AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 15, 2001
REGISTRATION NO. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
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 (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
THE MARCUS CORPORATION
250 EAST WISCONSIN AVENUE, SUITE 1700
MILWAUKEE, WISCONSIN 53202-4220
(414) 905-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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THOMAS F. KISSINGER, ESQ.
GENERAL COUNSEL AND SECRETARY
THE MARCUS CORPORATION
250 EAST WISCONSIN AVENUE, SUITE 1700
MILWAUKEE, WISCONSIN 53202-4220
(414) 905-1000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
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With copies of all orders, notices and communications to:
STEVEN R. BARTH, ESQ.
FOLEY & LARDNER
777 EAST WISCONSIN AVENUE
MILWAUKEE, WISCONSIN 53202
(414) 271-2400
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC -- From time to
time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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 (the "Securities Act"), other than securities offered only in connection
with dividend or interest reinvestment plans, please check the following box.
[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
=================== ========== ================ ================= ============
TITLE OF EACH AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
- ------------------- ---------- ---------------- ----------------- ------------
Common Stock,
$1.00 par value 2,150,000 $13.88 $29,148,000 $7,287
=================== ========== ================ ================= ============
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of determining the registration fee and
calculated in accordance with Rule 457(c) under the Securities Act on the
basis of the average of the high and low prices of The Marcus Corporation's
Common Stock on August 10, 2001 as quoted on the New York Stock Exchange.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING SHAREHOLDERS NAMED HEREIN MAY NOT SELL THESE SECURITIES UNTIL THE
REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES, AND THE
SELLING SHAREHOLDERS ARE NOT SOLICITING AN OFFER TO BUY THESE SECURITIES, IN ANY
STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Subject to Completion dated: _______________
PROSPECTUS
THE MARCUS CORPORATION
2,150,000 SHARES OF COMMON STOCK
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission relating to the public offering of 1,750,000
shares of our Common Stock that are held by three mutual funds advised by Lord
Abbett & Co. ("Lord Abbett") and 400,000 shares that are owned by The Ben and
Celia Marcus 1992 Revocable Trust (the "Trust"). The sale of the shares is not
being underwritten. The selling shareholders listed on page 8 of this prospectus
may sell or distribute the shares in the manner set forth beginning on page 9 of
this prospectus, including through dealers, brokers or other agents, or directly
to one or more purchasers from time to time or at any time during which the
registration statement is effective. The price may be the market price
prevailing at the time of sale or a privately negotiated price.
We will not receive any of the proceeds from the sale of the shares. We and
the Trust have agreed to share the expenses incident to the shares'
registration.
------------------------
Our Common Stock is quoted on the New York Stock Exchange under the symbol
"MCS." On August 14, 2001, the last reported sale price of our Common Stock was
$13.98 per share.
------------------------
INVESTING IN OUR COMMON STOCK INVOLVES RISK. SEE "RISK FACTORS" BEGINNING
ON PAGE 4 OF THIS PROSPECTUS TO READ ABOUT CERTAIN FACTORS YOU SHOULD CONSIDER
BEFORE BUYING SHARES OF OUR COMMON STOCK.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED WHETHER
THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is _____________, 2001
TABLE OF CONTENTS
WHERE YOU CAN FIND MORE INFORMATION................................ 1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.................... 1
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS.................. 2
RISK FACTORS....................................................... 4
USE OF PROCEEDS.................................................... 7
SELLING SHAREHOLDERS............................................... 7
PLAN OF DISTRIBUTION............................................... 9
LEGAL MATTERS...................................................... 10
EXPERTS............................................................ 10
You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with information different from that
contained in this prospectus. The selling shareholders are offering to sell, and
seeking offers to buy, shares of our Common Stock, only in jurisdictions where
offers and sales are permitted. The information contained in this prospectus is
accurate only as of the date of this prospectus, regardless of the time of
delivery of this prospectus or of any sale of our Common Stock. In this
prospectus, "Company," "we," "us," and "our" refer to The Marcus Corporation,
its predecessors and its consolidated subsidiaries.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy and information
statements and other information with the Securities and Exchange Commission
(the "Commission"). You can inspect and copy these reports, proxy and
information statements and other information at the Commission's public
reference facilities at 450 Fifth Street, N.W., Washington, D.C. 20549 and at
the Commission's regional offices at Suite 1400, 500 West Madison Street,
Chicago, Illinois 60661 and Seven World Trade Center, New York, New York 10048.
Information on the operation of the public reference room is available by
calling the Commission at 1-800-SEC-0330. The Commission also maintains a site
on the World Wide Web at http://www.sec.gov that contains reports, proxy
statements and other information about us.
