EXHIBIT 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
MARLIN BUSINESS SERVICES, INC.
(A Pennsylvania Corporation)
The Articles of Incorporation of Marlin Business Services, Inc. are hereby
amended and restated in their entirety to read as follows:
FIRST: Corporate Name. The name of the corporation shall be Marlin
Business Services Corp. (hereinafter referred to as the "Corporation").
SECOND: Registered Office. The location and post office address of the
registered office of the Corporation in the Commonwealth of Pennsylvania is 520
Walnut Street, Suite 1150, Philadelphia, Pennsylvania 19106
THIRD: Original Incorporation. The Corporation was incorporated under the
provisions of the Pennsylvania Business Corporation Law of 1988, as amended (the
"Pennsylvania BCL") under the name Marlin Business Services, Inc. The date of
its incorporation was August 6, 2003.
FOURTH: Method of Adoption. These Amended and Restated Articles of
Incorporation were duly adopted by the vote of the sole shareholder of the
Corporation in accordance with Sections 1914 and 1915 of the Pennsylvania BCL.
FIFTH: Corporate Purposes. The purpose for which the Corporation is
organized is to engage in any and all lawful acts and activity for which
corporations may be organized under the Pennsylvania BCL.
SIXTH: Corporate Existence. The term of existence of the Corporation is
perpetual.
SEVENTH: Capital Stock. The aggregate number of shares which the
Corporation shall have authority to issue is 80,000,000 shares, par value $0.01
per share, consisting of:
(a) 75,000,000 shares of common stock (the "Common Stock"); and
(d) 5,000,000 shares of preferred stock (the "Preferred Stock").
EIGHTH: Preferred Stock. The Board of Directors may authorize the issuance
from time to time of shares of Preferred Stock in one or more classes or series
and with designations, voting rights, preferences, and special rights, if any,
as the Board of Directors may fix by resolution.
NINTH: Rights of Common Stock. The designations, powers, preferences,
rights, qualifications, limitations and restrictions of the Common Stock are as
follows:
(a) General. Except as otherwise provided herein or as otherwise
provided by applicable law, all shares of Common Stock shall have
identical rights and privileges in every respect and shall be
treated identically in all respects.
(b) Dividends. Subject to the prior rights and preferences, if any,
applicable to shares of the Preferred Stock, the holders of the
Common Stock shall be entitled to participate in such dividends,
whether in cash, stock or otherwise, as may be declared by the Board
of Directors from time to time out of funds of the Corporation
legally available therefor.
(c) Voting. Each holder of record of Common Stock shall be entitled to
one vote for each share of Common Stock standing in his name on the
books of the Corporation. Except as otherwise required by law, or as
otherwise expressly provided in these Amended and Restated Articles
of Incorporation and any Statement with Respect to Shares hereafter
filed with respect to any Preferred Stock: (i) the holders of Common
Stock shall vote together as a single class on all matters submitted
to shareholders for a vote, and (ii) the holders of the Common Stock
shall elect the directors in the manner prescribed by the Company's
Bylaws.
(d) Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution, or winding-up of the Corporation, after
all creditors of the Corporation shall have been paid in full and
after payment of all sums payable in respect of Preferred Stock, if
any, the holders of the Common Stock shall share ratably on a
share-for-share basis in all distributions of assets pursuant to
such voluntary or involuntary liquidation, dissolution, or
winding-up of the Corporation. For the purposes of this paragraph
(d), neither the merger nor the consolidation of the Corporation
into or with another entity or the merger or consolidation of any
other entity into or with the Corporation, or the sale, transfer, or
other disposition of all or substantially all the assets of the
Corporation, shall be deemed to be a voluntary or involuntary
liquidation, dissolution, or winding-up of the Corporation.
TENTH: General.
(a) Issuance of Shares. Subject to the foregoing provisions of these
Amended and Restated Articles of Incorporation, the Corporation may
issue shares of its Common Stock or Preferred Stock from time to
time for such consideration (not less than the par value thereof) as
may be fixed by the Board of Directors, which is expressly
authorized to fix the same in its absolute and uncontrolled
discretion subject to the foregoing provisions. Shares so issued for
which the consideration shall have been paid or delivered to the
Corporation shall be deemed fully paid capital stock and shall not
be liable to any further call or assessment thereon, and the holders
of such shares shall not be liable for any further payments in
respect of such shares.
(b) Rights and Options. The Corporation shall have authority to create
and issue rights and options entitling their holders to purchase
shares of the Corporation's capital stock of any class or series or
other securities of the Corporation, and such
rights and options shall be evidenced by instrument(s) approved by
the Board of Directors or otherwise provided in a plan relating to
the issuance of such rights and options which has been approved by
the Board of Directors. The Board of Directors or a committee of the
Board of Directors shall be empowered to set the exercise price,
duration, times for exercise, and other terms of such options or
rights; provided, however, that the consideration to be received for
any shares of capital stock subject thereto shall not be less than
the par value thereof.
