Exhibit (3.2)
RESTATED
ARTICLES OF INCORPORATION
OF
THE MARCUS CORPORATION
Pursuant to Section 180.1007 of the Wisconsin Business
Corporation Law, these Restated Articles of Incorporation shall supersede
and take the place of the Corporation's heretofore existing Articles of
Incorporation and all amendments thereto.
ARTICLE 1
Name
The name of the Corporation is The Marcus Corporation.
ARTICLE 2
Authorized Shares
The total number of shares of all classes of capital stock which
the Corporation shall be authorized to issue is eighty-four million
(84,000,000) shares, consisting of (i) fifty million (50,000,000) shares
of a class designated "Common Stock", with a par value of one dollar ($1)
per share; thirty-three million (33,000,000) shares of a class designated
"Class B Common Stock", with a par value of one dollar ($1) per share; and
one million (1,000,000) shares of a class designated "Preferred Stock",
with a par value of one dollar ($1) per share.
Any and all such shares of Common Stock, Class B Common Stock
and Preferred Stock may be issued for such consideration as shall be fixed
from time to time by the Board of Directors. Any and all such shares so
issued, the full consideration for which has been paid or delivered, shall
be deemed fully paid stock and shall not be liable to any further call or
assessment thereon, except with respect to wage claims of employees as
provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation
Law ("WBCL"), and the holders of such shares shall not be liable for any
further payments except as otherwise provided by applicable Wisconsin law.
The preferences, limitations and relative rights of each class shall be as
follows:
(A) POWERS, PREFERENCES AND LIMITATIONS OF THE PREFERRED STOCK.
(1) Series of Preferred Stock.
The Board of Directors shall have authority, by resolution or
resolutions, to divide the Preferred Stock into series, and to determine
and fix the relative powers, preferences and rights, and the
qualifications, limitations and restrictions thereof, in respect of the
shares of any series so established prior to the issuance thereof, but
only with respect to:
(a) The rate of dividend, whether or not such dividend
shall be cumulative and, if cumulative, the date from which such
dividend shall be cumulative;
(b) The price at and the terms and conditions on which
shares may be redeemed;
(c) The amount payable upon shares in the event of
voluntary or involuntary liquidation;
(d) Sinking fund provisions for the redemption or purchase
of shares;
(e) The terms and conditions on which shares may be
converted into shares of Common Stock, if the shares of any
series are issued with the privilege of conversion; and
(f) Whether or not shares shall have voting powers, and
the terms and conditions upon which any voting powers may be
exercised.
Except as to the matters expressly set forth above in this
Paragraph (1), all series of the Preferred Stock of the Corporation,
whenever designated and issued, shall have the same preferences,
limitations and relative rights and shall rank equally, share ratably and
be identical in all respects as to all matters.
All shares of any one series of Preferred Stock hereinabove
authorized shall be alike in every particular, and each series thereof
shall be distinctly designated by letter or descriptive words or figures.
(2) Dividends.
Before any dividends shall be paid or set apart for payment upon
the Common Stock or the Class B Common Stock, the holders of Preferred
Stock shall be entitled to receive dividends at the rate per annum
specified as to each series pursuant to Paragraph (1), payable quarter-
annually when and as declared by the Board of Directors. Such dividends
shall accrue on each share of Preferred Stock from the date of issuance,
or from such other date as may be fixed by the Board of Directors pursuant
to Paragraph (1).
Any dividend paid upon the Preferred Stock entitled to
cumulative dividends at a time when any accrued dividends for any prior
period are delinquent, shall be expressly declared as a dividend in whole
or partial payment of the accrued dividend for the earliest period for
which dividends are then delinquent, and shall be so designated to each
shareholder to whom payment is made.
All shares of Preferred Stock whether cumulative or non-
cumulative (but only after all dividend arrearages for all prior periods
on cumulative shares have been paid or set aide for payment) shall rank
equally and shall share ratably, in proportion to the rate of dividend
fixed hereunder in respect to each such share, in all dividends paid or
set aside for payment for any dividend period or part upon any such
shares.
(3) Liquidation, Dissolution or Winding Up.
