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| PNC > SEC Filings for PNC > Form 8-K on 19-Feb-2009 | All Recent SEC Filings |
19-Feb-2009
Amendments to Articles of Inc. or Bylaws; Change in Fiscal Year,
5.03(a).
Amendments to By-Laws. At a meeting held on February 12, 2009, our Board of Directors approved various amendments to our By-Laws, as described below. The effective date for these amendments is February 12, 2009. Our Board's Nominating and Governance Committee previously reviewed these amendments and recommended their adoption to the full Board. We have attached the text of the Board-approved amended and restated By-Laws to this Report as Exhibit 3.2, and the descriptions in this Report are qualified in their entirety by reference to that exhibit.
Throughout this report, the amended and restated By-Laws effective February 12, 2009 are sometimes referred to as the "2009 By-Laws" and the previous amended and restated By-Laws effective December 14, 2005 are sometimes referred to as the "2005 By-Laws".
Board of Directors - Procedure for Election of Directors and Required Vote. Article III, Section 11 of the 2009 By-Laws contains the following new provisions describing the procedures for election of directors and the required vote:
• Election of directors at all meetings of the shareholders at which directors are to be elected shall be by ballot, and, subject to the rights of the holders of any series of PNC's preferred stock to elect directors under specified circumstances, a majority of the votes cast at any meeting for the election of directors at which a quorum is present shall elect directors.
• A majority of votes cast shall mean that the number of shares voted "for" a director's election exceeds 50% of the number of votes cast with respect to that director's election.
• Votes cast shall include votes to withhold authority in each case and exclude abstentions with respect to that director's election.
• In a contested election of directors, directors shall be elected by the vote of a plurality of the votes cast at any meeting for the election of directors at which a quorum is present. The 2009 By-Laws define a contested election and how one shall be determined.
• If a nominee for director who is an incumbent director is not elected and no successor has been elected at such meeting, the director shall promptly tender his or her resignation to the Board of Directors.
• The Nominating and Governance Committee shall make a recommendation to the Board of Directors as to whether to accept or reject the tendered resignation, or whether other action should be taken.
• The Board of Directors shall act on the tendered resignation, taking into account the Nominating and Governance Committee's recommendation, and publicly disclose (by a press release, a filing with the Securities and Exchange Commission or other broadly disseminated means of communication) its decision regarding the tendered resignation and the rationale behind the decision within 90 days from the date of the certification of the election results.
• The Nominating and Governance Committee in making its recommendation, and the Board of Directors in making its decision, may each consider any factors or other information that it considers appropriate and relevant.
• The director who tenders his or her resignation shall not participate in the recommendation of the Nominating and Governance Committee or the decision of the Board of Directors with respect to his or her resignation.
• If such incumbent director's resignation is not accepted by the Board of Directors, such director shall continue to serve until the next annual meeting and until his or her successor is duly elected, or his or her earlier resignation or removal.
• If a director's resignation is accepted by the Board of Directors pursuant to this By-Law, or if a nominee for director is not elected and the nominee is not an incumbent director, then the Board of Directors, in its sole discretion, may fill any resulting vacancy or decrease the size of the Board of Directors pursuant to the provisions of the 2009 By-Laws.
The 2009 By-Laws also confirm that except as otherwise provided by law, PNC's Articles of Incorporation or the 2009 By-Laws, in all matters other than the election of directors, the affirmative vote of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the matter shall be the act of the shareholders.
Shareholder Meetings - Director Nominations and Other Proposals for Action at Annual Meetings. The 2009 By-Laws revise the methods for nominating directors and making other proposals for action at an annual meeting of shareholders, as follows:
2005 By-Laws 2009 By-Laws
(1) Pursuant to PNC's notice of meeting; (1) Pursuant to PNC's notice of
meeting;
(2) By or at the direction of a majority
of the Board of Directors; (2) By or at the direction of a
majority of the Board of Directors;
(3) By the presiding officer;
(3) By one or more PNC shareholders.
(4) By one or more shareholders in
accordance with applicable rules of the
SEC and the provisions of the by-laws.
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In addition, the 2009 By-Laws require any shareholder seeking to nominate directors or bring other proposals for action at an annual meeting of shareholders to:
• Be a shareholder of record at the time notice is given and at the time of the annual meeting;
• Be entitled to vote at the meeting; and
• Comply with the notice and other procedures set forth in the 2009 By-Laws as to such business or nomination.
