Exhibit 4.1
Execution Version
SHARE PURCHASE AND REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
THE MARCUS CORPORATION,
the Ben and Xxxxx Xxxxxx 1992 REVOCABLE Trust,
LORD XXXXXX RESEARCH FUND, INC. - SMALL-CAP VALUE SERIES,
LORD XXXXXX SECURITIES TRUST - LORD XXXXXX MICRO-CAP VALUE FUND
and
LORD XXXXXX SECURITIES TRUST - LORD XXXXXX ALL VALUE FUND
TABLE OF CONTENTS
Article I Agreement to Sell and Purchase Shares......................... 2
Article II Representations and Warranties................................ 3
Article III Shelf Registration............................................ 6
Article IV Obligations of the Company.................................... 8
Article V Further Cooperation; Confidentiality.......................... 8
Article VI Indemnification in Connection with Resale Shelf
Registration Statements and This Agreement................... 9
Article VII Additional Matters............................................ 11
Exhibits
--------
Exhibit A Purchaser Information; Trust Account
Appendix
--------
Appendix I Questionnaire
Appendix II Purchaser's Certificate of Subsequent Sale
THIS SHARE PURCHASE AND REGISTRATION RIGHTS AGREEMENT is dated as of July
16, 2001 ("Agreement") by and between THE MARCUS CORPORATION, a Wisconsin
corporation ("Company"), THE BEN AND XXXXX XXXXXX 1992 REVOCABLE TRUST
("Trust"), and the parties set forth on Exhibit A (each a "Purchaser" and
together the "Purchasers").
W I T N E S S E T H :
A. WHEREAS, the Trust desires to sell to Purchasers and Purchasers desire
to buy from the Trust a total of 1,750,000 shares ("Shares") of the Company's
common stock, $1.00 par value ("Company Common Stock"), pursuant to the terms
and conditions hereinafter set forth.
B. WHEREAS, the Company believes that the sale of the Shares to the
Purchasers is in the best interest of the Company and its shareholders because
(i) if the Shares were sold by the Trust in the secondary trading market instead
of pursuant to this Agreement, such sales would likely have a significant
adverse impact on the market price of the Company Common Stock and (ii) the sale
of the Shares to the Purchasers pursuant to this Agreement will increase the
percentage of Company Common Stock held by long-term institutional holders.
C. WHEREAS, to facilitate the Purchasers' purchase of the Shares from the
Trust pursuant to this Agreement, and, in light of the benefits to be realized
to the Company as a result of such transaction as described in Recital B, the
Company desires to allow the Purchasers certain rights to publicly resell the
Shares pursuant to a shelf registration statement which shall be filed by the
Company with the Securities and Exchange Commission ("Commission") under the
Securities Act of 1933, as amended (the "Act")within thirty (30) days after the
date of this Agreement pursuant to the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein made and mutual benefits to be derived from this Agreement, it is hereby
agreed as follows:
ARTICLE I AGREEMENT TO SELL AND PURCHASE SHARES.
Section 1.1. Subject to the terms and conditions of this Agreement, each
Purchaser is hereby purchasing and accepting from the Trust, and the Trust is
hereby selling, assigning, transferring and delivering to each Purchaser that
number of Shares set forth opposite each Purchaser's name on Exhibit A attached
hereto.
Section 1.2. The Trust is hereby delivering, or causing to be delivered to
the Purchasers, certificates representing the Shares set forth opposite each
Purchaser's name on Exhibit A. Delivery of the certificates representing the
Shares shall be made to the accounts designated by the Purchasers on Exhibit A
through the facilities of the Depository Trust Company.
Section 1.3. The cash purchase price of each Share shall be ten dollars and
seventy-five cents ($10.75) and the aggregate cash purchase price for all of the
Shares shall be eighteen million eight hundred twelve thousand and five hundred
dollars ($18,812,500.00) (the "Aggregate Purchase Price"). The Purchasers are
hereby delivering, or causing to be delivered,
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the Aggregate Purchase Price by wire transfer of immediately available funds to
the account designated by the Trust on Exhibit A.
ARTICLE II REPRESENTATIONS AND WARRANTIES.
Section 2.1. Representations and Warranties of the Trust. The Trust hereby
represents and warrants to the Purchasers and the Company as follows:
(a) The Trust has full power, legal right, capacity and authority to enter
into, execute and deliver this Agreement and to carry out the transactions
contemplated hereby.
(b) The Trust has, and each Purchaser is receiving, good and marketable
title to the Shares being sold to such Purchaser hereunder, free and clear of
all liens, including, without limitation, voting trusts or agreements, proxies,
marital or community property interests.
(c) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement have been duly authorized by all
necessary action by and on behalf of the Trust and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Trust pursuant to any contract, indenture, mortgage, loan agreement, deed,
trust, note, lease, sublease, voting agreement, voting trust or other instrument
or agreement to which the Trust is a party or by which it may be bound, or to
which any of the property or assets of the Trust is subject, nor will such
action result in any violation of the provisions of the Trust Agreement of the
Trust or any applicable Wisconsin or federal statute, law, rule, regulation,
ordinance, decision, directive or order.