In case of voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of each series of Preferred
Stock shall be entitled to receive out of the assets of the Corporation in
money or money's worth the amount specified pursuant to Paragraph (1) with
respect to that series of Preferred Stock, together with all accrued but
unpaid dividends thereon with respect to Preferred Stock entitled to
cumulative dividends (whether or not earned or declared), before any of
such assets shall be paid or distributed to holders of Common Stock or
Class B Common Stock and if the assets of the Corporation shall be
insufficient to pay the holders of all of the Preferred Stock then
outstanding the entire amounts to which they may be entitled, the holders
of each outstanding series of the Preferred Stock shall share ratably in
such assets in proportion to the amounts which would be payable with
respect to such series if all amounts payable thereon were paid in full.
(4) Redemption.
Except as otherwise provided with respect to a particular series
pursuant to Paragraph (1), the following general redemption provisions
shall apply to each series of Preferred Stock (hereinafter in this
Paragraph referred to as "Series").
On or prior to the date fixed for redemption of a particular
Series as specified in the notice of redemption for said Series, the
Corporation shall deposit adequate funds for such redemption, in trust for
the account of holders of the Series to be redeemed, with a bank having
trust powers or a trust company in good standing, organized under the laws
of the United States of America or any state of the United States of
America and having capital, surplus and undivided profits aggregating at
least $1,000,000, and if the name and address of such bank or trust
company and the deposit of or intent to deposit the redemption funds in
such trust account shall have been stated in such notice of redemption,
then from and after the mailing of such notice and the making of such
deposit the shares of the Series called for redemption shall no longer be
deemed to be outstanding for any purpose whatsoever, and all rights of the
holders of such shares in or with respect to the Corporation shall
forthwith cease and terminate except only the right of the holders of such
shares (a) to transfer such shares prior to the date fixed for redemption,
(b) to receive out of said deposit the redemption price of such shares
together with accrued but unpaid dividends with respect to Preferred Stock
entitled to cumulative dividends to the date fixed for redemption, without
interest, upon surrender of the certificate or certificates representing
the shares to be redeemed, and (c) to exercise, on or before the date
fixed for redemption, the privileges of conversion, if any, not
theretofore expired.
Such deposit in trust shall be irrevocable except that (1) any
moneys so deposited by the Corporation which shall remain unclaimed by the
holders of the Series called for redemption and not converted shall, at
the end of six years after the date fixed for redemption, be paid to the
Corporation upon its request, after which repayment the holders of the
shares so called for redemption shall no longer look to the said bank or
trust company for the payment of the redemption price but shall look only
to the Corporation or to others, as may be, for the payment of any lawful
claim for such moneys which holders of said shares may still have; and (2)
any portion of the moneys so deposited by the Corporation, in respect of
shares of the Series converted into Common Stock, shall be repaid to the
Corporation upon its request.
(5) Conversion Rights.
Except as otherwise provided with respect to a particular Series
pursuant to Paragraph (1), the following general conversion provisions
shall apply to each Series of Preferred Stock which is convertible into
Common Stock (hereinafter, in this paragraph, referred to as "Convertible
Series"):
(i) All shares of Common Stock issued upon conversion
shall be fully paid and nonassessable, and shall be free of all
taxes, liens and charges with respect to the issue thereof
except taxes payable by reason of issuance in a name other than
that of the holder of the share or shares converted and except
with respect to wage claims of employees as provided by Section
180.0622(2)(b) of the WBCL.
(ii) The number of shares of Common Stock issuable upon
conversion of a particular Convertible Series at any time shall
be the quotient obtained by dividing the aggregate conversion
value, as herein provided, of the shares of that Convertible
Series surrendered for conversion, by the conversion price per
share of Common Stock then in effect for that Convertible Series
as herein provided. The Corporation shall not be required,
however, upon any such conversion, to issue any fractional share
of Common Stock, but in lieu thereof the Corporation may at its
option issue scrip therefor or may pay to the shareholder who
would otherwise be entitled to receive such fractional share if
issued, a sum in cash equal to the value of such fractional
share at the rate of the then market value per share of the
Common Stock determined in such manner as the Board of Directors
of the Corporation may provide.
