Registration No. 33-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
THE MARCUS CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin 39-1139844
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
250 East Wisconsin Avenue, 53202
Suite 1700 (Zip Code)
Milwaukee, Wisconsin
(Address of principal executive
offices)
The Marcus Corporation 1994 Non-Employee Director Stock Option Plan
(Full title of the plan)
Thomas F. Kissinger, Esq. Copy to:
Director of Legal Affairs and
Secretary Steven R. Barth
The Marcus Corporation Foley & Lardner
250 East Wisconsin Avenue, 777 East Wisconsin Avenue
Suite 1700 Milwaukee, Wisconsin 53202
Milwaukee, Wisconsin 53202 (414) 289-3604
(414) 272-6020
(Name, address and telephone number,
including area code, of agent for
service)
__________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
Common
Stock, 50,000
$1 par value shares $25.625 $1,281,250 $441.81
(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933
solely for the purpose of calculating the registration fee based on
the average of the high and low prices of the Common Stock as
reported by NYSE on September 23, 1994.
_________________________________
Page 1 of 17 Pages
The Exhibit Index is on page 7 of the sequentially numbered pages.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by The Marcus
Corporation (the "Company") with the Commission and are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
May 26, 1994, which includes certified financial statements as of and for
the year ended May 26, 1994.
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since May 26, 1994.
(c) The description of the Company's capital stock contained in
Item 1 of the Company's Registration Statement on Form 8-A, dated November
17, 1993, as amended, with the Securities and Exchange Commission, and any
amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
filing of this Registration Statement and prior to such time as the
Company files a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the
Company's By-laws, directors and officers of the Company are entitled to
mandatory indemnification from the Company against certain liabilities and
expenses incurred in a proceeding to which the director or officer was a
party because he or she is a director or officer of the Company (i) to the
extent such officers or directors are successful on the merits or
otherwise in the defense of the proceeding and (ii) in such proceedings in
which the director or officer is not successful in defense thereof, unless
(in the latter case only) it is determined that the director or officer
breached or failed to perform his duties to the Company and such breach or
failure constituted: (a) a willful failure to deal fairly with the
Company or its shareholders in connection with a matter in which the
director or officer had a material conflict of interest; (b) a violation
of the criminal law unless the director or officer had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful; (c) a transaction from which the
director or officer derived an improper personal profit; or (d) willful
misconduct. It should be noted that the Wisconsin Business Corporation
Law specifically states that it is the public policy of Wisconsin to
require or permit indemnification in connection with a proceeding
involving securities regulation, as described therein, to the extent
required or permitted as described above. Additionally, under the
Wisconsin Business Corporation Law, directors of the Company are not
subject to personal liability to the Company, its shareholders or any
person asserting rights on behalf thereof for certain breaches or failures
to perform any duty resulting solely from their status as directors except
in circumstances paralleling those in subparagraphs (a) through (d)
outlined above.
The indemnification provided by the Wisconsin Business
Corporation Law and the Company's By-laws is not exclusive of any other
rights to which a director or officer may be entitled. The general effect
of the foregoing provisions may be to reduce the circumstances in which an
officer or director may be required to bear the economic burdens of the
foregoing liabilities and expenses.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following documents are filed, (except where otherwise
indicated) and are incorporated by reference herein, as part of this
Registration Statement:
Exhibits Exhibit No.
The Marcus Corporation 1994 Non-Employee
Director Stock Option Plan 4
Opinion of Foley & Lardner 5
Consent of Ernst & Young 23.1
Consent of Foley & Lardner (contained in Exhibit 5 hereto) 23.2
Power of Attorney relating to subsequent amendments
(included on the signature page to this
Registration Statement) 24
Item 9. Undertakings.
(a) 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 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.
(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 herein, 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.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) 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.
<PAGE>
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-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Milwaukee, and State of
Wisconsin, on this 30th day of September, 1994.
THE MARCUS CORPORATION
By: /s/Stephen H. Marcus
Stephen H. Marcus
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities indicated as of September 30, 1994. Each person whose
signature appears below constitutes and appoints Stephen H. Marcus and
Thomas F. Kissinger, Esq., and each of them individually, his or her true
and lawful attorney-in-fact and agent, with full power of substitution and
revocation, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-
in-fact and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, may lawfully do or cause
to be done by virtue hereof.
