(2)
such person acted in good faith in the transaction that is the subject of the
third-party action and in a manner such person reasonably believed to be in, or not opposed to, the best interests of the Corporation and, with respect to any criminal action or proceeding, such person had no reasonable cause to believe such
person’s conduct was unlawful. The termination of a third-party action by judgment, order, settlement, conviction, or upon a pleas of nolo contendere or its equivalent shall not, in itself, create a presumption that the person failed to
satisfy the standard of this Section 6.3(b).
6.4
Determination That Standard Has Been Met
. A determination that the standard of either Section
6.2(b) or 6.3(b) has been satisfied may be made by a court, or, except as stated in the record sentence of Section 6.2(b), the determination may be made by:
(1)
the Board of Directors by a majority vote of a quorum consisting of directors of the
Corporation who were not parties to the action, suit, or proceeding;
(2)
if such a quorum is not obtainable or if obtainable and a majority of a quorum of
disinterested directors so directs, by independent legal counsel in a written opinion; or
(3)
the shareholders of the Corporation.
6.5
Proration
. Anyone making a determination under Section 6.4 may determine that a person has met
the standard as to some matters but not as to others, and may reasonably prorate amounts to be indemnified.
6.6
Advancement of Expenses
. Reasonable expenses incurred by a director, officer, employee, or agent
of the Corporation in defending a civil or criminal action, suit, or proceeding described in Section 6.1 may be paid by the Corporation in advance of the final disposition of such action, suit, or proceeding upon receipt of an undertaking by or
on behalf of such person to repay such amount if it shall ultimately be determined that the person is not entitled to be indemnified by the Corporation.
6.7
Other Rights
. The indemnification and advancement of expenses provided by or pursuant to this
Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any insurance or other agreement, vote of shareholders or directors, or otherwise, both as to
actions in their official capacity and as to actions in another capacity while holding an office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such person.
6.8
Insurance
. The Corporation shall have the power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee, director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person=s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article VI.
6.9
Security Fund; Indemnity Agreements
. By action of the Board of Directors (notwithstanding their
interest in the transaction), the Corporation may create and fund a trust fund or fund of any nature, and may enter into agreements with its officers, directors, employees, and agents for the purpose of securing or insuring in any manner its
obligation to indemnify or advance expenses provided for in this Article VI.
6.10
Modification
. The duties of the Corporation to indemnify and to advance expenses to any person
as provided in this Article VI shall be in the nature of a contract between the Corporation and each such person, and no amendment or repeal of any provision of this Article VI, and no amendment or termination of any trust fund or other fund
created pursuant to Section 6.9 hereof, shall alter to the detriment of such person the right of such person to the advancement of expenses or indemnification related to a claim based on an act or failure to act which took place prior to such
amendment, repeal, or termination.
6.11
Proceedings Initiated by Indemnified Persons
. Notwithstanding any other provision in this
Article VI, the Corporation shall not indemnify a director, officer, employee, or agent for any liability incurred in an action, suit, or proceeding initiated by (which shall not be deemed to include counter-claims or affirmative defenses) or
participated in as an intervenor or amicus curiae by the person seeking indemnification unless such initiation of or participation in the action, suit, or proceeding is authorized, either before or after its commencement, by the affirmative
vote of a majority of the directors then in office.
6.12
Savings Clause
. If this Article VI or any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each director, officer, employee, and agent of the Corporation as to costs, charges, and expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement with respect to any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, including an action by or in the right of the Corporation, to the fullest extent permitted by any
applicable portion of this Article VI that shall not have been invalidated and to the fullest extent permitted by applicable law.
If the laws of the Commonwealth of Pennsylvania are amended to permit further indemnification of the directors, officers, employees, and agents of the Corporation, then the Corporation shall
indemnify such persons to the fullest extent permitted by law. Any repeal or modification of this Article VI by the Board of Directors or the shareholders of the Corporation shall not adversely affect any right or protection of a director,
officer, employee, or agent existing at the time of such repeal or modification.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable since no restricted securities will be reoffered or resold pursuant to this registration statement.
The following exhibits are filed with or incorporated by reference into this registration statement on Form S-8 (numbering corresponds to Exhibit Table in Item 601 of
Regulation S-K):
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No.
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Exhibit
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4.0
|
|
|
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5.0
|
|
|
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10.0
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|
|
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23.1
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|
|
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23.2
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24.0
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_______________
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(1)
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Incorporated by reference from the Company’s Registration Statement on Form SB-2 (Commission File No. 333-141474) filed with the Commission on March 21, 2007.
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(2)
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Incorporated by reference from the Company’s Definitive Proxy Statement for the annual meeting of stockholders held on May 9, 2018 (Commission File No. 000-52694) filed with the Commission on April 6, 2018.
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The undersigned Registrant hereby undertakes:
1.
To file, during any period in which offers or sales are being made, a post-effective amendment to this
Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that clauses (i) and (ii) do not apply if the information required to be included
in a post-effective amendment by those clauses is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
2.
That, for the purpose of determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
3.
To remove from registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
4.
That, for the purposes of determining any liability under the Securities Act, each filing of the
Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
5.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the questions whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.