(iii) The basic conversion price per share of Common
Stock for a particular Convertible Series, as provided for
herein under the detailed descriptions of the individual
Convertible Series, shall be subject to adjustment as follows:
(aa) An increased conversion price per share of
Common Stock shall become effective whenever the
outstanding shares of Common Stock shall be combined
into a smaller number of shares. Such increased
conversion price per share of Common Stock shall be
computed as follows: (1) separately, for each
Convertible Series, multiply the total number of
shares of Common Stock outstanding immediately prior
to the decrease in the number of such shares through
such combination, by the conversion price then in
effect for each Convertible Series; (2) divide each of
the resulting products by the total number of shares
of Common Stock outstanding immediately after such
decrease in the number of shares through such
combination. The quotients so obtained (if not evenly
divisible by fifty cents then rounded up to the next
full multiple of fifty cents) shall thereafter, until
any further change is required under the provisions of
this subparagraph (5) be respectively the conversion
price per share of Common Stock for each Convertible
Series;
(bb) A reduced conversion price per share of
Common Stock shall become effective for any
Convertible Series whenever the Corporation shall
issue any "Additional Shares of Common Stock" (as
defined in Paragraph (A)(5)(iii)(cc) of this Article)
after the effective date of the amendment to the
Articles of Incorporation which designated such
Convertible Series (hereinafter in this subparagraph
referred to as the "Effective Date"), which results in
the Corporation having received in the aggregate a
consideration per share of less than the conversion
price for such Convertible Series for all of the
shares of Common Stock issued after the Effective
Date. Such reduced conversion price per share of
Common Stock shall be computed as follows: (1)
separately, for each Convertible Series, multiply the
total number of shares of Common Stock outstanding on
the Effective Date by the conversion price for each
Convertible Series then in effect; (2) to these
products separately, for each Convertible Series, add
the total amount of the consideration, if any,
received for the issuance of all Additional Shares of
Common Stock; (3) divide the resulting sums by the
total number of shares of Common Stock outstanding
immediately prior to any such determination. The
quotients so obtained shall thereafter, until any
further change is required under the provisions of
this subparagraph (5), be the respective conversion
prices per share of Common Stock for each Convertible
Series; provided, however, that no adjustment shall be
made in the conversion price of any Convertible Series
in effect immediately prior to such determination if
the amount of such adjustment would be less than fifty
cents, but, in any such case, any adjustment that
would otherwise be required then to be made shall be
carried forward and shall be made at the time of, and
together with, the next subsequent adjustment which
together with any other adjustment or adjustments so
carried forward shall amount to not less than fifty
cents. No upward adjustment to the conversion price
shall be made if the above-described quotients should
be higher than the conversion price to be adjusted as
a result of the Corporation having received a
consideration per Additional Share of Common Stock on
the aggregate of all Additional Shares of Common Stock
which is higher than the conversion price to be
adjusted.
(cc) The term "Additional Shares of Common Stock"
as used in this subparagraph (A)(5) includes all
shares of Common Stock which the Corporation shall in
any manner issue after the Effective Date of a
Convertible Series except shares of Common Stock
issued (1) upon the conversion of any shares of such
Convertible Series, or (2) upon the exercise of any
warrants, options or conversion rights outstanding on
the date of issuance of such Convertible Series
whether at the initial conversion price, an adjusted
conversion price or a voluntarily reduced conversion
price pursuant to Paragraph (A)(5)(x) of this Article,
or (3) pursuant to any employee stock bonus plan or
employee stock purchase plan approved by the
shareholders, or (4) upon the exercise of any employee
stock option granted pursuant to any plan approved by
the shareholders, or (5) upon the conversion of any
Preferred Stock issued in connection with any such
employee stock bonus, stock purchase and/or stock
option, or by reason of the issuance or assumption by
the Corporation of any such stock bonus, stock
purchase and/or option, or (6) pursuant to a stock
dividend authorized by the Board of Directors of not
more than 5% per annum of the number of shares
outstanding at the time such stock dividend is
declared, or (7) upon the conversion of any shares of
Class B Common Stock, or (8) in connection with the
acquisition, or upon the exercise of, any warrants,
options or conversion rights granted or assumed by the
Corporation in connection with an acquisition. As
used herein, "acquisition" shall be construed as any
transaction in which the Corporation acquires
substantially all the assets of another business, or
acquires 50% or more of the outstanding stock of
another corporation or is the surviving corporation in
a statutory merger.
