Exhibit 2.1
EXECUTION COPY
===============================================================================
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
dated as of February 10, 2005
between
THE PNC FINANCIAL SERVICES GROUP, INC.
and
RIGGS NATIONAL CORPORATION
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TABLE OF CONTENTS
Page
RECITALS
A. Amendment and
Restatement..................................1
B.
PNC........................................................1
C.
Company....................................................1
D. Intention of the
Parties...................................1
E.
Approvals..................................................1
F. Voting
Agreement...........................................1
ARTICLE I
The Merger
1.1 The
Merger.................................................2
1.2 Effective
Time.............................................2
1.3
Closing....................................................2
1.4 Bank
Transfer..............................................2
ARTICLE II
Conversion or Cancellation of Shares
2.1 Conversion or Cancellation
of Shares.......................3
2.2 Fractional
Shares..........................................7
2.3 Exchange of Old Certificates
for New Certificates..........7
2.4 Adjustment of
Consideration................................8
2.5 Shares of Dissenting
Stockholders..........................8
2.7 Withholding
Rights.........................................9
ARTICLE III
Conduct of Business Pending Merger
3.1 Company
Forbearances.......................................9
3.2 PNC
Forbearances..........................................11
ARTICLE IV
Representations
4.1 Disclosure
Schedules......................................11
4.2
Standard..................................................11
4.3
Representations...........................................12
ARTICLE V
Covenants
5.1 Reasonable Best
Efforts...................................20
5.2 Stockholder
Approvals.....................................20
5.3 Registration Statement/Proxy
Statement....................20
5.4 Press
Releases............................................21
5.5 Access;
Information.......................................21
5.6 Acquisition
Proposals.....................................22
5.7 Affiliate
Agreements......................................23
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5.8 Takeover Laws and
Provisions..............................23
5.9 Regulatory
Applications...................................23
5.10
Options...................................................24
5.11 Indemnification and
Insurance.............................24
5.12 Benefit
Plans.............................................25
5.13 Notification of Certain
Matters...........................26
5.14 Exemption from Liability Under
Section 16(b)..............26
5.15 Intentionally Left
Blank..................................26
5.16 Certain Transition
Matters................................27
ARTICLE VI
Conditions
6.1 Conditions to Each Party's
Obligation
to Effect
the Merger......................................27
6.2 Conditions to Obligation of
PNC...........................28
6.3 Conditions to Obligation of
the Company...................29
ARTICLE VII
Termination
7.1 Termination by Mutual
Consent.............................29
7.2 Termination by
PNC........................................29
7.3 Termination by the
Company................................30
7.4 Effect of Termination and
Abandonment.....................30
7.5 Termination
Fee...........................................30
ARTICLE VIII
Miscellaneous
8.1
Survival..................................................31
8.2 Modification or
Amendment.................................31
8.3 Waiver of
Conditions......................................31
8.4
Counterparts..............................................31
8.5 Governing
Law.............................................31
8.6
Notices...................................................31
8.7 Entire Agreement,
Etc.....................................32
8.8 Definition of "subsidiary"
and "affiliate"; Covenants
with
Respect to Subsidiaries and Affiliates...............32
8.9 Interpretation;
Effect....................................32
8.10
Severability..............................................32
8.11 No Third Party
Beneficiaries..............................33
8.12 Waiver of Jury
Trial......................................33
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INDEX OF DEFINED TERMS
Term
Location of
Definition
Acquisition
Proposal..................................5.6
Affiliate.............................................8.8
Benefit
Plans...................................4.3(m)(1)
PNC..............................................Preamble
PNC State
Law......................................1.1(b)
PNC Benefit
Plans.................................5.12(a)
PNC Common
Stock................................Recital A
PNC
Meeting........................................5.2(a)
PNC
Preferred...................................Recital A
PNC Preferred
Stock.............................Recital A
PNC Rights
Agreement............................Recital A
PNC Stockholder
Rights..........................Recital A
Cash Election
Shares...............................2.1(d)
Certificate of
Merger..............................1.4(a)
Closing...............................................1.5
Closing
Date..........................................1.5
Company..........................................Preamble
Company
Bank......................................5.11(a)
Company Benefit
Plans.............................5.12(a)
Company Common
Stock............................Recital B
Company
Insiders.....................................5.15
Company
Meeting....................................5.2(a)
Company
Option....................................5.10(a)
Company
Options...................................5.10(a)
Company Section 16
Information.......................5.15
Confidentiality
Agreement..........................5.5(c)
Converted Cash Election
Share................2.1(e)(1)(C)
Converted Stock Election
Share...............2.1(e)(2)(B)
DGCL...............................................1.1(b)
Disclosure
Schedule...................................4.1
Effective
Time.....................................1.4(a)
Election...........................................2.1(d)
Election
Deadline..................................2.3(b)
Election
Form......................................2.1(d)
Employees.......................................4.3(m)(1)
Environmental
Laws.................................4.3(o)
ERISA...........................................4.3(m)(1)
ERISA
Affiliate.................................4.3(m)(3)
ERISA
Plans.....................................4.3(m)(2)
Exception
Shares...................................2.1(c)
Exchange
Act....................................4.3(c)(1)
Exchange
Agent.....................................2.1(d)
Exchange
Ratio.....................................2.1(a)
Governing
Documents................................3.1(h)
Governmental
Entity.............................4.3(f)(1)
Indemnified
Liabilities...........................5.11(a)
Indemnified
Party.................................5.11(a)
Insurance
Amount..................................5.11(b)
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Internal Revenue
Code...........................Recital C
IRS.............................................4.3(m)(2)
Proxy
Statement/Prospectus.........................5.3(a)
Liens...........................................4.3(c)(1)
Material Adverse
Effect............................4.2(b)
Measurement
Price.....................................2.2
Merger.............................................1.1(a)
Multiemployer
Plan..............................4.3(m)(2)
New
Certificate....................................2.3(a)
New
Option........................................5.10(a)
New
Shares.........................................2.3(a)
No-Election
Shares.................................2.1(d)
NYSE..................................................2.2
Old
Certificate....................................2.1(c)
Old
Share..........................................2.1(c)
Pension
Plan....................................4.3(m)(2)
Per Share Cash
Consideration....................2.1(a)(2)
Per Share Stock
Consideration...................2.1(a)(1)
Person.............................................2.3(b)
Plan.............................................Preamble
Previously
Disclosed..................................3.1
Registration
Statement.............................5.3(a)
Regulatory
Approvals............................4.3(f)(2)
Regulatory
Authorities..........................4.3(i)(1)
Regulatory
Filings..............................4.3(g)(1)
Representatives.......................................5.6
Rights..........................................4.3(b)(3)
Securities
Act..................................4.3(g)(1)
Significant
Subsidiary..........................4.3(c)(1)
Stock Election
Shares..............................2.1(d)
Stock Selected No-Election
Share.............2.1(e)(1)(B)
Subsidiary............................................8.8
Superior
Proposal.....................................5.6
Surviving
Corporation..............................1.1(a)
Takeover
Laws......................................4.3(t)
Takeover
Provisions................................4.3(t)
Tax.............................................4.3(p)(2)
Tax
Returns.....................................4.3(p)(1)
Taxes...........................................4.3(p)(2)
Termination
Date...................................7.2(b)
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AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of
February 10, 2005, (this "PLAN"), between
The PNC Financial Services Group,
Inc. ("PNC") and Riggs National Corporation
("COMPANY"). This Plan
shall be
considered for all purposes an amendment of
the Original Plan in its entirety
and the provisions of this Plan shall
supersede the provisions of the
Original Plan in all respects.
