As Filed With The Securities and Exchange Commission on August 30, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM S-3
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 Identification No.)
incorporation or organization)
250 East Wisconsin Avenue, Suite 1700
Milwaukee, Wisconsin 53202
(414) 272-6020
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Thomas F. Kissinger With a copy to:
General Counsel and Secretary Steven R. Barth
The Marcus Corporation Foley & Lardner
250 East Wisconsin Avenue, Suite 1700 777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202 Milwaukee, Wisconsin 53202
(414) 272-6020 (414) 271-2400
Facsimile: (414) 272-0669 Facsimile: (414) 297-4900
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
_________________________________________
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. [_]
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, other than securities offered only in connection
with dividend or interest reinvestment plans, please check the following
box. [X]
__________________
CALCULATION OF REGISTRATION FEE
Title of Each Proposed
Class of Maximum Proposed Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
Common Stock, 500,000
$1 par value shares $24.0(1) $12,000,000(1) $4,138
(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 for The Marcus Corporation
Common Stock on the New York Stock Exchange on August 21, 1996.
___________________________________
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 of 1933 or until this
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
Prospectus
THE MARCUS CORPORATION
Dividend Reinvestment and
Associate Stock Purchase Plan
500,000 Shares of Common Stock, $1 Par Value
The Marcus Corporation (the "Company") is offering to its
shareholders and associates and the associates of its subsidiaries and
covered affiliates, the opportunity to purchase shares of the Company's
Common Stock, $1 par value (the "Common Stock"), by reinvesting dividends
and/or by making optional cash investments pursuant to The Marcus
Corporation Dividend Reinvestment and Associate Stock Purchase Plan (the
"Plan"). Eligible shareholders under the Plan may reinvest all or a
portion of their cash dividends in shares of Common Stock as well as make
optional cash investments of $100 or more per investment in Common Stock
up to a total of $1,500 per calendar month. Eligible associates under the
Plan may make optional cash investments, including payroll deductions, of
$10 or more per investment in Common Stock. In addition, dividends on all
shares acquired and held in the accounts of participants under the Plan
will be automatically reinvested in additional shares of Common Stock.
The term "associates" as used herein refers to employees of the Company
and its subsidiaries and covered affiliates.
The Common Stock is traded on the New York Stock Exchange under
the symbol "MCS." On August 12, 1996, the last reported sale price of the
Common Stock on the New York Stock Exchange was $24.125 per share.
The Plan provides that shares of Common Stock may be purchased
for participants from the Company or in the open market or in privately
negotiated transactions. The price of newly issued shares purchased from
the Company will be the average (computed to four decimal places) of the
high and low prices of shares of Common Stock on the New York Stock
Exchange on the date of purchase. The price of shares of Common Stock
purchased for participants on the open market or in privately negotiated
transactions will be the weighted average of the prices paid for such
shares. No brokerage commissions, fees or service charges will be
incurred by participants in connection with purchases of shares under the
Plan (whether from the Company or on the open market or in privately
negotiated transactions) or for participating in the Plan. For a detailed
summary of the Plan, see "The Plan."
______________
The Company suggests that this Prospectus be retained for future
reference.
______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
______________
The date of this Prospectus is August 30, 1996
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's
regional offices located at the Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and at 7 World Trade
Center, 13th floor, New York, New York 10048. Copies of such material
also may be obtained from the Public Reference Section of the Commission,
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
In addition, the Commission maintains a Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. The address of
such Web site is http://www.sec.gov.
The Company has filed with the Commission a Registration
Statement on Form S-3 (together with all amendments and exhibits thereto
referred to herein as the "Registration Statement") under the Securities
Act of 1933 with respect to the Common Stock offered hereby. This
Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which have been omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is hereby made to the Registration Statement which
may be inspected and copied in the manner and at the sources described
above. For further information with respect to the Company and the Common
Stock, reference is made to the Registration Statement, including the
exhibits filed as a part thereof or incorporated by reference therein,
which may be inspected at the principal office of the Commission, without
charge, at 450 Fifth Street, N.W., Washington, D.C. 20549.
Copies of the Registration Statement may be obtained from the
Commission at its principal office at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, upon payment of prescribed fees. Statements
contained in this Prospectus as to the contents of any contract or other
document are not necessarily complete and, where the contract or the
document has been filed or incorporated by reference as an exhibit to the
Registration Statement, each such statement is qualified in all respects
by reference to the applicable document filed with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
under the Exchange Act are incorporated in this Prospectus by reference
and made a part hereof:
1. The Company's Annual Report on Form 10-K for the
fiscal year ended May 30, 1996, which contains audited
financial statements for the Company's fiscal year
ended May 30, 1996.
2. The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A, dated
November 15, 1993.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of
this Prospectus and prior to the termination of this offering, shall be
deemed to be incorporated in this Prospectus by reference and to be a part
hereof. Any statement contained in a document incorporated or deemed to
be incorporated by reference in this Prospectus shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that
a statement contained in this Prospectus or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
in this Prospectus modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom
this Prospectus is delivered, upon written or oral request of such person,
a copy of all of the information that has been incorporated in this
Prospectus by reference (other than certain exhibits to documents
incorporated by reference). Such requests should be directed to Thomas F.
Kissinger, General Counsel and Secretary, The Marcus Corporation, 250 East
Wisconsin Avenue, Suite 1700, Milwaukee, Wisconsin 53202, telephone: (414)
272-6020.
THE COMPANY
The Company is engaged in operating four business segments:
motels; hotels and resorts; movie theatres; and restaurants. The
Company's motel operations include a chain of Budgetel Inns limited
service motels and Woodfield Suites all-suite hotels. The Company's hotel
and resort operations include owned and managed full service hotels and
full-facility destination resorts. The Company also operates movie
theatres and franchises a chain of KFC restaurants.
USE OF PROCEEDS
The Company has no basis for estimating either the number of
authorized but unissued shares of Common Stock that will ultimately be
sold by the Company pursuant to the Plan or the prices at which such
shares will be sold. Any net proceeds received by the Company from the
sale of shares under the Plan will be added to the Company's general funds
and used for general corporate purposes. The Company will not receive any
proceeds from the sale of shares under the Plan which are acquired on the
open market or in privately negotiated transactions.
THE PLAN
The following is a summary of the provisions of the Plan. The
full text of the Plan is filed with the Commission as an exhibit to the
Registration Statement. This summary is subject to, and qualified by, the
complete terms of the Plan to which reference is hereby made. This
summary is not part of the legal documents constituting the Plan and does
not modify the Plan or serve as a legal interpretation of any of its
provisions.
Purpose
The purpose of the Plan is to provide shareholders of record of
the Common Stock of the Company and eligible associates of the Company and
its subsidiaries and covered affiliates with a simple and convenient
method of purchasing shares of Common Stock. Once enrolled in the Plan,
eligible shareholders may use cash dividends and/or make optional cash
investments to acquire additional shares of Common Stock without incurring
purchase fees, such as brokerage commissions or service charges. Eligible
associates may use optional cash investments, including payroll
deductions, to acquire shares of Common Stock without incurring purchase
fees.
Administration of the Plan
Firstar Trust Company (the "Trust Company") has been appointed
by the Company as its agent to administer the Plan, maintain records, send
statements of account to participants and perform other duties relating to
the Plan, subject to the direction of the Company. The Trust Company will
hold for safekeeping the shares of Common Stock acquired under the Plan
for each participant until termination of participation in the Plan or
receipt of a request in writing from a participant for all or part of his
or her Plan shares. Shares held by the Trust Company will be registered
in the name of the Trust Company or one of its nominees, as agent for
participants in the Plan. The Company acting through its Board of
Directors may, at any time and in its sole discretion, appoint a successor
administrator of the Plan upon 30 days' written notice to the Trust
Company.
All inquiries, notices, requests and other communications
regarding participation in the Plan should be directed to the Trust
Company as follows:
Firstar Trust Company
The Marcus Corporation Dividend Reinvestment
and Associate Stock Purchase Plan
P.O. Box 2077
Milwaukee, Wisconsin 53201
Advantages of Participating in the Plan
Participants in the Plan who are shareholders of record of
Common Stock may:
- Automatically reinvest dividends on all or a portion of
their shares of Common Stock held of record.
- Invest additional cash (in amounts of not less than $100
per investment, up to a maximum of $1,500 per calendar
month) to purchase additional shares of Common Stock.
Participants in the Plan who are eligible associates may:
- Invest cash (in amounts of not less than $10 per
investment) to purchase additional shares of Common Stock.
- Establish a periodic investment plan by authorizing
automatic after-tax payroll deductions (in amounts of not
less than $10 per pay period) to purchase additional shares
of Common Stock.
All participants in the Plan will:
- Have cash dividends on shares credited to their Plan
accounts automatically reinvested in additional shares of
Common Stock.
- Participate without incurring fees in connection with
purchases of additional shares of Common Stock under the
Plan, including brokerage commissions or service charges.
- Benefit from full investment of funds under the Plan
because fractional shares, as well as whole shares, will be
credited to their accounts; dividends on such fractional
shares, as well as on whole shares, will be reinvested in
additional shares.
- Avoid the need for safekeeping of certificates for shares
of Common Stock credited to their accounts under the Plan.
- Receive periodic statements from the Trust Company
reflecting all current activity in their Plan account,
thereby affording participants simplified recordkeeping.
Participation by Shareholders of Record
Eligibility. Any shareholder who has shares of Common Stock
registered in his or her own name on the books of the Company is eligible
to participate in the Plan. (Shareholders owning Class B Common Stock
will not, solely as a result of such ownership, be eligible to participate
in the Plan.) A beneficial owner of Common Stock, whose shares are
registered in the name of another (e.g., in a broker's "street name" or in
the name of a bank nominee or trustee) and who desires to participate in
the Plan, must either make appropriate arrangements with the record holder
to participate on behalf of the beneficial owner or must become a
shareholder of record by having part or all of such shares transferred
into his or her own name. Shares held by an individual in the Company's
Pension Plus Plan are not registered in the name of the individual and are
not eligible for participation in the Plan with respect to such shares.
Participation by shareholders of record of Common Stock in the
Plan is completely voluntary. Shareholders who do not elect to
participate in the Plan will continue to receive their cash dividends if,
when and as declared by the Board of Directors of the Company. On April
10, 1996, the Company publicly announced that its Board of Directors
intended to commence the quarterly payment of dividends, subject to future
authorization and declaration by the Board of Directors in each case.