(iv) In the event that the Corporation shall give notice of
redemption of any shares of a particular Convertible Series, an
adjusted conversion price shall be determined in respect only to
the shares so called for redemption, in accordance with the
provisions of clause (iii), except that for the purpose of such
determination, Common Stock shall be deemed to have been issued
in accordance with the terms of all rights to purchase shares of
Common Stock or securities convertible into shares of Common
Stock which may be outstanding immediately prior to the close of
business on the date next preceding the date upon which notice
of redemption is given, but which were not outstanding on the
date of issuance of the Convertible Series so called for
redemption. The conversion price so determined shall be stated
in the notice of redemption and have no application to any
shares other than the shares so called for redemption.
(v) For the purpose of making the computations prescribed
above, the following rules shall apply:
(aa) In determining the consideration received
for the issuance of any Additional Shares of Common
Stock, no deductions shall be made for the amounts of
any commissions or other expenses paid or incurred by
the Corporation for any underwriting or otherwise in
connection with the issuance of such Additional Shares
of Common Stock.
(bb) In case Common Stock shall be issued by way
of stock dividend or in subdivision or
reclassification of Common Stock outstanding prior to
such issue, the excess of the number of shares of
Common Stock outstanding immediately thereafter over
the number of shares of Common Stock outstanding
immediately prior thereto (except such shares issued
as stock dividends which do not in the aggregate
during any fiscal year of the Corporation exceed 5% of
the Common Stock outstanding at the beginning of such
fiscal year) shall be deemed to be Additional Shares
of Common Stock, and the Corporation shall be deemed
to have received no consideration for the issuance
thereof.
(cc) If the Corporation issues any shares
convertible into Common Stock, or any obligations so
convertible, or any warrants to purchase or subscribe
for any shares of Common Stock and if any of such
shares or obligations be converted into Common Stock
or if any of such warrants be exercised and Common
Stock be issued in connection with such exercise, the
Corporation shall be deemed to have received for the
Common Stock issued upon such conversion or exercise
an aggregate consideration equal to the consideration
received by the Corporation for the convertible shares
or obligations so converted or for the warrants so
exercised (before deducting any commissions or other
expenses paid or incurred by the Corporation for any
underwriting or otherwise in connection with the
issuance of the convertible shares or obligations so
converted or the warrants so exercised) plus, in the
case of the issuance of Common Stock in connection
with the exercise of warrants, the consideration
received by the Corporation for the issuance of Common
Stock upon such exercise; provided, however, that
adjustments of the conversion price by reason of the
conversion of such shares or obligations or by reason
of the exercise of such warrants need not be made upon
each such conversion or exercise but may be made from
time to time under such reasonable regulations as
shall be provided by the Board of Directors but at
least once in each month immediately following any
calendar month during which any such conversion or
exercise shall occur, and provided further that no
adjustment to any conversion price shall be required
under the circumstances outlined under Paragraph
(A)(5)(iii)(cc) above.
(dd) If the Corporation shall issue any
Additional Shares of Common Stock, or any shares
convertible into Common Stock, or any obligations, so
convertible, or any warrants to purchase or subscribe
for any shares of Common Stock for a consideration
other than cash, the amount of the consideration
received therefor by the Corporation shall be deemed
to be the fair value of such consideration, which
shall be determined by the Board of Directors at or
before the time of issuance of such shares or
obligations.
(vi) If the Corporation shall be consolidated with or
merged into, or sell or dispose of all or substantially all of
its property and assets, to any other corporation, proper
provision shall be made as part of the terms of such
consolidation, merger or sale that the holder of any shares of a
particular Convertible Series at the time outstanding shall
thereafter be entitled to such conversion rights with respect to
securities and other assets of the Corporation resulting from
such consolidation, merger or sale as shall be substantially
equivalent to the conversion rights herein granted.
(vii) No adjustment with respect to dividends upon any
Convertible Series or with respect to dividends upon Common
Stock shall be made in connection with any conversion.