RECITALS
A. AMENDMENT AND
RESTATEMENT. PNC and
the Company are parties to
an Agreement and Plan of Merger, dated as
of July 16, 2004 (the "ORIGINAL
PLAN"), which the parties desire to amend
and restate in its entirety in
accordance with the terms of this Plan and
the provisions of this Plan shall
supersede the provisions of the Original
Plan in all respects.
B. PNC. PNC is a Pennsylvania corporation
with its principal
executive offices located in Pittsburgh,
Pennsylvania. As of
the date
hereof, PNC has (i) 800,000,000 authorized
shares of common stock, par value
$5.00 per share ("PNC COMMON STOCK"), of
which not more than 282,880,197
shares are outstanding, together with the
rights ("PNC STOCKHOLDER RIGHTS")
issued pursuant to the Rights Agreement,
dated as of May 15, 2000, as
amended, between PNC and Computershare
Investor Services, LLC, as Rights
Agent ("PNC RIGHTS AGREEMENT"); and (ii)
20,000,000 authorized shares of
preferred stock, par value $1.00 per share
("PNC PREFERRED STOCK"), of which
98,583 shares have been designated as $1.80
Cumulative Convertible Preferred
Stock - Series A ("PNC SERIES A PREFERRED
STOCK"), of which 8,275 shares are
outstanding, 38,542 shares have been
designated as $1.80 Cumulative
Convertible Preferred Stock - Series B
("PNC SERIES B PREFERRED STOCK"), of
which 2,128 shares are outstanding,
1,433,935 shares have been designated as
$1.60 Cumulative Convertible Preferred
Stock-Series C ("PNC SERIES C
PREFERRED STOCK"), of which 162,125 shares
are outstanding, 1,766,140 shares
have been designated as $1.80 Cumulative
Convertible Preferred Stock-Series D
("PNC SERIES D PREFERRED STOCK"), of which
218,337 shares are outstanding,
338,100 shares have been designated as
$2.60 Cumulative Nonvoting Preferred
Stock, Series E ("PNC SERIES E PREFERRED
STOCK"), of which no shares are
outstanding, 6,000 shares have been
designated as Fixed/Adjustable Rate
Noncumulative Preferred Stock, Series F
("PNC SERIES F PREFERRED STOCK"), of
which no shares are outstanding, and
450,000 shares have been designated as
Series G Junior Participating Preferred
Share Purchase Rights ("PNC SERIES G
PREFERRED STOCK").
C. COMPANY.
The Company is a
Delaware corporation with its
principal executive offices located in
Washington, DC. As of
the date
hereof, the Company has (i) 50,000,000
authorized shares of common stock, par
value $2.50 per share ("COMPANY COMMON
STOCK"), of which not more than
31,799,270 shares are outstanding, (ii)
20,000,000 authorized shares of Class
B common stock, par value $2.50 per share,
of which no shares are outstanding
and (iii) 25,000,000 authorized shares of
preferred stock, par value $1.00
per share, of which no shares are
outstanding.
D. INTENTION OF THE
PARTIES. Each of the
parties to this Plan
intends that the Merger (as hereinafter
defined) shall qualify as a
reorganization under Section 368(a) of the
Internal Revenue Code of 1986, as
amended (the "INTERNAL REVENUE CODE") and
that this Plan shall constitute a
"plan of reorganization" for purposes of
Sections 354 and 361 of the Internal
Revenue Code.
E. APPROVALS.
The board of directors
of each of PNC and the Company
has (1) determined that this Plan and the
transactions contemplated hereby
are advisable and in the best interests of
PNC and the Company, respectively,
and in the best interests of their
respective stockholders, (2) determined
that this Plan and the transactions
contemplated hereby are consistent with,
and in furtherance of, its respective
business strategies and (3) authorized
and approved this Plan.
F. VOTING AGREEMENT.
In connection with the
execution of the
Original Plan, a certain stockholder of the
Company entered into a Voting
Agreement with PNC which is attached hereto
as Exhibit A, pursuant to which,
among other things, such stockholder agreed
to vote certain of his shares of
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Company Common Stock in favor of the
Original Plan and the transactions
contemplated thereby. As a condition and inducement to
PNC's willingness to
enter into this Plan, such stockholder has
sent PNC a letter confirming that
such Voting Agreement shall be applicable
to this Plan.
NOW, THEREFORE, in consideration of their mutual promises and
obligations, the parties hereto amend and
restate the Original Plan in its
entirety as follows:
ARTICLE I
THE MERGER
1.1 THE
MERGER.(a) Subject to the terms and conditions of this Plan,
at the Effective Time (as hereinafter
defined), the Company shall merge with and
into PNC (the "MERGER"), and the separate
corporate existence of the Company
shall thereupon cease. PNC shall be the
surviving corporation in the Merger
(hereinafter sometimes referred to as the
"SURVIVING CORPORATION") and shall
continue to be governed by the laws of the
State of Pennsylvania.
(b) The Merger
shall have the effects specified in this Plan, the
Delaware General Corporation Law (the
"DGCL") and the Business Corporation Law
of the Commonwealth of Pennsylvania (the
"PBCL").
(c) At the
Effective Time, the Articles of Incorporation of PNC, as
then in effect, shall be the certificate of
incorporation of the Surviving
Corporation and the By-laws of PNC, as then
in effect, shall be the By-laws
of the Surviving Corporation.
(d) The name of
the Surviving Corporation shall be the name of PNC.
