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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
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Page
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RECITALS
A.
PNC.................................................................
1
B.
Company.............................................................
1
C. Intention of the
Parties............................................ 1
D.
Approvals...........................................................
2
ARTICLE I
The Merger
1.1 The
Merger..........................................................
2
1.2 Effective
Time...................................................... 2
1.3
Closing.............................................................
2
ARTICLE II
Conversion or Cancellation of Shares
2.1 Conversion or Cancellation of
Shares................................ 3
2.2 Fractional
Shares................................................... 9
2.3 Exchange of Old Certificates for New
Certificates................... 9
2.4 Adjustment of Exchange
Ratio........................................ 11
ARTICLE III
Conduct of Business Pending Merger
3.1 Company
Forbearances................................................ 11
3.2 PNC
Forbearances....................................................
14
ARTICLE IV
Representations
4.1 Disclosure
Schedules................................................ 14
4.2
Standard............................................................
14
4.3
Representations.....................................................
12
ARTICLE V
Covenants
5.1 Reasonable Best
Efforts............................................. 26
5.2 Stockholder
Approvals............................................... 26
5.3 Registration Statement/Proxy
Statement.............................. 27
5.4 Press
Releases......................................................
28
5.5 Access;
Information................................................. 28
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5.6 Acquisition
Proposals............................................. 29
5.7 Affiliate
Agreements.............................................. 30
5.8 Takeover Laws and
Provisions...................................... 30
5.9 Regulatory
Applications........................................... 31
5.10
Options...........................................................
31
5.11 Indemnification and
Insurance..................................... 32
5.12 Benefit
Plans..................................................... 33
5.13 Notification of Certain
Matters................................... 34
5.14 Exemption from Liability Under Section
16(b)...................... 35
5.15 [Intentionally
omitted.].......................................... 35
5.16 Certain Transition
Matters........................................ 35
ARTICLE VI
Conditions
6.1 Conditions to Each Party's Obligation to Effect the
Merger........ 36
6.2 Conditions to Obligation of
PNC................................... 37
6.3 Conditions to Obligation of the
Company........................... 38
ARTICLE VII
Termination
7.1 Termination by Mutual
Consent..................................... 39
7.2 Termination by
PNC................................................ 39
7.3 Termination by the
Company........................................ 40
7.4 Effect of Termination and
Abandonment............................. 40
ARTICLE VIII
Miscellaneous
8.1
Survival..........................................................
41
8.2 Modification or
Amendment......................................... 41
8.3 Waiver of
Conditions.............................................. 42
8.4
Counterparts......................................................
42
8.5 Governing
Law..................................................... 42
8.6
Notices...........................................................
42
8.7 Entire Agreement, Etc.
........................................... 43
8.8 Definition of "subsidiary" and "affiliate"; Covenants with
Respect
to Subsidiaries and
Affiliates.................................... 43
8.9 Interpretation;
Effect............................................ 43
8.10
Severability......................................................
43
8.11 No Third Party
Beneficiaries...................................... 43
8.12 Waiver of Jury
Trial.............................................. 44
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INDEX OF DEFINED TERMS
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<CAPTION>
LOCATION OF
TERM DEFINITION
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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)
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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)
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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iv
<PAGE>
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
<PAGE>
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
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
2
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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".
(a) 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 Transfer").
In connection
therewith, the transferred assets and liabilities shall be
converted to the
operating systems of PNC Bank.
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").
3
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(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 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
4
<PAGE>
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.
(e) 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).
5
<PAGE>
(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 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.
6
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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 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
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<PAGE>
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
(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.
8
<PAGE>
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
9
<PAGE>
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 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
10
<PAGE>
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 2.6 . 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 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"),
11
<PAGE>
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, 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
12
<PAGE>
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.
13
<PAGE>
(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.
(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
14
<PAGE>
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, (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.
15
<PAGE>
(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.
(c) Subsidiaries.
(1) The Company has Previously Disclosed a list of all of
its
subsidiaries.
(2) (A) It o
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