(viii) Whenever there is an issue of Additional Shares
of Common Stock of the Corporation requiring a change in the
conversion price as provided above, and whenever there occurs
any other event which results in a change in the existing
conversion rights of the holders of shares of a Convertible
Series, the Corporation shall file with its transfer agent or
agents and at its principal office in Milwaukee, Wisconsin, a
statement signed by the President or a Vice President and by the
Treasurer or Assistant Treasurer of the Corporation, describing
specifically such issue of Additional Shares of Common Stock or
such other event (and, in the case of a consolidation or merger,
the terms thereof) and the actual conversion prices or basis of
conversion as changed by such issue or event and the change, if
any, in the securities issuable upon conversion. Whenever there
are issued by the Corporation any options or rights to purchase
shares of Common Stock or securities convertible into shares of
Common Stock, and such issuance requires a change in the
conversion price as above provided, the Corporation shall also
file in like manner a statement describing the same and the
consideration receivable by the Corporation therefrom. The
statement so filed shall be open to inspection by any holder of
record of shares of any Convertible Series. Upon the request of
the Corporation, the transfer agent or agents shall mail copies
of such statement, or brief summaries thereof, (first class and
postage prepaid) to each holder of record of shares of all
Convertible Securities affected by the statement at the last
address of such holders appearing upon the books of the
Corporation. Upon failure of a holder to object to the
statement and the computations therein within a period of 90
days from the date of such mailing, the statement and the
computations therein shall be conclusively presumed correct as
to such holder and shall be binding upon the holder, his heirs,
representatives and assigns. Failure or delay of any holder of
the Convertible Series so affected to receive such statement
shall not extend the period within which objections thereto may
be raised.
(ix) The Corporation shall at all times have authorized and
shall at all times reserve and set aside a sufficient number of
duly authorized shares of Common Stock for the conversion of all
stock of all Convertible Series then outstanding. Upon or prior
to the occurrence of any event which may give rise to a change
in the conversion price per share of Common Stock, the
Corporation shall make adequate provision so that shares of
Common Stock thereafter issued on conversion of shares of each
Convertible Series shall be validly issued, fully paid and
nonassessable (except as provided in Section 180.0622(b)(2) of
the WBCL); and the Corporation shall make appropriate provisions
so that any issue of Common Stock or of any other class of
shares of the Corporation as a dividend on, or in subdivision or
reclassification of, Common Stock, shall be made applicable to
shares of Common Stock held for conversion of each Convertible
Series at the time such shares of Common Stock shall be issued
upon such conversion.
(x) The Corporation shall have the right, at any time and
from time to time, to reduce the conversion price of one or more
Convertible Series then in effect by an amount not in excess of
20% of the then conversion price for such period or periods of
time of not less than 30 days nor more than 180 days as the
Board of Directors of the Corporation may determine. In each
such event, an officer of the Corporation shall prepare and
execute a certificate stating (aa) that the Corporation has
elected to reduce the conversion price of one or more
Convertible Series, (bb) that such election is irrevocable
during the period referred to hereinafter in clause (cc), and
(cc) the period during which such reduced conversion price or
prices shall be in effect. The certificate shall be filed with
the transfer agent or agents and either a brief summary of the
provisions of such certificate or a copy of such certificate
shall be mailed by the Corporation, first class, postage
prepaid, at least 10 days prior to the date fixed for the
commencement of any period in which the reduced conversion price
or prices is to be in effect, to the registered holders of the
Convertible Series so affected at their last address as it shall
appear upon the books of the Corporation. Failure or delay of
any holder of the Convertible Series so affected to receive such
certificate by mail, or any defect therein, shall not affect the
validity of, or the reduction of the conversion price nor extend
the period thereof.
(6) Reissuance of Shares.
Shares of Preferred Stock which have been redeemed or purchased
or retired through the operation of a purchase, retirement or sinking fund
or which have been converted into shares of any other class or classes of
stock of the Company shall thereafter have the status of authorized but
unissued shares of Preferred Stock of the Corporation and may thereafter
be reissued as part of the same or any other series.
(B) POWERS, RIGHTS AND LIMITATIONS OF THE COMMON STOCK AND THE CLASS
B COMMON STOCK.
(1) Voting Rights and Powers.
