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Item 9A. Controls and Procedures

2023-03-01 compared with 2022-03-01 · 62 added, 26 removed, 171 unchanged (34% of the section changed)

11 unchanged sentences

In making this assessment, management used the criteria set forth in “Internal Control - Integrated Framework (2013)” issued by the Committee of Sponsoring Organizations (COSO) of the Treadway Commission.

As permitted by SEC guidance, management excluded from its assessment the operations of the Level One Bancorp, Inc.

acquisition made during 2022, which is described in NOTE 2.

ACQUISITIONS of the Notes to Consolidated Financial Statements included as Item 8 of this Annual Report on Form 10-K.

The assets of Level One Bancorp, Inc.

represented approximately 13 percent of the Corporation's consolidated assets as of December 31, 2022.

Based on this assessment, management has determined that the Corporation’s internal control over financial reporting as of December 31, 2022 is effective based on the specified criteria.

There have been no changes in the Corporation’s internal controls over financial reporting identified in connection with the evaluation referenced above that occurred during the Corporation’s last fiscal quarter that have materially affected, or are reasonably likely to materially affect, the Corporation’s internal control over financial reporting.

BKD, LLP, the independent registered public accounting firm that audited the financial statements included in Item 8 of this Annual Report on Form 10-K, has issued an attestation report on the Corporation’s internal control over financial reporting as of December 31, 2021, which appears as follows.

ITEM 9., ITEM 9A.

FORVIS, LLP, the independent registered public accounting firm that audited the financial statements included in Item 8 of this Annual Report on Form 10-K, has issued an attestation report on the Corporation’s internal control over financial reporting as of December 31, 2022, which appears as follows.

ITEM 9., ITEM 9A., ITEM 9B.

Report of Independent Registered Public Accounting Firm

7 unchanged sentences

(2013) issued by COSO.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the consolidated financial statements of the Corporation as of December 31, 2022 and 2021, and for each of the three years in the period ended December 31, 2022 and our report dated March 1, 2023, expressed an unqualified opinion on those financial statements.

Basis for Opinion

8 unchanged sentences

We believe that our audit provides a reasonable basis for our opinion.

As described in management’s report, the scope of management’s assessment of internal control over financial reporting as of December 31, 2022 has excluded Level One Bancorp, Inc.

acquired on April 1, 2022.

Level One Bancorp, Inc.

represented nine percent of consolidated revenues for the year ended December 31, 2022, and seven percent of consolidated total assets as of December 31, 2022.

Definitions and Limitations of Internal Control over Financial Reporting

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of reliable financial statements for external purposes in accordance with generally accepted accounting principles.

A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company;

3 unchanged sentences

Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions or that the degree of compliance with the policies or procedures may deteriorate.

(Formerly BKD, LLP)

Indianapolis, Indiana

March 1, 2023

ITEM 9., ITEM 9A.

ITEM 9., ITEM 9A., ITEM 9B.

OTHER INFORMATION

DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS

Not applicable

ITEM 10., ITEM 11., ITEM 12., ITEM 13.

11 unchanged sentences

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

The information required under this Item 12 relating to equity compensation plans is set forth in Part II, Item 5 under the table entitled “Equity Compensation Plan Information” of this Annual Report on Form 10-K.

Equity Compensation Plan Information

The following table provides information about the Corporation’s common stock that may be issued under equity compensation plans as of December 31, 2022.

Plan Category Number of securities to be

issued upon exercise of

outstanding options,

warrants and rights Weighted-average

exercised price of

outstanding options,

warrants and rights Number of securities remaining

available for future issuance

under equity compensations

plans (excluding securities

reflected in first column)

Equity compensation plans approved by stockholders 155,100 $ 18.89 1,698,364

Total 155,100 $ 18.89 1,698,364

Security Ownership and Related Matters

The Corporation will provide additional information that is responsive to this Item 12 in its 2023 Proxy Statement or in an amendment to this Annual Report not later than 120 days after the end of the fiscal year covered hereby.

4 unchanged sentences

PRINCIPAL ACCOUNTANT FEES AND SERVICES

Our independent registered public accounting firm is BKD, LLP , Indianapolis, IN , Auditor Firm ID:

Our independent registered public accounting firm is FORVIS, LLP , Indianapolis, IN , Auditor Firm ID:

The Corporation will provide information that is responsive to this Item 14 in its 2023 Proxy Statement or in an amendment to this Annual Report on Form 10-K not later than 120 days after the end of the fiscal year covered hereby.

13 unchanged sentences

Description of Exhibits :

2.1 (*) Agreement and Plan of Merger between First Merchants Corporation and Level Onel Bancorp, Inc., dated as of November 4, 2021 (Incorporated by reference to Exhibit 2.1 of registrant's Form 8-K filed on November 4, 2021) (SEC No.

3.1 First Merchants Corporation Articles of Incorporation, as amended (Incorporated by reference to Exhibit 3.1 of registrant’s Form 8-K filed on May 2, 2017) (SEC No.

3.2 Bylaws of First Merchants Corporation dated August 11, 2016 (Incorporated by reference to Exhibit 3.2 of registrant’s Form 10-K filed on March 1, 2017) (SEC No.

3.1 First Merchants Corporation Articles of Incorporation, as amended (Incorporated by reference to Exhibit 3.1 of registrant’s Form 8-K filed on March 24, 2022) (SEC No.