This prospectus is part of the registration statement on Form S-3 that we
filed with the Commission to register shares of our Common Stock. This
prospectus does not contain all of the information contained in the registration
statement. Parts of documents are incorporated by reference into this
prospectus. You should read these documents in their entirety rather than
relying just on the parts incorporated by reference. Some of these documents are
exhibits to the registration statement. The registration statement together with
its exhibits can be inspected and copied at the public reference facilities and
regional offices of the Commission referred to above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by us with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and any future filings made by us with the Commission under Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, are incorporated by reference and
made a part of this prospectus to the extent statements in this prospectus do
not modify or supersede them:
1. Annual Report on Form 10-K for the fiscal year ended May 25, 2000;
2. Quarterly Report on Form 10-Q for the fiscal quarter ended on August 24,
2000;
1
3. Quarterly Report on Form 10-Q for the fiscal quarter ended on November 23,
2000; and
4. Quarterly Report on Form 10-Q for the fiscal quarter ended on February 22,
2001.
5. 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.
In addition, all documents filed by us pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of the initial registration
statement and prior to the effectiveness of the registration statement shall be
deemed to be incorporated by reference herein.
You may request, at no cost, a copy of any and all of the documents or
information referred to above that has been or may be incorporated by reference
in this prospectus (excluding exhibits to such documents unless such exhibits
are specifically incorporated by reference). Requests should be directed in
writing or by phone to:
The Marcus Corporation
250 East Wisconsin Avenue
Milwaukee, WI 53202-4220
Attn: Thomas F. Kissinger, Esq.
Telephone Number: (414) 905-1000
World Wide Web Address: www.marcuscorp.com
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain matters discussed in this Form S-3 are "forward-looking statements"
intended to qualify for the safe harbors from liability established by the
Private Securities Litigation Reform Act of 1995. These forward-looking
statements may generally be identified as such because the context of such
statements will include words such as we "believe," "anticipate," "expect" or
words of similar import. Similarly, statements that describe our future plans,
objectives or goals are also forward-looking statements. Such forward-looking
statements are subject to certain risks and uncertainties, including, but not
limited, to the following: (i) the Company's ability to successfully define and
build the Baymont brand within the "limited-service, mid-price without food and
beverage" segment of the lodging industry; (ii) the availability, in terms of
both quantity and audience appeal, of motion pictures for the Company's theatre
division; (iii) the effects of increasing depreciation expenses and pre-opening
and start-up costs due to the capital intensive nature of the Company's
businesses; (iv) the effects of adverse economic conditions in the Company's
markets, particularly with respect to the Company's limited-service lodging and
hotels and resorts divisions; (v) the effects of adverse weather conditions,
particularly during the winter in the Midwest and in the Company's other
markets; (vi) the effects on the Company's occupancy and room rates from the
relative industry supply of available rooms at comparable lodging facilities in
the Company's markets; (vii) the effects of competitive conditions in the
markets served by the Company; and (viii) the effects of increased energy costs.
2
THE MARCUS CORPORATION
We are primarily engaged in three business segments: limited-service
lodging, movie theatres and hotels and resorts.
As of May 31, 2001, our limited-service lodging operations included a chain
of 184 Baymont Inns & Suites limited-service facilities in 30 states and 7
Woodfield Suites all-suite hotels in Wisconsin, Colorado, Ohio, Illinois and
Texas. Of the 184 Baymont Inns & Suites, 87 were owned or operated by us, ten
were operated under joint venture agreements and 87 were franchised.
As of May 31, 2001, we operated 49 movie theatres with a total of 482
screens in Wisconsin, Ohio, Illinois and Minnesota and a family entertainment
center, Funset Boulevard, in Appleton, Wisconsin.
As of May 31, 2001, our owned hotels and resorts operations included the
Pfister Hotel and the Hilton Milwaukee City Center, which are full-service
hotels in Milwaukee, Wisconsin; the Hilton Madison at Monona Terrace, a Madison,
Wisconsin full-service hotel; the Grand Geneva Resort & Spa, which is a
full-facility destination resort in Lake Geneva, Wisconsin; the Miramonte
Resort, which is a boutique luxury resort in Indian Wells, California; and the
Hotel Phillips, a full-service landmark hotel located in downtown Kansas City,
Missouri (scheduled to reopen in September 2001). As of May 31, 2001, we also
managed five hotels for third parties: the Hotel Mead in Wisconsin Rapids,
Wisconsin; the Crowne-Plaza Northstar in Minneapolis, Minnesota; the Timber
Ridge Lodge in Lake Geneva, Wisconsin; the Hilton Garden Inn Houston NW/Chateau
in Houston, Texas (which is scheduled to open in fiscal 2002); and Beverly
Garland's Holiday Inn in North Hollywood, California.
