corporation’s best interests and (B) in all other cases, that the individual’s conduct was at least not opposed to the corporation’s best interests, and (iii) in the case of any criminal proceeding, the individual either (A) had reasonable cause to believe the individual’s conduct was lawful or (B) had no reasonable cause to believe the individual’s conduct was unlawful. The Registrant’s Articles of Incorporation and Bylaws provide that the Registrant will indemnify any person satisfying the standard of conduct outlined above as determined by (a) the the Registrant’s Board of Directors acting by a quorum consisting of directors who are not parties to or who have been wholly successful with respect to such claim, action, suit or proceeding; or (b) independent legal counsel chosen by the Registrant.
In addition, the Indiana Business Corporation Law requires a corporation, unless limited by its articles of incorporation, to indemnify a director or officer who was wholly successful, on the merits or otherwise, in the defense of any proceeding in which the director or officer was a party because the director or officer was serving the corporation in such capacity against reasonable expenses incurred in connection with the proceeding. The Registrant’s Articles of Incorporation do not contain any provision limiting such indemnification.
The Indiana Business Corporation Law also permits the Registrant to purchase and maintain on behalf of its directors and officers insurance against liabilities asserted against or incurred by an individual in such capacity, whether or not the Registrant otherwise has the power to indemnify the individual against the same liability under the Indiana Business Corporation Law. Under a directors’ and officers’ liability insurance policy, directors and officers of the Registrant are insured against certain civil liabilities, including liabilities under the federal securities laws, which might be incurred by them in such capacity.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
Item 9. Undertakings.
(a) The 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:
| (A) | to include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (B) | 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (C) | to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (A) and (B) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in 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 Act, 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.
(b) The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
* * * * *
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this Post-Effective Amendment to Form S-4 on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Muncie, State of Indiana, on April 1, 2022.
| FIRST MERCHANTS CORPORATION | ||
| By: | /s/ Mark K. Hardwick | |
| Mark K. Hardwick, Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed as of the 1st day of April, 2022 by the following persons in the capacities indicated.
| /s/ Mark K. Hardwick Mark K. Hardwick |
Chief Executive Officer and Director (Principal Executive Officer) | |
| /s/ Michele M. Kawiecki Michele M. Kawiecki |
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | |
| * Charles E. Schalliol |
Chairman of the Board and Director | |
| * Michael R. Becher |
Director | |
| * Susan W. Brooks |
Director | |
| * Michael J. Fisher |
Director | |
| * F. Howard Halderman |
Director | |
| * William L. Hoy |
Director | |
| * Clark C. Kellogg |
Director | |
| * Gary J. Lehman |
Director | |
| * Michael C. Rechin |
Director | |
| * Patrick A. Sherman |
Director | |
| * Jean L. Wojtowicz |
Director | |
| * By: | /s/ Mark K. Hardwick | |
| Mark K. Hardwick | ||
| Attorney-in-fact | ||
| April 1, 2022 |
Item 21. Exhibits and Financial Statement Schedules.
(a) The following Exhibits are being filed as part of this Registration Statement except those which are incorporated by reference:
Exhibit 5.1
|
Dentons Bingham Greenebaum LLP 2700 Market Tower 10 West Market Street Indianapolis, IN 46204 United States
dentons.com |
April 1, 2022
First Merchants Corporation
200 East Jackson Street
Muncie, Indiana 47305
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as special counsel to First Merchants Corporation, an Indiana corporation (“First Merchants”), in connection with the Post-Effective Amendment No. 1 on Form S-8 to Form S-4 Registration Statement (together with all exhibits thereto, the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”), relating to the registration under the Securities Act of 1933, as amended (the “Securities Act”), of (a) up to [•] shares (the “Option Shares”) of common stock, no par value, of First Merchants (the “Common Stock”), issuable under the Level One Bancorp, Inc. 2007 Stock Option Plan (the “Plan”) which First Merchants assumed as of the date hereof pursuant to that certain Agreement and Plan of Merger with Level One Bancorp, Inc., dated November 4, 2021.
For purposes of the opinions contained herein, we have examined and relied upon the originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary. As to any facts material to our opinion which we did not independently establish or verify, we have relied upon oral and written representations of officers and representatives of First Merchants and certificates of public officials and officers and representatives of First Merchants. In our examination, we have assumed with respect to all documents examined by us the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to the originals of all documents submitted to us as certified, conformed, photostatic or telefacsimile copies. We also have assumed with respect to all documents examined by us which contained facsimile signatures that such signatures were the original signature of the party and have the same force and effect as an original signature.
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April 1, 2022 Page 2 |
dentons.com |
Based on and subject to the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that the Option Shares have been duly authorized and, when issued by First Merchants in accordance with the Plan, will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the Federal laws of the United States and the laws of the State of Indiana as in effect on the date hereof, and we are expressing no opinion as to the effect of the laws of any other jurisdiction.
This opinion is limited to the matters expressly stated herein and no opinion is inferred or may be implied beyond the matters expressly stated herein. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinions expressed herein after the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
| Very truly yours, |
| /s/ Dentons Bingham Greenebaum LLP |
| DENTONS BINGHAM GREENEBAUM LLP |
JEH/BCA
2
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement of First Merchants Corporation (the “Corporation”) on Form S-4 (333-261869) of our reports dated March 1, 2022, on our audits of the consolidated financial statements of the Corporation as of December 31, 2021 and 2020, and for each of the three-years in the period ended December 31, 2021, and on our audit of internal control over financial reporting of the Corporation as of December 31, 2021, which reports are included in the Corporation’s Annual Report on Form 10-K.
/s/ BKD, LLP
Indianapolis, Indiana
April 1, 2022
Exhibit 23.2
|
Plante & Moran, PLLC Suite 500 2601 Cambridge Court Auburn Hills, MI 48326 Tel: 248.375.7100 Fax: 248.375.7101 plantemoran.com |
Consent of Independent Registered Public Accounting Firm
We consent to the use in this Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement of First Merchants Corporation (the “Corporation”) on Form S-4 (333-261869) of our report dated March 11, 2022 relating to the consolidated financial statements of Level One Bancorp, Inc.
Auburn Hills, Michigan
April 1, 2022