With respect to all matters upon which shareholders are entitled
to vote or to which shareholders are entitled to give consent, the holders
of the outstanding shares of Common Stock and the holders of the
outstanding shares of Class B Common Stock shall vote together as a single
class, and every holder of any outstanding shares of Common Stock shall be
entitled to cast thereon one (1) vote in person or by proxy for each share
of Common Stock standing in the holder's name on the stock transfer
records of the Corporation, and every holder of any outstanding shares of
Class B Common Stock shall be entitled to cast thereon ten (10) votes in
person or by proxy for each share of Class B Common Stock standing in his
name on the stock transfer records of the Corporation; provided that, with
respect to any proposed amendment to these Articles of Incorporation which
would increase or decrease the number of authorized shares of either the
Common Stock or the Class B Common Stock, increase or decrease the par
value of the shares of the Common Stock or the Class B Common Stock, or
alter or change the powers, preferences, relative voting power or special
rights of the shares of the Common Stock or the Class B Common Stock so as
to affect them adversely, the approval of a majority of the votes entitled
to be cast by the holders of the class affected by the proposed amendment,
voting separately as a class, shall be obtained in addition to the
approval of a majority of the votes entitled to be cast by the holders of
the Common Stock and the Class B Common Stock voting together as a single
class as hereinbefore provided.
(2) Dividends and Distributions.
(a) Cash Dividends. Subject to the rights of the holders
of the Preferred Stock, as and when cash dividends may be
declared from time to time by the Board of Directors, the cash
dividend payable with respect to each share of the Common Stock
shall in all cases, subject to rounding as hereinafter provided,
be in an amount equal to one hundred ten percent (110%) of the
amount of the cash dividend payable with respect to each share
of the Class B Common Stock. For purposes of calculating the
cash dividend to be paid on the Common Stock, the amount of the
cash dividend declared and payable with respect to the Class B
Common Stock shall be determined first and thereafter the cash
dividend payable with respect to the Common Stock shall be
determined in accordance with the formula set forth above,
provided that such dividend may be rounded up to the next
highest half cent. The premium accorded holders of Common Stock
shall not extend to distributions declared by the Board of
Directors to be in connection with the partial or complete
liquidation of the Corporation or any of its subsidiaries.
(b) Other Dividends and Distributions. Each share of
Common Stock and Class B Common Stock shall be equal in respect
of rights to dividends (other than those payable in cash) and
distributions (including distributions declared by the Board of
Directors to be in connection with the partial or complete
liquidation of the Corporation or any of its subsidiaries) when
and as declared, in the form of stock or other property of the
Corporation, except that in the case of dividends or other
distributions payable in stock of the Corporation other than the
Preferred Stock, including distributions pursuant to stock
split-ups or divisions, which occur after the initial issuance
of the Class B Common Stock as described in Paragraph (B)(5)(a)
of this Article, only shares of Common Stock shall be
distributed with respect to the Common Stock and only shares of
Class B Common Stock shall be distributed with respect to the
Class B Common Stock.
(3) Restrictions on Transfer of the Class B Common Stock.
(a) No beneficial owner (as hereinafter defined) of shares of
Class B Common Stock (hereinafter referred to as a "Class B
Shareholder") may transfer, and the Corporation shall not register
the transfer of, shares of Class B Common Stock, whether by sale,
assignment, gift, bequest, appointment or otherwise, except to a
"Permitted Transferee" of such Class B Shareholder. A "Permitted
Transferee" shall be defined as (i) the Class B Shareholder; (ii) the
spouse of the Class B Shareholder; (iii) any parent and any lineal
descendant (including any adopted child) of any parent of the Class B
Shareholder or of the Class B Shareholder's spouse; (iv) any trustee,
guardian or custodian for, or any executor, administrator or other
legal representative of the estate of, any of the foregoing
"Permitted Transferees"; (v) the trustee of a trust (including a
voting trust) principally for the benefit of such Class B Shareholder
and/or any of his or her Permitted Transferees; and (vi) any
corporation, partnership or other entity if a majority of the
beneficial ownership thereof is held by the Class B Shareholder
and/or any of his or her Permitted Transferees. For the purpose of
this Paragraph (3) the term "beneficial owner(s)" of any shares of
Class B Common Stock shall mean a person or persons who, or entity or
entities which, have or share the power, either singly or jointly, to
direct the voting or disposition of such shares.
(b) Notwithstanding anything to the contrary set forth herein,
any Class B Shareholder may pledge his shares of Class B Common Stock
to a pledgee pursuant to a bona fide pledge of such shares as
collateral security for indebtedness due to the pledgee, provided
that such shares shall not be transferred to or registered in the
name of the pledgee and shall remain subject to the provisions of
this Paragraph (3). In the event of foreclosure or other similar
action by the pledgee, such pledged shares of Class B Common Stock
may only be transferred to a Permitted Transferee of the pledgor or
converted into shares of Common Stock, as the pledgee may elect.
