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As
filed with the Securities and Exchange Commission on
December 13, 2005
Registration
No. 333-128330
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE
AMENDMENT
NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
MARLIN BUSINESS SERVICES CORP.
(Exact name of registrant as specified in its charter)
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Pennsylvania
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38-3686388 |
(State or other jurisdiction of
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(I.R.S. Employer |
incorporation or organization)
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Identification Number) |
300 Fellowship Road
Mt. Laurel, New Jersey 08054
(888) 479-9111
(Address, including zip code, and telephone number, including
area code, of registrants principal executive offices)
George
D. Pelose, Esq.
Marlin Business Services Corp.
Senior Vice President and General Counsel
300 Fellowship Road
Mt. Laurel, New Jersey 08054
(888) 479-9111
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Please address a copy of all communications to:
James W. McKenzie, Jr., Esq.
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
(215) 963-5000
Approximate date of commencement of proposed sale to the public: From time to time after this
registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box: o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the Securities
Act), other than securities offered only in connection with dividend or interest reinvestment
plans, check the following box: þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. o
If
this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
CALCULATION OF REGISTRATION FEE
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Proposed maximum |
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Proposed maximum |
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Title of each class of |
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Amount to be |
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offering price |
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aggregate offering |
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Amount of |
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securities to be registered (1) |
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registered (2) |
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per unit (3)(4)(6) |
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price (2)(3)(4)(7) |
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registration fee (4)(5) |
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Common Stock, par value $0.01
per share (8) |
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Preferred Stock, par value
$0.01 per share |
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Debt Securities (9) |
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Warrants to Purchase Common
Stock |
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Warrants to Purchase Preferred
Stock |
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Warrants to Purchase Debt
Securities |
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Depositary
Shares (10) |
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Stock Purchase Contracts |
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Stock Purchase Units |
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Total (11) |
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$50,000,000 |
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100% |
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$50,000,000 |
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$5,885.00 |
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(1) |
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These offered securities may be sold separately, together or as units with other offered
securities. |
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(2) |
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Such indeterminate number or amount of common stock, preferred stock, debt securities,
warrants, depositary shares, stock purchase contracts and stock purchase units of Marlin
Business Services Corp. as may from time to time be issued at indeterminate prices, in U.S.
Dollars or the equivalent thereof denominated in foreign currencies or units of two or more
foreign currencies or composite currencies (such as European Currency Units). In no event
will the aggregate maximum offering price of all securities issued pursuant to this
registration statement exceed $50,000,000, or if any debt securities are issued with original
issue discount, such greater amount as will result in an aggregate offering price of
$50,000,000. |
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(3) |
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Estimated solely for the purpose of calculating the registration fee in accordance with Rule
457(o) of the Securities Act. |
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Pursuant to Rule 457(o) under the Securities Act, which permits the registration fee to be
calculated on the basis of the maximum offering price of all the securities listed, the table
does not specify by each class information as to the amount to be registered, proposed maximum
offering price per unit or proposed maximum aggregate offering price. The aggregate public
offering price of securities sold will not exceed $50,000,000 (see Note 2 above). Unless
otherwise indicated in an amendment to this filing, no separate consideration will be received
for common stock or debt securities that are issued upon conversion or exchange of debt
securities registered hereunder. |
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(5) |
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Previously paid. |
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The proposed maximum offering price per security registered hereby will be determined by us
in connection with the issuance of the securities. |
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(7) |
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Exclusive of accrued interest, distributions and dividends, if any. |
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(8) |
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Includes common stock purchase rights which are attached to, and trade and transfer with, the
common stock. Prior to the occurrence of certain events, such rights will not be exercisable
or evidenced separately from the common stock. Also includes such presently indeterminate
number of shares of common stock as may be issued (a) upon conversion of or exchange for any
preferred securities or debt securities that provide for conversion or exchange into common
stock, (b) upon exercise of warrants to
purchase common stock or (c) pursuant to stock purchase contracts. Also includes an
indeterminate number or amount of offered securities as may be issued in connection with stock
purchase units. The shares of common stock issued under this
indeterminate amount will be counted against the $50,000,000 of
securities being registered pursuant to this registration statement. |
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(9) |
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Subject to Note 2, such indeterminate principal amount of debt securities. |
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(10) |
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Represents depositary shares, evidenced by depositary receipts, issued pursuant to a deposit
agreement. In the event the registrant issues fractional interests in shares of the preferred
stock registered hereunder, depositary receipts will be distributed to purchasers of such
fractional interests, and such shares of preferred stock will be issued to a depositary under
the terms of a deposit agreement. |
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(11) |
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This registration statement also registers such indeterminate amounts of securities as may be
issued upon conversion of, or in exchange for, the securities registered and pursuant to Rule
416(a) under the Securities Act, such indeterminable number of shares as may be issued from
time to time upon conversion or exchange as a result of stock splits, stock dividends or
similar transactions. |
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The registrant hereby amends this registration statement on such date or dates as may be
necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act or until this registration statement shall
become effective on such date as the Securities and Exchange Commission acting pursuant to said
Section 8(a), may determine.
PROSPECTUS
$50,000,000
Common Stock, Preferred Stock, Debt Securities,
Warrants to Purchase Common Stock,
Warrants to Purchase Preferred Stock,
Warrants to Purchase Debt Securities,
Depositary Shares, Stock Purchase Contracts and
Stock Purchase Units
We will provide the specific terms of these securities in supplements to this prospectus. The
prospectus supplements may supplement the information contained in
this prospectus, but may not contradict, modify or replace the
information contained in this prospectus.
You should read this prospectus and any supplements carefully before you invest. This prospectus
may not be used to offer and sell securities unless accompanied by a prospectus supplement.
Our common stock is quoted on the Nasdaq National Market under the symbol MRLN. We have not
yet determined whether any of the other securities that may be offered by this prospectus will be
listed on any exchange, inter-dealer quotation system, or over-the-counter market. If we decide to
seek listing of any such securities, a prospectus supplement relating to those securities will
disclose the exchange, quotation system or market on which the securities will be listed.
Investing in our securities involves risks. You should carefully review the information
contained in this prospectus under the heading Risk Factors beginning on page 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS
APPROVED OR DISAPPROVED OF THE SECURITIES DESCRIBED IN THIS PROSPECTUS OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This prospectus may not be used to consummate sales of securities unless accompanied by a
prospectus supplement.
The
date of this prospectus is
December 13, 2005.
SUMMARY
The following summary is qualified in its entirety by the more detailed information appearing
elsewhere in this prospectus or incorporated by reference in this prospectus and may not contain
all the information that is important to you. Unless the context
otherwise requires, the terms Company,
registrant, we, us and
our refer to Marlin Business Services Corp., a
Pennsylvania corporation, and its consolidated subsidiaries.
Our
Company
We are a nationwide provider of equipment financing solutions primarily to small businesses.
We finance over 60 categories of commercial equipment important to businesses including copiers,
telephone systems, computers, and certain commercial and industrial equipment. We access our end
user customers through origination sources comprised of our existing network of independent
equipment dealers and, to a lesser extent, through relationships with lease brokers and through
direct solicitation of our end user customers. Our leases are generally fixed rate transactions
with terms generally ranging from 36 to 72 months.
About
Marlin Business Services Corp.
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Principal Executive Offices:
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Internet Address: |
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300 Fellowship Road
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www.marlincorp.com |
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Mount Laurel, New Jersey 08054
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(Information contained on our Web site |
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(888) 479-9111
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is not a part of this prospectus.) |
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RISK FACTORS
Risks Related to Our Business
If we cannot obtain external financing, we may be unable to fund our operations.
Our business requires a substantial amount of cash to operate. Our cash requirements will
increase if our lease originations increase. We historically have obtained a substantial amount of
the cash required for operations through a variety of external financing sources, such as
borrowings under our revolving bank facility, financing of leases through commercial paper (CP)
conduit warehouse facilities, and term note securitizations. A failure to renew or increase the
funding commitment under our existing CP conduit warehouse facilities or add new CP conduit
warehouse facilities could affect our ability to refinance leases originated through our revolving
bank facility and, accordingly, our ability to fund and originate new leases. An inability to
complete term note securitizations would result in our inability to refinance amounts outstanding
under our CP conduit warehouse facilities and revolving bank facility and would also negatively
impact our ability to originate and service new leases.
Our ability to complete CP conduit transactions and term note securitizations, as well as
obtain renewals of lenders commitments, is affected by a number of factors, including:
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conditions in the securities and asset-backed securities markets; |
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conditions in the market for commercial bank liquidity support for CP programs; |
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compliance of our leases with the eligibility requirements established in connection
with our CP conduit warehouse facilities and term note securitizations, including the
level of lease delinquencies and defaults; and |
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our ability to service the leases. |
We are and will continue to be dependent upon the availability of credit from these external
financing sources to continue to originate leases and to satisfy our other working capital needs.
We may be unable to obtain additional financing on acceptable terms or at all, as a result of
prevailing interest rates or other factors at the time, including the presence of covenants or
other restrictions under existing financing arrangements. If any or all of our funding sources
become unavailable on acceptable terms or at all, we may not have access to the financing necessary
to conduct our business, which would limit our ability to fund our operations. We do not have long
term commitments from any of our current funding sources. As a result, we may be unable to
continue to access these or other funding sources. In the event we seek to obtain equity
financing, our shareholders may experience dilution as a result of the issuance of additional
equity securities. This dilution may be significant depending upon the amount of equity securities
that we issue and the prices at which we issue such securities.
Our financing sources impose covenants, restrictions and default provisions on us, which could lead
to termination of our financing facilities, acceleration of amounts outstanding under our financing
facilities and our removal as servicer.
The legal agreements relating to our revolving bank facility, our CP conduit warehouse
facilities and our term note securitizations contain numerous covenants, restrictions and default
provisions relating to, among other things, maximum lease delinquency and default levels, a minimum
net worth requirement and a maximum debt to equity ratio. In addition, a change in our Chief
Executive Officer or President is an event of default under our revolving bank facility and CP
conduit warehouse facilities unless we hire a replacement acceptable to our lenders within 90 days.