• The 2009 By-Laws note that this clause shall be the exclusive means for a shareholder to make nominations or submit other business before an annual meeting of shareholders, other than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and included in PNC's notice of meeting.
2005 By-Laws 2009 By-Laws
The Secretary must receive written The Secretary must receive written
notice of such nomination or proposal at notice of such nomination or proposal
PNC's principal office: at PNC's principal executive offices:
(1) Not later than 90 days prior to the (1) Not earlier than the close of
annual meeting (unless we have stated a business on the 120th day and not
different date in our most recent proxy later than the close of business on
materials); or the 90th day prior to the first
anniversary of the preceding year's
(2) If the annual meeting is to be held annual meeting; or
on a date other than the fourth Tuesday
in April, the close of business on the (2) If the date of the annual meeting
10th date following the first public is more than 30 days before or more
disclosure of the date of such meeting. than 60 days after such anniversary
date, timely notice means that notice
must be delivered not earlier than
the close of business on the 120th
day prior to the date of such annual
meeting and not later than the close
of business on the later of the 90th
day prior to the date of such annual
meeting, or, if the first public
announcement of the date of such
meeting is less than 100 days prior
to the date of such annual meeting,
the 10th day following the day on
which public announcement of the date
of such meeting is first made by PNC.
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In addition, the 2009 By-Laws include a new provision that if the number of directors to be elected to the Board is increased and there is no public announcement by PNC naming all of the nominees for director or specifying the size of the increased Board of Directors at least 100 days prior to the first anniversary of the preceding year's annual meeting, a shareholder's notice shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered no later than the close of business on the 10th day following the day on which such public announcement is first made by PNC.
The 2009 By-Laws also require a shareholder to update and supplement the notice, if necessary, so that the information provided or required to be provided shall be true and correct, and the 2009 By-Laws set forth the procedures for providing such updates and supplements.
The 2009 By-Laws update and revise the disclosures that shareholders must include in the notice, as follows:
2005 By-Laws 2009 By-Laws
For all notices For all notices
(1) The name and address of the (1) The name and address of the
shareholder or beneficial owner; shareholder, any beneficial owner,
and any affiliates or associates;
(2) The class and number of PNC
securities which are owned of record and (2) The class or series and number of
beneficially by such shareholder and shares of PNC which are, directly or
such beneficial owner; and indirectly, owned beneficially and of
record by the shareholder, beneficial
owner, affiliates or associates;
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(3) A representation that the (3) Disclosure of any indirect,
shareholder is a beneficial owner of PNC derivative, convertible, synthetic,
stock entitled to vote at such meeting or other right related to any class
and intends to be present at the meeting or series of shares of PNC, or any
in person or by proxy to make such stock borrowings, dividend rights, or
nomination or proposal. proxy or other voting arrangements,
or other direct or indirect interests
as enumerated in the 2009 By-Laws;
(4) Disclosure of any information
relating to such shareholder and
beneficial owner, if any, that would
be required to be disclosed in a
proxy statement or other filings
required to be made in connection
with solicitations of proxies for, as
applicable, the proposal and/or for
the election of directors in a
contested election pursuant to
Section 14 of the Exchange Act and
the rules and regulations promulgated
thereunder.
For each nomination for election of a For each nomination for election of a
director director
(1) The name and address of the person (1) The information set forth above
to be nominated; with respect to all notices;
(2) A description of all arrangements or (2) All information relating to such
understandings between the shareholder person that would be required to be
and the nominee and any other person or disclosed in a proxy statement or
persons (naming such person or persons) other filings required to be made in
pursuant to which the nomination is to connection with solicitations of
be made by the shareholder; proxies for election of directors in
a contested election pursuant to
(3) Such other information regarding the Section 14 of the Exchange Act and
nominee as would be required to be the rules and regulations promulgated
included in proxy materials filed under thereunder (including such person's
applicable rules of the Securities and written consent to being named in the
Exchange Commission had the nominee been proxy statement as a nominee and to
nominated by the Board of Directors; and serving as a director if elected);
(4) The written consent of the nominee (3) A description of all direct and
to serve as a director of PNC, if so indirect compensation and other
elected. material monetary agreements,
arrangements and understandings
during the past three years, and any
other material relationships as
enumerated in the 2009 By-Laws;
. . .
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(d) Exhibits. The following exhibit is listed on the Exhibit Index accompanying this Form 8-K and is filed herewith:
3.2 By-Laws of the Corporation, as amended and restated effective as of February 12, 2009
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