Signature Title Signature Title
/s/Stephen H. Marcus Chairman of the /s/George R. Slater Director
Stephen H. Marcus Board, President, George R. Slater
Chief Executive
Officer and
Director (Principal
Executive Officer)
/s/Ben Marcus Director /s/Lee Sherman Director
Ben Marcus Dreyfus
Lee Sherman Dreyfus
/s/Kenneth A. Chief Financial /s/Daniel F. Director
MacKenzie Officer, Treasurer McKeithan, Jr.
Kenneth A. MacKenzie and Controller Daniel F. McKeithan,
(Principal Jr.
Financial Officer
and Controller
/s/Diane Marcus Director /s/John L. Murray Director
Gershowitz John L. Murray
Diane Marcus
Gershowitz
<PAGE>
EXHIBIT INDEX
THE MARCUS CORPORATION
1994 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
Page Number in
Sequentially
Numbered
Registration
Exhibit No. Exhibit Statement
4 The Marcus Corporation 1994 Non- 8
Employee Director Stock Option
Plan
5 Opinion of Foley & Lardner 15
23.1 Consent of Ernst & Young 17
23.2 Consent of Foley & Lardner N/A
(contained in Exhibit 5 hereto)
24 Power of Attorney relating to N/A
subsequent amendments (included
on the signature page to this
Registration Statement)
EXHIBIT 4
THE MARCUS CORPORATION
1994 Nonemployee Director
Stock Option Plan
ARTICLE 1. ESTABLISHMENT, PURPOSE AND DURATION
1.1 Establishment of the Plan. The Marcus Corporation hereby
establishes an incentive compensation plan to be known as "The Marcus
Corporation 1994 Nonemployee Director Stock Option Plan" (the "Plan"), as
set forth in this document. The Plan permits the grant of Nonqualified
Stock Options to Nonemployee Directors, subject to the terms and pro-
visions set forth herein.
Upon approval by the Board of Directors, subject to the approval
and ratification by an affirmative vote of the holders of a majority of
the votes of the Company's Common Stock and Class B Common Stock, voting
together as a single group, the Plan shall become effective as of the date
of such shareholder approval and ratification (the "Effective Date"), and
shall remain in effect as provided in Section 1.3 herein.
1.2 Purpose of the Plan. The purpose of the Plan is to promote
the achievement of long-term growth and financial success of the Company
by attracting and retaining Nonemployee Directors of outstanding
competence and by better allowing the personal financial interests of
Nonemployee Directors to those of the Company's shareholders.
1.3 Duration of the Plan. The Plan shall commence on the
Effective Date and shall remain in effect, subject to the right of the
Board of Directors to terminate the Plan at any time pursuant to Article 7
herein, until all Shares subject to it shall have been purchased or
acquired according to the Plan's provisions. However, in no event may an
Option be granted under the Plan on or after the tenth anniversary of the
Effective Date.
ARTICLE 2. DEFINITIONS
Whenever used in the Plan, the following terms shall have the
meanings set forth below and, when the meaning is intended, the initial
letter of the word or words is capitalized:
(a) "Beneficial Owner" shall have the meaning ascribed to such
term in Rule 13d-3 of the General Rules and Regulations
under the Exchange Act.
(b) "Board" or "Board or Directors" means the Board of
Directors of the Company, and includes any committee of the
Board of Directors designated by the Board to administer
part or all of the Plan consistent with the terms of the
Plan.
(c) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(d) "Company" means The Marcus Corporation, a Wisconsin
corporation, or any successor thereto as provided in
Section 8.7 herein.
(e) "Director" means any individual who is a member of the
Board of Directors.
(f) "Employee" means any full-time or part-time employee of the
Company or any of its subsidiaries. For purposes of the
Plan, an individual whose only employment relationship with
the Company or its subsidiaries is as a Director, shall not
be deemed to be an Employee.
(g) "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time, or any successor act thereto.
(h) "Fair Market Value" means the closing sale price for Shares
on the relevant date on The New York Stock Exchange (or
other exchange or reporting system on which the Shares are
then traded or quoted) or if there were no sales on such
date the closing sale price on the nearest day before the
relevant date on The New York Stock Exchange (or other
exchange or reporting system on which the Shares are then
traded or quoted), as reported in The Wall Street Journal
or a similar publication selected by the Board.
(i) "Grant" means a grant of Nonqualified Stock Options under
the Plan.
(j) "Nonemployee Director" means any Director who is not
otherwise an Employee.
(k) "Nonqualified Stock Option" means an Option to purchase
Shares granted under Article 6 herein.
(l) "Option" means a Nonqualified Stock Option granted under
the Plan.