(c) Any purported transfer of shares of Class B Common Stock
not permitted hereunder shall be void and of no effect. The
purported transferee shall have no rights as a shareholder of the
Corporation and no other rights against, or with respect to, the
Corporation, except the right to receive shares of Common Stock upon
the conversion of his shares of Class B Common Stock into shares of
Common Stock. The Corporation may, as a condition to the transfer or
the registration of a transfer of shares of Class B Common Stock to a
purported Permitted Transferee, require the furnishing of such
affidavits or other proof as it deems necessary to establish that
such transferee is Permitted Transferee.
(d) The Corporation shall note on the certificates for
shares of Class B Common Stock the restrictions on transfer and
registration of transfer imposed by this Paragraph (3).
(e) Shares of Class B Common Stock shall be registered in
the name(s) of the beneficial owner(s) thereof and not in
"street" or nominee name.
(4) Conversion of the Class B Common Stock.
(a) Each share of Class B Common Stock may at any time or
from time to time, at the option of the respective holder
thereof, be converted into one (1) fully paid and nonassessable
share of Common Stock (subject to Section 180.0622(2)(b) of the
WBCL). Such conversion right shall be exercised by the
surrender of the certificate representing such share of Class B
Common Stock to be converted to the Corporation at any time
during normal business hours at the principal executive offices
of the Corporation (to the attention of the Secretary of the
Corporation), or if an agent for the registration or transfer of
shares of Class B Common Stock is then duly appointed and acting
(said agent being referred to in this Article as the "Transfer
Agent") then at the office of the Transfer Agent, accompanied by
a written notice of the election by the holder thereof to
convert and (if so required by the Corporation or the Transfer
Agent) by the instruments of transfer, in form satisfactory to
the Corporation and to the Transfer Agent, duly executed by such
holder or his duly authorized attorney, and transfer tax stamps
or funds therefor, if required pursuant to Paragraph (4)(e),
below.
(b) As promptly as practicable after the surrender for
conversion of a certificate representing shares of Class B
Common Stock in the manner provided in Paragraph (4)(a), above,
and the payment in cash of any amount required by the provisions
of Paragraphs (4)(a) and (4)(e), the Corporation will deliver or
cause to be delivered at the office of the Transfer Agent to, or
upon the written order of, the holder of such certificate, a
certificate or certificates representing the number of full
shares of Common Stock issuable upon such conversion, issued in
such name or names as such holder may direct. Such conversion
shall be deemed to have been made immediately prior to the close
of business on the date of the surrender of the certificate
representing shares of Class B Common Stock, and all rights of
the holder of such shares as such holder shall cease at such
time and the person or persons in whose name or names the
certificate or certificates representing the shares of Common
Stock are to be issued shall be treated for all purposes as
having become the record holder or holders of such shares of
Common Stock at such time; provided, however, that any such
surrender and payment on any date when the stock transfer
records of the Corporation shall be closed shall constitute the
person or persons in whose name or names the certificate or
certificates representing shares of Common Stock are to be
issued as the record holder or holders thereof for all purposes
immediately prior to the close of business on the next
succeeding day on which such stock transfer records are open.
(c) No adjustments in respect of dividends shall be made
upon the conversion of any share of Class B Common Stock;
provided, however, that if a share shall be converted subsequent
to the record date for the payment of a dividend or other
distribution on shares of Class B Common Stock but prior to such
payment, the registered holder of such share at the close of
business on such record date shall be entitled to receive the
dividend or other distribution payable on such share on the date
set for payment of such dividend or other distribution
notwithstanding the conversion thereof or the Corporation's
default in payment of the dividend or distribution due on such
date.