1.2 EFFECTIVE
TIME. (a) Subject to the terms and
conditions of
this Plan, on or before the Closing Date,
the parties shall execute, and PNC
will cause to be filed with the Department
of State of the Commonwealth of
Pennsylvania, articles of merger as
provided in Sections 1926 and 1927 of the
PBCL (the "CERTIFICATE OF MERGER"), and PNC
will cause a certificate of merger
to be filed with the Office of the
Secretary of State of the State of Delaware
as provided in Section 252 of the DGCL. The
Merger shall become effective at
such time as the Certificate of Merger has
been filed, or at such other time as
may be specified therein. The date and time
at which the Merger becomes
effective is herein referred to as the
"EFFECTIVE TIME".
(b) PNC and the
Company will each cause the Effective Time to occur
not later than the third business day
following the satisfaction or waiver of
the last of the conditions specified in
Sections 6.1(a), (b), (c), (e) and (f)
of this Plan. Notwithstanding anything to
the contrary in this Section 1.2(b),
PNC and the Company may cause the Effective
Time to occur on such earlier or
later day following the satisfaction or
waiver of such conditions as they may
agree, consistent with the provisions of
the DGCL and the PBCL.
1.3 CLOSING.
The closing of the
Merger (the "CLOSING") shall take
place at such time and place as PNC and the
Company shall agree, on the date
when the Effective Time is to occur (the
"CLOSING DATE").
1.4 BANK
TRANSFER. PNC and the
Company shall take all action
necessary and appropriate to cause Riggs
Bank N.A. ("COMPANY BANK") to transfer
to PNC Bank, National Association ("PNC
BANK") substantially all of its assets
and liabilities and for PNC Bank to receive
and assume all such assets and
liabilities immediately after the Merger
(the "BANK TRANSFERS"). In connection
therewith, the transferred assets and
liabilities shall be converted to the
operating systems of PNC Bank.
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ARTICLE II
CONVERSION OR CANCELLATION OF SHARES
2.1 CONVERSION
OR CANCELLATION OF SHARES. At the Effective Time,
by virtue of the Merger and without any
action on the part of any stockholder:
(a) COMPANY
COMMON STOCK. Each
share of Company Common Stock
issued and outstanding immediately prior to
the Effective Time, other than
Exception Shares and Dissenting Shares
(each as hereinafter defined), shall be
converted into the right to receive, at the
election of each holder thereof, but
subject to the election and allocation
procedures of Sections 2.1(d) and (e),
the other provisions of this Section 2.1
and possible adjustment as set forth in
Section 2.4, either:
(1) that number of shares of PNC Common Stock equal to the
Exchange Ratio (as defined in Section
2.1(b)) (the "PER SHARE STOCK
CONSIDERATION"), or
(2) an amount in
cash, without interest, equal to the Per
Share Amount (the "PER SHARE CASH
CONSIDERATION" and, together with the Per
Share Stock Consideration, the
"CONSIDERATION").
(b) CERTAIN
DEFINITIONS. For
purposes of this Agreement, the
following terms shall have the following
meanings:
(1) "AGGREGATE CASH AMOUNT" means, subject to Section 2.1(e),
45% of the product of (x) the Aggregate
Company Share Amount (as hereinafter
defined) less the number of Exception
Shares cancelled pursuant to Section
2.1(d) hereof (but excluding from such
reduction the 3,341,521 treasury shares
as of the date hereof) and (y) $20.00,
rounded to the nearest whole cent;
PROVIDED, HOWEVER, that if, at the
Effective Time, the aggregate number of
shares of Company Common Stock issuable
upon exercise of then outstanding
Company Options (as defined under Section
5.10(a)) exceeds the difference
between (A) 3,169,314 less (B) the
aggregate number of shares of Company Common
Stock issued upon exercise of Company
Options after the date hereof and prior to
the Effective Time (such excess being
referred to herein as the "EXCESS OPTION
SHARES"), then the "AGGREGATE CASH AMOUNT"
shall be reduced by the product of
(A) the Excess Option Shares and (B) an
amount equal to the excess of $20.00
over the weighted average exercise price of
the options related to the Excess
Option Shares at the Effective Time, in
each case rounded to the nearest whole
cent.
(2) "AGGREGATE
COMPANY SHARE AMOUNT" shall equal 31,799,270
shares of Company Common Stock; PROVIDED,
HOWEVER, that the Aggregate Company
Share Amount shall be increased by virtue
of the issuance of any shares of
Company Common Stock upon (i) the exercise
from and after the date hereof and
prior to the Effective Time of Company
Options outstanding on the date hereof,
(ii) the funding of the trust under the
Company Amended and Restated Deferred
Compensation Plan, in each case, after
February 9, 2005 and prior to the
Effective Time, (iii) the distribution of
interests under the Riggs National
Corporation and Riggs Bank N.A. Deferred
Compensation Plan for Directors in
accordance with the terms of such plan and
(iv) the vesting of deferred share
awards or performance share awards under
the Riggs National Corporation 2002
Long-Term Incentive Plan (including by
reason of Section 5.12(c)) to the extent
not outstanding on the date hereof.
(3) "AGGREGATE
PNC SHARE AMOUNT" shall, subject to Section
2.1(e), be equal to 6,408,790 shares of PNC
Common Stock; PROVIDED, HOWEVER,
that the "AGGREGATE PNC SHARE AMOUNT" shall
be (x) increased by virtue of the
issuance of any shares of Company Common
Stock upon (i) the exercise from and
after the date hereof and prior to the
Effective Time of Company Stock Options
outstanding on the date hereof, (ii) the
funding of the trust under the Company
Amended and Restated Deferred Compensation
Plan, in each case, after February 9,
2005 and prior to the Effective Time, (iii)
the distribution of interests under
the Riggs National Corporation and Riggs
Bank N.A. Deferred
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Compensation Plan for Directors in
accordance with the terms of such plan or
(iv) the vesting of deferred share awards
or performance share awards under the
Riggs National Corporation 2002 Long-Term
Incentive Plan (including by reason of
Section 5.12(c)) to the extent not
outstanding on the date hereof and (y) shall
be decreased in the event any shares of
Company Common Stock are cancelled
pursuant to Section 2.1(d) hereof, other
than the 3,341,521 treasury shares as
of the date hereof, in each case on a basis
of 0.2015 additional shares of PNC
Common Stock for each share of Company
Common Stock so issued or cancelled.
(4) "MEASUREMENT
PRICE" means the average of the daily high
and low per share sales prices of PNC
Common Stock on the New York Stock
Exchange (the "NYSE"), as reported in the
New York City edition of THE WALL
STREET JOURNAL or, if not reported therein,
in another authoritative source
mutually agreed by PNC and the Company, for
the five (5) full consecutive NYSE
trading days ending on the trading day
immediately prior to the Closing Date.
(5) "CLOSING
TRANSACTION VALUE" means the sum of (A) the
Aggregate Cash Amount and (B) the product
obtained by multiplying the Aggregate
PNC Share Amount by the Measurement Price,
rounded to the nearest whole cent.