Such a change is also an immediate event of servicer termination under our term note
securitizations. A merger or consolidation with another company in which we are not the surviving
entity, likewise, is an event of default under our financing facilities. Further, our revolving
bank facility and CP conduit warehouse facilities contain cross default provisions whereby certain
defaults under one facility would also be an event of default under the other facilities. An event
of default under the revolving bank facility or a CP conduit warehouse facility could result in
termination of further funds being made
available under these facilities. An event of default under any of our facilities could
result in
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an acceleration of amounts outstanding under the facilities, foreclosure on all or a
portion of the leases financed by the facilities and/or our removal as a servicer of the leases
financed by the facility. This would reduce our revenues from servicing and, by delaying any cash
payment allowed to us under the financing facilities until the lenders have been paid in full,
reduce our liquidity and cash flow.
If we inaccurately assess the creditworthiness of our end user customers, we may experience a
higher number of lease defaults, which may restrict our ability to obtain additional financing and
reduce our earnings.
We specialize in leasing equipment to small businesses. Small businesses may be more
vulnerable than large businesses to economic downturns, typically depend upon the management
talents and efforts of one person or a small group of persons and often need substantial additional
capital to expand or compete. Small business leases, therefore, may entail a greater risk of
delinquencies and defaults than leases entered into with larger, more creditworthy leasing
customers. In addition, there is typically only limited publicly available financial and other
information about small businesses and they often do not have audited financial statements.
Accordingly, in making credit decisions, our underwriting guidelines rely upon the accuracy of
information about these small businesses obtained from the small business owner and/or third party
sources, such as credit reporting agencies. If the information we obtain from small business
owners and/or third party sources is incorrect, our ability to make appropriate credit decisions
will be impaired. If we inaccurately assess the creditworthiness of our end user customers, we may
experience a higher number of lease defaults and related decreases in our earnings.
Defaulted leases and certain delinquent leases also do not qualify as collateral against which
initial advances may be made under our revolving bank facility or CP conduit warehouse facilities,
and we cannot include them in our term note securitizations. An increase in delinquencies or lease
defaults could reduce the funding available to us under our facilities and could adversely affect
our earnings, possibly materially. In addition, increasing rates of delinquencies or charge-offs
could result in adverse changes in the structure of our future financing facilities, including
increased interest rates payable to investors and the imposition of more burdensome covenants and
credit enhancement requirements. Any of these occurrences may cause us to experience reduced
earnings.
If
we are unable to effectively manage any future growth, we may suffer material operating losses.
We have grown our lease originations and overall business significantly since we commenced
operations. However, our ability to continue to increase originations at a comparable rate depends
upon our ability to implement our disciplined growth strategy and upon our ability to evaluate,
finance and service increasing volumes of leases of suitable yield and credit quality.
Accomplishing such a result on a cost-effective basis is largely a function of our marketing
capabilities, our management of the leasing process, our credit underwriting guidelines, our
ability to provide competent, attentive and efficient servicing to our end user customers, our
access to financing sources on acceptable terms and our ability to attract and retain high quality
employees in all areas of our business.
Even if we are able to continue our growth in lease originations, our future success will be
dependent upon our ability to manage our growth. Among the factors we would need to manage are the
training, supervision and integration of new employees, as well as the development of
infrastructure, systems and procedures within our origination, underwriting, servicing, collections
and financing functions in a manner which enables us to maintain higher volume in originations.
Failure to effectively manage these and other factors related to growth in originations and our
overall operations may cause us to suffer material operating losses.
If losses from leases exceed our allowance for credit losses, our operating income will be reduced
or eliminated.
In connection with our financing of leases, we record an allowance for credit losses to
provide for estimated losses. Our allowance for credit losses is based on, among other things,
past collection experience, industry data, lease delinquency data and our assessment of prospective
collection risks. Determining the appropriate level of the allowance is an inherently uncertain
process and therefore our determination of this allowance may prove to be inadequate to cover
losses in connection with our portfolio of leases. Factors that could lead to the inadequacy
of our allowance may include our inability to effectively manage collections, unanticipated adverse
changes in the economy or discrete events
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adversely affecting specific leasing customers,
industries or geographic areas. Losses in excess of our allowance for credit losses would cause us
to increase our provision for credit losses, reducing or eliminating our operating income.
If we cannot effectively compete within the equipment leasing industry, we may be unable to
increase our revenues or maintain our current levels of operations.
The business of small-ticket equipment leasing is highly fragmented and competitive. Many of
our competitors are substantially larger and have considerably greater financial, technical and
marketing resources than we do. For example, some competitors may have a lower cost of funds and
access to funding sources that are not available to us. A lower cost of funds could enable a
competitor to offer leases with yields that are lower than those we use to price our leases,
potentially forcing us to decrease our yields or lose origination volume. In addition, certain of
our competitors may have higher risk tolerances or different risk assessments, which could allow
them to establish more origination source and end user customer relationships and increase their
market share. There are few barriers to entry with respect to our business and, therefore, new
competitors could enter the business of small-ticket equipment leasing at any time. The companies
that typically provide financing for large-ticket or middle-market transactions could begin
competing with us on small-ticket equipment leases. If this occurs, or we are unable to compete
effectively with our competitors, we may be unable to sustain our operations at their current
levels or generate revenue growth.
If we cannot maintain our relationships with origination sources, our ability to generate lease
transactions and related revenues may be significantly impeded.
We have formed relationships with thousands of origination sources, comprised primarily of
independent equipment dealers and, to a lesser extent, lease brokers. We rely on these
relationships to generate lease applications and originations. We invest significant time and
resources in establishing and maintaining these relationships. Most of these relationships are not
formalized in written agreements and those that are formalized by written agreements are typically
terminable at will. Our typical relationship does not commit the origination source to provide a
minimum number of lease transactions to us nor does it require the origination source to direct all
of its lease transactions to us. The decision by a significant number of our origination sources
to refer their leasing transactions to another company could impede our ability to generate lease
transactions and related revenues.
Hurricane Katrina could negatively affect our operations, which could have an adverse effect on our
business or results of operations.
In late August 2005, Hurricane Katrina struck the gulf coast of Louisiana, Mississippi and
Alabama and caused substantial property damage. We cannot predict whether or to what extent damage
caused by Hurricane Katrina will affect our operations or the economies in our market areas. Damage
caused by Hurricane Katrina could result in a decline in our leasing activity, a decline in the
value or destruction of leased property and an increase in the risk of lease delinquencies and
defaults. Our business or results of operations may be adversely affected by these and other
negative effects of Hurricane Katrina.
The departure of any of our key management personnel or our inability to hire suitable replacements
for our management may result in defaults under our financing facilities, which could restrict our
ability to access funding and effectively operate our business.
Our future success depends to a significant extent on the continued service of our senior
management team. A change in our Chief Executive Officer or President is an event of default under
our revolving bank facility and CP conduit warehouse facilities unless we hire a replacement
acceptable to our lenders within 90 days. Such a change is also an immediate event of servicer
termination under our term note securitizations. The departure of any of our executive officers or
key employees could limit our access to funding and ability to operate our business effectively.
Failure to realize the projected value of residual interests in equipment we finance would reduce
the residual value of equipment recorded as assets on our balance sheet and may reduce our
operating income.
We estimate the residual value of the equipment which is recorded as an asset on our balance
sheet. Realization of residual values depends on numerous factors, most of which are outside of
our control, including: the
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general market conditions at the time of expiration of the lease; the
cost of comparable new equipment; the obsolescence of the leased equipment; any unusual or
excessive wear and tear on or damage to the equipment; the effect of any additional or amended
government regulations; and the foreclosure by a secured party of our interest in a defaulted
lease. Our failure to realize our recorded residual values would reduce the residual value of
equipment recorded as assets on our balance sheet and may reduce our operating income.
The termination or interruption of, or a decrease in volume under, our property insurance program
would cause us to experience lower revenues and may result in a significant reduction in our net
income.
Our end user customers are required to obtain all-risk property insurance for the replacement
value of the leased equipment. The end user customer has the option of either delivering a
certificate of insurance listing us as loss payee under a commercial property policy issued by a
third party insurer or satisfying their insurance obligation through our insurance program. Under
our program, the end user customer purchases coverage under a master property insurance policy
written by a national third party insurer (our primary insurer) with whom our captive insurance
subsidiary, AssuranceOne, Ltd., has entered into a 100% reinsurance arrangement. Termination or
interruption of our program could occur for a variety of reasons, including:
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adverse changes in laws or regulations affecting our primary insurer or
AssuranceOne; |
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a change in the financial condition or financial strength ratings of our primary
insurer or AssuranceOne; |
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negative developments in the loss reserves or future loss experience of AssuranceOne
which render it uneconomical for us to continue the program; |
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termination or expiration of the reinsurance agreement with our primary insurer,
coupled with an inability by us to quickly identify and negotiate an acceptable
arrangement with a replacement carrier; or |
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competitive factors in the property insurance market. |
If there is a termination or interruption of this program or if fewer end user customers elected to
satisfy their insurance obligations through our program, we would experience lower revenues and our
net income may be reduced.
If we experience significant telecommunications or technology downtime, our operations would be
disrupted and our ability to generate operating income could be negatively impacted.
Our business depends in large part on our telecommunications and information management
systems. The temporary or permanent loss of our computer systems, telecommunications equipment or
software systems, through casualty or operating malfunction, could disrupt our operations and
negatively impact our ability to service our customers and lead to significant declines in our
operating income.
We
face risks relating to our recent accounting restatement.
If we fail to maintain an effective system of internal controls, we may not be able to accurately report our financial results. As a result, current and potential investors could lose confidence in our financial reporting, which would harm our business and the trading price of our stock.
We
have in the past discovered, and may in the future discover, areas of our internal controls that need improvement including control deficiencies that may constitute material weaknesses. A material weakness is a significant deficiency, as defined in Public Company Accounting Oversight Board Audit Standard
No. 2 or a combination of significant deficiencies, that results in more than a remote
likelihood that material misstatements of our annual or interim financial statements would
not be prevented or detected by company personnel in the normal course of performing their
assigned functions.