(m) "Option Agreement" means an agreement entered into by and
between the Company and a Nonemployee Director, setting
forth the terms and provisions applicable to a Grant under
the Plan.
(n) "Option Price" means the exercise price at which a Share
may be purchased under an Option.
(o) "Participant" means a Nonemployee Director of the Company
who has outstanding a viable Grant under the Plan.
(p) "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections
13(d) and 14(d) thereof, including a "group" as defined in
Section 13(d).
(q) "Shares" means the shares of Common Stock of the Company,
par value $1 per share.
ARTICLE 3. ADMINISTRATION
3.1 The Board of Directors. The Plan shall be administered by
the Board of Directors, subject to the restrictions set forth in the Plan.
3.2 Administration by the Board. The Board shall have the full
power, discretion and authority to interpret and administer the Plan in a
manner which is consistent with the Plan's provisions. However, in no
event shall the Board have the power to determine eligibility to
participate in the Plan, or to determine the number, the value, the
vesting or exercise period or the timing of Grants to be made under the
Plan (all such determinations are automatic pursuant to the provisions of
the Plan). Any action taken by the Board with respect to the
administration of the Plan which would violate Rule 16b-3(c)(2) under the
Exchange Act (or any successor provision) shall be null and void.
3.3 Decisions Binding. All determinations and decisions made
by the Board pursuant to the provisions of the Plan and within its
administrative authority hereunder, and all related orders or resolutions
of the Board, shall be final, conclusive and binding on all Persons,
including the Company, its shareholders, Employees, Participants and their
estates and beneficiaries.
ARTICLE 4. SHARES SUBJECT TO THE PLAN
4.1 Number of Shares. Subject to adjustment as provided in
Section 4.3 herein, the total maximum number of Shares which shall be
reserved by the Company and made available for Grants under the Plan may
not exceed 50,000.
4.2 Lapsed Awards. If any Share under an Option granted under
the Plan terminates, expires or lapses for any reason, such Share again
shall become automatically available for issuance pursuant to other Grants
under the Plan. However, in the event that prior to the Option's
termination, expiration or lapse, the holder of the Options at any time
received one or more "benefits of ownership" pursuant to such Options (as
defined by the Securities and Exchange Commission, pursuant to any rule or
interpretation promulgated under Section 16 of the Exchange Act), the
Shares subject to such Options shall not be made available for regrant
under the Plan.
4.3 Adjustments in Authorized Shares. In the event of any
merger, reorganization, consolidation, recapitalization, separation,
liquidation, stock dividend, split-up, Share combination, or other change
in the corporate structure of the Company affecting the Shares (excluding
cash dividends), the Board may make such adjustments to outstanding
Options (including, without limitation, the number of Shares subject to
the Options and the Option Price) as may be determined to be appropriate
and equitable by the Board, in its sole discretion, to prevent dilution or
diminishment of a Grant and to otherwise appropriately adjust the
remaining number of Shares reserved and available for Grants under
Section 4.1 of the Plan; provided, however, that no such adjustment shall
be made if the adjustment may cause the Plan to fail to comply with the
"formula award" exception, as set forth in Rule 16b-3(c)(2)(ii)(A) under
the Exchange Act (or any successor provision).
ARTICLE 5. ELIGIBILITY AND PARTICIPATION
5.1 Eligibility. Persons eligible to participate in the Plan
are limited to Nonemployee Directors.
5.2 Actual Participation. Each Nonemployee Director during the
term of this Plan shall receive a Grant pursuant to the terms and
provisions set forth in Article 6 herein.
ARTICLE 6. NONQUALIFIED STOCK OPTIONS
6.1 Automatic Grants. On the date of initial election or
appointment of a non-Employee as a Director during the term of the Plan
or, on the Effective Date in the case of each Nonemployee Director who is
serving as such on the Effective Date, each such Nonemployee Director
shall be automatically granted an Option to purchase 1,000 Shares.
Thereafter, on the final day of each fiscal year of the Company during the
term of the Plan, each then serving nonemployee Director shall be
automatically granted an Option to purchase 500 Shares. The specific
terms and provisions of such Grants shall be consistent with the terms of
the Plan and incorporated into Option Agreements, executed pursuant to
Section 6.3 of the Plan.
6.2 Limitation on Grants. Other than the automatic Grants
provided in Section 6.1 herein, no additional Options shall be granted
under the Plan.