(6) "PER SHARE
AMOUNT" means the amount obtained by dividing
the Closing Transaction Value by the number
of Exchangeable Shares, rounded to
the nearest whole cent.
(7) "EXCHANGE
RATIO" means that fraction of a share of PNC
Common Stock as shall be obtained by
dividing the Per Share Amount by the
Measurement Price, rounded to the nearest
one-ten-thousandth.
(8)
"EXCHANGEABLE SHARES" means the aggregate number of
shares of Company Common Stock issued and
outstanding immediately prior to the
Effective Time, rounded to the nearest
whole share.
(c) ADJUSTMENTS
TO PRESERVE TAX TREATMENT.
(i) In the event
that the quotient obtained by dividing
(x) the product of (i) the Aggregate PNC
Share Amount and (ii) the Final PNC
Share Value by (y) the sum of (A) the
Aggregate Cash Amount, (B) the Other Cash
Consideration (as defined below), and (C)
the product of (i) the Aggregate PNC
Share Amount and (ii) the Final PNC Share
Value is less than 0.425, the
Aggregate PNC Share Amount shall be
increased by the Share Adjustment Amount (as
defined in this Section 2.1(e)) and the
Aggregate Cash Amount shall be decreased
by the product of (x) the Final PNC Share
Value and (y) the Share Adjustment
Amount. The "SHARE ADJUSTMENT AMOUNT" shall
be equal to the quotient obtained by
dividing (x) the difference obtained by
subtracting (i) the product of (a) the
Aggregate PNC Share Amount and (b) the
Final PNC Share Value from (ii) the
product of (a) 0.425 and (b) the sum of (1)
the Aggregate Cash Amount, (2) Other
Cash Consideration and (3) the product of
the Aggregate PNC Share Amount and the
Final PNC Share Value by (y) the Final PNC
Share Value.
(ii) In the event that
the Aggregate PNC Share Amount and the
Aggregate Cash Amount are adjusted as
provided for in this Section 2.1(e), all
references in this Agreement to the
"Aggregate PNC Share Amount" and the
"Aggregate Cash Amount" shall refer to the
Aggregate PNC Share Amount and the
Aggregate Cash Amount as adjusted in this
Section 2.1(e).
(iii) For purposes of this Agreement, "FINAL PNC SHARE VALUE"
means the arithmetic average of the daily
high and low per share sales prices of
PNC Common Stock on the NYSE on the Closing
Date or if the Closing Date is not a
trading day, the trading day prior to the
Closing Date; and "OTHER CASH
CONSIDERATION" means the sum of (i) the
product of the number of Dissenting
Shares (except to the extent that the
holder of such Dissenting Shares, as of
the Closing Date, has effectively withdrawn
or
4
<PAGE>
lost his right to dissent from the Merger
under the DGCL) and the Per Share Cash
Consideration and (ii) any other amounts
received by a holder of Company stock
prior to the Merger, either in a redemption
of Company stock or in a
distribution with respect to Company stock
(but only to the extent such amount
is treated as other property or money
received in the exchange for purposes of
Section 356 of the Internal Revenue Code,
or would be so treated if the Company
shareholder also had received stock of PNC
in exchange for stock owned by the
shareholder in the Company).
(c) PNC COMMON
STOCK. Each share of
PNC Common Stock outstanding
immediately prior to the Effective Time
shall remain outstanding and shall be
unaffected by the Merger.
(d) CANCELLATION
OF OLD SHARES. Each
Exception Share shall cease
to be outstanding, shall be canceled and
retired and shall cease to exist, and
no consideration shall be delivered in
exchange therefor. Each share of Company
Common Stock issued and outstanding
immediately prior to the Effective Time,
other than Exception Shares, is hereinafter
defined as an "OLD SHARE". Old
Shares shall cease to be outstanding, shall
be canceled and retired and shall
cease to exist, and each holder of a
certificate (an "OLD CERTIFICATE") formerly
representing Old Shares shall thereafter
cease to have any rights with respect
to such shares, except the right to
receive, without interest, upon exchange of
such Old Certificate in accordance with
Section 2.3, the Consideration.
"EXCEPTION SHARES" means shares of Company
Common Stock owned or held by PNC or
by the Company, other than shares owned or
held in a bona fide fiduciary or
agency capacity or in satisfaction of a
debt previously contracted in good
faith.
(e) Subject to
the allocation procedures set forth in Section
2.1(e), each record holder of Company
Common Stock will be entitled (i) to elect
to receive shares of PNC Common Stock for
all or some of the shares of Company
Common Stock ("STOCK ELECTION SHARES") held
by such record holder, (ii) to elect
to receive cash for all or some of the
shares of Company Common Stock ("CASH
ELECTION SHARES") held by such record
holder or (iii) to indicate that such
holder makes no such election for all or
some of the shares of Company Common
Stock ("NO-ELECTION SHARES") held by such
record holder. All such elections
(each, an "ELECTION") shall be made on a
form designed for that purpose and
agreed to by PNC and the Company (an
"ELECTION FORM"). Any shares of Company
Common Stock for which the record holder
has not, as of the Election Deadline
(as defined below), properly submitted to
the Exchange Agent a properly
completed Election Form will be deemed
No-Election Shares. A record holder
acting in different capacities or acting on
behalf of other persons in any way
will be entitled to submit an Election Form
for each capacity in which such
record holder so acts with respect to each
person for which it so acts. The
exchange agent (the "EXCHANGE AGENT") will
be a bank or trust company in the
United States selected by PNC and
reasonably acceptable to the Company. In order
to make a valid election, the properly
completed Election Form must be
accompanied by certificates of the shares
of Company Common Stock to which such
Form of Election relates or by an
appropriate customary guarantee of delivery of
such certificates, as set forth in such
Form of Election, from a member of any
registered national securities exchange or
a commercial bank or trust company in
the United States (provided that such
certificates are in fact delivered to the
Exchange Agent by the time required in such
guarantee of delivery; failure to
deliver shares of Company Common Stock
covered by such a guarantee of delivery
within the time set forth on such guarantee
shall be deemed to invalidate any
otherwise properly made Election, unless
otherwise determined by PNC, in its
sole discretion). Notwithstanding anything
contained herein to the contrary,
each share of Company Common Stock owned by
a subsidiary of PNC or by a
subsidiary of the Company (in each case,
other than those shares held by any
such subsidiary in a bona fide fiduciary or
agency capacity) shall be converted
in the Merger solely into PNC Common
Stock.