We maintain our executive offices at 250 East Wisconsin Avenue, Milwaukee,
Wisconsin 53202-4220. Our phone number is (414) 905-1000.
3
RISK FACTORS
Before you invest in our Common Stock, you should be aware that there are
various risks, including those described below, associated with your investment.
Such risks may have a material adverse effect on our business, financial
condition or results of operations. You should carefully consider these risk
factors, together with all of the other information included in, and
incorporated into, this prospectus before you decide whether to purchase shares
of our Common Stock.
Our Ability to Successfully Define and Build the Baymont Brand Within the
"Limited-Service, Mid-Price Without Food and Beverage" Segment of the Lodging
Industry Will Directly Impact Our Financial Results and Our Ability to Achieve
Certain of Our Important Growth Objectives. In January 1999, we officially
changed the name of our limited service lodging facilities from "Budgetel Inns"
to "Baymont Inns" and "Baymont Inns & Suites." This name change was part of our
goal to rebrand and reposition our Budgetel Inns from the lower-priced economy
segment of the limited-service lodging industry to the mid-price without food
and beverage segment of the limited-service lodging industry in order to improve
our revenue per available room and profitability. We have spent, and will
continue to spend, substantial amounts to increase the consumer brand name
awareness of our Baymont properties, to enhance the services and amenities at
these properties and to renovate and remodel our properties to support our
increased room rates and to improve our occupancy rates. These expenses have
adversely affected our results of operations and may continue to do so until our
Baymont properties realize sufficient increased revenue per available room.
There can be no assurance that our rebranding and repositioning efforts will
result in an increase in revenue per available room. Furthermore, there is no
assurance that we will be able to effectively execute our rebranding and
repositioning strategy. Failure to successfully achieve sufficient market share
as a result of the rebranding and repositioning of our Baymont properties will
materially adversely affect our financial results and will substantially limit
our ability to achieve certain of our important growth objectives.
The Lack of Both the Quantity and Audience Appeal of Motion Pictures May
Materially Adversely Affect Our Financial Results. The financial results of our
movie theatre business and the motion picture industry in general are heavily
dependent on the general audience appeal of available films, together with
studio marketing, advertising and support campaigns, factors over which we have
no control. For the last three fiscal years, there have been many quarters when
the quality of motion pictures did not meet expectations and, as a result, our
movie theatre business has not realized desired levels of increases in
attendance or box office receipts. The relative success of our movie theatre
business will continue to be largely dependent upon the quantity and audience
appeal of films made available by the movie studios and other producers. Also,
our quarterly results of operations will be significantly dependent on the
quantity and audience appeal of films that we exhibit during each quarter. As a
result, our quarterly results may be unpredictable and somewhat volatile.
Our Businesses are Heavily Capital Intensive and Increasing Depreciation
Expenses and Pre-opening and Start-up Costs May Materially Adversely Affect Our
Financial Results. Each of our three businesses is heavily capital intensive.
Purchasing properties and buildings, constructing buildings and renovating and
remodeling buildings all require substantial upfront cash investments before
these properties and facilities can generate sufficient revenues to pay for the
upfront costs and positively contribute to our profitability. In addition, many
growth opportunities, particularly for our hotels and resorts division, require
lengthy development periods during which significant capital is committed and
pre-opening costs and early start-up losses are incurred. We expense these
pre-opening and start-up costs currently. As a result, our short-term earnings
may be adversely affected by our significant levels of capital investments for
the future. Additionally, to the extent we capitalize our capital expenditures,
our depreciation expenses may increase, thereby decreasing our earnings. Also,
to help pay for some of these
4
capital expenditures, we have borrowed, and will likely continue to borrow,
money, resulting in increased interest costs, thereby decreasing our earnings.
Adverse Economic Conditions in Our Markets May Adversely Affect Our
Financial Results, Particularly With Respect to Our Limited-Service Lodging and
Hotels and Resorts Divisions. Downturns or adverse economic conditions affecting
the United States economy generally, and particularly downturns or adverse
economic conditions in the Midwest and in our other markets, adversely affect
our financial results. Poor economic conditions adversely affect business and
leisure travel plans, which directly impacts our limited service lodging and
hotels and resorts divisions. For example, the difficult economic conditions in
the Midwest during the fourth quarter of fiscal 2001 resulted in reduced
occupancy rates and revenues per available room for our limited service lodging
properties and our hotels and resorts properties.