ELEVENTH: Board of Directors. The number, classification, and terms of the
Board of Directors of the Corporation and the procedures to elect directors, to
remove directors, and to fill vacancies in the Board of Directors shall be as
stated in the Corporation's By-Laws.
TWELFTH: No Cumulative Voting. The shareholders of the Corporation shall
not have the right to cumulate their votes for the election of directors of the
Corporation.
THIRTEENTH: Indemnification. The Corporation shall indemnify any Person
who was, is, or is threatened to be made a party to a proceeding (as hereinafter
defined) by reason of the fact that he or she (i) is or was a director or
officer of the Corporation, or (ii) while a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, partner, venturer, proprietor, trustee, employee, agent, or similar
functionary of another foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan, or other enterprise,
to the fullest extent permitted under the Pennsylvania BCL, as the same exists
or may hereafter be amended. Such right shall be a contract right and as such
shall run to the benefit of any director or officer who is elected and accepts
the position of director or officer of the Corporation or elects to continue to
serve as a director or officer of the Corporation while this Article THIRTEENTH
is in effect. Any repeal or amendment of this Article THIRTEENTH shall be
prospective only and shall not limit the rights of any such director or officer
or the obligations of the Corporation with respect to any claim arising from or
related to the services of such director or officer in any of the foregoing
capacities prior to any such repeal or amendment to this Article THIRTEENTH.
Such right shall include the right to be paid by the Corporation expenses
incurred in investigating or defending any such proceeding in advance of its
final disposition to the maximum extent permitted under the Pennsylvania BCL, as
the same exists or may hereafter be amended. If a claim for indemnification or
advancement of expenses hereunder is not paid in full by the Corporation within
sixty (60) days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim, and if successful in whole or in part,
the claimant shall also be entitled to be paid the expenses of prosecuting such
claim. It shall be a defense to any such action that such indemnification or
advancement of costs of defense is not permitted under the Pennsylvania BCL, but
the burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors or any committee
thereof, independent legal counsel, or shareholders) to have made its
determination prior to the commencement of such action that indemnification of,
or advancement of costs of defense to, the claimant is permissible in the
circumstances nor an actual determination by the Corporation (including its
Board of Directors or any committee thereof, independent legal counsel, or
shareholders) that such indemnification or advancement is not permissible shall
be a defense to the action or create a presumption that such indemnification or
advancement is not permissible. In the event of the death of any person having a
right of indemnification under the foregoing provisions, such right shall inure
to the benefit of his or her heirs, executors, administrators, and personal
representatives. The rights conferred above shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, bylaw,
resolution of shareholders or directors, agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
Without limiting the generality of the foregoing, to the extent permitted
by then applicable law, the grant of mandatory indemnification pursuant to this
Article THIRTEENTH shall extend to proceedings involving the negligence of such
person.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
FOURTEENTH: Personal Liability of Directors and Officers.
(a) Directors. A director of the Corporation shall not be personally
liable, as such, to the Corporation or its shareholders for monetary
damages (including, without limitation, any judgment, amount paid in
settlement, penalty, punitive damages or expense of any nature
(including, without limitation, attorneys' fees and disbursements))
for any action taken, or any failure to take any action, unless the
director has breached or failed to perform the duties of his or her
office under these Amended and Restated Articles of Incorporation,
the Bylaws of the Corporation or applicable provisions of law and
the breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness.
(b) Officers. An officer of the Corporation shall not be personally
liable, as such, to the Corporation or its shareholders for monetary
damages (including, without limitation, any judgment, amount paid in
settlement, penalty, punitive damages or expense of any nature
(including, without limitation, attorneys' fees and disbursements))
for any action taken, or any failure to take any action, unless the
officer has breached or failed to perform the duties of his or her
office under these Amended and Restated Articles of Incorporation,
the Amended and Restated Bylaws of the Corporation or applicable
provisions of law and the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness.
FIFTEENTH: Bylaws. The Board of Directors shall have the power, in
addition to the shareholders, to make, alter or repeal the Bylaws of the
Corporation.
SIXTEENTH: Powers of the Board of Directors. All of the power of the
Corporation, insofar as it may be lawfully vested by these Amended and Restated
Articles of Incorporation in the Board of Directors, is hereby conferred upon
the Board of Directors of the Corporation.
SEVENTEENTH: Special Meetings. Subject to the rights of holders of any
class or series of Preferred Stock, special meetings of the shareholders may
only be called by the Chairman, President or Chief Executive Officer of the
Corporation or by resolution of the Board of Directors.
EIGHTEENTH: Reservation of Right to Amend. The Corporation reserves the
right to amend, alter, change or repeal any provision contained in these Amended
and Restated Articles of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon shareholders are granted subject to this reservation.