(f) The
allocation among the holders of shares of Company Common
Stock of rights to receive the Per Share
Stock Consideration or the Per Share
Cash Consideration will be made as
follows:
(1) NUMBER OF
STOCK ELECTIONS LESS THAN THE STOCK CONVERSION
NUMBER. If the aggregate number of Stock
Election Shares (on the basis of valid
Election Forms received as of the
Election
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Deadline) is less than the number obtained
by dividing the Aggregate PNC Share
Amount by the Exchange Ratio (the "STOCK
CONVERSION NUMBER"), then
(A) each Stock Election Share will be, as of the Effective
Time, converted into the right to receive the Per Share Stock
Consideration,
(B) the Exchange Agent will allocate from among the
No-Election Shares, pro rata to the holders of No-Election Shares
in
accordance with their respective numbers of No-Election Shares,
a
sufficient number of No-Election Shares so that the sum of such
number
and the number of Stock Election Shares equals as closely as
practicable the Stock Conversion Number, and each such
allocated
No-Election Share (each, a "STOCK-SELECTED NO-ELECTION SHARE")
will
be, as of the Effective Time, converted into the right to receive
the
Per Share Stock Consideration, PROVIDED that if the sum of all
No-Election Shares and Stock Election Shares is equal to or less
than
the Stock Conversion Number, all No-Election Shares will be
Stock-Selected No-Election Shares,
(C) if the sum of Stock Election Shares and No-Election
Shares is less than the Stock Conversion Number, the Exchange
Agent
will allocate from among the Cash Election Shares, pro rata to
the
holders of Cash Election Shares in accordance with their
respective
numbers of Cash Election Shares, a sufficient number of Cash
Election
Shares so that the sum of such number, the number of all Stock
Election Shares and the number of all No-Election Shares equals
as
closely as practicable the Stock Conversion Number, and each
such
allocated Cash Election Share (each, a "CONVERTED CASH ELECTION
SHARE") will be, as of the Effective Time, converted into the right
to
receive the Per Share Stock Consideration, and
(D) each No-Election Share and Cash Election Share that is
not a Stock-Selected No-Election Share or a Converted Cash
Election
Share (as the case may be) will be, as of the Effective Time,
converted into the right to receive the Per Share Cash
Consideration;
or
(2) NUMBER OF
STOCK ELECTIONS GREATER THAN THE STOCK
CONVERSION NUMBER. If the aggregate number
of Stock Election Shares (on the
basis of valid Election Forms received by
the Election Deadline) is greater than
the Stock Conversion Number, then
(A) each Cash Election Share and No-Election Share will be,
as of the Effective Time, converted into the right to receive the
Per
Share Cash Consideration,
(B) the Exchange Agent will allocate from among the Stock
Election Shares, pro rata to the holders of Stock Election Shares
in
accordance with their respective numbers of Stock Election Shares,
a
sufficient number of Stock Election Shares ("CONVERTED STOCK
ELECTION
SHARES")
so that the difference of (x) the number of Stock Election
Shares less (y) the number of the Converted Stock Election
Shares
equals as closely as practicable the Stock Conversion Number, and
each
Converted Stock Election Share will be, as of the Effective
Time,
converted into the right to receive the Per Share Cash
Consideration;
provided that if an Election Form designates by stock
certificate
number the priority in which the Stock Election Shares governed
by
such Election Form are to be reallocated pursuant to this clause
(B),
such Stock Election Shares shall be deemed reallocated in
accordance
with such priority, and
(C) each Stock Election Share that is not a Converted Stock
Election Share will be, as of the Effective Time, converted into
the
right to receive the Per Share Stock Consideration.
(3) NUMBER OF
STOCK ELECTIONS IS EQUAL TO THE STOCK CONVERSION
NUMBER. If the aggregate number of Stock
Election Shares (on the basis of
Election Forms received by the Election
Deadline) is equal to the Stock
Conversion Number, then
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(A) each Stock Election Share will be, as of the Effective
Time, converted into the right to receive the Per Share Stock
Consideration, and
(B) each Cash Election Share and No-Election Share will be,
as of the Effective Time, converted into the right to receive the
Per
Share Cash Consideration.
2.2 FRACTIONAL
SHARES.
Notwithstanding any other provision of this
Article II, no fractional shares of PNC
Common Stock will be issued pursuant
to the Merger. Instead, PNC will pay or cause to
be paid to the holder of
any Old Shares that would, pursuant to
paragraph 2.1, otherwise be entitled
to receive fractional shares of PNC Common
Stock an amount in cash, rounded
to the nearest cent and without interest,
equal to the product of (i) the
fraction of a share to which such holder
would otherwise have been entitled
and (ii) the Measurement Price.
2.3 EXCHANGE OF
OLD CERTIFICATES FOR NEW CERTIFICATES.
(a) EXCHANGE
AGENT. Until the first anniversary of the Effective
Time, PNC shall make available or cause to
be made available to the Exchange
Agent certificates (each, a "NEW
CERTIFICATE") representing the shares of PNC
Common Stock (each, a "NEW SHARE") and cash
in amounts sufficient to allow the
Exchange Agent to make all deliveries of
New Certificates and payments that may
be required in exchange for Old
Certificates pursuant to this Article II. Upon
such anniversary, any such New Certificates
and cash remaining in the possession
of the Exchange Agent (together with any
dividends or earnings in respect
thereof) shall be delivered to PNC. Any
holder of Old Certificates who has not
theretofore exchanged his or her Old
Certificates for New Certificates and/or
cash pursuant to this Article II shall
thereafter be entitled to look
exclusively to PNC, and only as a general
creditor thereof in the case of cash,
for the shares of PNC Common Stock and/or
cash to which he or she may be
entitled upon exchange of such Old
Certificates pursuant to this Article II.
Notwithstanding the foregoing, neither the
Exchange Agent nor any party hereto,
shall be liable to any holder of Old
Certificates for any amount properly
delivered to a public official pursuant to
applicable abandoned property,
escheat or similar laws.
(b) EXCHANGE
PROCEDURES. At least
twenty business days prior to the
expected Election Deadline, and thereafter
from time to time as the Company
may reasonably request until the Election
Deadline, PNC shall cause the
Exchange Agent to mail or deliver to each
individual, bank, corporation,
partnership, trust, association or other
entity or organization (any of the
foregoing, a "PERSON") who is a holder of
record of Company Common Stock an
Election Form and a form of letter of
transmittal in form reasonably
satisfactory to PNC and the Company
containing instructions for use in
effecting the surrender of Old Certificates
in exchange for New Certificates
and any payments pursuant to this Article
II. To be effective,
the Election
Form must be properly completed, signed and
actually received by the Exchange
Agent not later than 5:00 p.m., New York
City time, on the business day that
is ten (10) trading days prior to the
Closing Date (which date shall be
publicly announced by PNC as soon as
practicable prior to such date) (the
"ELECTION DEADLINE") and accompanied by the
Old Certificates as to which such
Election Form is being made, duly endorsed
in blank or otherwise in a form
acceptable for transfer on the books of
Company (or accompanied by an
appropriate guarantee of delivery by an
eligible organization) in the case of
shares that are not held in book entry
form. For shares that
are held in
book entry form, PNC shall establish
procedures for the delivery of such
shares, which procedures shall be
reasonably acceptable to Company. The
Exchange Agent shall make all computations
contemplated by Section 2.1
hereof, and after consultation with PNC and
the Company, all such
computations will be conclusive and binding
on the former holders of Company
Common Stock absent manifest error.