Adverse Weather Conditions, Particularly During the Winter in the Midwest
and in Our Other Markets, May Adversely Affect Our Financial Results. Poor
weather conditions adversely affect business and leisure travel plans, which
directly impacts our limited-service lodging and hotels and resorts divisions.
In addition, adverse winter weather conditions may increase our snow removal and
other maintenance costs in all of our divisions. For example, in fiscal 2001,
heavier than normal snowfall in the Midwest increased such costs by
approximately $600,000 compared to fiscal 2000.
The Relative Industry Supply of Available Rooms at Comparable Lodging
Facilities May Adversely Affect Our Financial Results. Over the past several
years, the supply of available rooms at comparable lodging facilities in many of
the markets in which we compete has increased at a rate that has exceeded the
rise in the demand for such rooms, creating an oversupply of rooms. Such
oversupply generally lowers our occupancy rates, reduces our ability to maintain
or increase our revenue per available room and may have an adverse affect on our
financial results.
All of Our Business Segments and Properties Experience Ongoing Intense
Competition. In each of our businesses, we experience intense competition from
national, regional and local chain and franchise operations, some of which have
substantially greater financial and marketing resources than us. Most of our
facilities are located in close proximity to other facilities which compete
directly with ours.
Increased Energy Costs May Adversely Affect Our Financial Results. Energy
costs represent a material expense for us. In fiscal 2001, our energy costs
increased by approximately $2.1 million compared to fiscal 2000. Continued
increases in the cost of energy may adversely affect our financial results. The
amount of energy used in connection with our limited service lodging operations
and hotels and resorts is influenced by the weather and, in part, controlled by
our customers. As a result, these costs are partially beyond our control, as is
the cost of the energy itself. Although we have been able to pass a portion of
increased energy costs along to our customers, we have not been able to pass
through all such cost increases.
Our Results May be Seasonal, Resulting in Unpredictable and
Non-representative Quarterly Results. Historically, our first fiscal quarter has
produced the strongest operating results because this period coincides with the
typically strong summer performance of the movie theatre industry and the summer
strength of our lodging businesses. Our third fiscal quarter has historically
produced the weakest operating results, primarily due to the affects on our
lodging businesses of reduced travel during the winter months.
5
Our Ability to Attract and Retain Quality Franchise Operators to Franchise
Additional Baymont Inns & Suites and Hotel Owners Seeking a Third Party to
Manage Properties They Have Acquired or Developed Will Directly Impact Our
Ability to Achieve Certain of Our Growth Objectives. Two of our principal growth
objectives are to successfully grow our chain of "Baymont Inns" and "Baymont
Inns & Suites" by increasing the number of franchised properties and increasing
the number of rooms managed by our hotels and resorts division. There can be no
assurance that we will be able to identify, attract and retain quality franchise
operators or hotel owners seeking a third party to manage properties that they
have acquired or developed. Failure to successfully identify, attract and retain
quality franchise operators and hotel owners seeking a third party to manage
their properties will substantially limit our ability to achieve certain of our
important growth objectives.
Our Ability to Identify Suitable Properties to Acquire, Develop and Manage
Will Directly Impact Our Ability to Achieve Certain of Our Growth Objectives. A
portion of our ability to successfully achieve our growth objectives for our
limited service lodging and our hotels and resorts segments is dependent upon
our ability to successfully identify suitable properties to acquire, develop and
manage. Failure to successfully identify, acquire and develop suitable and
successful locations for new lodging properties will substantially limit our
ability to achieve these important growth objectives.
The Ongoing Poor Financial Condition of Many Companies in the Theatre
Industry in General May Have an Adverse Effect on the Terms and Conditions of
Our Borrowings and on Our Stock Price. Twelve theatre companies have recently
filed for bankruptcy protection. The poor financial performance by these
companies in the theatre industry may make it more difficult for us to obtain
debt financing and may adversely affect the terms and conditions of our credit
facilities. In addition, the poor financial results of most of the other
publicly traded theatre companies may have an adverse effect upon the prevailing
market price of our Common Stock.
Our Ability to Continue to Attract, Retain and Plan for the Succession of
Our Key Management Personnel May Adversely Affect Us in the Future. Our future
success is dependent upon the services of certain of our key management
personnel. The loss of the services of our key management personnel, or our
inability to effectively implement a successful management succession plan for
such individuals, may have an adverse affect on our future business and
prospects. Our success also depends upon our ability to hire key officers and
other highly qualified personnel and upon our ability to retain and integrate
new management personnel into our operations.