In connection with the preparation of our Annual Report
on Form 10-K for the fiscal year ended December 31, 2004, an evaluation was performed
under the supervision and with the participation of our management, including our CEO
and CFO, of the effectiveness of the design and operation of our disclosure controls and
procedures. As a result of this evaluation, during the first fiscal quarter of 2005,
management identified and concluded that a material weakness existed at December 31, 2004
in our controls over the selection and application of accounting policies. Specifically,
management concluded that we had misapplied generally accepted accounting principles as they
pertain to the timing of recognition of interim rental income since our inception in 1997 and,
accordingly, we restated our financial statements for the fiscal years ended December 31, 2003 and December 31, 2002, and for the four quarters of fiscal years 2004 and 2003, to correct this error. The identified material weakness was fully remediated during the first fiscal quarter of 2005. Our independent registered public accounting firm has not affirmed the remediation of the material weakness.
Consequently, management, including our CEO and CFO, have
concluded that our internal controls over financial reporting were not designed or functioning
effectively as of December 31, 2004 to provide reasonable assurance that the information
required to be disclosed by us in reports filed under the Securities Exchange Act of 1934
was recorded, processed, summarized and reported within the time periods specified in the
SECs rules and forms and accumulated and communicated to our management, including our
CEO and CFO, as appropriate, to allow timely decisions regarding disclosure.
Any failure to implement and maintain the improvements in our
internal control over financial reporting, or difficulties encountered in the implementation
of these improvements in our controls, could cause us to fail to meet our reporting obligations.
Any failure to improve our internal controls to address the identified material weakness
could also cause investors to lose confidence in our reported financial information, which
could have a negative impact on the trading price of our stock.
Anti-takeover provisions and our right to issue preferred stock could make a third-party
acquisition of us difficult.
We are a Pennsylvania corporation. Anti-takeover provisions of Pennsylvania law could make it
more difficult for a third party to acquire control of us, even if such change in control would be
beneficial to our shareholders. Our amended and restated articles of incorporation and our bylaws
will contain certain other provisions that would make it more difficult for a third party to
acquire control of us, including a provision that our board of directors may issue preferred stock
without shareholder approval.
6
Risks
Related to Our Industry
If interest rates change significantly, we may be subject to higher interest costs on future term
note securitizations and we may be unable to effectively hedge our variable rate borrowings, which
may cause us to suffer material losses.
Because we generally fund our leases through a revolving bank facility, CP conduit warehouse
facilities and term note securitizations, our margins could be reduced by an increase in interest
rates. Each of our leases is structured so that the sum of all scheduled lease payments will equal
the cost of the equipment to us, less the residual, plus a return on the amount of our investment.
This return is known as the yield. The yield on our leases is fixed because the scheduled payments
are fixed at the time of lease origination. When we originate or acquire leases, we base our
pricing in part on the spread we expect to achieve between the yield on each lease and the
effective interest rate we expect to pay when we finance the lease. To the extent that a lease is
financed with variable rate funding, increases in interest rates during the term of a lease could
narrow or eliminate the spread, or result in a negative spread. A negative spread is an interest
cost greater than the yield on the lease. Currently, our revolving bank facility and our CP
conduit warehouse facilities have variable rates based on LIBOR, prime rate or commercial paper
interest rates. As a result, because our assets have a fixed interest rate, increases in LIBOR,
prime rate or commercial paper interest rates would negatively impact our earnings. If interest
rates increase faster than we are able to adjust the pricing under our new leases, our net interest
margin would be reduced. As required under our financing facility agreements, we enter into
interest rate cap agreements to hedge against the risk of interest rate increases in our CP conduit
warehouse facilities. If our hedging strategies are imperfectly implemented or if a counterparty
defaults on a hedging agreement, we could suffer losses relating to our hedging activities. In
addition, with respect to our fixed rate borrowings, such as our term note securitizations,
increases in interest rates could have the effect of increasing our borrowing costs on future term
note transactions.
Deteriorated economic or business conditions may lead to greater than anticipated lease defaults
and credit losses, which could limit our ability to obtain additional financing and reduce our
operating income.
Our operating income may be reduced by various economic factors and business conditions,
including the level of economic activity in the markets in which we operate. Delinquencies and
credit losses generally increase during economic slowdowns or recessions. Because we extend credit
primarily to small businesses, many of our customers may be particularly susceptible to economic
slowdowns or recessions and may be unable to make scheduled lease payments during these periods.
Therefore, to the extent that economic activity or business conditions deteriorate, our
delinquencies and credit losses may increase. Unfavorable economic conditions may also make it
more difficult for us to maintain both our new lease origination volume and the credit quality of
new leases at levels previously attained. Unfavorable economic conditions could also increase our
funding costs or operating cost structure, limit our access to the securitization and other capital
markets or result in a decision by lenders not to extend credit to us. Any of these events could
reduce our operating income.
Regulatory and legal uncertainties could result in significant financial losses and may require us
to alter our business strategy and operations.
Laws or regulations may be adopted with respect to our equipment leases or the equipment
leasing, telemarketing and collection processes. Any new legislation or regulation, or changes in
the interpretation of existing laws, which affect the equipment leasing industry could increase our
costs of compliance or require us to alter our business strategy.
We, like other finance companies, face the risk of litigation, including class action
litigation, and regulatory investigations and actions in connection with our business activities.
These matters may be difficult to assess or quantify, and their magnitude may remain unknown for
substantial periods of time. A substantial legal liability or a significant regulatory action
against us could cause us to suffer significant costs and expenses, and could require us to alter
our business strategy and the manner in which we operate our business.
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Risks
Related to this Offering
Our quarterly operating results may fluctuate significantly.
Our operating results may differ from quarter to quarter, and these differences may be
significant. Factors that may cause these differences include: changes in the volume of lease
applications, approvals and originations; changes in interest rates; the timing of term note
securitizations; the availability of capital; the degree of competition we face; and general
economic conditions and other factors. The results of any one quarter may not indicate what our
performance may be in the future.
Our common stock price has been volatile and its trading volume has been low. These conditions may
continue or worsen.
Our common stock has often traded at very low volumes. In addition, the trading price of our
common stock may fluctuate substantially depending on many factors, some of which are beyond our
control and may not be related to our operating performance. These fluctuations could cause you to
lose part or all of your investment in our shares of common stock. Those factors that could cause
fluctuations include, but are not limited to, the following:
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price and volume fluctuations in the overall stock market from time to time; |
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significant volatility in the market price and trading volume of financial services companies; |
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actual or anticipated changes in our earnings or fluctuations in our operating
results or in the expectations of market analysts; |
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investor perceptions of the equipment leasing industry in general and our company in particular; |
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the operating and stock performance of comparable companies; |
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general economic conditions and trends; |
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major catastrophic events; |
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loss of external funding sources; |
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sales of large blocks of our stock or sales by insiders; or |
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departures of key personnel. |
It is possible that in some future quarter our operating results may be below the expectations of
financial market analysts and investors and, as a result of these and other factors, the price of
our common stock may decline.
We currently do not foresee any future cash dividend payments. As a result, stockholders will
benefit from an investment in our common stock only if it appreciates in value.
We have not declared or paid any cash dividends on our common stock since our initial public
offering in November 2003. Moreover, we currently intend to retain any future earnings to finance
our operations and to further expand and grow our business. For that reason, we do not expect to
pay any cash dividends in the foreseeable future. As a result, the success of an investment in our
common stock will depend upon any future appreciation in its value. We cannot guarantee that our
common stock will appreciate in value or even maintain the price at which stockholders have
purchased their shares.
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FORWARD-LOOKING STATEMENTS
Certain statements in this prospectus may include the words or phrases can be, expects,
plans, may, may affect, may depend, believe, estimate, intend, could, should,
would, if and similar words and phrases that constitute forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act
of 1934. Forward-looking statements are subject to various known and unknown risks and
uncertainties and we caution that any forward-looking information provided by or on our behalf is
not a guarantee of future performance. Statements regarding the following subjects are
forward-looking by their nature: (a) our business strategy; (b) our projected operating results;
(c) our ability to obtain external financing; (d) our understanding of our competition; and (e)
industry and market trends. Our actual results could differ materially from those anticipated by
such forward-looking statements due to a number of factors, some beyond our control, including,
without limitation:
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availability, terms and deployment of capital; |
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general volatility of the securitization and capital markets; |
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changes in our industry, interest rates or the general economy; |
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changes in our business strategy; |
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the degree and nature of our competition; |
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availability of qualified personnel; and |
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the factors set forth in the section captioned Risk
Factors beginning on page 3. |
Forward-looking statements apply only as of the date made and we are not required to update
forward-looking statements for subsequent or unanticipated events or circumstances.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our consolidated ratio of earnings to fixed charges for the periods indicated.
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Fiscal Year |
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2004 |
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Ratio of Earnings to Fixed Charges |
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2.3 |
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1.5 |
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1.4 |
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1.3 |
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1.1 |
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USE OF PROCEEDS
Unless otherwise set forth in a prospectus supplement accompanying this prospectus, we intend
to use the net proceeds from any sale of the securities that we may sell by this prospectus and any
accompanying prospectus supplement for working capital and other corporate purposes, which may
include the acquisition of businesses or the capitalization of new business ventures. In addition,
we may use any proceeds to pay existing contractual obligations and to repay indebtedness.
Investors will be relying on the judgment of our management regarding the application of the
proceeds from any sale of the securities.
THE SECURITIES WE MAY OFFER
We may from time to time offer under this prospectus, separately or together:
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common stock; |
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preferred stock; |
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unsecured debt securities; |
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warrants to purchase common stock; |
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warrants to purchase preferred stock; |
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warrants to purchase debt securities; |
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depositary shares; |
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stock purchase contracts to purchase common stock; and |
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stock purchase units, each representing ownership of a stock purchase contract
and, as security for the holders obligation to purchase common stock under the stock
purchase contract, either our debt securities or U.S. Treasury securities. |
The aggregate initial offering price of the offered securities will not exceed $50,000,000.
DESCRIPTION OF OUR CAPITAL STOCK
Authorized and Outstanding Capital Stock
Our authorized capital stock consists of 75.0 million shares of common stock, par value $.01
per share, and 5.0 million shares of preferred stock, par value $.01 per share. Marlin Business
Services Corp. is a Pennsylvania corporation and is subject to the Pennsylvania Business
Corporation Law of 1988.