Any shares of Company
Common Stock for
which the record holder has not, as of the
Election Deadline, properly
submitted to the Exchange Agent a properly
completed Election Form will be
deemed No-Election Shares. Any Election Form may be revoked,
by the
stockholder who submitted such Election
Form to the Exchange Agent, only by
written notice received by the Exchange
Agent prior to the Election
Deadline. In addition, all Election Forms
shall automatically be revoked if
the Exchange Agent is notified in writing
by PNC and the Company that the
Merger has been abandoned. Promptly after the Effective Time,
each holder
who has surrendered to the
7
<PAGE>
Exchange Agent an Old Certificate for
cancellation together with such letter of
transmittal, duly executed and completed in
accordance with the instructions
thereto, shall be entitled to receive in
exchange therefor a New Certificate
representing the New Shares and/or a check
in the amount to which such holder is
entitled pursuant to this Article II, and
the Old Certificate so surrendered
shall forthwith be canceled. No interest
will accrue or be paid with respect to
any property to be delivered upon surrender
of Old Certificates. If any New
Certificate is to be issued, or cash
payment made, in a name other than that in
which the Old Certificate surrendered in
exchange therefor is registered, it
shall be a condition of such exchange that
the Person requesting such exchange
shall pay any transfer or other taxes
required by reason of the issuance of such
New Certificate or the making of such cash
payment in a name other than that of
the registered holder of the Old
Certificate surrendered, or shall establish to
the satisfaction of the PNC and the
Exchange Agent that any such taxes have been
paid or are not applicable.
(c)
DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES.
Notwithstanding any other provision of this
Plan, no dividends or other
distributions in respect of New Shares with
a record date after the Effective
Time shall be paid to any Person holding an
Old Certificate until such Old
Certificate has been surrendered for
exchange as provided herein. Subject to the
effect of applicable laws and the
immediately preceding sentence, following
surrender of any such Old Certificates,
there shall be paid to the holder of the
New Certificates issued in exchange
therefor, without interest, at the time of
such surrender, the amount of dividends or
other distributions with a record
date on or after the Effective Time
theretofore payable with respect to the New
Shares represented thereby, as well as any
dividends with respect to Company
Common Stock declared prior to the
Effective time but unpaid.
(d) TRANSFERS.
At or after the
Effective Time, there shall be no
transfers on the stock transfer books of
PNC or the Company of Old Shares.
(e) LOST, STOLEN
OR DESTROYED CERTIFICATES. If any Old Certificate
shall have been lost, stolen or destroyed,
upon the making of an affidavit of
that fact by the Person claiming such Old
Certificate to be lost, stolen or
destroyed and, if required by PNC or the
Exchange Agent, the posting by such
Person of a bond in such reasonable amount
as PNC or the Exchange Agent may
direct as indemnity against any claim that
may be made against it with respect
to such Old Certificate, PNC or the
Exchange Agent shall, in exchange for such
lost, stolen or destroyed Old Certificate,
issue or cause to be issued a New
Certificate and/or pay or cause to be paid
the amounts, if any, deliverable in
respect to the Old Shares formerly
represented by such Old Certificate pursuant
to this Article II.
2.4 ADJUSTMENT
OF CONSIDERATION. In
the event that, subsequent to
the date of this Plan but prior to the
Effective Time, the shares of PNC Common
Stock issued and outstanding shall, through
a reorganization, recapitalization,
reclassification, stock dividend, stock
split, reverse stock split or other
similar change in the capitalization of
PNC, increase or decrease in number or
be changed into or exchanged for a
different kind or number of securities, then
an appropriate and proportionate adjustment
shall be made to the Per Share Cash
Consideration and the Per Share Stock
Consideration.
2.5 SHARES OF
DISSENTING STOCKHOLDERS. Notwithstanding anything in
this Agreement to the contrary, any shares
of Company Common Stock that are
issued and outstanding as of the Effective
Time and that are held by a
stockholder who has properly exercised his
appraisal rights under the DGCL (the
"DISSENTING SHARES") shall not be converted
into the right to receive the
Consideration unless and until the holder
shall have failed to perfect, or shall
have effectively withdrawn or lost, his
right to dissent from the Merger under
the DGCL and to receive such consideration
as may be determined to be due with
respect to such Dissenting Shares pursuant
to and subject to the requirements of
the DGCL. If any such holder shall have so
failed to perfect or have effectively
withdrawn or lost such right after the
Election Deadline, each share of such
holder's Company Common Stock shall
thereupon be deemed to have been converted
into and to have become, as of the
Effective Time, the right to receive, without
any interest thereon, the Per Share Stock
Consideration or the Per Share Cash
Consideration, or a combination thereof, as
determined by PNC in its sole
discretion. The Company shall give PNC (i)
prompt notice of any notice or
demands for appraisal or payment for shares
of Company Common Stock received by
the Company and (ii) the opportunity to
8
<PAGE>
participate in and direct all negotiations
and proceedings with respect to any
such demands or notices. The Company shall
not, without the prior written
consent of PNC, make any payment with
respect to, or settle, offer to settle or
otherwise negotiate, any such demands.
2.7 WITHHOLDING
RIGHTS. PNC shall be
entitled to deduct and
withhold from the Consideration such
amounts as it is required to deduct and
withhold under the Internal Revenue Code
and the rules and regulations
promulgated thereunder, or any provision of
state, local or foreign Tax law. To
the extent that amounts are so withheld by
PNC, such withheld amounts shall be
treated for all purposes of this Plan as
having been paid to the Company
stockholder in respect to which such
deduction and withholding was made by PNC.
ARTICLE III
CONDUCT OF BUSINESS PENDING MERGER
3.1 COMPANY
FORBEARANCES. The
Company agrees that from the date
hereof until the Effective Time, except as
contemplated by this Plan, or as set
forth in the applicable paragraph of its
Disclosure Schedule ("PREVIOUSLY
DISCLOSED"), without the prior written
consent of the other party hereto (which
consent shall not be unreasonably
withheld), it will not, and will cause each of
its subsidiaries not to:
(a) ORDINARY
COURSE. Conduct its
business and the business of its
subsidiaries other than in the ordinary and
usual course or fail to use
reasonable efforts to preserve intact their
business organizations and assets
and maintain their rights, franchises and
existing relations with customers,
suppliers, employees and business
associates, or take any action reasonably
likely to materially impair its ability to
perform its obligations under this
Plan or to consummate the transactions
contemplated hereby and thereby.