Voting Control by the Marcus Family May Limit Shareholder Rights and
Possible Sale Transactions. We have two classes of common stock which, except as
otherwise required by law, vote as a single class on all matters submitted to
our shareholders. On each matter that is voted on by both classes of common
stock, shares of Common Stock (our publicly traded common stock) are entitled to
one vote each and shares of our Class B Common Stock (which are principally
owned by members of the Marcus family) are entitled to ten votes each. As of the
date of this prospectus, members of the Marcus family, including the Trust,
Stephen H. Marcus and Diane Marcus Gershowitz, own over 80% of the voting power
of all of our stock. As a result, the Marcus family has the ability to determine
the outcome of the election of individuals to our board of directors and the
outcome of most other matters submitted to a shareholder vote. This voting
control may make our Common Stock less attractive to investors and may limit or
preclude acquisition offers for the Company which are not on terms acceptable to
the Marcus family.
Certain Provisions of Wisconsin Law May Discourage Certain Takeover
Proposals. Wisconsin corporate law contains several provisions which may
discourage non-negotiated takeover proposals for us or limit or block certain
business combinations between us and one of our major shareholders. Such
provisions include (i) limiting the voting power of certain persons owning in
excess
6
of 20% of our voting power; (ii) requiring a super-majority vote of shareholders
to approve certain business combinations not meeting certain price standards;
and (iii) prohibiting certain business combinations between us and one of our
major shareholders for a period of three years, unless such acquisition has been
approved in advance by our board of directors.
The Inactive Market for Our Common Stock May Adversely Affect Our Share
Price. The average daily trading volume for our Common Stock on the New York
Stock Exchange is relatively low. This relative lack of trading volume may make
it difficult for owners of our Common Stock to sell large quantities of our
Common Stock within a short time period in the public market without adversely
affecting the prevailing market price of our Common Stock. Additionally,
significant purchases or sales of our Common Stock within a short time period in
the public market may result in significant changes in the market price of our
Common Stock.
Large Common Stock Sales May Adversely Affect Our Share Price. Several
persons and entities, including Lord Abbett, the Trust and certain members of
the Marcus family, beneficially own substantial amounts of our Common Stock.
Sales of a large amount of our Common Stock owned by any of these parties or
others in the public market within a short time period may adversely affect the
prevailing market price of our Common Stock.
As a result of the risks outlined in this section and other risks, our
business, financial condition or operating results may be materially adversely
affected. This may cause the trading price of our Common Stock to decline and
you may lose part or all of your investment.
We may become subject to additional risks in the future. We may include
these risks in future annual and quarterly reports we file with the Commission.
These reports are incorporated into this prospectus by reference. If you are
making an investment decision after the date of this prospectus and any of these
reports have been filed, you should also consult and carefully consider the risk
factors and other information in these reports. In addition, you should note
that the fact that certain risks are common within any of our industries does
not lessen the significance of the risk.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares. We and
the Trust have agreed to share the expenses incident to the registration of the
shares subject to sale pursuant to this prospectus.
SELLING SHAREHOLDERS
The 1,750,000 shares of Common Stock which may be sold pursuant to this
prospectus by the Lord Abbett mutual funds listed below represent shares issued
and sold in a privately negotiated sale by the Trust to three mutual funds
advised by Lord Abbett pursuant to the Share Purchase and Registration Rights
Agreement dated as of July 16, 2001 (the "Share Purchase Agreement"). The
400,000 shares of Common Stock which may be sold pursuant to this prospectus by
the Trust are shares that will, before any sale, be converted from Class B
Common Stock to Common Stock on a share-for-share basis pursuant to our Restated
Articles of Incorporation. The aggregate number of shares of Common Stock
beneficially owned by the selling shareholders as of August 15, 2001, and the
aggregate number of shares of Common Stock registered by this registration
statement that may be offered and sold pursuant to this prospectus is set forth
in the table below. All of the shares of Common Stock offered by the Lord Abbett
mutual funds and all of the Class B Common Stock to be converted into Common
Stock offered by the Trust are issued and outstanding as of the date of this
prospectus. Because a selling shareholder may sell or distribute all or a
portion of the shares at any time and from time to time after the
7
date of this prospectus, we cannot estimate the number of shares that the
selling shareholders may have upon completion of this offering.
NUMBER OF NUMBER OF
NUMBER OF SHARES SHARES OWNED
OF SHARES REGISTERED AFTER SALE OF
BENEFICIALLY FOR SALE REGISTERED
NAME OF SELLING SHAREHOLDER OWNED HEREBY (1) SHARES (2)
--------------------------- ------------ ---------- -------------
Lord Abbett Research Fund, Inc.