6.3 Option Agreements. Each Grant shall be evidenced by an
Option Agreement that shall specify the Option Price, the duration of the
Option, the number of Shares available for purchase under the Option, and
such other provisions as the Board shall determine appropriate, consistent
with the terms of the Plan.
6.4 Option Price. The exercise price per Share available for
purchase under an Option shall equal the Fair Market Value of a Share on
the date of the Grant.
6.5 Duration of Options. Each Option shall expire on the tenth
anniversary date of its Grant.
6.6 Exercisability of Shares Subject to Option. Subject to
Section 6.7, Participants shall be entitled to exercise Options in whole
or in part at any time and from time to time beginning immediately after
the Grant and ending on the tenth anniversary date of the Grant. Options
granted hereunder shall be immediately 100% vested.
6.7 Termination of Directorship. If a Participant ceases to be
a Nonemployee Director for any reason, including death, disability or
retirement, all Options granted to such Participant which remain
outstanding shall remain exercisable for six months following the date the
Nonemployee Director's service on the Board terminates, or until the
respective Options' expiration date, whichever period is shorter.
6.8 Payment. Options shall be exercised by the delivery of a
written notice of exercise to the Secretary of the Company, setting forth
the number of Shares with respect to which the Option is to be exercised,
accompanied by full payment for the Shares. The Option Price upon
exercise of any Option shall be payable to the Company in full either:
(a) in cash; (b) by tendering previously acquired Shares having a Fair
Market Value at the time of exercise equal to the total Option Price
(provided that the Shares tendered upon Option exercise to satisfy the
Option Price have been held by the Participant for at least six months
prior to their tender); or (c) by a combination of (a) and (b). The
proceeds from such a payment shall be added to the general funds of the
Company and shall be used for general corporate purposes.
As soon as practicable after receipt of a written notification
of exercise and full payment, the Company shall cause there to be
delivered to the Participant, in the Participant's name, Share
certificates in an appropriate amount based upon the number of Shares
purchased pursuant to the exercise of the Option.
6.9 Restrictions on Share Transferability. Shares acquired
pursuant to the exercise of an Option under the Plan shall be subject to
applicable restrictions under applicable federal securities laws, under
the requirements of any national securities exchange or market upon which
such Shares are then listed and/or traded, and under any blue sky or state
securities laws applicable to such Shares.
6.10 Nontransferability of Options. No Option granted under the
Plan may be sold, transferred, pledged, assigned or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution or to a Participant's beneficiary as allowed hereunder.
Further, all Options granted to a Participant under the Plan shall be
exercisable during his or her lifetime only by such Participant.
ARTICLE 7. AMENDMENT, MODIFICATION AND TERMINATION
7.1 Amendment, Modification and Termination. Subject to the
terms set forth in this Section 7.1, the Board may terminate, amend or
modify the Plan at any time and from time to time; provided, however,
that the provisions set forth in the Plan regarding the number of Shares
available for Grants hereunder, the Option Price of Options, and the
timing of Grants to Nonemployee Directors, may not be amended more than
once within any six month period, other than to comport with changes in
the Code, the Employee Retirement Income Security Act or the rules
thereunder, as allowed by Rule 16b-3(c)(2)(ii)(B) of the Exchange Act.
Without the approval of the shareholders of the Company (as may
be required by the Code, by the rules under Section 16 of the Exchange
Act, by any national securities exchange or system on which the Shares are
then listed or reported, or by a regulatory body having jurisdiction with
respect hereto) no such termination, amendment, or modification may:
(a) materially increase the total number of Shares which may be
available for Grants under the Plan, except as provided in
Section 4.3 herein;
(b) materially modify the requirements with respect to
eligibility to participate in the Plan; or
(c) materially increase the benefits accruing to Participants
under the Plan.
7.2 Options Outstanding. Unless required by law, no termi-
nation, amendment or modification of the Plan shall materially affect in
an adverse manner any Options outstanding under the Plan, without the
written consent of the Participant holding the outstanding Option.
ARTICLE 8. MISCELLANEOUS
8.1 Gender and Number. Except where otherwise indicated by the
context, any masculine term used herein also shall include the feminine;
the plural shall include the singular and the singular shall include the
plural.
8.2 Severability. In the event any provision of the Plan shall
be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Plan, and the Plan shall be
construed and enforced as if the illegal or invalid provision had not been
included.