(b) CAPITAL
STOCK. (1) Issue, sell
or otherwise permit to become
outstanding, or dispose of or encumber or
pledge or authorize or propose the
creation of, any additional shares of its
stock other than pursuant to Rights
outstanding on the date of the Original
Plan, (2) enter into any agreement
with respect to the foregoing or (3) permit
any additional shares of its
stock to become subject to new grants,
other Rights or similar stock-based
employee rights.
(c) DIVIDENDS,
ETC. (1) Make,
declare, pay or set aside for
payment any dividend (other than (A)
dividends from its direct or indirect
wholly owned subsidiaries to it or another
of its wholly owned subsidiaries and
(B) dividends on preferred stock of
subsidiaries, the common stock of which is
wholly owned directly or indirectly by the
Company, in accordance with the terms
thereof or (2) directly or indirectly
adjust, split, combine, redeem,
reclassify, purchase or otherwise acquire,
any shares of its capital stock.
(d)
COMPENSATION; EMPLOYMENT AGREEMENTS; ETC. Enter into or amend
or renew any employment, consulting,
severance or similar agreements or
arrangements with any of its directors,
officers or employees or those of its
subsidiaries or grant any salary or wage
increase or increase any employee
benefit (including incentive or bonus
payments), except (1) for normal
individual increases in compensation to
employees (other than executive officers
or directors) in the ordinary course of
business consistent with past practice,
(2) for other changes that are required by
applicable law and (3) to satisfy
Previously Disclosed contractual
obligations.
(e) BENEFIT
PLANS. Enter into,
establish, adopt or materially amend
any Benefit Plan, except (1) as may be
required by applicable law, (2) to
satisfy Previously Disclosed contractual
obligations or (3) as provided in this
Plan.
(f)
DISPOSITIONS. Sell,
transfer, mortgage, encumber or otherwise
dispose of or discontinue any of its
assets, deposits, business or properties
except for sales, transfers, mortgages,
9
<PAGE>
encumbrances or other dispositions or
discontinuances in the ordinary course of
business consistent with past practice and
in a transaction that, together with
other such transactions, is not material to
it and its subsidiaries, taken as a
whole.
(g)
ACQUISITIONS. Acquire
(other than by way of foreclosures or
acquisitions of control in a fiduciary or
similar capacity or in satisfaction
of debts previously contracted in good
faith, in each case in the ordinary
and usual course of business consistent
with past practice) all or any
portion of the assets, business, deposits
or properties of any other entity
except in the ordinary course of business
consistent with past practice and
in a transaction that, together with other
such transactions, is not material
to it and its subsidiaries, taken as a
whole.
(h) GOVERNING
DOCUMENTS. Amend its
articles of incorporation,
bylaws or similar governing documents
("GOVERNING DOCUMENTS") or the Governing
Documents of any of its subsidiaries,
except as contemplated by this Plan.
(i) ACCOUNTING
METHODS. Implement or
adopt any change in its
accounting principles, practices or
methods, other than as may be required by
generally accepted accounting principles,
applicable regulatory accounting
requirements or applicable law.
(j) CONTRACTS.
(1) Enter into, renew
or terminate, or make any
payment not then required under, any
contract or agreement (other than loans,
funding arrangements and other transactions
made in the ordinary course of the
banking business and that do not contain
(A) any non-competition or exclusive
dealing agreements or other agreement or
obligation which purports to limit or
restrict in any respect the ability of the
Company or its subsidiaries to
solicit customers or the manner in which,
or the localities in which, all or any
portion of the business of the Company and
its subsidiaries is or could be
conducted or (B) any agreement that grants
any right of first refusal or right
of first offer or similar right or that
limits or purports to limit the ability
of the Company or any of its subsidiaries
(or, following consummation of the
transactions contemplated hereby, the
ability of PNC or any of its subsidiaries)
to own, operate, sell, transfer, pledge or
otherwise dispose of any assets or
business) that calls for aggregate annual
payments of $300,000 or more and which
is not terminable on 60 days or less notice
without payment of any termination
fee or penalty and (2) enter into any
contract or agreement pertaining to the
use of the name "Riggs" or any derivative
thereof.
(k) CLAIMS.
Settle any claim,
action or proceeding against it,
except for any claim, action or proceeding
settled in the ordinary course of
business in an amount or for such
consideration not in excess of $100,000,
individually, or $300,000 in the aggregate
for all such settlements, and would
not impose any material restriction on the
business of the Company or its
subsidiaries or, after the Effective Time,
PNC or its subsidiaries or create
precedent for claims that are reasonably
likely to be material to the Company or
its subsidiaries or, after the Effective
Time, PNC or its subsidiaries.
(l) ADVERSE
ACTIONS.
Notwithstanding anything herein to the
contrary, (1) take any action that would,
or is reasonably likely to, prevent
the Merger from qualifying as a
reorganization within the meaning of Section
368(a) of the Internal Revenue Code or (2)
take any action that is reasonably
likely to result in (A) any of the
conditions to the Merger set forth in Article
VI not being satisfied in a timely manner
or (B) a material violation of any
provision of this Plan except, in each
case, as may be required by applicable
law or regulation.
(m) CAPITAL
EXPENDITURES. Other
than in the ordinary course of
business, make any capital expenditures in
excess of (1) $100,000 per project or
related series of projects or (2) $300,000
in the aggregate.
10
<PAGE>
(n) CERTAIN TAX
MATTERS. Make, change
or revoke any material Tax
election, file any material amended Tax
Return, enter into any material closing
agreement, settle any material Tax claim or
assessment, or surrender any right
to claim a material refund of Taxes.
(o) COMMITMENTS.
Agree or commit to do
any of the foregoing.
3.2 PNC
FORBEARANCES. PNC agrees that from the date hereof until the
Effective Time, except as expressly
contemplated by this Plan or as
Previously Disclosed, without the prior
written consent of the Company (which
consent shall not be unreasonably
withheld), it will not, and, in the case of
(b) only, will cause each of its
subsidiaries not to:
(a) GOVERNING
DOCUMENTS. Amend its
Governing Documents in a manner
that would adversely affect the Company's
stockholders.
(b) ADVERSE
ACTIONS.