- - Small-Cap Value Series........... 1,366,500 1,366,500 -
Lord Abbett Securities Trust -
Lord Abbett All Value Fund......... 372,000 372,000 -
Lord Abbett Securities Trust -
Lord Abbett Micro-Cap Value Fund... 11,500 11,500 -
The Ben and Celia Marcus 1992
Revocable Trust.................... 3,055,829(3) 400,000 2,655,829(3)
TOTAL.............................. 4,805,829 2,150,000 2,655,829
________________________
(1) This registration statement also covers any additional shares of Common
Stock issued to the selling shareholders as owners of the shares registered
for sale hereby by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration.
(2) The numbers presented assume the sale of all of the shares registered
hereunder and that the selling shareholders acquire no additional shares of
Common Stock before the completion of the offering.
(3) All of the shares of our stock owned by the Trust are shares of Class B
Common Stock. Shares of the Common Stock to be sold by the Trust pursuant
to this prospectus will be converted prior to sale from shares of Class B
Common Stock into shares of Common Stock on a share-for-share basis
pursuant to our Restated Articles of Incorporation.
Other than their share holdings and as set forth in the Share Purchase
Agreement, the Lord Abbett mutual funds have not held any position, office, or
other material relationship within the past three years with us or any of our
predecessors or affiliates. Similarly, other than the Trust's shareholdings,
neither us nor any of our predecessors or affiliates have had any material
relationships with the Trust during the past three years. However, Stephen H.
Marcus, a co-trustee of the Trust, is our Chairman of the Board, President,
Chief Executive Officer, a director and is an officer of several of our
subsidiaries. Diane Marcus Gershowitz, the other co-trustee of the Trust, is one
of our directors. In addition, between the beginning of our 1999 fiscal year and
the end of our 2001 fiscal year, we paid approximately $459,000 of interest to
certain entities partially owned by Ben Marcus (a former trustee of the Trust),
Stephen H. Marcus, Diane Marcus Gershowitz and certain trusts for the benefit of
members of their families on nine debts we owed to such entities. These debts
are due on demand and bear interest at the prime rate (7.0% as of May 31, 2001).
The largest aggregate amount outstanding on the above debts during this period
was $2,716,000. As of May 31, 2001, the amount outstanding on the nine debts was
$2,716,000. Payment of both principal and interest on these debts is current.
In May 1998, Marcus Hotels, Inc., one of our subsidiaries, entered into two
agreements with Virtuem, Inc., an entity in which Diane Marcus Gershowitz has an
interest, to develop and manage a luxury hotel project in Chicago, Illinois.
These agreements were terminated on October 2, 1999. In conjunction with this
agreement, Marcus Hotels advanced funds for the benefit of Virtuem for costs
associated with the development of the project. The advances were secured by a
mortgage on Virtuem's leasehold interest, and the interest on the advances was
the prime rate plus 1.0%. On March 14, 2001, we acquired the favorable lease
rights for the Chicago location from Virtuem for $13.4 million. The
8
purchase price for the lease rights was based upon various independent
appraisals and was approved by our board of directors. The purchase price was
satisfied by the cancellation of a note from Virtuem related to the advancement
of funds noted above, the outstanding principal and interest of which equaled
approximately $2.2 million, and the payment by Marcus Hotels to Virtuem of
approximately $11.2 million in cash.
We believe that all of the above transactions were consummated on terms at
least as favorable as could have been obtained from non-affiliated third
parties.
PLAN OF DISTRIBUTION
We are registering a total of 1,750,000 shares of Common Stock on behalf of
Lord Abbett Research Fund, Inc. - Small-Cap Value Series, Lord Abbett Securities
Trust - Lord Abbett All Value Fund, Lord Abbett Securities Trust - Lord Abbett
Micro-Cap Value Fund, Inc. and 400,000 shares of Common Stock on behalf of the
Trust. The selling shareholders will act independently of us in making decisions
with respect to the timing, manner and size of each sale.
The Common Stock subject to this prospectus may be sold from time to time
by the selling shareholders or by pledgees of the selling shareholders. Such
sales may be made on the New York Stock Exchange or other exchanges or in the
over-the-counter market, or otherwise, at prices and on terms then prevailing or
at prices related to the then current market price, or in privately negotiated
transactions at mutually negotiated prices.