The following description of our common stock and preferred stock, together with the
additional information included in any applicable prospectus supplements, summarizes the material
terms and provisions of these types of securities, but it is not complete. For the complete terms of our common stock
and preferred stock,
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please
refer to our articles of incorporation and our bylaws that are
incorporated by reference into the registration statement which includes this prospectus and, with
respect to preferred stock, any certificate of designation that we may file with the Commission for
a series of preferred stock we may designate, if any.
We will describe in a prospectus supplement the specific terms of any common stock or
preferred stock we may offer pursuant to this prospectus. The
prospectus supplement may supplement the information contained in
this prospectus, but may not contradict, modify or replace the
information contained in this prospectus.
Common Stock
Under our amended and restated articles of incorporation, we have 75.0 million shares of
common stock authorized. As of October 31, 2005, we had
11,742,286 shares of common stock
outstanding. Holders of our common stock will be entitled to receive, as, when and if declared by
the board of directors from time to time, such dividends and other distributions in cash, stock or
property from our assets or funds legally available for such purposes subject to any dividend
preferences that may be attributable to preferred stock that may be authorized.
Holders of our common stock are entitled to one vote for each share held of record on all
matters on which shareholders may vote. There are no preemptive, conversion, redemption or sinking
fund provisions applicable to the common stock. In the event of our liquidation, dissolution or
winding up, holders of common stock will be entitled to share ratably in the assets available for
distribution.
Preferred Stock
Our board of directors, without further action by the shareholders, is authorized to issue up
to an aggregate of 5.0 million shares of preferred stock. As of the effective date of the offering,
no shares of preferred stock will be outstanding and we have no plans to issue a new series of
preferred stock. Our board of directors, without shareholder approval, will be able to issue
preferred stock with dividend rates, redemption prices, preferences on liquidation or dissolution,
conversion rights, voting rights and any other preferences, which rights and preferences could
adversely affect the voting power of the holders of common stock. In
the event that our Board of Directors issues shares of preferred
stock with conversion rights, the shares of preferred stock will
convert into shares of common stock, which securities are being
registered pursuant to the registration statement which includes this
prospectus. Issuance of preferred stock,
while providing desirable flexibility in connection with possible acquisitions or other corporate
purposes, could have the effect of making it more difficult for a third party to acquire, or could
discourage or delay a third party from acquiring, a majority of our outstanding common stock.
Shareholder Action by Written Consent
Under Pennsylvania law, any action that may be taken at a meeting of the shareholders may be
taken without a meeting if such action is authorized by the unanimous written consent of all
shareholders entitled to vote at a meeting for such purposes.
Special Meetings
Our articles of incorporation and bylaws provide that special meetings of our shareholders may
be called only by the board of directors, the chairman of our board of directors or our chief
executive officer. This provision may make it more difficult for shareholders to take action
opposed by the board of directors.
Amendments to Our Bylaws
Our bylaws provide that the vote of a majority of all directors or the vote of the majority of
the outstanding stock entitled to vote is required to alter, amend or repeal our bylaws.
Indemnification of Directors and Officers
Section 1741 of the Pennsylvania Business Corporation Law provides the power to indemnify any
officer or director acting in his capacity as our representative who was, is or is threatened to be
made a party to any action
or proceeding for expenses, judgments, penalties, fines and amounts paid in settlement in
connection with such action or proceeding. The indemnity provisions apply whether the action was
instituted by a third party or arose by or in our
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right. Generally, the only limitation on our
ability to indemnify our officers and directors is if the act violates a criminal statute or if the
act or failure to act is finally determined by a court to have constituted willful misconduct or
recklessness. Our bylaws provide a right of indemnification to the full extent permitted by law for
expenses, attorneys fees, damages, punitive damages, judgments, penalties, fines and amounts paid
in settlement actually and reasonably incurred by any director or officer whether or not the
indemnified liability arises or arose from any threatened, pending or completed proceeding by or in
our right by reason of the fact that such director or officer is or was serving as our director,
officer or employee or, at our request, as a director, officer, partner,
fiduciary or trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, unless the act or failure to act giving rise to the claim for
indemnification is finally determined by a court to have constituted willful misconduct or
recklessness. Our bylaws provide for the advancement of expenses to an indemnified party upon
receipt of an undertaking by the party to repay those amounts if it is finally determined that the
indemnified party is not entitled to indemnification. Our bylaws authorize us to take steps to
ensure that all persons entitled to the indemnification are properly indemnified, including, if the
board of directors so determines, purchasing and maintaining insurance.
Limitation of Liability
Our articles of incorporation provide that none of our directors shall be personally liable to
us or our shareholders for monetary damages for a breach of fiduciary duty as a director, except
for liability:
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for any breach of such persons duty of loyalty; |
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for acts or omissions not in good faith or involving intentional misconduct or a
knowing violation of law; |
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for the payment of unlawful dividends and certain other actions prohibited by
Pennsylvania corporate law; and |
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for any transaction resulting in receipt by such person of an improper personal
benefit. |
We maintain directors and officers liability insurance to provide directors and officers with
insurance coverage for losses arising from claims based on breaches of duty, negligence, error and
other wrongful acts. At present, there is no pending litigation or proceeding, and we are not aware
of any threatened litigation or proceeding, involving any director, officer, employee or agent
where indemnification will be required or permitted under our articles of incorporation or bylaws.
Certain Anti-Takeover Provisions
Pennsylvania Control-Share Acquisitions Law. Generally, subchapters 25E, F, G, H, I and J of
the Pennsylvania corporate laws place certain procedural requirements and establish certain
restrictions upon the acquisition of voting shares of a corporation which would entitle the
acquiring person to cast or direct the casting of a certain percentage of votes in an election of
directors. Subchapter 25E of the Pennsylvania corporate laws provides generally that, if a company
were involved in a control transaction, shareholders of the company would have the right to
demand from a controlling person or group payment of the fair value of their shares. For purposes
of subchapter 25E, a controlling person or group is a person or group of persons acting in
concert that, through voting shares, has voting power over at least 20% of the votes which
shareholders of the company would be entitled to cast in the election of directors. A control
transaction arises, in general, when a person or group acquires the status of a controlling person
or group. In general, Subchapter 25F of the Pennsylvania corporate laws delays for five years and
imposes conditions upon business combinations with an interested shareholder. The term
business combination is defined broadly to include various merger, consolidation, division,
exchange or sale transactions, including transactions utilizing our assets for purchase price
amortization or refinancing purposes. An interested shareholder, in general, would be a
beneficial owner of at least 20% of our voting shares. In general, Subchapter 25G of the
Pennsylvania corporate laws suspends the voting rights of the control shares
of a shareholder that acquires for the first time 20% or more, 33 1/3% or more, or 50% or more
of a companys shares entitled to be voted in an election of directors. The voting rights of the
control shares generally remain suspended until such time as the
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disinterested shareholders of
the company vote to restore the voting power of the acquiring shareholder. Subchapter 25H of the
Pennsylvania corporate laws provides in certain circumstances for the recovery by a company of
profits made upon the sale of its common stock by a controlling person or group if the sale
occurs within 18 months after the controlling person or group became such and the common stock was
acquired during such 18 month period or within 24 months before such period. In general, for
purposes of Subchapter 25H, a controlling person or group is a person or group that: 1) has
acquired; 2) offered to acquire; or 3) publicly disclosed or caused to be disclosed an intention to
acquire voting power over shares that would
entitle such person or group to cast at least 20% of the votes that shareholders of the
company would be entitled to cast in the election of directors. If the disinterested shareholders
of a company vote to restore the voting power of a shareholder who acquires control shares subject
to Subchapter 25G, such company would then be subject to subchapters 25I and J of the Pennsylvania
corporate laws. Subchapter 25I generally provides for a minimum severance payment to certain
employees terminated within two years of such approval. Subchapter 25J, in general, prohibits the
abrogation of certain labor contracts prior to their stated date of expiration. The above
descriptions of subchapters of the Pennsylvania corporate laws summarize the material anti-takeover
provisions contained in the Pennsylvania corporate laws but are not a complete discussion of those
provisions. These provisions may discourage open market purchases of our stock or a non-negotiated
tender or exchange offer for our stock and, accordingly, may be considered disadvantageous by a
shareholder who would desire to participate in any such transaction.
Section 1715 of the Pennsylvania Business Corporation Law. Under Section 1715 of the
Pennsylvania Business Corporation Law, our directors are not required to regard the interests of
the shareholders as being dominant or controlling in considering our best interests. The directors
may consider, to the extent they deem appropriate, such factors as:
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the effects of any action upon any group affected by such action, including our
shareholders, employees, suppliers, customers and creditors, and communities in which
we have offices or other establishments; |
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our short-term and long-term interests, including benefits that may accrue to us
from our long-term plans and the possibilities that these interests may be best served
by our continued independence; |
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the resources, intent and conduct of any person seeking to acquire control of us; and |
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all other pertinent factors. |
Section 1715 further provides that any act of our board of directors, a committee of the board of
directors or an individual director relating to or affecting an acquisition or potential or
proposed acquisition of control to which a majority of our disinterested directors have assented
will be presumed to satisfy the standard of care set forth in the Pennsylvania Business Corporation
Law, unless it is proven by clear and convincing evidence that our disinterested directors did not
consent to such act in good faith after reasonable investigation. As a result of this and the other
provisions of Section 1715, our directors are provided with broad discretion with respect to
actions that may be taken in response to acquisitions or proposed acquisitions of corporate
control.
Section 1715 may discourage open market purchases of our common stock or a non-negotiated
tender or exchange offer for our common stock and, accordingly, may be considered disadvantageous
by a shareholder who would desire to participate in any such transaction. As a result, Section 1715
may have a depressive effect on the price of our common stock.
Blank-Check Preferred Stock. The ability of the board of directors to establish the rights of,
and to issue, substantial amounts of preferred stock without the need for shareholder approval, may
have the effect of discouraging, delaying or preventing a change in control. Such preferred stock,
among other things, may be used to create voting impediments with respect to any changes in control
or to dilute the stock ownership of holders of common stock seeking to obtain control.
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Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is StockTrans, Inc.