(d) This Agreement has been duly executed and delivered by the Trust and
constitutes a valid and binding obligation of the Trust, enforceable against it
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as such enforcement is
subject to general principles of equity.
Section 2.2. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Purchasers and to the Trust as follows:
(a) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Wisconsin. The
Company has full power, legal right, capacity and authority to enter into,
execute and deliver this Agreement and to carry out the transactions
contemplated hereby.
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(b) As of their respective dates, the (i) Form 10-K Annual Report filed by
Company for the fiscal year ended May 25, 2000, (ii) Company's 2000 Annual
Report to Shareholders, (iii) Company's Proxy Statement for its 2000 annual
meeting of shareholders, (iv) the Form 10-Q Quarterly Reports filed by Company
on October 6, 2000, January 8, 2001 and April 9, 2001, and (v) as to (ii) below,
the Confidential Information Memorandum dated as of May 2001 (the "Confidential
Information Memorandum"):
(i) complied in all material respects with the provisions of the
Securities Exchange Act of 1934 (as amended) and the Commission's rules and
regulations promulgated thereunder; and
(ii) did not contain any untrue statement of material fact or omit to
state any material fact necessary to make the statements therein not
misleading in any material respect (provided, however, that the Company
makes no representations or warranties as to the financial forecasts for
the Company or the Xxxxx Research Model contained in the Confidential
Information Memorandum other than that such forecasts and such Model were
based on reasonable and good faith estimates and assumptions).
(c) Since February 22, 2001, or as otherwise specifically disclosed by the
Company to representatives of the Purchasers on their telephone conference call
held on July 3, 2001 or to the public generally by press release, there has not
been any change in the assets, liabilities, financial condition, capitalization
or operating results of the Company from that reflected in the documents listed
in Section 2.2(b) above, except changes that have not been and are not
reasonably likely to be materially adverse to the Company.
(d) The Company's transfer agent has received 282,125 shares of the
Company's Common Stock and 1,467,875 shares of the Company's Class B Common
Stock from the Trust and, according to the Company's articles of incorporation,
the shares of the Company's Class B Common Stock will automatically be converted
into Company Common Stock when sold to the Purchasers hereunder. The 1,750,000
Shares to be transferred to the Purchasers pursuant to the terms of this
Agreement, were duly authorized and validly issued by the Company and are
included for listing by the Company on the New York Stock Exchange.
(e) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated in this Agreement
by the Company and the fulfillment of the terms of this Agreement by the Company
have been duly authorized by the Company by all necessary corporate action and
will not conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to, any contract, indenture, mortgage, loan
agreement, deed, trust, note, lease, sublease, voting agreement, voting trust or
other instrument or agreement to which the Company is a party or by which it may
be bound, or to which any of the property or assets of the Company is subject;
and will not result in any violation of the provisions of the articles of
incorporation or bylaws of the Company or any applicable statute, law, rule,
regulation, ordinance, decision, directive or order.
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(f) This Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable against
it in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as such enforcement is
subject to general principles of equity.
(g) Except as set forth in this Agreement, the Company has not granted any
registration rights to any person or entity.
Section 2.3. Representations and Warranties of Purchasers. Purchasers
hereby represent and warrant to the Company and the Trust as follows:
(a) Purchasers are knowledgeable, sophisticated and experienced in making,
and are qualified to make, decisions with respect to investments in equity
securities representing an investment decision like that involved in the
purchase of the Shares, and have requested, received, reviewed and considered
all information they deem relevant in making a fully informed investment
decision to purchase the Shares.
(b) Purchasers are acquiring the Shares in the ordinary course of their
business and for their own account for investment only, and have no (i) present
intention of distributing any of the Shares or (ii) any arrangement or
understanding with any other persons regarding the distribution of such Shares
within the meaning of Section 2(a)(11) of the Act, other than as contemplated by
this Agreement.
(c) Purchasers will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Shares, except in compliance
with the Securities Exchange Act of 1934, as amended, (the "Exchange Act"), the
Act and the Commission's rules and regulations promulgated thereunder ("Rules
and Regulations") and, if sold pursuant to the Resale Shelf Registration
Statement (as defined below), in compliance with a method of distribution
described therein.
(d) Purchasers have completed or caused to be completed the Questionnaire,
attached to this Agreement as Appendix I and the information contained in the
Questionnaire is true and correct as of the date of this Agreement and will be
true and correct as of the effective date under the Act with the Commission of
the Resale Shelf Registration Statement; provided, however, that Purchasers
shall be entitled to update such information by providing notice thereof to the
Company before the effective date under the Act of such Resale Shelf
Registration Statement.