Prior to such announcement, since 1984 the Company had paid annual cash
dividends to its shareholders. Payment of cash dividends in the future by
the Company will depend on its future earnings, financial requirements and
other factors. There can be no assurance that the Company will continue
to pay cash dividends or pay cash dividends at the same rates or in the
same amounts as in prior years.
Investment Options. An eligible shareholder of record of Common
Stock may elect to participate in the Plan through the following dividend
reinvestment and/or cash investment options:
Full Dividend Reinvestment - Directs the Trust Company to
reinvest the cash dividends on all shares of Common Stock
currently or subsequently registered in the participant's name.
Partial Dividend Reinvestment - Directs the Trust Company
to reinvest the cash dividends on a designated number of the
shares of Common Stock registered in the name of the
participant. The Company will continue to pay cash dividends
directly to the participant on the other shares held in his or
her name.
Optional Cash Investments - Permits the shareholder
participant to make optional cash investments of $100 or more
per investment, up to a maximum of $1,500 per calendar month,
for the purchase of additional shares of Common Stock, whether
or not any dividends on the shares of Common Stock registered in
the name of the participant are reinvested. Such investments
may be effected by making cash payments directly to the Trust
Company. A non-associate must first be a shareholder of record
before being allowed to make optional cash investments.
All shares acquired by a shareholder through dividend
reinvestment and optional cash investments will be credited to the
participant's account under the Plan. Cash dividends on shares (including
any fractional share interest) of Common Stock held in the participant's
account under the Plan will be automatically reinvested in additional
shares of Common Stock.
Enrollment. An eligible shareholder may join the Plan at any
time by properly completing and signing the Shareholder Authorization Form
accompanying this Prospectus and mailing it to the Trust Company, along
with any necessary postage, in the envelope provided for that purpose. If
the shares of Common Stock are registered in more than one name (e.g.,
joint tenants or trustees), all registered holders must sign. Shareholder
Authorization Forms may be obtained at any time by writing the Trust
Company.
The reinvestment of a shareholder participant's dividends will
begin with the dividend payment date immediately following the date on
which a signed and properly completed Shareholder Authorization Form
specifying reinvestment of dividends is received by the Trust Company,
provided that the Form is received by the Trust Company at least two
business days before the record date for a dividend payment. If the
Shareholder Authorization Form is received by the Trust Company after that
time, the reinvestment of dividends will begin with the next cash dividend
payment. Dividend payment dates in the future for the Common Stock are
expected to be on or about the 15th day of February, May, August and
November (or the closest business day thereto if such dividend payment
date is not a business day). Each corresponding record date is expected
to be 21 days in advance of such dividend payment date. There can be no
assurance that these dates will not change or that the Company will
continue paying quarterly cash dividends.
Each shareholder participant is fully responsible for the proper
completion and timely delivery to the Trust Company of his or her
Shareholder Authorization Form. Neither the Trust Company nor the Company
may be held responsible for Shareholder Authorization Forms which are not
properly completed or timely delivered.
Participation in the Plan by an eligible shareholder making
optional cash investments is described below under "Optional Cash
Investments."
Change of Investment Option. A shareholder participant may
change his or her investment option by obtaining and properly completing a
new Shareholder Authorization Form and sending it to the Trust Company.
With respect to the reinvestment of dividends, the new Shareholder
Authorization Form must be received by the Trust Company at least two
business days before the record date for a dividend payment in order to be
effective for such payment. Each shareholder participant is fully
responsible for the proper completion and timely delivery to the Trust
Company of his or her Shareholder Authorization Form. Neither the Trust
Company nor the Company may be held responsible for Shareholder
Authorization Forms which are not properly completed or timely delivered.
Participation by Associates
Eligibility. Any full-time or part-time associate of the
Company or any of its subsidiaries is eligible to participate in the Plan
if he or she: (i) is at least 18 years of age; (ii) has completed one year
of employment service in which the associate worked at least 1,000 hours
for the Company or a subsidiary or covered affiliate; and (iii) is not
covered under a collective bargaining agreement or is covered under a
collective bargaining agreement which specifically provides for the
associate's participation in the Plan. Associates need not be
shareholders of record to participate in the Plan. Participation by
associates in the Plan is completely voluntary.
Investment Options. An associate may participate in the Plan by
making optional cash payments directly to the Trust Company or by
authorizing the Company to automatically deduct a specified amount from
each of the associate's payroll checks and then promptly forwarding such
deducted amounts to the Trust Company for investment in Common Stock. All
such payroll deductions will be made with after-tax dollars. For a
discussion of the procedures for making optional cash investments, see
"Optional Cash Investments" below.
All shares acquired by an associate through optional cash
investments will be credited to the associate's account under the Plan.
Cash dividends on shares (including fractional shares) of Common Stock
held in the associate participant's account under the Plan will be
automatically reinvested in additional shares of Common Stock. An
associate may not choose to have dividends reinvested on only a partial
number of shares held in his or her associate's account.
Enrollment. An associate may join the Plan at any time by
properly completing and signing the Associate Authorization Form
accompanying this Prospectus and mailing it to the Trust Company, together
with any necessary postage, in the envelope provided for that purpose.
Each associate participant is fully responsible for the proper completion
and timely delivery to the Trust Company of his or her Associate
Authorization Form. Neither the Trust Company nor the Company may be held
responsible for Associate Authorization Forms which are not properly
completed or timely delivered.
An associate's participation in the Plan will commence as soon
as practicable after a properly completed and signed Associate
Authorization Form is received by the Trust Company. In order to be
entitled to receive dividends and have them reinvested under the Plan, an
associate must have shares in his or her Plan account on or before a
record date for the payment of dividends. Dividend payment dates in the
future for the Common Stock are expected to be on or about the 15th day of
February, May, August and November (or the next closest business day if
such dividend payment date is not a business day). Each corresponding
record date is expected to be about 21 days in advance of such dividend
payment date. There can be no assurance that these dates will not change
or that the Company will continue paying quarterly cash dividends.
Associates Who Are Shareholders of Record. An associate who is
a shareholder of record and who desires to reinvest cash dividends on all
or part of the shares of Common Stock held in his or her own name on the
books of the Company may enroll in the Plan by executing a Shareholder
Authorization Form and forwarding it to the Trust Company in the manner
described above under "Participation by Shareholders of Record."
Associate Participants Who Leave the Company. Termination of
employment does not automatically terminate participation in the Plan.
Dividends on all shares held under the Plan for the account of an
associate participant who leaves the Company will continue to be
reinvested until the participant withdraws from the Plan. Optional cash
investments may continue to be made by such a participant so long as there
are shares credited to his or her account under the Plan.
Optional Cash Investments
How the Cash Investment Option Works. An initial optional cash
investment may be made by an eligible shareholder or an eligible associate
when enrolling in the Plan by sending a check or money order (payable to
Firstar Trust Company) to the Trust Company with a properly completed and
signed Shareholder Authorization Form (in the case of a shareholder of
record) or Associate Authorization Form (in the case of an eligible
associate). Once enrolled, the participant may use the designated portion
of any statement of account supplied by the Trust Company to make
additional optional cash investments. Optional cash investments, if made
by participants in such manner, need not be in the same amount each time
and such investments need not be made on a regular basis.
Associate participants under the Plan may also authorize the
Company to automatically deduct a fixed amount from each of their payroll
checks to purchase Common Stock. All such deductions will be made with
after-tax dollars. To participate through payroll deductions, an
associate participant must properly complete, sign and return to the Trust
Company an Associate Authorization Form and indicate on such Form that he
or she desires to have the specified amount (no less than $10) deducted
from each of his or her payroll checks. The Trust Company will provide a
copy of such Form to the Human Resources Department of the Company, which
will then coordinate the appropriate payroll deductions. Each associate
participant is fully responsible for the proper completion and timely
delivery to the Trust Company of his or her Associate Authorization Form.
Neither the Trust Company nor the Company may be held responsible for
Associate Authorization Forms which are not properly completed or timely
delivered. Automatic deductions will be made, starting as soon as
possible after the Form is received by the Company from the Trust Company,
in the specified fixed amount from each of the associate participant's
payroll checks and will be forwarded promptly by the Company to the Trust
Company to allow for investment in the Common Stock. Neither the Trust
Company nor the Company may be held responsible for administrative delays
in effecting payroll deductions and their subsequent investment. An
associate participant may change the amount of automatic payroll deduction
by obtaining and properly completing and signing a new Associate
Authorization Form and sending it to the Trust Company. Any such change
will be effective as soon as administratively practicable after the Trust
Company receives a properly completed and signed new Associate
Authorization Form. An associate participant may likewise discontinue the
automatic payroll deductions by notifying the Trust Company in writing.
In each case above, the Trust Company will provide a copy of such change
or termination to the Company. The Trust Company will continue to
reinvest dividends on shares in the participant's Plan account until the
participant withdraws from the Plan. See "Withdrawal from the Plan."
Optional cash investments received from participants or
automatically deducted from associate participants' payroll, will be
applied by the Trust Company to the purchase of additional shares of
Common Stock as of the Investment Date (as such term is defined under
"Purchase of Shares" below) following the receipt of such payments, except
as otherwise provided herein. To be reinvested on the next Investment
Date, optional cash investments must be received by the Trust Company no
later than the 10th of each month (or the next succeeding business day if
the 10th of the month is not a business day). Any optional cash received
thereafter will be held by the Trust Company and invested on the next
succeeding Investment Date. NO INTEREST WILL BE PAID BY THE COMPANY OR
THE TRUST COMPANY ON OPTIONAL CASH INVESTMENTS. THEREFORE, OPTIONAL CASH
INVESTMENTS WHICH ARE MAILED TO THE TRUST COMPANY SHOULD BE SENT SO AS TO
REACH THE TRUST COMPANY SHORTLY BEFORE THE DEADLINE. PARTICIPANTS SHOULD
ALLOW ADEQUATE TIME FOR MAILING. PARTICIPANTS ARE RESPONSIBLE FOR PROPER
COMPLETION AND TIMELY DELIVERY.
Limitations on Amounts of Optional Investments by Shareholders.
Each optional cash investment by a non-associate shareholder participant
must be at least $100 per month, and the maximum of each such optional
cash investment may not exceed $1,500 per calendar month. Each optional
cash investment by an associate participant must be at least $10 per
investment, with no maximum limitation. All amounts received by the Trust
Company for investment under the Plan must be denominated in United States
dollars.
In the case of a nominee who holds Common Stock for more than
one beneficial owner, optional cash investments of more than $1,500 per
calendar month may be made, provided such nominee certifies to the Trust
Company and the Company, accompanied by such documentation as the Company
may require, that each beneficial owner is not making optional cash
investments in excess of the per investment maximum.
Return of Uninvested Optional Cash Payments. A participant may,
without terminating participation in the Plan, obtain the return of any
uninvested optional cash payments (without interest) upon written request
received by the Trust Company at least two business days prior to the
applicable Investment Date; provided that it is verified that good funds
were originally received by the Trust Company.
Costs and Expenses
All out-of-pocket costs and expenses associated with the
operation of the Plan, including service charges, will be paid by the
Company. However, a participant who instructs the Trust Company to sell
Common Stock then held in the Plan for his or her account will be
responsible for his or her pro rata share of applicable brokerage
commissions, if any, plus a $5.00 service fee.
Purchase of Shares
Reinvested Common Stock dividends, optional cash investments and
proceeds (which will be treated as optional cash investments) from the
sale or redemption of Common Stock subscription or other rights, if any,
received by the Trust Company on behalf of participants will be used to
acquire either outstanding Common Stock, or authorized and previously
unissued Common Stock from the Company, provided that the Company is then
willing to sell additional stock. In making purchases for a participant's
account, the Trust Company will combine the participant's funds with those
of other participants. It is understood that governmental regulations may
require the temporary curtailment or suspension of purchases of Common
Stock under the Plan. No interest will be paid on funds held by the Trust
Company pending investment under the Plan.
Purchases of Common Stock under the Plan will be made on or as
soon as practicable after the following applicable "Investment Dates":
(a) Each Common Stock cash dividend payment date is an
Investment Date for the reinvestment of cash dividends.
(b) The 15th day of each month (or the next closest business
day if the 15th is not a business day) is an Investment Date for the
investment of optional cash by participants.
The number of shares of Common Stock to be purchased for a
participant under the Plan depends on the purchase price of Common Stock
on the applicable Investment Date and on the amount of the participant's
cash dividends and optional cash to be invested. A participant's account
will be credited with that number of shares of Common Stock (including any
fractional share interest, computed to three decimal places) equal to the
total amount to be invested divided by the applicable purchase price per
share.
Share Purchase Prices
The price of shares of Common Stock purchased from the Company
for participants will be the average (computed to four decimal places) of
the high and low prices of shares of Common Stock on the New York Stock
Exchange on the applicable Investment Date. If no trading occurs on the
New York Stock Exchange in the Common Stock on the applicable Investment
Date, the price will be determined with reference to the next preceding
date on which the Common Stock was traded on the New York Stock Exchange.
The price of shares of Common Stock purchased for participants on the open
market or in privately negotiated transactions will be the weighted
average of the prices paid for such shares on the date the shares are
purchased. If shares are purchased on the open market or in privately
negotiated transactions on more than one date, a weighted average of such
averages will be used. In the event investment under the Plan is made
both in newly-issued and previously-issued shares, the shares purchased
will be allocated proportionately among the accounts of all participants
for whom funds are being invested at that time.
Reports to Participants
The Trust Company will maintain an account for each participant.
All shares of Common Stock (including any fractional shares, computed to
three decimal places) purchased for a participant under the Plan will be
credited to his or her account. Each participant in the Plan will receive
a quarterly statement of his or her account from the Trust Company as soon
as practicable following each dividend payment date. The Trust Company
will also furnish a participant with an account statement as soon as
practicable following the investment of any optional cash (other than
through payroll deductions).
If desired (as indicated on the participant's Authorization
Form), each participant may with respect to his or her Plan shares receive
copies of quarterly reports and certain other communications generally
sent by the Company to holders of Common Stock. Each participant will
receive copies of the Company's Annual Report and Notice of Annual Meeting
and Proxy Statement. Information needed for reporting dividend income for
federal income tax purposes will be provided to each participant in the
Plan over the prior calendar year.
Withdrawal from the Plan
Timing and Effect of Withdrawal. A participant may withdraw
from the Plan at any time by notifying the Trust Company in writing. A
participant will be deemed to have withdrawn from the Plan upon the Trust
Company receiving notice in writing of the participant's death.
Termination of participation in the Plan by a shareholder of record will
immediately stop all reinvestment of the participant's dividends if the
properly completed and signed notice of withdrawal is received by the
Trust Company not later than 10 business days prior to the record date for
the next dividend payment. Investment of optional cash will stop
immediately if notification of withdrawal from the Plan is received by the
Trust Company at least two business days prior to the applicable
Investment Date. The entire amount of any optional cash received from
which investment has been stopped by termination of participation in the
Plan will be refunded to the participant. In addition to the foregoing,
the Trust Company may terminate any account by written notice to the
participant and the Company.
Sale of Shares or Issuance of Certificates upon Withdrawal from
the Plan. Upon termination of a participant's account, the participant
(or his or her personal representative or other authorized agent) may
elect to receive either stock or cash for all the full shares in the
participant's account. If the participant's account with the Trust
Company is terminated and the participant (or his or her personal
representative or other authorized agent) elects to have the participant's
shares in the Plan sold, the Trust Company will make such sale and send to
the participant (or his or her personal representative or other authorized
agent) the proceeds less any commissions and a $5.00 service fee. Sales
requests may be accumulated by the Trust Company, but no sales
transactions will be delayed (unless otherwise required by law, the
pending update of a payroll contribution or unless required to allow the
Trust Company to credit the last dividend payment to the participant's
account) for more than 10 business days. If funds are available, such
shares may be purchased by the Trust Company for investment under the Plan
at their current market value (determined in the same manner as the price
of newly-issued shares is determined) as of the date of such sale to the
Trust Company. If no election is made, and within a reasonable time after
termination of participation in the Plan, a certificate for the shares
purchased under the Plan will be issued and delivered to the participant
or his or her estate for all full shares. In any event, any fractional
interest in a share will be converted to cash at the market value as of
the date of the sale thereof (determined in the same manner as the price
of newly-issued shares is determined).
Rejoining the Plan. Any eligible shareholder of record or
eligible associate may rejoin the Plan at any time by completing a new
Authorization Form. However, the Company may reject any such
Authorization Form from a previous participant on grounds of excessive
termination and rejoining.
Certificates for Shares
Shares Held by the Trust Company. Certificates for shares of
Common Stock purchased under the Plan will not be issued to a participant
unless specifically requested in writing by the participant or until his
or her account is terminated. The number of shares credited to a
participant's account under the Plan will be shown on each account
statement mailed to the participant. While in the custody of the Trust
Company, shares of Common Stock purchased under the Plan will be
registered in the name of the Trust Company or one of its nominees. This
convenience protects against loss, theft or destruction of stock
certificates.
At any time a participant may, without terminating participation
in the Plan, request in writing that the Trust Company issue a certificate
for all or part of the whole shares credited to his or her Plan account.
Any remaining whole shares and fractional share interest will continue to
be credited to the participant's account. A participant must request
issuance of a certificate for any shares of Common Stock purchased under
the Plan which he or she desires to sell, pledge or transfer.
Certificates for fractional share interests will not be issued
under any circumstances.
Name in Which Certificates will be Issued. Shareholder
participants' accounts under the Plan will be maintained in the names in
which certificates for shares of Common Stock of such participants are
registered at the time they enter the Plan. The account of an associate
participating in the Plan will be maintained in his or her own name. An
associate may not establish an account or interest therein for other
persons. Certificates for whole shares, when issued, will be registered
in the names in which accounts under the Plan are maintained.
Should a participant want his or her shares registered in any
other name upon the withdrawal of the shares from the Plan, the
participant must so indicate in his or her request to the Trust Company
and comply with all appropriate transfer requirements. In the event of
such a request, the participant will be responsible for any transfer taxes
that may be due and for compliance with any applicable transfer
restrictions.
No Transfer of Shares Held in Plan; No Right to Draw Against
Account. Shares of Common Stock credited to the account of a participant
under the Plan may not be assigned, pledged as collateral or otherwise
transferred. A participant who wishes to assign, pledge or otherwise
transfer such shares must execute and deliver to the Trust Company a
request (with signature guaranteed if the certificate will be registered
in other than the participant's name) that a certificate for such shares
be issued in his or her name. In addition, participants will not have the
right to draw checks or drafts against their accounts under the Plan.
General Information
Sale or Transfer of Registered Shares. If a participant
disposes of all the shares of Common Stock registered in his or her name,
but retains shares in the Plan, the Trust Company will continue to
reinvest the cash dividends on shares in the Plan, subject to a
participant's right to withdraw from the Plan at any time.
If a shareholder participant who has selected the partial
dividend reinvestment option disposes of a portion of the shares
registered in his or her name, to the extent that such participant has
registered in his or her name fewer shares than the number of shares
designated as participating in the Plan, dividends on all shares remaining
in the name of the participant will be reinvested under the Plan. If such
participant subsequently acquires additional shares registered in his or
her name, such additional shares shall be deemed to participate in the
Plan until the number of shares equals the number of shares designated as
participating in the Plan on the participant's then current Shareholder
Authorization Form.
Stock Dividends and Issuance of Rights. Any shares distributed
pursuant to stock dividends or stock splits effected by the Company on
shares held by the Trust Company for a participant will be credited to
such participant's account. In the event that the Company makes available
to the holders of its Common Stock subscription or other rights to
purchase additional shares of Common Stock or other securities, the Trust
Company will (if and when such rights trade independently) sell the rights
accruing to all shares held by the Trust Company for the participants and
will apply the net proceeds of such sale to the purchase of additional
shares of Common Stock. The Company will notify each participant in
advance of any such offer. If the participant does not want the Trust
Company to sell his or her rights and invest the proceeds, it will be
necessary for such participant to transfer all full shares held under the
Plan to his or her own name by a given date. This will permit the
participant to exercise, transfer or sell the rights on such shares. In
the event that rights issued by the Company are redeemed prior to the date
that such rights trade independently, the Trust Company will invest the
resultant funds in additional shares of Common Stock.
Voting of Shares Held in Plan. If a participant holds
certificates for shares of Common Stock, the participant will be sent a
proxy card (together with applicable proxy solicitation materials) in
connection with any annual or special meeting of shareholders. This proxy
will apply to all shares registered in the participant's name and to all
whole shares credited to the participant's account under the Plan. If the
participant does not hold certificates for shares, the participant will
receive a proxy card (together with applicable proxy solicitation
materials) on which to indicate how the shares held by the Trust Company
in the participant's Plan account are to be voted. Fractional shares may
not be voted.
A proxy card which is properly signed and returned will be voted
in the manner directed therein. If the proxy card is properly signed and
returned but no voting instructions are given with respect to any or all
items on the card, all of the participant's shares of Common Stock covered
by such proxy card will be voted in accordance with the recommendations of
the Company's management or Board of Directors. If the card is not
returned or is returned unsigned, the participant's shares will not be
voted.
Duties and Responsibilities of the Company and the Trust
Company. Other than for willful misconduct, neither the Company nor the
Trust Company nor its nominees will have any responsibility for any action
taken or omitted pursuant to the Plan, nor will they have any duties,
responsibilities or liabilities except as expressly set forth in the Plan.
Other than for willful misconduct, the Company and the Trust Company will
not be liable under the Plan for any act or for any omission to act,
including without limitation, any claims of liability (a) with respect to
the time or prices at which shares are purchased or sold for a
participant's account, or any inability to purchase or sell shares; (b)
for any fluctuation in the market value after purchase or sale of shares;
(c) any administrative delay in effecting payroll deductions; (d) delays
resulting from the improper completion or delivery of Authorization Forms,
changes thereto or withdrawal requests; or (e) arising out of a failure to
terminate a participant's account upon such participant's death prior to
receipt of notice in writing of such death.
Amendment and Termination of the Plan. The Company reserves the
right to suspend, modify or terminate the Plan at any time. All
participants will be notified of any suspension, termination or
significant modification of the Plan within a reasonable time prior to
such change.
FEDERAL INCOME TAX CONSIDERATIONS
The following summary sets forth the general federal income tax
consequences for an individual participating in the Plan. This discussion
is not, however, intended to be an exhaustive treatment of such tax
considerations. Future legislative changes or changes in administrative
or judicial interpretations, some or all of which may be retroactive,
could significantly alter the tax treatment discussed herein.
Accordingly, and because tax consequences may differ among participants in
the Plan, each participant is urged to consult his or her own tax advisor
to determine the particular tax consequences (including state income tax
consequences) that may result from participation in and the subsequent
disposal of shares purchased under the Plan.
General Considerations
In general, participants reinvesting dividends under the Plan
have the same federal income tax consequences with respect to their
dividends as do shareholders who are not participants in the Plan. On the
dividend payment date, participants will receive a taxable dividend equal
to the cash dividend reinvested, to the extent the Company has earnings
and profits. This treatment applies with respect to both the shares of
Common Stock held of record by such participants and such participants'
Plan account shares and even though the dividend amount is not actually
received in cash but is instead applied to the purchase of shares of
Common Stock under the Plan. If shares are purchased on the open market
or in a privately negotiated transaction, each participant's share of
brokerage fees, if any, paid by the Company will also be taxed as an
additional dividend to that participant, to the extent the Company has
earnings and profits.
Shares or any fraction thereof of Common Stock purchased on the
open market or in a privately negotiated transaction with reinvested
dividends will have a tax basis equal to the amount paid therefor,
increased by any brokerage fees treated as a dividend to the participant.
Shares or any fraction thereof of Common Stock purchased from the Company
with reinvested dividends will have a tax basis equal to the amount of the
dividend. Whether purchased on the open market or in a privately
negotiated transaction or from the Company, the shares or any fraction
thereof will have a holding period beginning on the day following the
purchase date.
Participants that make optional cash investments under the Plan
will be deemed to have received an additional taxable dividend in the
amount of the participant's pro rata share of the brokerage commissions,
if any, paid by the Company on the shares acquired under the Plan, to the
extent the Company has earnings and profits. Such brokerage commissions
may only be incurred on the purchase of Common Stock in the open market or
in privately negotiated transactions. Shares or any fraction thereof
purchased with optional cash investments will have a tax basis equal to
the amount of such payments increased by the amount of brokerage fees, if
any, treated as a taxable dividend to the participant with respect to
those shares or fraction thereof. The holding period for such shares or
fraction thereof will begin on the day following the purchase date.
Participants should not be treated as receiving an additional
taxable distribution relating to their pro rata share of the Trust
Company's fees or other costs of administering the Plan, all of which will
be paid by the Company. However, there can be no assurance that the
Internal Revenue Service ("IRS") will concur with this position. The
Company has no present plans to seek formal advice from the IRS on this
issue.
Participants will not recognize taxable income when they receive
certificates for whole shares credited to their account, either upon their
request for such certificates or upon withdrawal from or termination of
the Plan. However, participants will generally recognize gain or loss
when whole shares acquired under the Plan are sold or exchanged either
through the Plan at their request or by the participants after withdrawal
from or termination of the Plan. Participants will also generally
recognize gain or loss when they receive cash payments for fractional
shares credited to their account upon withdrawal from or termination of
the Plan. The amount of gain or loss will be the difference between the
amount a participant receives for his or her whole shares or fractional
shares and the tax basis for such shares. Generally, the gain or loss
will be a capital gain or loss, long-term or short-term depending on the
holding period. Currently, net long-term capital gains of certain
taxpayers are taxed at lower rates than other items of taxable income.
Purchases of shares of Common Stock through payroll deductions
by participants who are eligible associates of the Company or its
subsidiaries will be made on an after-tax basis (i.e., after all
appropriate payroll tax and other deductions have been made).
Tax Withholding
If a participant is a foreign shareholder whose dividends are
subject to United States income tax withholding, or a participating
domestic shareholder subject to backup withholding, the tax required to be
withheld will be deducted from the amount of cash dividends reinvested.
Since such withholding tax applies also to a dividend on shares credited
to the participant's Plan account, only the net dividend on such shares
will be applied to the purchase of additional shares of Common Stock.
Regular statements sent to such participants will indicate the amount of
tax withheld. Likewise, participants selling shares through the Plan who
are subject to backup or other withholding will receive only the net cash
proceeds from such sale as required by the Internal Revenue Code and the
regulations thereunder. The Company cannot refund amounts withheld.
Participants subject to withholding should contact their tax advisors or
the IRS for additional information.
LEGAL MATTERS
The validity of the issuance by the Company of authorized but
unissued or treasury shares of Common Stock offered hereby will be passed
upon for the Company by Foley & Lardner, Milwaukee, Wisconsin.
EXPERTS
The consolidated financial statements of The Marcus Corporation
appearing in the Company's Annual Report on Form 10-K for the year ended
May 30, 1996 have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
<PAGE>
No person has been authorized to give any information or to make any
representations, other than those contained or incorporated by reference
in this Prospectus, in connection with the offer made by this Prospectus
and, if given or made, such information or representations must not be
relied upon as having been authorized by the Company. This Prospectus
does not constitute an offer to sell or a solicitation of an offer to buy
any security in any jurisdiction to any person to whom it is unlawful to
make such offer or solicitation in such jurisdiction. Neither the
delivery of this Prospectus nor any sale made hereunder shall under any
circumstances imply that there has been no change in the affairs of the
Company since the date hereof or that the information contained herein or
incorporated by reference herein is correct as of any time subsequent to
its date.
TABLE OF CONTENTS
Page
Available Information . . . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Documents by Reference . . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Administration of the Plan . . . . . . . . . . . . . . . . . . . . . 4
Advantages of Participating in the Plan . . . . . . . . . . . . . . . 4
Participation by Shareholders of Record . . . . . . . . . . . . . . . 5
Participation by Associates . . . . . . . . . . . . . . . . . . . . . 7
Optional Cash Investments . . . . . . . . . . . . . . . . . . . . . . 8
Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 9
Purchase of Shares . . . . . . . . . . . . . . . . . . . . . . . . . 9
Share Purchase Prices . . . . . . . . . . . . . . . . . . . . . . . 10
Reports to Participants . . . . . . . . . . . . . . . . . . . . . . . 10
Withdrawal from the Plan . . . . . . . . . . . . . . . . . . . . . . 11
Certificate for Shares . . . . . . . . . . . . . . . . . . . . . . . 11
General Information . . . . . . . . . . . . . . . . . . . . . . . . . 12
Federal Income Tax Considerations . . . . . . . . . . . . . . . . . . . 14
General Considerations . . . . . . . . . . . . . . . . . . . . . . . 14
Tax Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
[LOGO]
THE MARCUS CORPORATION
DIVIDEND REINVESTMENT AND ASSOCIATE STOCK PURCHASE PLAN
PROSPECTUS
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is a statement of estimated expenses to be paid by the
Registrant in connection with the issuance and distribution of the
securities being registered hereby:
Securities and Exchange Commission registration fee . $4,138
New York Stock Exchange listing fee . . . . . . . . . 1,500
Accounting fees and expenses . . . . . . . . . . . . . 4,000
Legal fees and expenses . . . . . . . . . . . . . . . 15,000
Printing . . . . . . . . . . . . . . . . . . . . . . . 12,000
Miscellaneous expenses . . . . . . . . . . . . . . . . 3,362
-------
Total . . . . . . . . . . . . . . . . . . . . . . . . $40,000
=======
Item 15. Indemnification of Directors and Officers.
Pursuant to the provisions of the Wisconsin Business Corporation Law
and the Registrant's By-Laws, directors and officers of the Registrant are
entitled to mandatory indemnification from the Registrant against certain
liabilities and expenses (i) to the extent such officers or directors are
successful in the defense of a proceeding and (ii) in 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 or her duties to the Registrant and such
breach or failure constituted: (a) a willful failure to deal fairly with
the Registrant 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 Registrant are not subject to personal liability to the Registrant,
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
outlined in (a) through (d) above.
Expenses for the defense of any action for which indemnification may
be available may be advanced by the Registrant under certain
circumstances.
The indemnification provided by the Wisconsin Business Corporation
Law and the Registrant's By-Laws is not exclusive of any other rights to
which a director or officer of the Registrant may be entitled.
The Registrant maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law which may extend to,
among other things, liability arising under the Securities Act of 1933.
Item 16. Exhibits.
The exhibits filed herewith or incorporated by reference herein are
set forth and incorporated herein from the attached Exhibit Index.
Item 17. Undertakings.
(a) The Registrant hereby undertakes as follows:
(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;
(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 (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed 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.
(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 that is incorporated by
reference in the 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-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Milwaukee, State of Wisconsin,
on August 30, 1996.
THE MARCUS CORPORATION
By: /s/ Stephen H. Marcus
Stephen H. Marcus
Chairman of the Board, President
and Chief Executive Officer
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 August 30, 1996. Each person whose
signature appears below constitutes and appoints Stephen H. Marcus, Thomas
F. Kissinger and Douglas Neis, and each of them individually, his or her
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, 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 each said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully as he or she might or could do in person,
hereby ratifying and confirming all that each said attorney-in-fact and
agent may lawfully do or cause to be done by virtue hereof.
/s/Stephen H. Marcus /s/Kenneth A. MacKenzie /s/Bruce J. Olson
Stephen H. Marcus Kenneth A. MacKenzie Bruce J. Olson
Chairman of the Board, Treasurer (Chief Group Vice President
President, Chief Accounting Officer) and Director
Executive Officer and
Director (Chief Executive
and Financial Officer)
/s/John L. Murray /s/Allan H. Selig /s/George R. Slater
John L. Murray Allan H. Selig George R. Slater
Director Director Director
/s/Lee Sherman Dreyfus /s/Daniel F. McKeithan, Jr. /s/Diane Marcus Gershowitz
Lee Sherman Dreyfus Daniel F. McKeithan, Jr. Diane Marcus Gershowitz
Director Director Director
/s/Timothy E. Hoeksema
Timothy E. Hoeksema
Director
<PAGE>
EXHIBIT INDEX
Exhibit
Number Document Description
4.1 Articles of Incorporation. [Incorporated by reference
to Exhibit 3.1 to the Company's Form S-3 Registration
Statement (No. 33-57468).]
4.2 By-laws, as amended as of September 28, 1995.
[Incorporated by reference to Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the fiscal
year ended May 30, 1996.]
4.3 The Marcus Corporation Dividend Reinvestment and
Associate Stock Purchase Plan.
4.4 Shareholder Authorization Form for use in connection with
The Marcus Corporation Dividend Reinvestment and Associate
Stock Purchase Plan.
4.5 Associate Authorization Form for use in connection with The
Marcus Corporation Dividend Reinvestment and Associate
Stock Purchase Plan.
4.6 Shareholder Introductory Letter
4.7 Associate Introductory Letter
4.8 Shareholder Brochure
4.9 Associate Brochure
5 Opinion of Foley & Lardner
23.1 Consent of Ernst & Young LLP
23.2 Consent of Foley & Lardner (included as part of Exhibit 5
hereto)
24 Power of Attorney relating to subsequent amendments
(included on the signature page of the Registration
Statement)
Exhibit 4.3
THE MARCUS CORPORATION
DIVIDEND REINVESTMENT AND ASSOCIATE STOCK
PURCHASE PLAN
1. Purpose. The purpose of The Marcus Corporation Dividend
Reinvestment and Associate Stock Purchase Plan (the "Plan") is to provide
shareholders of record of the Common Stock, $1 par value (the "Common
Stock"), of The Marcus Corporation (the "Company") and associates of the
Company and its subsidiaries and covered affiliates with a simple and
convenient method of purchasing shares of Common Stock. Once enrolled in
the Plan, eligible shareholders may use cash dividends on the Common Stock
and/or make optional cash investments to acquire additional shares of
Common Stock without incurring purchase fees, such as brokerage
commissions or service charges. Eligible associates may use optional cash
investments, including payroll deductions, to acquire shares of Common
Stock without incurring purchase fees.
2. Administration. Firstar Trust Company (the "Trust
Company") has been appointed by the Company as its agent to administer the
Plan, maintain records, send statements of account to participants and
perform other duties relating to the Plan, subject to the direction of the
Company. The Trust Company will hold for safekeeping the shares of Common
Stock acquired under the Plan for each participant until termination of
participation in the Plan or receipt of a request in writing from a
participant for all or part of his or her Plan shares. Shares held by the
Trust Company will be registered in the name of the Trust Company or one
of its nominees, as agents for participants in the Plan. The Company
acting through its Board of Directors may, at any time and in its sole
discretion, appoint a successor administrator of the Plan upon 30 days'
written notice to the Trust Company. The Company shall not be required to
give participants advance notice of such an appointment.
3. Shares Subject to the Plan. Reinvested Common Stock
dividends, optional cash investments and proceeds (which will be treated
as optional cash investments) from the sale or redemption of Common Stock
subscription or other rights, if any, received by the Trust Company on
behalf of participants will be used to acquire either outstanding Common
Stock, or authorized and previously unissued Common Stock from the
Company, provided that the Company is then willing to sell such additional
stock. The maximum number of authorized and previously unissued shares of
Common Stock which may be issued for purposes of the Plan is 500,000;
provided, however, that in the event of any change in the outstanding
Common Stock by reason of stock dividends, recapitalizations,
reorganizations, mergers, consolidations, split-ups, combinations or
exchanges of shares or comparable transactions, the number of shares which
thereafter may be issued by the Company under the Plan shall be
appropriately adjusted by the Company.
4. Participation by Shareholders.
(a) Eligibility. Any shareholder who has shares of Common
Stock registered in his or her own name on the books of the Company
is eligible to participate in the Plan. A beneficial owner, whose
shares are registered in the name of another (e.g., in a broker's
"street name" or in the name of a bank nominee or trustee) and who
desires to participate in the Plan, must either make appropriate
arrangements with the record holder to participate on behalf of the
beneficial owner or must become a shareholder of record by having
part or all of such shares transferred into his or her own name.
(b) Investment Options. An eligible shareholder of record
of Common Stock may elect to participate in the Plan through the
following dividend reinvestment and/or optional cash investment
options:
(i) Reinvestment of all cash dividends on all shares
of Common Stock currently or subsequently registered in the
participant's name.
(ii) Reinvestment of all cash dividends on a
designated number of shares of Common Stock registered in the
name of the participant.
(iii) Optional cash investments as provided in
Paragraph 6.
All shares acquired by a shareholder of record through dividend
reinvestment and optional cash investments will be credited to the
shareholder's account under the Plan. Cash dividends on shares (including
fractional shares) of Common Stock held in the participant's account under
the Plan will be automatically reinvested in additional shares of Common
Stock. Fractional shares will be computed to three decimal places.
(c) Enrollment and Change of Investment Options. An
eligible shareholder may enroll in the Plan at any time by properly
completing and signing a Shareholder Authorization Form and returning
the completed Form to the Trust Company. The shareholder is
responsible for proper completion and timely delivery to the Trust
Company of the Shareholder Authorization Form. If the shares of
Common Stock are registered in more than one name (e.g., joint
tenants or trustees), all registered holders will be required to sign
the Shareholder Authorization Form. The reinvestment of a
shareholder participant's dividends will begin with the dividend
payment date immediately following the date on which a properly
completed and signed Shareholder Authorization Form specifying
reinvestment of dividends is received by the Trust Company, provided
such Form is properly completed and received by the Trust Company at
least two business days before the record date for a dividend
payment. If the Shareholder Authorization Form is received after
that time, the reinvestment of dividends will begin with the next
cash dividend payment. Participation in the Plan by an eligible
shareholder with optional cash investments is governed by
Paragraph 6.
A shareholder participant may change his or her investment
option by obtaining and completing a new Shareholder Authorization
Form and sending it to the Trust Company. With respect to the
reinvestment of dividends, the new Shareholder Authorization Form
must be received by the Trust Company at least two business days
before the record date for a dividend payment in order to be
effective for such payment.
5. Participation by Associates.
(a) Eligibility. The term "associate(s)" as used in this
Plan means an employee of the Company or a subsidiary who meets the
eligibility criteria hereinafter set forth. Any associate, who is an
employee on the payroll of the Company or any of its subsidiaries, is
eligible to participate in the Plan if he or she meets the following
criteria: (i) he or she is at least 18 years old; (ii) he or she has
completed one year of service in which he or she worked at least
1,000 hours as an employee of the Company or a subsidiary or a
covered affiliate; and (iii) he or she is not covered under a
collective bargaining agreement or he or she is covered under a
collective bargaining agreement which specifically provides for his
or her participation in the Plan.
(b) Investment Option. An eligible associate regardless
of whether he or she is already a shareholder of record may
participate in the Plan by making optional cash investments in the
manner as provided in Paragraph 6.
All shares acquired by an associate through optional cash
investments will be credited to the associate's account under the
Plan. Cash dividends on all shares (including fractional shares) of
Common Stock held in the associate participant's account under the
Plan will be automatically reinvested in additional shares of Common
Stock. Fractional shares will be computed to three decimal places.
Associates may not elect to have dividends reinvested on only part of
the shares held in their Plan account.
(c) Enrollment. To participate in the Plan, an eligible
associate should complete the Associate Authorization Form in the
manner as contemplated by Paragraph 6 and return the completed Form
to the Trust Company. The associate is responsible for proper
completion and timely delivery to the Trust Company of the Associate
Authorization Form.
(d) Associates Who Are Shareholders of Record. An
associate who is a shareholder of record and who desires to reinvest
cash dividends on the shares of Common Stock held in his or her name
may enroll in the Plan by executing a Shareholder Authorization Form
and forwarding it to the Trust Company in the manner provided in
Paragraph 4.
(e) Associate Participants Who Leave the Company.
Termination of employment does not automatically terminate
participation in the Plan. Dividends on shares held under the Plan
for the account of an associate participant who leaves the Company or
any of its subsidiaries will continue to be reinvested until the
participant withdraws from the Plan. Optional cash investments may
continue to be made by such participant so long as there are shares
credited to his or her account under the Plan.
6. Optional Cash Investments.
(a) Investment of Optional Cash. An initial optional cash
investment may be made by an eligible participant (i.e., a
shareholder of record or an eligible associate) when enrolling in the
Plan by sending a check or money order (payable to Firstar Trust
Company) to the Trust Company with a properly completed and signed
Shareholder Authorization Form (in the case of a shareholder of
record) or a properly completed and signed Associate Authorization
Form (in the case of an eligible associate). Once enrolled, the
participant may use the designated portion of any statement of
account supplied by the Trust Company to make additional optional
cash investments. Optional cash investments, if made in such manner,
need not be in the same amount each time.