Notwithstanding anything herein to the
contrary, (1) take any action that would,
or is reasonably likely to, prevent
the Merger from qualifying as a
reorganization within the meaning of Section
368(a) of the Internal Revenue Code, (2)
take any action that is reasonably
likely to result in (A) any of the
conditions to the Merger set forth in Article
VI not being satisfied in a timely manner
or (B) a material violation of any
provision of this Plan except, in each
case, as may be required by applicable
law or regulation or (3) declare or pay any
extraordinary or special
dividends on or make any other
extraordinary or special distributions in
respect of any of its capital stock.
ARTICLE IV
REPRESENTATIONS
4.1 DISCLOSURE
SCHEDULES. On or prior to the date hereof, PNC has
delivered to the Company an amended and
restated schedule and the Company has
delivered to PNC an amended and restated
schedule (respectively, each schedule a
"DISCLOSURE SCHEDULE") setting forth, among
other things, items the disclosure
of which is necessary or appropriate either
in response to an express disclosure
requirement contained in a provision hereof
or as an exception to one or more
representations contained in Section 4.3 or
to one or more of its covenants
contained herein; provided, that the mere
inclusion of an item in a Disclosure
Schedule as an exception to a
representation shall not be deemed an admission by
a party that such item was required to be
disclosed therein.
4.2 STANDARD.
(a) For all purposes of this Plan, no
representation
of PNC or the Company contained in Section
4.3 (other than the representations
contained in Section 4.3(b), which shall be
true and correct in all material
respects, and in Section 4.3(g)(3), which
shall be true and correct in all
respects) shall be deemed untrue and no
party hereto shall be deemed to have
breached a representation, as a consequence
of the existence of any fact, event
or circumstance unless such fact,
circumstance or event, individually or taken
together with all other facts, events or
circumstances inconsistent with any
representation contained in Section 4.3
(read for this purpose without regard to
any individual reference to "materiality"
or "Material Adverse Effect" set forth
therein) has had or is reasonably likely to
have a Material Adverse Effect with
respect to PNC or the Company, as the case
may be.
(b) The term
"MATERIAL ADVERSE EFFECT" means an effect which (1) is
materially adverse to the business,
financial condition or results of
operations of PNC or the Company, as the
context may dictate, and its
subsidiaries, taken as a whole, or (2)
materially impairs the ability of PNC
or the Company to consummate the Merger;
PROVIDED, HOWEVER, that in
determining whether a Material Adverse
Effect has occurred there shall be
excluded any effect to the extent
attributable to or resulting from (A) any
changes in laws, regulations or
interpretations of laws or regulations
generally affecting the banking or bank
holding company businesses, but not
uniquely relating to PNC or the Company,
(B) any change in generally accepted
accounting principles or regulatory
accounting requirements, generally
affecting the banking or bank holding
company businesses, but not uniquely
relating to PNC or the Company,
11
<PAGE>
(C) events, conditions or trends in
economic, business or financial conditions
generally or affecting the banking or bank
holding company businesses
specifically (including changes in interest
rates and changes in the markets for
securities), except to the extent any such
events, conditions or trends in
economic, business or financial conditions
have a materially disproportionate
adverse effect upon PNC or the Company, as
the context may dictate, (D) changes
in national or international political or
social conditions including the
engagement by the United States in
hostilities, whether or not pursuant to the
declaration of a national emergency or war,
or the occurrence of any military or
terrorist attack upon or within the United
States, or any of its territories,
possessions or diplomatic or consular
offices or upon any military installation,
equipment or personnel of the United
States, (E) actions or omissions of PNC or
the Company taken with the prior written
consent of the other party in
contemplation of the transactions
contemplated hereby and (F) any change,
effect, event or occurrence arising out of
the announcement or performance of
this Plan and the transactions contemplated
hereby, including any expenses
incurred in connection herewith.
4.3
REPRESENTATIONS.
Except as Previously Disclosed, the Company
hereby represents and warrants to PNC, and
PNC hereby represent and warrant to
the Company, to the extent applicable, in
each case with respect to itself and
its subsidiaries, as follows:
(a)
ORGANIZATION, STANDING AND AUTHORITY. It is a corporation duly
organized, validly existing and in good
standing under the laws of the
jurisdiction of its incorporation.
It is duly qualified
to do business and
is in good standing in the states of the
United States and any foreign
jurisdictions where its ownership or
leasing of property or assets or the
conduct of its business requires it to be
so qualified.
(b) CAPITAL
STOCK.
(1) The
information in Recital B, in the case of PNC, and in
Recital C, in the case of the Company, is
true and correct.
(2) Its
outstanding shares of common stock have been duly
authorized and are validly issued and
outstanding, fully paid and nonassessable,
not subject to any preemptive rights and
were not issued in violation of any
preemptive rights.
(3) Except as
set forth in this Plan or as Previously
Disclosed, as of the date hereof, there are
no shares of its common stock
authorized and reserved for issuance, it
does not have any Rights outstanding
with respect to its common stock, and it
does not have any commitment to
authorize, issue or sell any of its common
stock or Rights, except pursuant to
this Plan, outstanding options to purchase
its common stock and the Benefit
Plans. All Company Options (as defined in
Section 5.10(a)) under the Riggs
National Corporation 1993 Stock Option
Plan, Riggs National Corporation 1994
Stock Option Plan, Riggs National
Corporation 1996 Stock Option Plan and Riggs
National Corporation 1997 Non-Employee
Directors Stock Option Plan are fully
vested and exercisable, or will become such
in accordance with their regular
vesting schedule prior to October 11, 2004.
As used herein, "RIGHTS" means, with
respect to any Person, securities or
obligations convertible into or exercisable
or exchangeable for, or giving any Person
any right to subscribe for or acquire,
or any options, calls or commitments
relating to, or any stock appreciation
right or other instrument the value of
which is determined in whole or in part
by reference to the market price or value
of, shares of capital stock or
earnings of such Person.
(4) In the case
of PNC, any shares of PNC Common Stock issued
in connection with the Merger have been
duly authorized and are validly issued
and outstanding, fully paid and
nonassessable, not subject to any preemptive
rights and were not issued in violation of
any preemptive rights.
12
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(c)
SUBSIDIARIES.
(1) The Company
has Previously Disclosed a list of all of its
subsidiaries.
(2) (A) It owns,
directly or indirectly, all the issued and
outstanding equity securities of each of
its Significant Subsidiaries, (B) no
equity securities of any of its Significant
Subsidiaries are or may become
required to be issued (other than to it or
its wholly owned subsidiaries) by
reason of any Right or otherwise, (C) there
are no contracts, commitments,
understandings or arrangements by which any
of its Significant Subsidiaries is
or may be bound to sell or otherwise
transfer any equity securities of any its
subsidiaries (other than to it or its
wholly owned subsidiaries), (D) there are
no contracts, commitmen