DESCRIPTION
OF THE DEBT SECURITIES WE MAY OFFER
This prospectus describes the general terms and provisions of the debt securities we may offer
and sell by this prospectus. When we offer to sell a particular series of debt securities, we will
describe the specific terms of the series in a prospectus supplement. We will also indicate in the
prospectus supplement whether the general terms and provisions described in this prospectus apply
to a particular series of debt securities.
We may offer under this prospectus up to $50,000,000 in aggregate principal amount of debt
securities, or if debt securities are issued at a discount, or in a foreign currency or composite
currency, such principal amount as may be sold for an initial public offering price of up to
$50,000,000. We may offer debt securities in the form of either senior debt securities or
subordinated debt securities. The senior debt securities and the subordinated debt securities are
together referred to in this prospectus as the debt securities. Unless otherwise specified in a
prospectus supplement, the senior debt securities will be our direct, unsecured obligations and
will rank equally with all of our other unsecured and unsubordinated indebtedness. The subordinated
debt securities generally will be entitled to payment only after payment of our senior debt.
The debt securities will be issued under an indenture between us and a trustee, the form of
which is filed as an exhibit to the registration statement of which this prospectus forms a part.
We have summarized the general features of the debt securities to be governed by the indenture. The
summary is not complete. The executed indenture will be incorporated by reference from a current
report on Form 8-K. We encourage you to read the indenture, because, although you have rights under
the United States federal securities laws with regard to the summary of debt securities in this
prospectus, the indenture, and not this summary, will govern your rights as a holder of debt
securities. Capitalized terms used in this summary will have the meanings specified in the
indenture. References to we, us and our in this section, unless the context otherwise
requires or as otherwise expressly stated, refer to Marlin Business Services Corp., excluding its
subsidiaries.
General
The terms of each series of debt securities will be established by or pursuant to a resolution
of our board of directors, or a committee thereof, and set forth or determined in the manner
provided in an officers certificate or by a supplemental indenture. The particular terms of each
series of debt securities will be described in a prospectus supplement relating to such series,
including any pricing supplement.
Under
this prospectus, we may offer up to $50,000,000 in aggregate
principal amount of debt securities under the indenture, and the debt
securities may be in one or more series with the same or various maturities, at par, at a premium
or at a discount. Except as set forth in any prospectus supplement, we will also have the right to
reopen a previous series of debt securities by issuing additional debt securities of such series
without the consent of the holders of debt securities of the series being reopened or any other
series. Any additional debt securities of the series being reopened will have the same ranking,
interest rate, maturity and other terms as the previously issued debt securities of that series.
These additional debt securities, together with the previously issued debt securities of that
series, will constitute a single series of debt securities under the terms of the applicable
indenture.
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We will set forth in a prospectus supplement, including any pricing supplement, relating to
any series of debt securities being offered, the aggregate principal amount and other terms of the
debt securities, which will include some or all of the following:
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the form (including whether the debt securities will be issued in global or
certificated form) and title of the debt securities; |
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the price or prices (expressed as a percentage of the principal amount) at
which we will sell the debt securities; |
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any limit on the aggregate principal amount of the debt securities; |
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the date or dates on which we will pay the principal on the debt securities; |
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the rate or rates (which may be fixed or variable) per annum or the method
used to determine the rate or rates (including any commodity, commodity index, stock
exchange index or financial index) at which the debt securities will bear interest; |
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the date or dates from which interest will accrue, the date or dates on which
interest will commence and be payable and any regular record date for the interest
payable on any interest payment date; |
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the place or places where principal of, and premium and interest on, the debt
securities will be payable; |
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the terms and conditions upon which we may redeem the debt securities; |
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any obligation we have to redeem or purchase the debt securities pursuant to
any sinking fund or analogous provisions or at the option of a holder of debt
securities; |
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the dates on which and the price or prices at which we will repurchase debt
securities at the option of the holders of debt securities and other detailed terms
and provisions of these repurchase obligations; |
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the denominations in which the debt securities will be issued, if other than
denominations of $1,000 and any integral multiple thereof; |
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the portion of principal amount of the debt securities payable upon
declaration of acceleration of the maturity date, if other than the principal amount; |
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the currency of denomination of the debt securities; |
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any provisions relating to any security provided for the debt securities; |
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any addition to or change in the events of default described in this
prospectus or in the indenture with respect to the debt securities and any change in
the acceleration provisions described in this prospectus or in the indenture with
respect to the debt securities; |
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any addition to or change in the covenants described in this prospectus or in
the indenture with respect to the debt securities; |
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any conversion provisions, including the security into which the debt
securities are convertible, the conversion price, the conversion period, provisions as
to whether conversion will be mandatory, at the option of the holder or at our option,
the events requiring an adjustment of the conversion price and provisions affecting
conversion if such series of debt securities are redeemed; |
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whether the debt securities will be senior debt securities or subordinated
debt securities and, if applicable, a description of the subordination terms thereof; |
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any depositories, interest rate calculation agents, exchange rate calculation
agents or other agents with respect to the debt securities; and |
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any other terms of the debt securities, which may modify, delete, supplement
or add to any provision of the indenture as it applies to that series. |
We will provide you with information on the federal income tax considerations and other
special considerations applicable to any of these debt securities in the applicable prospectus
supplement.
If we denominate the purchase price of any of the debt securities in a foreign currency or
currencies or a foreign currency unit or units, or if the principal of, and premium and interest
on, any series of debt securities is payable in a foreign currency or currencies or a foreign
currency unit or units, we will provide you with information on the restrictions, elections,
general tax considerations, specific terms and other information with respect to that issue of debt
securities and such foreign currency or currencies or foreign currency unit or units in the
applicable prospectus supplement.
Transfer and Exchange
Each debt security will be represented by either one or more global securities registered in
the name of The Depositary Trust Company, as Depositary, or a nominee (we will refer to any debt
security represented by a global debt security as a book-entry debt security), or a certificate
issued in definitive registered form (we will refer to any debt security represented by a
certificated security as a certificated debt security) as set forth in the applicable prospectus
supplement.
You may transfer or exchange certificated debt securities at any office we maintain for this
purpose in accordance with the terms of the indenture. No service charge will be made for any
transfer or exchange of certificated debt securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection with a transfer or
exchange.
You may effect the transfer of certificated debt securities and the right to receive the
principal of, and any premium and interest on, certificated debt securities only by surrendering
the certificate representing those certificated debt securities and either reissuance by us or the
trustee of the certificate to the new holder or the issuance by us or the trustee of a new
certificate to the new holder.
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No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement, the debt securities will
not contain any provisions which may afford holders of the debt securities protection in the event
we have a change in control or in the event of a highly leveraged transaction (whether or not such
transaction results in a change in control) which could adversely affect holders of debt
securities.
Covenants
We will set forth in the applicable prospectus supplement any restrictive covenants applicable
to any issue of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of our properties and assets to, any person, which we refer to as a successor
person, unless:
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we are the surviving corporation or the successor person (if other than us)
is organized and validly existing under the laws of any U.S. domestic jurisdiction and
expressly assumes our obligations on the debt securities and under the indenture; |
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immediately after giving effect to the transaction, no event of default, and
no event which, after notice or lapse of time, or both, would become an event of
default, shall have occurred and be continuing under the indenture; and |
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certain other conditions are met, including any additional conditions
described in the applicable prospectus supplement. |
Events of Default
Event of default means, with respect to any series of debt securities, any of the following:
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default in the payment of any interest upon any debt security of that series
when it becomes due and payable, and continuance of that default for a period of 30
days (unless the entire amount of the payment is deposited by us with the trustee or
with a paying agent prior to the expiration of the 30-day period); |
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default in the payment of principal of or premium on any debt security of
that series when due and payable; |
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default in the performance or breach of any other covenant or warranty by us
in the indenture (other than a covenant or warranty that has been included in the
indenture solely for the benefit of a series of debt securities other than that
series), which default continues uncured for a period of 90 days after we receive
written notice from the trustee or we and the trustee receive written notice from the
holders of not less than a majority in principal amount of the outstanding debt
securities of that series as provided in the indenture; |
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certain events of bankruptcy, insolvency or reorganization of our company;
and |
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any other event of default provided with respect to debt securities of that
series that is described in the applicable prospectus supplement. |
No event of default with respect to a particular series of debt securities (except as to
certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an event of
default with respect to any other series of debt securities. The occurrence of an event of default
may constitute an event of default under our bank credit agreements in existence from time to time.
In addition, the occurrence of certain events of default or an acceleration under the indenture may
constitute an event of default under certain of our other indebtedness outstanding from time to
time.
If an event of default with respect to debt securities of any series at the time outstanding
occurs and is continuing, then the trustee or the holders of not less than a majority in principal
amount of the outstanding debt securities of that series may, by a notice in writing to us (and to
the trustee if given by the holders), declare to be due and payable immediately the principal (or,
if the debt securities of that series are discount securities, that portion of the principal amount
as may be specified in the terms of that series) of, and accrued and unpaid interest, if any, on
all debt securities of that series. In the case of an event of default resulting from certain
events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and
accrued and unpaid interest, if any, on all outstanding debt securities will become and be
immediately due and payable without any declaration or other act on the part of the trustee or any
holder of outstanding debt securities. At any time after a declaration of acceleration with respect
to debt securities of any series has been made, but before a judgment or decree for payment of the
money due has been obtained by the trustee, the holders of a majority in principal amount of the
outstanding debt securities of that series may rescind and annul the acceleration if all events of
default, other than the non-payment of accelerated principal and interest, if any, with respect to
debt securities of that series, have been cured or waived as provided in the indenture. We refer
you to the prospectus supplement relating to any series of debt securities that are discount
securities for the particular provisions relating to acceleration of a portion of the principal
amount of such discount securities upon the occurrence of an event of default.
The indenture provides that the trustee will be under no obligation to exercise any of its
rights or powers under the indenture at the request of any holder of outstanding debt securities,
unless the trustee receives indemnity satisfactory to it against any loss, liability or expense.
Subject to certain rights of the trustee, the holders of a majority in principal amount of the
outstanding debt securities of any series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the trustee or exercising any trust or
power conferred on the trustee with respect to the debt securities of that series.
