Stacey,
Reference is made to your letter dated August 21, 2023 and email dated August 22, 2023, both sent in response to my letter of August 1, 2023 demanding that the board of directors (the “Board”) of AmeriServ Financial, Inc. (“AmeriServ”) appoint a special litigation committee (“SLC”) to investigate whether current and former members of the Board violated their fiduciary duties in connection with costly and ongoing litigation intended to deny AmeriServ’s shareholders the opportunity to vote for those candidates (“Driver’s Nominees”) for election to director nominated by Driver Opportunity Partners I LP (together with “Driver”) at AmeriServ’s 2023 annual meeting of shareholders (the “2023 Annual Meeting”).
The crux of our demand is that denying shareholders the right to vote for Driver’s Nominees at the 2023 Annual Meeting did not serve any cognizable interest of AmeriServ the corporation (as opposed to the personal interests of the Board by ensuring that only those candidates selected by the Board could be elected director) and that the ongoing litigation to defend the Board’s determination to reject Driver’s notice of nomination (litigation that was responsible for AmeriServ reporting an operating loss for the quarter ended June 30, 2023) has injured, and is continuing to injure, AmeriServ.
Given that the injury to the Corporation is ongoing, please confirm that the SLC has been appointed and provide an estimated date for the completion of the SLC’s investigation. To the extent that the SLC concludes that expending and continuing to expend corporate resources to defend the Board’s decision to deny shareholders the opportunity to vote for Driver’s Nominees constitutes a breach of fiduciary duty and a violation of the Pennsylvania Business Corporation Law and federal securities law, it would be better to reach that conclusion sooner rather than later and put an end to the ongoing corporate waste.
In addition, you confirmed in your email that the SLC will be empowered to engage its own counsel. Please confirm that the SLC has not and will not retain Stevens & Lee, who has been the primary beneficiary of the complained of litigation, and disclose the name of any counsel retained by the SLC.
/s/ Abbott
Source:
https://www.sec.gov/Archives/edgar/data/707605/000092189523002148/dfan14a12447006_09122023.htm