The manner in which sales of Common Stock subject to this prospectus may be
made include:
- ordinary brokerage transactions;
- transactions in which a broker solicits purchasers;
- block trades;
- for settlement of short sales, or through long sales, options or
transactions involving cross or block trades;
- purchases by a broker or dealer as principal and resale by such broker
dealer for its account;
- put or call option transactions relating to the Common Stock;
- transactions directly between seller and purchaser without a
broker-dealer;
- in connection with hedging transactions;
- by pledge to secure debts and other obligations; or
- in any combination of any of the foregoing transactions or by any
other legally available means.
To the extent required, this prospectus may be amended or supplemented from
time to time to describe additional plans of distribution. In addition, any such
shares that qualify for sale
9
pursuant to Rule 144 ("Rule 144") of the Securities Act of 1933, as amended (the
"Securities Act"), may be sold under Rule 144 rather than pursuant to this
prospectus.
In effecting sales, brokers, dealers or agents engaged by the selling
shareholder may arrange for other brokers or dealers to participate. Brokers,
dealers or agents may receive commissions, discounts or concessions from the
selling shareholders in amounts to be negotiated prior to the sale. A broker or
dealer that acts as agent for a purchaser of common shares would be paid by the
purchaser. Such brokers or dealers and any other participating brokers or
dealers or the selling shareholders may be deemed to be "underwriters" within
the meaning of the Securities Act in connection with such sales, and any
commissions, discounts or concessions they make on resale may be deemed to be
underwriting discounts or commissions under the Securities Act.
We and the Trust have agreed to share the expenses incident to the
registration of the shares to be sold pursuant to this prospectus. The selling
shareholders will pay the expenses of any attorneys, accountants or other
advisors or professionals which they engage in connection with the sale of
shares pursuant to this prospectus and all brokerage commissions, fees and
discounts.
In order to comply with the securities laws of certain states, if
applicable, the shares being offered hereby must be sold in such jurisdictions
only through registered or licensed brokers or dealers.
At the time a particular offer of shares is made, if required, a prospectus
supplement will be distributed that will set forth the number of shares being
offered and the terms of the offering, including the name of any dealer or
agent, any discount, commission and other item constituting compensation, any
discount, commission or concession allowed or reallowed or paid to any dealer,
and the proposed selling price to the public.
We have agreed to indemnify the selling shareholders and persons
controlling the selling shareholders against certain liabilities, including
certain liabilities under the Securities Act. The selling shareholders have
agreed to indemnify us and certain related persons against certain liabilities,
including certain liabilities under the Securities Act. The selling shareholders
may indemnify any broker, dealer or other agent that participates in
transactions involving the sale of the common shares, including against
liabilities arising under the Securities Act.
We have agreed with the selling shareholders to keep the registration
statement of which this prospectus constitutes a part effective until the
earlier of (i) July 16, 2003 or (ii) when all of the shares have been sold
pursuant to the registration statement or Rule 144 under the Securities Act or
any other rule of similar effect.
LEGAL MATTERS
The validity of the shares offered hereby will be passed upon by our
General Counsel.
EXPERTS
The consolidated financial statements of The Marcus Corporation
incorporated by reference in our Annual Report on Form 10-K for the year ended
May 25, 2000, have been audited by Ernst & Young LLP, independent auditors, as
set forth in their report thereon and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
10
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 us. 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 our affairs 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.
11
THE MARCUS CORPORATION
REGISTRATION STATEMENT ON FORM S-3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses payable by the Registrant in
connection with the filing of this registration statement.1
Securities and Exchange Commission Filing Fee.................$ 7,287
Legal Fees and Expenses.......................................$50,000
Accounting Fees and Expenses..................................$ 8,000
Miscellaneous Expenses........................................$ 4,713
Total......................................................$70,000
_____________________
(1) All of such expenses, other than the filing fee paid to the Commission, are
estimates and are subject to future contingencies.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Sections 180.0850 to 180.0858 of the Wisconsin Business
Corporation Law and Article VIII of the Bylaws of the Company, directors and
officers of the Company are entitled to mandatory indemnification from the
Company 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 the 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. Section 180.0859 of the Wisconsin
Business Corporation Law specifically states that it is the public policy of the
State of Wisconsin to require or permit indemnification in connection with a
proceeding involving securities regulation, as described therein, to the extent
required or permitted under Sections 180.0850 to 180.0858 as described above.
Additionally, under Section 180.0828 of 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 of the Company or its
shareholders, for certain breaches or failures to perform any duty resulting
solely from their status as such directors, except in circumstances paralleling
those in subparagraphs (a) through (d) outlined above.
The indemnification provided as set forth above is not exclusive of any
rights to which a director or officer of the Company 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.
II-1
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act") may be permitted to directors,
officers or persons controlling the registrant pursuant to the foregoing
provisions, the registrant has been informed 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.