3.2 Bylaws of First Merchants Corporation effective as of June 22, 2022 (Incorporated by reference to Exhibit 3.1 of registrant’s Form 8-K filed on June 23, 2022) (SEC No.

4.1 First Merchants Corporation Amended and Restated Declaration of Trust of First Merchants Capital Trust II dated as of July 2, 2007 (Incorporated by reference to Exhibit 4.1 of registrant's Form 8-K filed on July 3, 2007) (SEC No.

4 unchanged sentences

4.6 Upon request, the registrant agrees to furnish supplementally to the Commission a copy of the instruments defining the rights of holders of its (a) 5.00% Fixed-to-Floating Rate Senior Notes due 2028 in the aggregate principal amount of $5 million and (b) 6.75% Fixed-to-Floating Rate Subordinated Notes due 2028 in aggregate principal amount of $65 million.

4.7 Description of the Registrant's Securities Registered under Section 12 of the Securities Exchange Act of 1934 (Incorporated by reference to Exhibit 4.8 of registrant’s Form 10-K filed on February 28, 2020) (SEC No.

4.7 Description of the Registrant's Securities Registered under Section 12 of the Securities Exchange Act of 1934 (2)

4.8 Deposit Agreement by and among First Merchants Corporation, Broadridge Corporate Issuer Solutions, Inc., as depositary, and holders from time to time of the depositary receipts described therein, as amended on March 30, 2022 (Incorporated by reference to Exhibit 4.1 of registrant’s Form 8-A filed on March 30, 2022) (SEC No.

4.9 Form of Depositary Receipt (Incorporated by reference to Exhibit 4.2 of registrant’s Form 8-A filed on March 30, 2022) (SEC No.

4.10 Indenture, dated as of December 18, 2019, between First Merchants Corporation (as successor to Level One Bancorp, Inc.) and Wilmington Trust, National Association, as trustee (Incorporated by reference to Exhibit 4.1 of Level One Bancorp, Inc.’s Form 8-K filed on December 19, 2019) (SEC No.

4.11 First Supplemental Indenture, dated as of March 31, 2022, among First Merchants Corporation, Level One Bancorp, Inc.

and Wilmington Trust, National Association, as trustee (2)

4.12 Form of 4.75% Fixed-to-Floating Rate Subordinated Notes due 2029 (Incorporated by reference to Exhibit 4.2 of Level One Bancorp, Inc.’s Form 8-K filed on December 19, 2019) (SEC No.

10.1 First Merchants Corporation Senior Management Incentive Compensation Program, dated February 7, 2023 (Incorporated by reference to the description in Item 5.02 of registrant's Form 8-K filed on February 10, 2023) (SEC No.

15 unchanged sentences

000-17071) (1)

10.8 First Merchants Corporation Change of Control Agreement, as amended, with Jeffery B.

Lorentson dated June 1, 2011 (Incorporated by reference to Exhibit 10.8 of registrant’s Form 10-Q filed on August 9, 2011) (SEC No.

000-17071) (1)

10.8 First Merchants Corporation Change of Control Agreement, effective February 11, 2014, with Stephan H.

22 unchanged sentences

000-17071) (1)

10.19 Voting Agreement, dated November 4, 2021, among First Merchants Corporation, each member of the Board of Directors of Level One Bancorp, Inc.

and each executive officer of Level One Bancorp, Inc.

(Incorporated by reference to Exhibit 10.1 of registrant's Form 8-K filed on November 4, 2021) (SEC No.

10.18 Amendment to Consulting Agreement between Michael C.

Rechin and First Merchants Corporation, effective January 1, 2023 (1) (2)

10.19 Level One Bancorp, Inc.

2007 Stock Option Plan as amended and restated April 15, 2015 (Incorporated by reference to Exhibit 10.5 of Level One Bancorp, Inc.’s registration statement on Form S-1 filed March 23, 2018) (SEC No.

333-223866) (1)

10.20 Amendment to the Level One Bancorp, Inc.

2007 Stock Option Plan, dated August 29, 2017 (Incorporated by reference to Exhibit 10.6 of Level One Bancorp, Inc.’s registration statement on Form S-1 filed March 23, 2018) (SEC No.

333-223866) (1)

21 Subsidiaries of registrant (2)

13 unchanged sentences

104 Cover Page Interactive Data File (formatted as Inline XBRL and included in Exhibit 101)

(*) Schedules to the subject agreement have been omitted pursuant to Item 601(b)(2) of Regulation S-K.

A copy of any omitted schedule will be furnished to the Securities and Exchange Commission upon request.

(1) Management contract or compensatory plan

13 unchanged sentences

/s/ Michael R.

Becher* /s/ Clark C.

Becher, Director Clark C.

Becher* /s/ Kevin D.

Becher, Director Kevin D.

Johnson, Director

Brooks* /s/ Clark C.

Brooks, Director Clark C.

Kellogg, Director

Brooks* /s/ Gary J.

Brooks, Director Gary J.

/s/ Patrick J.

Fehring* /s/ Gary J.

Fehring, Director Gary J.

Lehman, Director

6 unchanged sentences

Schalliol, Director

Hardwick* /s/ Patrick A.

Hardwick, Director Patrick A.

Sherman, Director

Hardwick* /s/ Jason R.

Hardwick, Director Jason R.

Sondhi, Director

/s/ William L.

8 unchanged sentences

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures