Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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THE MARCUS CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin 39-1139844
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
250 East Wisconsin Avenue, Suite 1700
Milwaukee, Wisconsin 53202
(Address of principal executive offices) (Zip Code)
The Marcus Corporation 1995 Equity Incentive Plan
(Full title of the plan)
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Thomas F. Kissinger, Esq. Copy to:
General Counsel and Secretary
The Marcus Corporation Steven R. Barth, Esq.
250 East Wisconsin Avenue, Suite 1700 Foley & Lardner
Milwaukee, Wisconsin 53202 777 East Wisconsin Avenue
(414) 905-1390 Milwaukee, Wisconsin 53202
(Name, address and telephone number, (414) 271-2400
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Maximum Proposed Maximum
Securities to be to be Offering Price Aggregate Offering Amount of
Registered Registered(1) Per Share Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, 2,000,000 shares(2) $13.03125 (3) $26,062,500 (3) $6,880.50 (2)
$1 par value
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this Registration Statement also covers an indeterminate
number of additional shares of Common Stock that may become issuable as a result of stock splits, stock dividends,
or similar transactions pursuant to the anti-dilution provisions of the 1995 Equity Incentive Plan.
(2) 1,124,850 shares of Common Stock, and the corresponding registration fee that has been previously paid by the
Registrant, are being carried forward from Registrant's earlier Registration Statement on Form S-8, Registration
No. 33-63299.
(3) 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 Composite Tape on December 15, 1999.
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Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus referred
to herein also relates to the Registrant's Registration Statement on Form S-8,
Registration No. 33-63299.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in Part
I are not required to be filed with the Securities and Exchange Commission (the
"Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Commission by The Marcus
Corporation (the "Company") are hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
May 27, 1999, filed on August 24, 1999.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
August 26, 1999, filed on October 12, 1999.
3. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated November 17, 1993, including
any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
after the date of filing of this Registration Statement and prior to such time
as the Company files a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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None.
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Item 6. Indemnification of Directors and Officers.
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Pursuant to the Wisconsin Business Corporation Law and the Company's
By-laws, as amended, directors and officers of the Company are entitled to
mandatory indemnification from the Company against certain liabilities and
expenses incurred in a proceeding to which the director or officer was a party
because he or she is a director or officer of the Company (i) to the extent such
officers or directors are successful on the merits or otherwise in the defense
of a proceeding and (ii) in such proceedings in which the director or officer is
not successful in defense thereof, unless (in the latter case only) it is
determined that the director or officer breached or failed to perform his duties
to the Company and such breach or failure constituted: (a) a willful failure to
deal fairly with the Company or its shareholders in connection with a matter in
which the director or officer had a material conflict of interest; (b) a
violation of the criminal law unless the director or officer had reasonable
cause to believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful; (c) a transaction from which the
director or officer derived an improper personal profit; or (d) willful
misconduct. It should be noted that the Wisconsin Business Corporation Law
specifically states that it is the public policy of Wisconsin to require or
permit indemnification in connection with a proceeding involving securities
regulation, as described therein, to the extent required or permitted as
described above. Additionally, under the Wisconsin Business Corporation Law,
directors of the Company are not subject to personal liability to the Company,
its shareholders or any person asserting rights on behalf thereof for certain
breaches or failures to perform any duty resulting solely from their status as
directors except in circumstances paralleling those in subparagraphs (a) through
(d) outlined above.
The indemnification provided by the Wisconsin Business Corporation Law
and the Company's By-laws is not exclusive of any other rights to which a
director or officer may be entitled. The general effect of the foregoing
provisions may be to reduce the circumstances in which an officer or director
may be required to bear the economic burdens of the foregoing liabilities and
expenses.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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The exhibits filed herewith or incorporated herein by reference are
set forth in the attached Exhibit Index.
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
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(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 with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
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Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Milwaukee, State of Wisconsin, on this 21st day of
December, 1999.
THE MARCUS CORPORATION
By: /s/ Stephen H. Marcus
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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 by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
constitutes and appoints Stephen H. Marcus, Douglas A. Neis and Thomas F.
Kissinger and his or her 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 the Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or their or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Signature Title Date
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/s/ Stephen H. Marcus Chairman of the Board, December 21, 1999
- ----------------------------- President, Chief Executive
Stephen H. Marcus Officer and Director
(Principal Executive Officer)
/s/ Douglas A. Neis Chief Financial Officer and December 21, 1999
- ----------------------------- Treasurer (Principal Financial
Douglas A. Neis and Accounting Officer)
/s/ Diane Marcus Gershowitz Director December 21, 1999
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Diane Marcus Gershowitz
S-1
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Signature Title Date
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/s/ Bronson J. Haase Director December 21, 1999
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Bronson J. Haase
/s/ Timothy E. Hoeksema Director December 21, 1999
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Timothy E. Hoeksema
/s/ Daniel F. McKeithan, Jr. Director December 21, 1999
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Daniel F. McKeithan, Jr.
/s/ Philip L. Milstein Director December 21, 1999
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Philip L. Milstein
/s/ Bruce J. Olson Director December 21, 1999
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Bruce J. Olson
/s/ Allan H. Selig Director December 21, 1999
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Allan H. Selig
S-2
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EXHIBIT INDEX
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Exhibit
Number Exhibit Description
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(4.1) The Marcus Corporation 1995 Equity Incentive Plan, as amended.
[Incorporated by reference to Exhibit 10.4 to the Company's Form 10-K
for the fiscal year ended May 27, 1999 (File No. 1-12604).]
(4.2) Restated Articles of Incorporation of The Marcus Corporation.
[Incorporated by reference to Exhibit 3.2 to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended November 13, 1997
(File No. 1-12604).]
(5.1) Opinion of Foley & Lardner.
(23.1) Consent of Ernst & Young LLP.
(23.2) Consent of Foley & Lardner (contained in Exhibit 5.1 hereto).
(24) Power of Attorney relating to subsequent amendments (included on the
signature page to this Registration Statement).
E-1
FOLEY & LARDNER
ATTORNEYS AT LAW
CHICAGO FIRSTAR CENTER SACRAMENTO
DENVER 777 EAST WISCONSIN AVENUE SAN DIEGO
JACKSONVILLE MILWAUKEE, WISCONSIN 53202-5367 SAN FRANCISCO
LOS ANGELES TELEPHONE (414) 271-2400 TALLAHASSEE
MADISON FACSIMILE (414) 297-4900 TAMPA
MILWAUKEE WASHINGTON, D.C.
ORLANDO WEST PALM BEACH
CLIENT/MATTER NUMBER
052560/0170
December 21, 1999
The Marcus Corporation
250 East Wisconsin Avenue, Suite 1700
Milwaukee, Wisconsin 53202
Ladies and Gentlemen:
We have acted as counsel for The Marcus Corporation, a Wisconsin
corporation (the "Company"), in conjunction with the preparation of a
Registration Statement on Form S-8 (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 2,000,000 shares of the
Company's Common Stock, $1 par value (the "Common Stock"), which may be issued
or acquired pursuant to The Marcus Corporation 1995 Equity Incentive Plan, as
amended (the "Plan").
As such counsel, we have examined: (i) the Plan; (ii) the Registration
Statement; (iii) the Company's Restated Articles of Incorporation and By-Laws,
as amended to date; (iv) resolutions of the Company's Board of Directors
relating to the Plan and the issuance of securities thereunder; and (v) such
other documents and records as we have deemed necessary to enable us to render
this opinion.
Based upon 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 of Common Stock, when issued by the Company pursuant to
the terms and conditions of 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, or other debts owing to, employees of the
Company for services performed, but not exceeding six months' service in any one
case, as provided in Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law.
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The Marcus Corporation
December 21, 1999
Page 2
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 the Securities
Act.
Very truly yours,
/s/ Foley & Lardner
FOLEY & LARDNER
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to The Marcus Corporation 1995 Equity Incentive Plan of our
report dated July 16, 1999, with respect to the consolidated financial
statements of The Marcus Corporation included in its Annual Report (Form 10-K)
for the fiscal year ended May 27, 1999, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Milwaukee, Wisconsin
December 21, 1999