ITEM 16. EXHIBITS
The following exhibits are filed as part of this registration statement:
NUMBER EXHIBIT DESCRIPTION
4.1 Share Purchase and Registration Rights Agreement between and
among The Marcus Corporation, The Ben and Celia Marcus 1992
Revocable Trust, Lord Abbett Research Fund, Inc.-Small-Cap Value
Series, Lord Abbett Securities Trust-Lord Abbett All Value Fund
and Lord Abbett Securities Trust - Lord Abbett Micro-Cap Value
Fund, Inc., dated as of July 16, 2001.
4.2 Indemnification Agreement between and among The Marcus
Corporation and The Ben and Celia Marcus 1992 Revocable Trust,
dated as of August 14, 2001.
4.3 Restated Articles of Incorporation. [[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.]]
4.4 Bylaws, as amended as of December 17, 1998. [[Incorporated by
reference to Exhibit 3.2 to the Company's Quarterly Report on
Form 10-Q for the quarterly period ended November 26, 1998.]]
5.1 Opinion of General Counsel as to the validity of the Shares.
10.1 Expense Reimbursement Agreement between and among The Marcus
Corporation and The Ben and Celia Marcus 1992 Revocable Trust,
dated as of July 16, 2001.
23.1 Consent of General Counsel (included in Exhibit 5.1 above).
23.2 Consent of Ernst & Young LLP, independent auditors.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or
II-2
high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent
no more than 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above
do not apply if the information required to be included in a
post-effective amendment by these paragraphs is contained in periodic
reports filed with or furnished by the Registrant pursuant to Section
13 or 15(d) of the Exchange Act of 1934, as amended (the "Exchange
Act") that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of this offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Milwaukee, Wisconsin, as of August 14, 2001.
The Marcus Corporation
By: /s/ Stephen H. Marcus
--------------------------------------
Stephen H. Marcus
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints Stephen H. Marcus,
Douglas A. Neis and Thomas F. Kissinger, jointly and severally, each in his own
capacity, his true and lawful attorneys-in-fact, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any 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 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 might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact, or
any of them, or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities indicated
as of August 14, 2001.
By: /s/ Stephen H. Marcus By: /s/ Daniel F. McKeithan
----------------------------------- -----------------------------------
Stephen H. Marcus, Chairman of Daniel F. McKeithan, Jr.,
the Board, President and Chief Director
Executive Officer (Principal
Executive Officer)
By: /s/ Douglas A. Neis By: /s/ Diane Marcus Gershowitz
----------------------------------- -----------------------------------
Douglas A. Neis, Chief Financial Diane Marcus Gershowitz, Director
Officer and Treasurer (Principal
Financial Officer and Accounting
Officer)
By: /s/ Bruce J. Olson By: /s/ Timothy E. Hoeksema
----------------------------------- -----------------------------------
Bruce J. Olson, Group Vice Timothy E. Hoeksema, Director
President, Director
By: /s/ Philip L. Milstein By: /s/ Allan H. Selig
----------------------------------- -----------------------------------
Philip L. Milstein, Director Allan H. Selig, Director
By: /s/ Bronson J. Haase By: /s/ James D. Ericson
----------------------------------- -----------------------------------
Bronson J. Haase, Director James D. Ericson, Director
EXHIBIT INDEX
NUMBER EXHIBIT DESCRIPTION
------ -------------------
4.1 Share Purchase and Registration Rights Agreement between and
among The Marcus Corporation, The Ben and Celia Marcus 1992
Revocable Trust, Lord Abbett Research Fund, Inc.-Small-Cap Value
Series, Lord Abbett Securities Trust-Lord Abbett All Value Fund
and Lord Abbett Securities Trust - Lord Abbett Micro-Cap Value
Fund, Inc., dated as of July 16, 2001.
4.2 Indemnification Agreement between and among The Marcus
Corporation and The Ben and Celia Marcus 1992 Revocable Trust,
dated as of August 14, 2001.
4.3 Restated Articles of Incorporation. [[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.]]
4.4 Bylaws, as amended as of December 17, 1998. [[Incorporated by
reference to Exhibit 3.2 to the Company's Quarterly Report on
Form 10-Q for the quarterly period ended November 26, 1998.]]
5.1 Opinion of General Counsel as to the validity of the Shares.
10.1 Expense Reimbursement Agreement between and among The Marcus
Corporation and The Ben and Celia Marcus 1992 Revocable Trust,
dated as of July 16, 2001.
23.1 Consent of General Counsel (included in Exhibit 5.1 above).
23.2 Consent of Ernst & Young LLP, independent auditors.