No holder of any debt security of any series will have any right to institute any proceeding,
judicial or otherwise, with respect to the indenture or for the appointment of a receiver or
trustee, or for any remedy under the indenture, unless:
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that holder has previously given to the trustee written notice of a
continuing event of default with respect to debt securities of that series; and |
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the holders of at least a majority in principal amount of the outstanding
debt securities of that series have made written request, and offered reasonable
indemnity, to the trustee to institute the proceeding as trustee, and the trustee has |
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not received from the holders of a majority in principal amount of the outstanding
debt securities of that series a direction inconsistent with that request and has
failed to institute the proceeding within 60 days. |
Notwithstanding the foregoing, the holder of any debt security will have an absolute and
unconditional right to receive payment of the principal of, and any premium and interest on, that
debt security on or after the due dates expressed in that debt security and to institute suit for
the enforcement of payment.
If any securities are outstanding under the indenture, the indenture requires us, within 120
days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with
the indenture. The indenture provides that the trustee may withhold notice to the holders of debt
securities of any series of any default or event of default (except in payment on any debt
securities of that series) with respect to debt securities of that series if it in good faith
determines that withholding notice is in the interest of the holders of those debt securities.
Modification and Waiver
We may modify and amend the indenture with the consent of the holders of at least a majority
in principal amount of the outstanding debt securities of each series affected by the modifications
or amendments. We may not make any modification or amendment without the consent of the holders of
each affected debt security then outstanding if that amendment will:
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reduce the amount of debt securities whose holders must consent to an
amendment or waiver; |
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reduce the rate of or extend the time for payment of interest (including
default interest) on any debt security; |
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reduce the principal of, or premium on, or change the fixed maturity of, any
debt security or reduce the amount of, or postpone the date fixed for, the payment of
any sinking fund or analogous obligation with respect to any series of debt
securities; |
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reduce the principal amount of discount securities payable upon acceleration
of maturity; |
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waive a default in the payment of the principal of, or premium or interest
on, any debt security (except a rescission of acceleration of the debt securities of
any series by the holders of at least a majority in aggregate principal amount of the
then outstanding debt securities of that series and a waiver of the payment default
that resulted from such acceleration); |
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make the principal of, or premium or interest on, any debt security payable
in currency other than that stated in the debt security; |
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make any change to certain provisions of the indenture relating to, among
other things, the right of holders of debt securities to receive payment of the
principal of, and premium and interest on, those debt securities and to institute suit
for the enforcement of any such payment and to waivers or amendments; or |
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waive a redemption payment with respect to any debt security. |
Except for certain specified provisions, the holders of at least a majority in principal
amount of the outstanding debt securities of any series may on behalf of the holders of all debt
securities of that series waive our compliance with provisions of the indenture. The holders of a
majority in principal amount of the outstanding debt securities of any series may on behalf of the
holders of all the debt securities of such series waive any past default under the indenture with
respect to that series and its consequences, except a default in the payment of the principal of,
or any premium or interest on, any debt security of that series or in respect of a covenant or
provision, which cannot be modified or amended without the consent of the holder of each
outstanding debt security of the series affected; provided, however, that the holders of a majority
in principal amount of the outstanding debt securities of any series may rescind an acceleration
and its consequences, including any related payment default that resulted from the acceleration.
Discharging Our Obligations
We may choose to either discharge our obligations on the debt securities of any series in a
legal defeasance, or to release ourselves from our covenant restrictions on the debt securities of
any series in a covenant defeasance. We may do so at any time after we deposit with the trustee
sufficient cash or government securities to pay the principal, interest, any premium and any other
sums due to the stated maturity date or a redemption date of the debt securities of the series. If
we choose the legal defeasance option, the holders of the debt securities of the series will not be
entitled to the benefits of the indenture except for registration of transfer and exchange of debt
securities, replacement of lost, stolen, destroyed or mutilated debt securities, conversion or
exchange of debt securities, sinking fund payments and receipt of principal and interest on the
original stated due dates or specified redemption dates.
We may discharge our obligations under the indenture or release ourselves from covenant
restrictions only if, in addition to making the deposit with the trustee, we meet some specific
requirements. Among other things:
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we must deliver an opinion of our legal counsel that the discharge will not
result in holders having to recognize taxable income or loss or subject them to
different tax treatment. In the case of legal defeasance, this opinion must be based
on either an IRS letter ruling or change in federal tax law; |
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we may not have a default on the debt securities discharged on the date of
deposit; |
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the discharge may not violate any of our agreements; and |
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the discharge may not result in our becoming an investment company in
violation of the Investment Company Act of 1940. |
Governing Law
The indenture and the debt securities will be governed by, and construed in accordance with,
the internal laws of the State of New York, without regard to conflict of law principles that would
result in the application of any law other than the laws of the State of New York.
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DESCRIPTION OF THE WARRANTS TO PURCHASE COMMON STOCK
AND PREFERRED STOCK WE MAY OFFER
The
following statements are summaries and adequate descriptions of the
common stock warrants and the preferred stock warrants being
registered in the registration statement which includes this
prospectus. The stock warrant agreement to be entered into by us may include or
incorporate by reference standard warrant provisions substantially in the form of the Common Stock
Warrant Agreement or the Preferred Stock Warrant Agreement to be filed in an amendment to the
registration statement which includes this prospectus or filed in a current report on Form 8-K and
incorporated by reference in the registration statement which includes this prospectus.
General
The common stock warrants and preferred stock warrants, evidenced by stock warrant
certificates, may be issued under a stock warrant agreement independently or together with any
other securities offered by any prospectus supplement and may be attached to or separate from such
other offered securities. If stock warrants are offered, the applicable prospectus supplement will
describe the designation and terms of the stock warrants, including:
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the offering price, if any; |
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the designation and terms of the common or preferred stock purchasable upon exercise
of the stock warrants; |
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if applicable, the date on and after which the stock warrants and the related
offered securities will be separately transferable; |
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the number of shares of common or preferred stock purchasable upon exercise of one
stock warrant and the initial price at which the shares may be purchased upon exercise; |
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the date on which the right to exercise the stock warrants will commence and expire; |
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a discussion of certain United States Federal income tax considerations; |
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the call provisions, if any; |
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the currency, currencies or currency units in which the offering price, if any, and
exercise price are payable; |
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any antidilution provisions of the stock warrants; and |
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any other terms of the stock warrants. |
The shares of common or preferred stock issuable upon exercise of the stock warrants will,
when issued in accordance with the stock warrant agreement, be fully paid and nonassessable.
Exercise of Stock Warrants
Stock warrants may be exercised by surrendering the stock warrant certificate to the stock
warrant agent with the form of election to purchase on the reverse side of the stock warrant
certificate properly completed and signed and by payment in full of the exercise price, as set
forth in the applicable prospectus supplement. The signature must be guaranteed by a bank or trust
company, by a broker or dealer which is a member of the National Association of Securities Dealers,
Inc. or by a member of a national securities exchange. Upon receipt of the certificates, the stock
warrant agent will requisition from the transfer agent for the common stock for issuance and
delivery to or upon the written order of the exercising warrantholder, a certificate representing
the number of shares of common stock purchased. If less than all of the stock warrants evidenced
by any stock warrant certificate are exercised, the stock warrant agent will deliver to the
exercising warrantholder a new stock warrant certificate representing the unexercised stock
warrants.
No Rights as Stockholders
Holders of stock warrants will not be entitled, by virtue of being such holders, to vote, to
consent, to receive dividends, to receive notice as stockholders with respect to any meeting of
stockholders for the election of our directors or any other matter, or to exercise any rights
whatsoever as our stockholders.
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DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES WE MAY OFFER
The
following statements are summaries and adequate descriptions of the
debt warrants being registered in the registration statement which
includes this prospectus. The debt warrant agreement to be entered
into by us may include or incorporate
by reference standard warrant provisions substantially in the form of the debt warrant agreement to
be filed in an amendment to the registration statement which includes this prospectus or filed in a
current report on Form 8-K and incorporated by reference in the registration statement which
includes this prospectus. A debt warrant agent will be selected by us
at the time of issue.
General
The debt warrants, evidenced by debt warrant certificates, may be issued under the debt
warrant agreement independently or together with any other securities offered by any prospectus
supplement and may be attached to or separate from such other offered securities. If debt warrants
are offered, the applicable prospectus supplement will describe the designation and terms of the
debt warrants, including:
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the offering price, if any; |
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the designation, aggregate principal amount and terms of the debt securities
purchasable upon exercise of the debt warrants; |
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if applicable, the date on and after which the debt warrants and the related offered
securities will be separately transferable; |
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the principal amount of debt securities purchasable upon exercise of one debt
warrant and the price at which that principal amount of debt securities may be
purchased upon exercise; |
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the date on which the right to exercise the debt warrants will commence and expire; |
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a discussion of certain United States Federal income tax considerations; |
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whether the warrants represented by the debt warrant certificates will be issued in
registered or bearer form; |
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the currency, currencies or currency units in which the offering price, if any, and
exercise price are payable; |
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any antidilution provisions of the debt warrants; and |
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any other terms of the debt warrants. |
Warrantholders will not have any of the rights of holders of debt securities, including the
right to receive the payment of principal of, any premium or interest on, or any additional amounts
with respect to, the debt securities or to enforce any of the covenants of the debt securities or
the applicable indenture except as otherwise provided in the applicable indenture.
Exercise of Debt Warrants
Debt warrants may be exercised by surrendering the debt warrant certificate to the debt
warrant agent, with the form of election to purchase on the reverse side of the debt warrant
certificate properly completed and signed, and by payment in full of the exercise price, as set
forth in the applicable prospectus supplement. The signature must be guaranteed by a bank or trust
company, by a broker or dealer which is a member of the National Association of Securities Dealers,
Inc. or by a member of a national securities exchange. Upon the exercise of debt warrants, we will
issue the debt securities in authorized denominations in accordance with the instructions of the
exercising warrantholder. If less than all of the debt warrants evidenced by the debt warrant
certificate are exercised, a new debt warrant certificate will be issued for the remaining number
of debt warrants.