(d) The Corporation covenants that it will at all times
reserve and keep available, solely for the purpose of issuance
upon conversion of the outstanding shares of Class B Common
Stock, such number of shares of Common Stock as shall be
issuable upon the conversion of all such outstanding shares;
provided, that nothing contained herein shall be construed to
preclude the Corporation from satisfying its obligations in
respect of the conversion of the outstanding shares of Class B
Common Stock by delivery of purchased shares of Common Stock
which are held in the treasury of the Corporation. The
Corporation covenants that if any shares of Common Stock
required to be reserved for purposes of conversion hereunder,
require registration with or approval of any governmental
authority under any Federal or state law before such shares of
Common Stock may be issued upon conversion, the Corporation will
cause such shares to be duly registered or approved, as the case
may be. The Corporation will endeavor to list the shares of
Common Stock required to be delivered upon conversion prior to
such delivery upon each national securities exchange, if any,
upon which the outstanding Common Stock is listed at the time of
such delivery. The Corporation covenants that all shares of
Common Stock which shall be issued upon conversion of the shares
of Class B Common Stock, will, upon issue, be fully paid and
nonassessable, except as provided in Section 180.0622(2)(b) of
the WBCL, and not subject to any preemptive rights.
(e) The issuance of certificates for shares of Common
Stock upon conversion of shares of Class B Common Stock shall be
made without charge for any stamp or other similar tax in
respect of such issuance. However, if any such certificate is
to be issued in a name other than that of the holder of the
share or shares of Class B Common Stock converted, the person or
persons requesting the issuance thereof shall pay to the
Corporation the amount of any tax which may be payable in
respect of any transfer involved in such issuance or shall
establish to the satisfaction of the Corporation that such tax
has been paid.
(f) When the number of outstanding shares of Class B
Common Stock falls below two percent (2%) of the aggregate
number of shares of Common Stock and Class B Common Stock then
outstanding, the outstanding shares of Class B Common Stock
shall be deemed without further act on anyone's part to be
immediately and automatically converted into shares of Common
Stock, and stock certificates formerly representing outstanding
shares of Class B Common Stock shall thereupon and thereafter be
deemed to represent a like number of shares of Common Stock.
(5) Issuance of the Class B Common Stock.
(a) Initial Issuance. One share of Class B Common Stock
shall be initially issued for each outstanding share of Class B
Common Stock, par value one dollar ($1) per share, of The Marcus
Corporation, a Delaware corporation, pursuant to the Agreement
and Plan of Merger, dated August 13, 1992, by and between the
Corporation and The Marcus Corporation.
(b) Subsequent Issuance. Following the initial issuance,
the Board of Directors may only issue shares of the Class B
Common Stock in the form of a distribution or distributions
pursuant to a stock dividend on or split-up of the shares of the
Class B Common Stock and only to the then holders of the
outstanding shares of the Class B Common Stock in conjunction
with and in the same ratio as a stock dividend on or split-up of
the shares of the Common Stock. Except as provided in this
subparagraph (b), the Corporation shall not issue additional
shares of Class B Common Stock after the initial issuance of
Class B Common Stock, as described in Paragraph (B)(5)(a) of
this Article, and all shares of Class B Common Stock surrendered
for conversion shall be retired, unless otherwise approved by
the affirmative vote of the holders of a majority of the
outstanding shares of the Common Stock and Class B Common Stock
entitled to vote, voting together as a single class, as provided
in Paragraph (B)(1) of this Article. Notwithstanding the
foregoing, the Board of Directors shall be permitted to make a
one-time issuance of 299,547 shares of Class B Common Stock to
Guest House Inn, Inc. ("GHI") in connection with the Agreement
and Plan of Reorganization dated June 30, 1997, by and among the
Corporation, GHI and the shareholders of GHI, in exchange for
and cancellation of 299,547 shares of Class B Common Stock owned
by GHI and, notwithstanding any other provision of these
Articles of Incorporation (including particularly Section (B)(3)
of this Article 2), the shareholders of GHI on June 30, 1997
shall be "Permitted Transferees" of the shares of Class B Common
Stock issued to GHI.
ARTICLE 3
Board of Directors
The number of initial directors constituting the Corporation's
initial Board of Directors shall be seven (7) and thereafter such number
as is fixed from time to time by, or in the manner provided in, the By-
laws. At each annual meeting of shareholders, directors shall be chosen
for a term of one year. Despite the expiration of a director's term, the
director shall continue to serve until his or her successor is elected
and, if necessary, qualifies or until there is a decrease in the number of
directors.
ARTICLE 4
Registered Office and Agent
The address of the registered office of the Corporation is 250
East Wisconsin Avenue, Suite 1700, Milwaukee, Wisconsin 53203, and the
name of its registered agent at such address is Thomas F. Kissinger.