8.3 Beneficiary Designation. Each Participant under the Plan
may, from time to time, name any beneficiary or beneficiaries (who may be
named contingently or successively) to whom any benefit under the Plan is
to be paid in the event of his or her death (and/or who may exercise the
Participant's Options following his or her death pursuant to the terms of
the Plan). Each designation will revoke all prior designations by the
same Participant, shall be in a form prescribed by the Board, and will be
effective only when filed by the Participant in writing with the Board
during his or her lifetime. In the absence of any such designation,
benefits remaining unpaid at the Participant's death shall be paid to the
Participant's estate (and, subject to the terms and provisions of the
Plan, any unexercised Options may be exercised by the administrator or
executor of the Participant's estate pursuant to the terms of the Plan).
8.4 No Right of Nomination or Directorship. Nothing in the
Plan or any Option Agreement shall be deemed to create any obligation on
the part of the Board to appoint or nominate any Director or other Person
for election or appointment to the Board or any right of any Person to
serve as a Director. Nothing herein or in any Option Agreement shall
interfere in any way with the right of the Company, its Board or its
shareholders to terminate a Participant's states as a Director at any time
consistent with the Company's Articles of Incorporation and Bylaws.
8.5 Shares Available. The Shares made available pursuant to
Grants under the Plan may be either authorized but unissued Shares, or
Shares which have been or may be reacquired by the Company, as determined
from time to time by the Board.
8.6 Additional Compensation. Options granted under the Plan
shall be in addition to any annual retainer, attendance fees, expense
reimbursements or other compensation or benefits payable to each
Participant as a result of his or her service on the Board or otherwise.
8.7 Successors. All obligations of the Company under the Plan,
with respect to Grants hereunder, shall be binding on any successor to the
Company, whether the existence of such successor is the result of a direct
or indirect purchase, merger, consolidation or otherwise, of all or
substantially all of the business, stock and/or assets of the Company or
its subsidiaries.
8.8 Requirements of Law. Grants under the Plan shall be
subject to all applicable laws rules and regulations, and to such
approvals by any governmental agencies or national securities exchanges as
may be required.
8.9 Governing Law. The Plan and all Option Agreements
hereunder shall be construed in accordance with and governed by the
internal laws of the State of Wisconsin.
EXHIBIT 5
September 30, 1994
The Marcus Corporation
212 West Wisconsin Avenue
Milwaukee, Wisconsin 53203
Ladies and Gentlemen:
We have acted as legal counsel for The Marcus Corporation, a
Wisconsin corporation ("Company"), in connection with the preparation of a
Form S-8 Registration Statement ("Registration Statement") to be filed by
the Company under the Securities Act of 1933, as amended ("Act"), relating
to 50,000 shares of the Company's Common Stock, $1 par value per share
("Common Stock"), which may be issued pursuant to the Company's 1994
Nonemployee Director Stock Option Plan ("1994 Plan"). The 1994 Plan is
more fully described in the Registration Statement to which reference is
hereby made.
In connection with the foregoing, we have examined: (i) the
Registration Statement; (ii) the 1994 Plan and related documents; (iii)
the Company's Articles of Incorporation and By-laws, as amended to date;
(iv) copies of resolutions of the Board of Directors of the Company
relating to the adoption of the 1994 Plan and the issuance of Common Stock
thereunder; and (v) such other proceedings, documents and records as we
have deemed necessary to enable us to render this opinion.
Based on the foregoing, we are of the opinion that the shares of
Common Stock to be issued by the Company pursuant to the terms and
conditions of the 1994 Plan as contemplated in the Registration Statement,
will be legally issued, fully paid and nonassessable and no personal
liability will attach to the ownership thereof, except for debts owing to
employees of the Company for services performed, but not exceeding six
months' service in any one case, as provided in Section 180.0622(2)(b) of
the Wisconsin Business Corporation Law. See Local 257 of Hotel and
Restaurant Employees and Bartenders International Union v. Wilson Street
East Dinner Playhouse, Inc., Case No. 82-CV-0023, Cir. Ct. Branch 1, Dane
County, Wisconsin.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement. In giving this consent we hereby disclaim
that we are "experts" within the meaning of Section 11 of the Act or
within the category of persons whose consent is required by Section 7 of
the Act.
Very truly yours,
FOLEY & LARDNER
EXHIBIT 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1994 Nonemployee Director Stock Option Plan
of our report dated July 22, 1994, with respect to the consolidated
financial statements and schedules of The Marcus Corporation included in
its Annual Report (Form 10-K) for the year ended May 26, 1994, filed with
the Securities and Exchange Commission.
Milwaukee, Wisconsin ERNST & YOUNG LLP
September 30, 1994