Associate participants under the Plan may also authorize
the Company to automatically deduct a fixed amount from each of their
payroll checks to purchase Common Stock. To participate through
payroll deductions, an associate participant must properly complete,
sign and return to the Trust Company an Associate Authorization Form
which specifies the amount of each payroll check which the associate
participant desires to have deducted and withheld, on an after-tax
basis, from each payroll check and applied toward the purchase of
Common Stock under the Plan. Upon receipt of a properly completed
and signed Associate Authorization Form indicating that the associate
participant desires to initiate payroll deductions, the Trust Company
will provide a copy of such Authorization Form to the Human Resources
Department of the Company. Beginning as soon as possible after
receipt of such a properly completed and signed Authorization Form,
automatic deductions will be made in the specified fixed amount from
each of the associate participant's subsequent payroll checks and
such amounts will be forwarded promptly by the Company to the Trust
Company along with appropriate directions as to the account for which
such amounts should be applied to purchase Common Stock. An
associate participant may change the amount of automatic payroll
deduction by obtaining and properly completing and signing a new
Associate Authorization Form and sending it to the Trust Company.
Any such change will be effective as soon as administratively
practicable after the Trust Company receives the properly completed
and signed new Authorization Form. An associate participant may
likewise discontinue the automatic payroll deductions by notifying
the Trust Company in writing. In each case above, the Trust Company
will promptly provide a copy of such change or termination to the
Company. The Trust Company will continue to reinvest dividends on
shares in the participant's Plan account until the participant
withdraws from the Plan.
Optional cash investments received from participants or
automatically deducted from associate participants' payroll will be
applied by the Trust Company to the purchase of additional shares of
Common Stock as of the Investment Date (as defined in Paragraph 7)
following the receipt of such payments except as otherwise provided
below. To be reinvested on the next Investment Date, optional cash
investments must be received by the Trust Company no later than the
10th of each month (or the next succeeding business day if the 10th
of the month is not a business day). Any optional cash received
thereafter but prior to the next Investment Date will be held by the
Trust Company and invested on the next succeeding Investment Date.
Neither the Company nor the Trust Company will pay interest on
optional cash pending investment.
(b) Limitations on Amounts of Payments or Withdrawals.
Each optional cash investment by a non-associate shareholder
participant must be at least $100 per investment and may not exceed
$1,500 per calendar month. Each optional cash investment by an
associate participant must be at least $10 per investment, with no
maximum limitation. All amounts received by the Trust Company for
investment under the Plan must be denominated in United States
dollars.
(c) Return of Uninvested Cash. A participant may, without
terminating participation in the Plan, obtain the return (without
interest) of any uninvested optional cash upon written request
received by the Trust Company at least two business days prior to the
applicable Investment Date; provided that it is verified that good
funds were originally received by the Trust Company.
7. Purchase of Common Stock by the Trust Company. Purchases
of Common Stock under the Plan will be made on or as soon as practicable
after the following applicable "Investment Dates":
(a) Each dividend payment date is an Investment Date for
the reinvestment of cash dividends.
(b) The 15th day of each month (or the next closest
business day if the 15th is not a business day) is an Investment Date
for the investment of optional cash by a participant.
For various reasons, including the observance of the rules and
regulations of the Securities and Exchange Commission or other regulatory
agencies requiring temporary curtailment or suspension of purchases, the
investment of all or part of the funds available in a participant's
account may be delayed from time to time. No interest will be paid by the
Company or the Trust Company pending investment (or return) of funds held
under the Plan.
A participant's account will be credited with that number of
shares of Common Stock (including any fractional shares, computed to three
decimal places) equal to the total amount to be invested divided by the
applicable purchase price per share.
8. Price to Participants. The price of shares of Common Stock
purchased from the Company for participants will be the average (computed
to four decimal places) of the high and low prices of shares of Common
Stock on the New York Stock Exchange on the applicable Investment Date.
If no trading occurs on the New York Stock Exchange in the Common Stock on
the applicable Investment Date, the price will be determined with
reference to the next preceding date on which the Common Stock was traded
on the New York Stock Exchange. The price of shares of Common Stock
purchased for participants on the open market or in privately negotiated
transactions will be the weighted average of the prices paid for such
shares on the date the shares are purchased. If shares are purchased on
the open market or in privately negotiated transactions on more than one
date, a weighted average of such averages will be used. In the event
investment under the Plan is made both in newly-issued and previously-
issued shares, the shares purchased shall be allocated proportionately
among the accounts of all participants for whom funds are being invested
at that time.
9. Reports to Participants. The Trust Company will maintain
an account for each participant. All shares of Common Stock (including
any fractional shares, computed to three decimal places) purchased for a
participant under the Plan will be credited to his or her account.
Each participant in the Plan will receive a quarterly statement
of his or her account from the Trust Company as soon as practicable
following each dividend payment date. The Trust Company will also furnish
a participant with an account statement as soon as practicable following
the investment of any optional cash (other than through payroll
deductions).
10. Custody of Stock and Issuance of Stock Certificates. The
Trust Company will hold the shares of all participants acquired under the
Plan in its name or one of its nominee's name without charge. A
participant may, from time to time, make written request of the Trust
Company to issue a stock certificate in his or her name for full shares.
No certificates for fractional shares will be issued.
11. Costs and Expenses. All costs and expenses associated with
the operation of the Plan, including service charges, will be paid by the
Company. However, a participant who instructs the Trust Company to sell
any Common Stock then held in the Plan for his or her account will be
responsible for his or her pro rata share of applicable brokerage
commissions relating to such sale, plus a $5.00 service fee.
12. Withdrawal from Plan.
(a) Timing and Effect of Withdrawal. A participant may
withdraw from the Plan at any time by notifying the Trust Company in
writing. A participant will be deemed to have withdrawn from the
Plan upon the Trust Company receiving notice in writing of the
participant's death. Termination of participation in the Plan by a
shareholder of record will immediately stop all reinvestment of the
participant's dividends if the notice of withdrawal is received by
the Trust Company not later than 10 business days prior to the record
date for the next dividend payment. Investment of optional cash will
stop immediately if notification of withdrawal from the Plan is
received by the Trust Company at least two business days prior to the
applicable Investment Date. The entire amount of any optional cash
received for which investment has been stopped by termination of
participation in the Plan will be refunded to the participant. In
addition to the foregoing, the Trust Company may terminate any
account by written notice to the participant and to the Company.
(b) Sale of Shares or Issuance of Certificates upon
Withdrawal from Plan. Upon termination of a participant's account,
the participant (or his or her personal representative or other
authorized agent) may elect to receive either stock or cash for all
the full shares in the participant's account. If the participant's
account with the Trust Company is terminated and the participant (or
his or her personal representative or other authorized agent) elects
to have the participant's shares in the Plan sold, the Trust Company
shall make such sale and send to the participant (or his or her
personal representative or other authorized agent) the proceeds less
any applicable commissions and a $5.00 service fee. Sales requests
may be accumulated by the Trust Company, but no sales transactions
shall be delayed (unless otherwise required by law, the pending
update of a payroll contribution or unless required to allow the
Trust Company to credit the last dividend payment to the
participant's account) for more than 10 business days. If funds are
available, such shares may be purchased by the Trust Company for
investment under the Plan at their current market value (determined
in the same manner as the price of newly-issued shares is determined
under Paragraph 8) as of the date of such sale to the Trust Company.
If no election is made, and within a reasonable time after
termination, a certificate for the shares purchased under the Plan
will be issued and delivered to the participant or his or her estate
for all full shares. In any event, any fractional interest in a
share will be converted to cash at the market value as of the date of
the sale thereof (determined in the same manner as the price of
newly-issued shares is determined under Paragraph 8).
(c) Rejoining the Plan. Any eligible shareholder of
record or eligible associate may rejoin the Plan at any time by
completing a new Authorization Form. However, the Company in its
discretion shall have the right to reject any such Form from a
previous participant on grounds of excessive termination and
rejoining.
13. Sale or Other Transfer of Registered Shares. If a
participant disposes of all the shares of Common Stock registered in his
or her name, but retains shares in the Plan, the Trust Company will
continue to reinvest the cash dividends on shares in the Plan, subject to
a participant's right to withdraw from the Plan at any time.
If a shareholder participant who has selected the partial
dividend reinvestment option disposes of a portion of the shares
registered in his or her name, to the extent that such participant has
registered in his or her name fewer shares than the number of shares
designated as participating in the Plan, dividends on all shares remaining
in the name of the participant will be reinvested under the Plan. If such
participant subsequently acquires additional shares registered in his or
her name, such additional shares shall be deemed to participate in the
Plan until the number of shares equals the number of shares designated as
participating in the Plan on the participant's then current Shareholder
Authorization Form.
14. Voting of Shares Held Under the Plan. The Trust Company
will vote at shareholders' meetings of the Company any full shares of
Common Stock held for each participant's account under the Plan in
accordance with the directions provided by the participant to the Trust
Company. Such shares will not be voted if no directions are given by the
participant. No fractional shares will be voted in any case.
15. Stock Dividends and Issuance of Rights. Any shares of
Common Stock distributed pursuant to stock dividends or stock splits
effected by the Company on shares held by the Trust Company for a
participant will be credited to such participant's account. In the event
that the Company makes available to the holders of its Common Stock
subscription or other rights to purchase additional shares of Common Stock
or other securities, the Trust Company will (if and when such rights trade
independently) sell the rights accruing to all shares held by the Trust
Company for the participants and will apply the net proceeds of such sale
to the purchase of Common Stock in accordance with Paragraph 6. The
Company will notify each participant in advance of any such offer. If the
participant does not want the Trust Company to sell his or her rights and
invest the proceeds, it will be necessary for such participant to transfer
all full shares held under the Plan to his or her own name by a given
date. This will permit the participant to exercise, transfer or sell the
rights on such shares. In the event that rights issued by the Company are
redeemed prior to the date that such rights trade independently, the Trust
Company will invest the resultant funds in additional shares of Common
Stock in accordance with Paragraph 6.
16. No Right to Draw Against Account. No participant shall
have a right to draw checks or drafts against his or her account or to
give instructions to the Trust Company with respect to any shares or cash
held therein except as expressly provided herein.
17. Notice to Participants. Notices to the participants may be
given by letter addressed to each participant at his or her last address
of record with the Company. Each participant shall give prompt written
notice to the Company of any change of address.
18. Amendment and Termination of Plan. The Company in its
discretion reserves the right to suspend, modify or terminate the Plan at
any time. All participants will be notified of any suspension,
termination or significant modification of the Plan within a reasonable
time prior to such change.