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DESCRIPTION OF DEPOSITARY SHARES WE MAY OFFER
The
following statements are summaries and adequate descriptions of the
depositary shares being registered in the registration statement
which includes this prospectus. The depositary share agreement to be
entered into by us may include or incorporate by
reference standard provisions substantially in the form of the depositary share agreement to be
filed in an amendment to the registration statement which includes this prospectus or filed in a
current report on Form 8-K and incorporated by reference in the registration statement which
includes this prospectus. A depositary will be selected by us at the
time of issue.
We may, at our option, offer fractional shares of our preferred stock, rather than whole
shares of our preferred stock. In the event we do so, we will issue receipts for depositary shares,
each of which will represent a fraction (to be set forth in the prospectus supplement relating to
an offering of the depositary shares) of a share of the related series of preferred stock.
The shares of our preferred stock represented by depositary shares will be deposited under a
deposit agreement between us and a depositary, or bank or trust company selected by us having its
principal office in the United States and having a combined capital and surplus of at least
$50,000,000. Subject to the terms of the deposit agreement, each owner of a depositary share will
be entitled, in proportion to the applicable fraction of a share of preferred stock, represented by
the depositary share to all of the rights and preferences of the preferred stock represented by the
depositary shares (including dividend, voting, redemption, conversion and liquidation rights).
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS WE MAY OFFER
The
following statements are summaries and adequate descriptions of the
stock purchase contracts and stock purchase units being registered in
the registration statement which includes this prospectus. The stock purchase contract agreement or
stock purchase unit agreement to be entered into by us may include or incorporate by reference standard provisions
substantially in the form of the stock purchase contract agreement or stock purchase unit agreement
to be filed in an amendment to the registration statement which includes this prospectus or filed
in a current report on Form 8-K and incorporated by reference in the registration statement which
includes this prospectus. A stock purchase contract agent and stock
purchase unit agent will be selected by us at the time of issue.
We may issue stock purchase contracts, representing contracts obligating holders to purchase
from us, and obligating us to sell to the holders, a specified number of shares of common stock,
preferred stock or depositary shares at a future date or dates. The price per share of common
stock, preferred stock or depositary shares may be fixed at the time the stock purchase contracts
are issued or may be determined by reference to a specific formula set forth in the stock purchase
contract agreement. Any such formula may include anti-dilution provisions to adjust the number of
shares issuable pursuant to such stock purchase contract upon the occurrence of certain events.
The stock purchase contracts may be issued separately or as a part of stock purchase units,
consisting of a stock purchase contract and, as security for the holders obligations to purchase
the shares of common stock, preferred stock or depositary shares under the stock purchase
contracts or our debt securities.
The stock purchase contract agreements may require us to make periodic payments to the holders
of the stock purchase units or vice versa, and these payments may be unsecured or prefunded on some
basis. The stock purchase contract agreements may require holders to secure their obligations in a
specified manner and in certain circumstances we may deliver newly issued prepaid stock purchase
contracts upon release to a holder of any collateral securing such holders obligations under the
original stock purchase contract agreement.
The applicable prospectus supplement will describe the terms of any stock purchase contracts
or stock purchase units and, if applicable, prepaid stock purchase contracts.
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PLAN OF DISTRIBUTION
Unless otherwise set forth in a prospectus supplement accompanying this prospectus, we may
sell the offered securities in any one or more of the following ways from time to time:
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through agents; |
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to or through underwriters; |
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through dealers; |
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directly to purchasers; or |
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through remarketing firms. |
The prospectus supplement with respect to the offered securities will set forth the terms of
the offering of the offered securities, including:
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the name or names of any underwriters, dealers or agents; |
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the purchase price of the offered securities and the proceeds to us from such sale; |
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any underwriting discounts and commissions or agency fees and other items
constituting underwriters or agents compensation; |
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any initial public offering price and any discounts or concessions allowed or
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any securities exchange on which such offered securities may be listed. |
Any initial public offering price, discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
The distribution of the offered securities may be effected from time to time in one or more
transactions at a fixed price or prices, which may be changed, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at negotiated prices.
Offers to purchase the offered securities may be solicited by agents designated by us from
time to time. Any agent involved in the offer or sale of the offered securities will be named, and
any commissions payable by us to such agent will be set forth, in the applicable prospectus
supplement. Unless otherwise indicated in the prospectus supplement, the agent will be acting on a
reasonable best efforts basis for the period of its appointment.
If underwriters are used in the sale of the offered securities, the offered securities will be
acquired by the underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at fixed public offering prices or at varying
prices determined by the underwriters at the time of sale. The offered securities may be offered
to the public either through underwriting syndicates represented by managing underwriters or
directly by the managing underwriters. Unless otherwise indicated in the applicable prospectus
supplement, the underwriters are subject to certain conditions precedent and will be obligated to
purchase all the offered securities of a series if they purchase any of the offered securities.
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If a dealer is used in the sale of the offered securities, we will sell the offered securities
to the dealer as principal. The dealer may then resell the offered securities to the public at
varying prices to be determined by the dealer at the time of resale. The name of the dealer and
the terms of the transaction will be set forth in the applicable prospectus supplement.
Offers to purchase the offered securities may be solicited directly by us and the sale thereof
may be made by us directly to institutional investors or others. The terms of any such sales will
be described in the applicable prospectus supplement.
The offered securities may also be offered and sold by a remarketing firm in connection with a
remarketing arrangement upon their purchase. Remarketing firms will act as principals for their
own accounts or as agents for us. These remarketing firms will offer or sell the offered
securities pursuant to the terms of the offered securities. Any remarketing firm will be
identified and the terms of its agreements, if any, with us and its compensation will be described
in the applicable prospectus supplement.
We may authorize underwriters, dealers and agents to solicit from third parties offers to
purchase the offered securities under contracts providing for payment and delivery on future dates.
The applicable prospectus supplement will describe the material terms of these contracts,
including any conditions to the purchasers obligations, and will include any required information
about commissions we may pay for soliciting these contracts.
In connection with the sale of the offered securities, agents, underwriters, dealers or
remarketing firms may receive compensation from us or from purchasers of the offered securities for
whom they act as agents in the form of discounts, concessions or commissions. Underwriters may
sell the offered securities to or through dealers, and those dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters or commissions from the
purchasers for whom they may act as agents. Agents, underwriters, dealers and remarketing firms
that participate in the distribution of the offered securities, and any institutional investors or
others that purchase offered securities directly and then resell the securities, may be deemed to
be underwriters, and any discounts or commissions received by them from us and any profit on the
resale of the securities by them may be deemed to be underwriting discounts and commissions under
the Securities Act.
Agents, underwriters, dealers and remarketing firms may be entitled under relevant agreements
entered into with us to indemnification by us against certain civil liabilities, including
liabilities under the Securities Act or to contribution with respect to payments which the agents,
underwriters or dealers may be required to make.
Each series of the offered securities will be a new issue and, other than the shares of common
stock which are listed on the Nasdaq, will have no established trading market. Any underwriters to
whom we sell the offered securities for public offering and sale may make a market in the
securities, but such underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. We may elect to list any series of offered securities on an
exchange, and in the case of common stock, on any additional exchange, but, unless otherwise
specified in the applicable prospectus supplement, we will not be obligated to do so. We cannot
predict the liquidity of the trading market for any of the offered securities.
In connection with an offering, the underwriters may purchase and sell the offered securities
in the open market. These transactions may include short sales, stabilizing transactions and
purchases to cover positions created by short sales. Short sales involve the sale by the
underwriters of a greater number of offered securities than they are required to purchase in an
offering. Stabilizing transactions consist of certain bids or purchases made for the purpose of
preventing or retarding a decline in the market price of the offered securities while an offering
is in progress.
The underwriters also may impose a penalty bid. This occurs when a particular underwriter
repays to the underwriters a portion of the underwriting discount received by it because the
underwriters have repurchased offered securities sold by or for the account of that underwriter in
stabilizing or short-covering transactions.
These activities by the underwriters may stabilize, maintain or otherwise affect the market
price of the offered securities. As a result, the price of the offered securities may be higher
than the price that otherwise might exist in the open market. If these activities are commenced,
they may be discontinued by the underwriters at any time. These
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transactions may be effected on an
exchange or automated quotation system, if the offered securities are listed on that exchange or
admitted for trading on that automated quotation system, or in the over-the-counter market or
otherwise.
Underwriters, dealers, agents and remarketing firms, or their affiliates, may be customers of,
engage in transactions with, or perform services for, us and our subsidiaries in the ordinary
course of business.
Underwriters, dealers, agents and remarketing firms, or their affiliates, may be customers of,
engage in transactions with, or perform services for, us and our subsidiaries in the ordinary
course of business. Pursuant to a requirement by the National Association of Securities Dealers,
Inc., or NASD, the maximum commission or discount to be received by any NASD member or independent
broker/dealer may not be greater than eight percent of the gross proceeds received by us for the
sale of any securities being registered pursuant to SEC Rule 415.
VALIDITY OF SECURITIES
The
validity of any securities and the enforceability of our obligations
under any debt securities offered by us in the applicable prospectus supplement will be
passed upon for us by Morgan, Lewis & Bockius LLP, Philadelphia, Pennsylvania. The validity of any
securities offered and the enforceability of our obligations
under any debt securities in the applicable prospectus supplement will be passed upon for any underwriters
or agents by counsel to be named in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements and schedule of Marlin Business Services Corp. as of
December 31, 2004 and 2003, and for each of the years in the three-year period ended December 31,
2004, have been incorporated by reference herein and in the Registration Statement in reliance upon
the report of KPMG LLP, independent registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and auditing.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and
Exchange Commission, or Commission, utilizing a shelf registration process, relating to the
common stock, preferred stock, debt securities, warrants to purchase common stock, warrants to
purchase preferred stock, warrants to purchase debt securities, depositary shares, stock purchase
contracts and stock purchase units described in this prospectus. Under this shelf process, we may
sell the securities described in this prospectus in one or more offerings up to a total initial
offering price of $50,000,000.
This prospectus provides you with a general description of the securities we may offer. Each
time we sell securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus
supplement may supplement the information contained in this
prospectus, but may not contradict, modify or replace the information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with additional information described under the heading Where You
Can Find More Information.