19. Duties and Responsibilities. Other than with respect to
actions or inactions constituting willful misconduct, neither the Company
nor the Trust Company nor its nominees shall have any responsibility for
any action taken or omitted pursuant to the Plan, nor shall they have any
duties, responsibilities or liabilities except as expressly set forth
herein. Other than with respect to actions or inactions constituting
willful misconduct, neither the Company nor the Trust Company shall be
liable hereunder for any act, or for any omission to act, including
without limitation, any claims of liability (a) with respect to the time
or prices at which shares are purchased or sold for a participant's
account, or any inability to purchase or sell shares, (b) for any
fluctuation in the market value after purchase or sale of shares, (c) any
administrative delay in effecting payroll deductions, (d) delays resulting
from the improper completion or delivery of Authorization Forms, changes
thereto or withdrawal requests, or (e) arising out of a failure to
terminate a participant's account upon such participant's death prior to
receipt of notice in writing of such death.
20. Governing Law. This Plan is governed by the internal laws
of the State of Wisconsin.
Exhibit 4.4
SHAREHOLDER AUTHORIZATION FORM
THE MARCUS CORPORATION
DIVIDEND REINVESTMENT AND ASSOCIATE STOCK PURCHASE PLAN
1. Dividend Reinvestment
(Check only one box - fill in amount where appropriate)
[_] a. Full Cash Dividend Reinvestment. I wish to reinvest under
the Plan cash dividends on all shares of The Marcus
Corporation Common Stock registered in my name.
[_] b. Partial Cash Dividend Reinvestment. I wish to have cash
dividends reinvested on __________________ shares of The
Marcus Corporation Common Stock personally held by me in
certificate form and on all Plan shares held in my name. I
wish to have the balance of my cash dividends mailed to me.
2. [_] Optional Cash Investment (minimum $100 per investment; maximum
$1,500 per month). Please buy shares of The Marcus Corporation
Common Stock under the Plan with the enclosed check or money
order for $_________________ payable to Firstar Trust Company.
3. [_] Shareholder Reports. I want to receive copies of all reports and
information generally sent by The Marcus Corporation to
shareholders. If you do not check this box, you will not receive
such reports or information with respect to the shares held for
your account in the Plan other than notices of shareholder
meetings, proxy statements and annual reports.
<PAGE>
A. To the extent I have so designated, I hereby elect to participate in
the Plan and authorize Firstar Trust Company, as my agent, to apply
cash dividends and any optional cash investments received by it on my
behalf to the purchase of shares of The Marcus Corporation Common
Stock under the Plan. I have read the Prospectus for the Plan and
understand there is risk in investing in The Marcus Corporation
Common Stock.
Signature______________________ [_] I am a U.S. Citizen or Resident Alien
[_] I am a Nonresident Alien-Foreign Tax
Status Applies
Signature______________________
Date_______________________
(Please sign above exactly as name appears below.)
[_][_][_]-[_][_]-[_][_][_][_] [_][_]-[_][_][_][_][_][_][_]
Social Security Number. (If Employer Identification
shares are held jointly, the Number. (To be completed if
Social Security Number should the shareholder is not an
be that of the first person individual.)
listed on the stock
certificate.)
B. Under penalties of perjury, I certify (1) that the number shown
directly above is my correct Taxpayer Identification Number and (2)
that I am not subject to backup withholding because: (a) I am exempt
from backup withholding, or (b) I have not been notified by the
Internal Revenue Service (the "IRS") that I am subject to backup
withholding as a result of a failure to report all interest or
dividends, or (c) the IRS has notified me that I am no longer subject
to backup withholding.
Signature____________________________
Signature____________________________
PLEASE SIGN BOTH A & B
Exhibit 4.5
ASSOCIATE AUTHORIZATION FORM
THE MARCUS CORPORATION
DIVIDEND REINVESTMENT AND ASSOCIATE STOCK PURCHASE PLAN
I wish to participate in the Dividend Reinvestment and Associate Stock
Purchase Plan as follows (minimum $10 per investment):
1. [_] Automatic Payroll Deduction. I want cash automatically
deducted, on an after tax basis, from each of my subsequent
payroll checks and used to purchase Common Stock under the Plan.
If you choose the Automatic Payroll Deduction Option, you must
complete and sign the other portions of this Form.
2. [_] Initial Cash Investment. Please buy shares of Common Stock of
The Marcus Corporation under the Plan with the enclosed check or
money order for $____________________ payable to Firstar Trust
Company.
3. [_] Shareholder Reports. I want to receive copies of all reports
and information generally sent by The Marcus Corporation to
shareholders. If you do not check this box, you will not
receive such reports or information with respect to the shares
held for your account in the Plan, other than notices of
shareholder meetings, proxy statements and annual reports.
(Please complete the reverse side)
<PAGE>
A. To the extent I have so designated, I hereby elect to participate in
the Plan and authorize Firstar Trust Company, as my agent, to apply
optional cash investments and/or automatic payroll deductions
received by it on my behalf to the purchase of shares of The Marcus
Corporation Common Stock. I understand that all dividends received
on all shares credited to my Plan account will be automatically
reinvested in The Marcus Corporation Common Stock. I have read the
Prospectus for the Plan and understand there is risk in investing in
The Marcus Corporation Common Stock.
Signature____________________ [_] I am a U.S. Citizen or Resident Alien
[_] I am a Nonresident Alien - Foreign
Tax Status Applies
Date_________________________
(Please sign above exactly as name appears below.)
[_][_][_]-[_][_]-[_][_][_][_]
Social Security Number.
B. Under penalties of perjury, I certify (1) that the number shown
directly above is my correct Taxpayer Identification Number and (2)
that I am not subject to backup withholding because: (a) I am exempt
from backup withholding, or (b) I have not been notified by the
Internal Revenue Service (the "IRS") that I am subject to backup
withholding as a result of a failure to report all interest or
dividends, or (c) the IRS has notified me that I am no longer subject
to backup withholding.
Signature______________________
PLEASE COMPLETE AND SIGN ALL OF A, B AND C
C. PAYMENT INSTRUCTIONS:
_____ Start deducting $____________ FOR USE BY FIRSTAR
(enter amount) TRUST COMPANY ONLY:
PER PAY PERIOD, as soon as possible
Shareholder
Account Number:
_____ Supplemental Cash Investment-Enclosed
please find $__________________
payable to Firstar Trust Company.
Exact Name of Employer:________________________________
Location of Employer: ___ Budgetel Inns ___ Corporate ___ Movie Theatres
___ Hotel/Resorts ___ Restaurants
Associate's Authorization:____________ [_][_][_]-[_][_]-[_][_][_][_]
Social Security Number.
Date:_________________
BE SURE TO COMPLETE AND SIGN ALL SIDES OF THIS FORM.
YOUR SIGNATURE IS REQUIRED IN A, B AND C.
MAIL TO FIRSTAR TRUST COMPANY, P.O. BOX 2877, MILWAUKEE, WI 53201-2077
Exhibit 4.6
The Marcus Corporation
Shareholder DRIP Letter
STEPHEN H. MARCUS
Chairman of the Board
Chief Executive Officer
August 30, 1996
Dear Shareholder:
We are pleased to introduce The Marcus Corporation's new Dividend
Reinvestment Plan, a convenient and inexpensive way for shareholders to
increase their investment in Marcus Corporation common stock. While our
plan is entirely voluntary, it does represent the kind or systematic
stock-purchase program used by many shareholders in achieving the long-
term investment goals.
The only requirement is that you own Marcus Corporation stock in your own
name. If your shares are held by your broker in "street" name, by a bank
trust department or other nominee, you may request the transfer of at
least one share into your own name so you can participate. You may
automatically reinvest dividends on all or a portion of shares you hold in
your own name.
Besides reinvesting quarterly dividends, you may purchase, entirely by
mail, from $100 to $1,500 in additional common stock each month. There
are no service charges, brokerage commissions or other costs involved with
stock purchases, but you will be responsible for any fees or commissions
when shares are sold. Account statements from Firstar Trust Company,
administrator of the plan, should make recordkeeping simple. Cumulative
statements are issued during each calendar year when there is activity in
your account, including the reinvestment of dividends.
Enclosed is a plan brochure and prospectus, which we encourage you to read
carefully before making a decision. To enroll, you must complete the
enclosed Shareholder Authorization Form and mail it in the enclosed
postage-paid envelope to Firstar Trust. If you have any questions
regarding enrollment or participation, please contact Firstar Trust at
(414) 276-3737 or toll-free at (800) 637-7549.
The first dividend reinvested under the plan is expected to be paid on
November 15, 1996. If you wish to reinvest the November dividend, your
Authorization Form must be received by Firstar Trust no later than October
23, 1996. If you wish to make an optional cash investment in November of
1996, your check or money order must arrive at Firstar Trust no later than
November 11, 1996.
All of us at The Marcus Corporation are enthusiastic about this new
program for shareholders. We sincerely hope the plan will help you
achieve your personal investment objectives. As always, thank you for
your continuing support of The Marcus Corporation.
Very truly yours,
THE MARCUS CORPORATION
Stephen H. Marcus
Chairman and Chief Executive Officer
Exhibit 4.7
The Marcus Corporation
Associate DRIP Letter
STEPHEN H. MARCUS
Chairman of the Board
Chief Executive Officer
August 30, 1996
Dear Fellow Associate:
I'm pleased to introduce the new Marcus Dividend Reinvestment and
Associate Stock Purchase Plan, a convenient and inexpensive way to invest
in the future of your company.
As I said in our annual report, the most important asset of The Marcus
Corporation is our outstanding team of associates. You have helped The
Marcus Corporation grow into the strong, diversified company it is today.
This new plan will enable you to increase your personal interest in the
company through a systematic stock-purchase program. These types of
programs are used by many individuals to achieve their long-term financial
goals.
The plan is convenient and economical. It allows eligible associates of
The Marcus Corporation and its subsidiaries to reinvest cash dividends
and/or make optional cash investments of at least $10 through payroll
deduction. The company will pay all service charges, brokerage
commissions and other costs involved with purchases, but you will be
responsible for fees or commissions when shares are sold. Optional
payments made by participants will be invested on or as soon as possible
after the 15th day of each month, beginning in November 1996. Each
quarter, you will receive an easy-to-understand account statement from
Firstar Trust Company, administrator of the plan.