No person has been authorized to give any information or to make any representations other
than those contained in this prospectus in connection with the offering made hereby, and if given
or made, such information or representations must not be relied upon as having been authorized by
us, any selling shareholder or by any other person. Neither the delivery of this prospectus nor any
sale made hereunder shall, under any circumstances, create any implication that information herein
is correct as of any time subsequent to the date hereof. This prospectus does not constitute an
offer to sell or a solicitation of an offer to buy any security other than the securities covered
by this prospectus, nor does it constitute an offer to or solicitation of any person in any
jurisdiction in which such offer or solicitation may not lawfully be made.
WHERE YOU CAN FIND MORE INFORMATION
In this prospectus, we incorporate by reference the information we file with the SEC, which
means that we can disclose important business, financial and other information to you in this
prospectus by referring you to the documents containing this information. The information
incorporated by reference is considered to be part of this prospectus, and information that we file
with the SEC after the date of this prospectus will automatically update and supersede this
information. However, any information contained herein shall modify or supersede information
contained in documents we filed with the SEC before the date of this prospectus.
We incorporate by reference the documents listed below and any future filings made with the
SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until the
offering is completed:
(a) Our Annual Report on Form 10-K for the fiscal year ended December 31, 2004.
(b)
Amendment
No. 1 to our Annual Report on Form 10-K for the fiscal year ended
December 31, 2004.
(c) Our Definitive Proxy Statement filed on April 25, 2005.
(d) Our
Quarterly Reports on Form 10-Q for the quarter ended March 31,
2005, the quarter ended June 30, 2005 and the
quarter
ended September 30, 2005.
(e)
Amendment
No. 1 to our Quarterly Report on Form 10-Q for the quarter ended
March 31, 2005.
(f) Amendment
No. 1 to our Quarterly Report on Form 10-Q for the quarter ended
June 30, 2005.
26
(g) Our Current Reports on Form 8-K, dated March 8, 2005 (Item 4.02), May 26, 2005, June 24,
2005, August 19, 2005, August 26, 2005, September 14,
2005, October 7, 2005 and October 21, 2005.
(h) The description of our common stock contained in a registration statement filed on Form
8-A under the Securities Exchange Act of 1934 filed on October 30, 2003, including any amendment or
report filed for the purpose of updating such description.
We will provide to each person, including any beneficial owner, to whom a prospectus is
delivered, a copy of any or all of the information that has been incorporated by reference in the
prospectus but not delivered with the prospectus. We will provide this information upon written or
oral request at no cost the requester. However, we will not send exhibits to such documents, unless
such exhibits are specifically incorporated by reference in such documents. You should direct requests for such copies to Marlin Business Services Corp., 300 Fellowship Road,
Mount Laurel, New Jersey 08054, Attention: General Counsel, telephone number: (888) 479-9111.
In addition, we file reports, proxy statements, and other information with the SEC under the
Securities Exchange Act of 1934. You may read and copy any materials we file with the SEC at the
SECs Public Reference Room at 450 Fifth Street, N.W., Washington, DC 20549. You may obtain
information on the operation of the Public Reference Room by calling the SEC at (800) SEC-0330. The
SEC maintains a Web site that contains all information filed electronically by us. The address of
the SECs Web site is http://www.sec.gov. Our SEC filings are also available to the public from our
Web site at http://www.marlincorp.com. However, the information our Web site does not constitute a
part of this prospectus.
27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses expected to be incurred in connection with the
issuance and distribution of the securities registered hereby and the offerings described in this
registration statement, other than underwriting discounts and commissions. All amounts shown are
estimates except the Commission registration fee.
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Commission registration fee |
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$ |
5,885 |
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Nasdaq National Market Listing Fee |
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25,000 |
* |
Trustees fees and expenses |
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5,000 |
* |
Printing and engraving expenses |
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50,000 |
* |
Accounting fees and expenses |
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100,000 |
* |
Legal fees and expenses |
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100,000 |
* |
Miscellaneous |
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14,115 |
* |
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Total |
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$ |
300,000 |
* |
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ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 1741 of the Pennsylvania Business Corporation Law provides the power to indemnify any
officer or director acting in his capacity as our representative who was, is or is threatened to be
made a party to any action or proceeding for expenses, judgments, penalties, fines and amounts paid
in settlement in connection with such action or proceeding. The indemnity provisions apply whether
the action was instituted by a third party or arose by or in our right. Generally, the only
limitation on our ability to indemnify our officers and directors is if the act violates a criminal
statute or if the act or failure to act is finally determined by a court to have constituted
willful misconduct or recklessness. Our bylaws provide a right to indemnification to the full
extent permitted by law for expenses, attorneys fees, damages, punitive damages, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred by any director or
officer whether or not the indemnified liability arises or arose from any threatened, pending or
completed proceeding by or in our right by reason of the fact that such director or officer is or
was serving as our director, officer or employee or, at our request, as a director, officer,
partner, fiduciary or trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, unless the act or failure to act giving rise to the claim for
indemnification is finally determined by a court to have constituted willful misconduct or
recklessness. Our bylaws provide for the advancement of expenses to an indemnified party upon
receipt of an undertaking by the party to repay those amounts if it is finally determined that the
indemnified party is not entitled to indemnification. Our bylaws authorize us to take steps to
ensure that all persons entitled to the indemnification are properly indemnified, including, if the
board of directors so determines, purchasing and maintaining insurance.
Our articles of incorporation provide that none of our directors shall be personally liable to
us or our shareholders for monetary damages for a breach of fiduciary duty as a director, except
for liability:
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for any breach of such persons duty of loyalty; |
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for acts or omissions not in good faith or involving intentional misconduct or a
knowing violation of law; |
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for the payment of unlawful dividends and certain other actions prohibited by
Pennsylvania corporate law; and |
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for any transaction resulting in receipt by such person of an improper personal
benefit. |
II-1
We maintain directors and officers liability insurance to provide directors and officers with
insurance coverage for losses arising from claims based on breaches of duty, negligence, error and
other wrongful acts. At present, there is no pending litigation or proceeding, and we are not aware
of any threatened litigation or proceeding, involving any director, officer, employee or agent
where indemnification will be required or permitted under the articles of incorporation or our
bylaws.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
See Exhibit Index included herewith which is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
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 of 1933;
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate offering
price set forth in the Calculation of Registration Fee table in the effective registration
statement.
(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 paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is on
Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
Provided, however, That:
(A) Paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is on Form S-8, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
(15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration
statement; and
(B) Paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the registration statement is on Form
S-3 or Form F-3 and the information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is a part of the registration statement.
(C)
Provided, further, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is for an offering of asset-backed securities on Form S-1 or Form S-3, and
the information required to be included in a post-effective amendment is provided pursuant to Item
1100(c) of Regulation AB (§229.1100(c)).
(2)
That, for the purpose of determining any liability under the Securities Act of 1933,
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 purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be
part of the registration statement as of the date the filed prospectus was deemed part of and
included in the registration statement; and
II-2
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part
of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the
securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that is a part of the
registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is a part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date; or
(ii) If the registration is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b)
as part of a registration statement relating to an offering, other than registration statement relying
on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be
part of and included in the registration statement as of the date it is first used after effectiveness.
Provided, however, that no statement made in a registration statement or prospectus that is part of
the registration statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method used to
sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
The undersigned registrant hereby undertakes that, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrants annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such 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 question
whether such indemnification by it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
The undersigned registrant hereby undertakes to file an application for the purpose of determining
the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the
Trust Indenture Act.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Mount Laurel, New Jersey, on
December 13, 2005.
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MARLIN BUSINESS SERVICES CORP. |
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By:
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/s/ Daniel P. Dyer |
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Name:
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Daniel P. Dyer |
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Title:
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Chief Executive Officer |
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
/s/
Daniel P. Dyer |
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Chairman and Chief
Executive Officer
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December 13, 2005 |
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Daniel P. Dyer
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(Principal Executive
Officer)
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*
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Senior Vice President and
Chief Financial Officer
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December 13, 2005 |
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Bruce E. Sickel
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(Principal Financial and
Accounting Officer)
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*
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President and Director
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December 13, 2005 |
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Gary R. Shivers |
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*
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Director
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December 13, 2005 |
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John J. Calamari |
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*
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Director
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December 13, 2005 |
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Lawrence J. DeAngelo |
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S-1
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Signature |
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Title |
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Director
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December 13, 2005 |
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Kevin J. McGinty |
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*
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Director
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December 13, 2005 |
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James W. Wert |
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*By:
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/s/ Daniel P. Dyer |
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Daniel P. Dyer |
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As Attorney-in-fact |
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S-2
EXHIBIT INDEX
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*1.1
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Form of Underwriting Agreement
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3.1
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Amended and Restated Articles of Incorporation of the registrant (incorporated
by reference to Exhibit 3.1 of the registrants
Registration Statement on Form S-1 (Registration No. 333-108530))
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3.2
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Bylaws of the registrant
(incorporated by reference to Exhibit 3.2 of the registrants Registration Statement on Form S-1 (Registration No. 333-108530)) |
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*4.1
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Form of Articles of Designations for preferred stock (together with form of
Preferred Stock Certificate) |
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**4.2
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Form of Indenture |
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*4.3
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Form of Common Stock Warrant Agreement, including form of Warrant |
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*4.4
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Form of Preferred Stock Warrant Agreement, including form of Warrant |
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*4.5
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Form of Debt Warrant Agreement, including form of Warrant |
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*4.6
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Form of Note |
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*4.7
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Form of Deposit Agreement |
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*4.8
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Form of Stock Purchase Contract Agreement |
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*4.9
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Form of Stock Purchase Contract |
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*4.10
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Form of Stock Purchase Unit Agreement |
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**5.1
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Opinion of Morgan, Lewis & Bockius LLP |
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12.1
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Statement Re: Computation of Ratio of Earnings to Fixed Charges |
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**23.1
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Consent of KPMG LLP |
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**23.2
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Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1 above) |
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24.1
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Power of Attorney |
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***25.1
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Statement of Eligibility of Trustee on Form T-1 for Debt Securities |
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To be filed, if necessary, subsequent to the effectiveness of this registration statement by an
amendment to this registration statement or incorporated by reference pursuant to a Current Report
on Form 8-K in connection with the offering of securities. |
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Filed herewith. |
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*** |
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To be filed pursuant to the Trust Indenture Act of 1939, as
amended. |
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Previously filed. |
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