To participate, you must be 18 years old and have completed at least one
calendar year of employment and 1,000 hours of work in a calendar year
with the company or a subsidiary. Employees covered by a collective
bargaining agreement are not eligible to participate, unless the agreement
specifically provides for participation in the plan.
Enclosed is a plan brochure and prospectus, which we encourage you to
carefully read before making a decision. To enroll, you need to complete
the enclosed Associate Authorization Form and mail it in the enclosed
postage-paid envelope to Firstar Trust Company. To begin your payroll
deduction in November, you must return your authorization form by October
25, 1996. If you have any questions regarding enrollment or participation
in the plan, please contact Firstar Trust Company at (414) 276-3737 or
toll-free at (800) 637-7549.
If you already own shares in The Marcus Corporation in your own name, you
will also receive information describing how shareholders can participate
in the plan. If you own shares only under your Pension Plus Plan, you are
not a shareholder of record for the plan and will need to participate
separately in the plan as an associate.
We're excited about this new plan and encourage you to carefully consider
becoming a shareholder in your company. As always, thank you for your
ongoing support.
Very truly yours,
Stephen H. Marcus
Chairman and Chief Executive Officer
Exhibit 4.8
Dear Shareholder:
In response to shareholder interest, The Marcus Corporation is pleased to
offer its shareholders of record the opportunity to participate in our
Dividend Reinvestment and Associate Stock Purchase Plan. The plan is
intended to help you expand your stock ownership in The Marcus Corporation
by allowing you to reinvest the cash dividends you receive and make
supplemental cash investments in additional shares of common stock. This
voluntary plan allows you to buy our shares at a lower cost than you would
normally incur on your own since you won't have to pay brokerage
commissions or service charges to buy shares.
There are two ways you can take advantage of the plan:
(1) you can reinvest all or part of your common stock cash dividends
in additional shares, and
(2) you can purchase more shares with additional cash payments.
Details of the plan are explained in this brochure and prospectus. To
participate in the plan, just complete and mail the enclosed shareholder
authorization card.
We hope this plan will be helpful to you in achieving your investment
objectives. As always, thank you for your interest and support.
Sincerely,
Stephen H. Marcus
<PAGE>
PLAN SUMMARY
Dividend Reinvestment
This is a simple and automatic way to apply your quarterly common stock
cash dividends to buy more stock. By authorizing The Marcus Corporation
to pay all or part of your cash dividends to your agent, Firstar Trust
Company, the Trust Company will use your dividends to buy additional
shares of stock for your account. The shares purchased with your
dividends will also earn future dividends for reinvestment, helping your
investment compound and grow even faster.
Supplemental Cash Investments
You can also send the Trust Company a check each month (or less
frequently) payable to "Firstar Trust Company" for an amount between $100
to $1,500 to buy additional shares of The Marcus Corporation common stock.
You need not invest regularly and you may vary the amount invested each
time within the prescribed dollar limits. All cash dividends earned on
these shares will automatically be reinvested in additional shares of The
Marcus Corporation common stock.
Plan Features
- You may reinvest all or part of your quarterly cash dividends.
- You pay no service fees or brokerage commissions on purchases.
- You can send in a check for between $100 and $1,500 to supplementally
purchase additional shares of The Marcus Corporation common stock
monthly or less frequently.
- Participation in the plan is voluntary and can be terminated at any
time.
- You receive an easy-to-understand account statement from the Trust
Company following each investment.
- All stock certificates are retained by the Trust Company in your
account, preventing their loss or theft.
- To obtain your stock certificates or end your participation in the
plan, simply send the Trust Company a written request.
- You must own stock of record (in your own name) to participate. Your
broker will transfer shares held in street or nominee name to your
name upon request.
- Fees and commissions from the sale of stock are your responsibility.
- Your investment in our common stock is subject to market risk,
including the risk that our stock value may go down after you buy
shares. There is no guarantee of stock performance.
<PAGE>
How to Enroll
To participate in the plan, simply complete the enclosed authorization
card and mail it to:
Firstar Trust Company
Corporate Trust Department
P.O. Box 2077
Milwaukee, WI 53201-2077
For reinvestment of dividends, the form must be received at least two
business days before the record date for a dividend payment. If the form
is received after that time, dividend reinvestment will begin with the
next quarterly cash dividend payment. Supplemental cash investments must
be received by the tenth day of the month to be invested that month.
Prospectus
The Prospectus, which provides the complete terms and conditions of the
plan, begins on Page 5. Please read the Prospectus carefully before
deciding to participate in the plan.
For Additional Information:
Call toll free 1-800-637-7549
or in the Milwaukee area call: 276-3737
Exhibit 4.9
Dear Fellow Associate:
As an associate of The Marcus Corporation, you may be eligible to
participate in our Dividend Reinvestment and Associate Stock Purchase
Plan. This voluntary plan is intended to help you invest, if you desire,
in the stock of The Marcus Corporation at a lower cost than you would
normally incur on your own, as you will not have to pay brokerage
commissions or service charges to buy shares.
If you are an eligible associate, there are three ways you can take
advantage of the plan:
(1) you can authorize automatic after-tax payroll
deductions to be used to buy shares each month,
(2) all your quarterly common stock cash dividends are
automatically reinvested in additional shares, and
(3) you can purchase more shares with additional cash
payments.
Details are explained in this brochure and prospectus. If you are
eligible to participate in the plan, just complete and mail the enclosed
associate authorization card.
As always, thank you for your commitment and support.
Sincerely,
Stephen H. Marcus
Chairman and Chief Executive Officer
<PAGE>
PLAN SUMMARY
Eligibility
You are eligible to participate in the plan if you:
- Are at least 18 years old;
- Have completed at least one year of employment with The Marcus
Corporation, a subsidiary or a covered affiliate in which you worked
at least 1,000 hours in a calendar year; and
- Are not covered under a collective bargaining agreement or you are
covered under a collective bargaining agreement which specifically
provides for your participation in the plan.
Payroll Deductions
You may authorize a fixed amount (no less than $10) to be automatically
deducted from each of your payroll checks. These deducted amounts will be
used to purchase shares of our common stock each month for your account.
All deductions will be made in after-tax dollars. You can change the
amount or discontinue your payroll deductions at any time.
Dividend Reinvestment
This simple and automatic plan applies your quarterly common stock cash
dividends to buy more stock. Dividends are automatically reinvested in
additional shares of stock. The shares purchased with your dividends will
also earn future dividends for reinvestment, helping your investment
compound and grow even faster.
Additional Cash Investments
In addition to, or instead of, automatic payroll deductions, you can also
send the Trust Company each month a check (no less than $10) payable to
"Firstar Trust Company" to buy additional shares of The Marcus Corporation
common stock. You need not invest regularly and you may vary the amount
invested each time. All cash dividends earned on these shares will
automatically be reinvested in additional shares of The Marcus Corporation
common stock.
Plan Features
- Automatic after-tax payroll deductions can help you establish a
systematic investment plan in The Marcus Corporation's common stock.
- All of your quarterly cash dividends will automatically be
reinvested.
- You pay no service fees or brokerage commissions on purchases.
- You can send in a check (no less than $10) monthly or less
frequently to supplementally purchase additional shares of The Marcus
Corporation common stock.
- Participation in the plan is voluntary and can be terminated at any
time.
- You receive an easy-to-understand account statement from the Trust
Company each quarter.
- All stock certificates are retained by the Trust Company in your
account, preventing their loss or theft.
- To obtain your stock certificates or end your participation in the
plan, simply send the Trust Company a written request.
- Fees and commissions from the sale of stock are your responsibility.
- Your investment in Marcus Corporation common stock is subject to
market risk, including the risk that the stock value may go down
after you buy shares. There is no guarantee of stock performance.
How to Enroll
To participate in the plan, simply complete the enclosed authorization
card and mail it in the enclosed envelope to:
Firstar Trust Company
Corporate Trust Department
P.O. Box 2077
Milwaukee, WI 53201-2077
Prospectus
The Prospectus, which provides complete terms and conditions of the plan,
begins on Page 5. Please read the Prospectus carefully before deciding to
participate in the plan.
For Additional Information:
Call toll free: 1-800-637-7549
or in the Milwaukee area call: 276-3737
Exhibit 5
F O L E Y & L A R D N E R
A T T O R N E Y S A T L A W
CHICAGO FIRSTAR CENTER SAN DIEGO
JACKSONVILLE 777 EAST WISCONSIN AVENUE SAN FRANCISCO
LOS ANGELES MILWAUKEE, WISCONSIN 53202-5367 TALLAHASSEE
MADISON TELEPHONE (414) 271-2400 TAMPA
ORLANDO FACSIMILE (414) 297-4900 WASHINGTON, D.C.
SACRAMENTO WEST PALM BEACH
WRITER'S DIRECT LINE
August 30, 1996
The Marcus Corporation
250 East Wisconsin Avenue
Suite 1700
Milwaukee, Wisconsin 53202
Gentlemen:
We have acted as counsel for The Marcus Corporation, a Wisconsin
corporation (the "Company"), in conjunction with the preparation of a Form
S-3 Registration Statement (the "Registration Statement") to be filed by
the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to
500,000 shares ("shares") of the Company's common stock, $1 par value (the
"Common Stock"), which may be issued pursuant to The Marcus Corporation
Dividend Reinvestment and Associate Stock Purchase Plan ("Plan").
We have examined: (i) the Plan; (ii) the Registration Statement;
(iii) the Company's Restated Articles of Incorporation and Bylaws, as
amended to date; (iv) resolutions of the Company's Board of Directors
relating to the Plan; and (v) such other 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:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. The Shares, when issued and paid for in the manner set
forth in the Plan, will be validly issued, fully paid and nonassessable
and no personal liability will attach to the ownership thereof, except
with respect to wage claims of employees of the Company for services
performed not to exceed six (6) months service in any one case, as
provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation
Law.
We consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving our consent, we do not admit that we
are "experts" within the meaning of Section 11 of the Securities Act or
within the category of persons whose consent is required by Section 7 of
said Act.
Very truly yours,
FOLEY & LARDNER
Exhibit 23.1
DIVIDEND REINVESTMENT PLAN
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 pertaining to the Dividend Reinvestment
and Associate Stock Purchase Plan of The Marcus Corporation and to the
incorporation by reference therein of our report dated July 19, 1996 with
respect to the consolidated financial statements of The Marcus Corporation
included in its Annual Report (Form 10-K) for the year ended May 30, 1996,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Milwaukee, Wisconsin
August 26, 1996