(e) Purchasers have, in connection with their decisions to purchase the
Shares, relied solely upon documents filed by the Company with the Commission,
the Confidential Information Memorandum, the information specifically disclosed
by the Company to representatives of the Purchasers on their telephone
conference call held on July 3, 2001 and the representations and warranties of
the Trust and the Company contained in this Agreement.
(f) Purchasers are "accredited investors" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Act.
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(g) Purchasers have full power, legal right, capacity and authority to
enter into, execute and deliver this Agreement and to carry out the transactions
contemplated hereby.
(h) Purchasers do not currently own any shares of the Company Common Stock
and, other than this Agreement, they have not entered into any agreement
(whether preliminary or definitive) to purchase any Company Common Stock.
(i) The execution, delivery and performance of this Agreement by the
Purchasers and the consummation of the transactions contemplated in this
Agreement by the Purchasers and the fulfillment of the terms of this Agreement
by the Purchasers have been duly authorized by all necessary corporate action by
the Purchasers and will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Purchasers pursuant to, any
contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or agreement to
which the Purchasers are a party or by which they may be bound, or to which any
of the property or assets of the Purchasers are subject, nor will such action
result in any violation of the provisions of the charter or bylaws of the
Purchasers or any applicable statute, law, rule, regulation, ordinance,
decision, directive or order.
(j) This Agreement has been duly executed and delivered by Purchasers and
constitutes a valid and binding obligation of the Purchasers, enforceable
against them in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as such
enforcement is subject to general principles of equity.
ARTICLE III SHELF REGISTRATION.
Section 3.1. The Company shall, within thirty (30) days from the date of
this Agreement, file with the Commission (and all applicable state securities
authorities) under Rule 415 of the Act a Form S-3 resale shelf Registration
Statement covering the Purchasers' resale of the Shares pursuant to the methods
of distribution set forth therein ("Resale Shelf Registration Statement"). For
purposes of the registration rights set forth in Article III of this Agreement,
the term "Shares" shall include the Shares and any securities (as that term is
defined in Section 2(a)(1) of the Act) issuable or issued or distributed in
respect of the Shares by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, reorganization, merger,
consolidation and otherwise.
Section 3.2. Subject to Section 3.4, the Company shall use its commercially
reasonably best efforts to:
(a) have the Resale Shelf Registration Statement declared effective under
the Act by the Commission (and under applicable state securities laws by all
applicable state securities authorities) within ninety (90) days of the date of
this Agreement; and
(b) keep the Resale Shelf Registration Statement continuously effective
until the earlier of (i) the second anniversary of the date of this Agreement or
(ii) the date that all of the Shares have been sold.
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Section 3.3. The Company may include, from time to time or at any time, as
part of the Resale Shelf Registration Statement, additional shares of Company
Common Stock proposed to be sold by the Company and/or other holders of Company
Common Stock (or its equivalent or securities convertible thereinto); provided,
however, that the rights of the Company and/or such other holders of Company
Common Stock (or its equivalent or securities convertible thereinto) to include
Company Common Stock (or its equivalent or securities convertible thereinto)
under such Resale Shelf Registration Statement shall be subordinate in all
respects to the prior rights of the Purchasers to include their Shares
thereunder if a conflict of interests thereunder shall occur among such parties.
Section 3.4. The Company shall be entitled, in its reasonable judgment,
from time to time or at any time, to suspend resales under the Resale Shelf
Registration Statement for up to forty-five (45) days at a time if (i) events or
circumstances at or affecting the Company would make the Resale Shelf
Registration Statement inaccurate or misleading in any material respect and (ii)
it would, in the reasonable judgment of the Company, be imprudent for the
Company to amend the Resale Shelf Registration Statement at that time; provided,
however, that in computing the period for which the Company is required to
maintain effectiveness of such Resale Shelf Registration Statement, the period
of any such suspension shall not be included; and provided further that the
Company shall not suspend resales under the Resale Shelf Registration Statement
for more than ninety (90) days during any calendar year. The Company shall give
prompt written notice to the Purchasers of each such suspension and shall
likewise give prompt written notice to the Purchasers of termination of each
suspension. The Purchasers hereby agree that they will not sell any Shares
pursuant to said prospectus during the period commencing at the time at which
the Purchaser receives written notice of the suspension period from the Company
and ending at the earliest to occur of the following: (i) the time that the
Purchaser receives written notice from the Company that the Purchaser may
thereafter effect sales pursuant to said prospectus; or (ii) the completion of
the applicable suspension period.
Section 3.5. The Purchasers hereby covenant with the Company not to make
any sale of the Shares without satisfying the requirements of the Exchange Act,
the Act and the Rules and Regulations, including, in the event of any resale
under the Resale Shelf Registration Statement, the methods of resale set forth
in the Resale Shelf Registration Statement and the prospectus delivery
requirements under the Act.
Section 3.6. The Purchasers acknowledge and agree that the Shares are not
transferable on the books of the Company pursuant to a resale under the Resale
Shelf Registration Statement unless the certificate submitted to the transfer
agent evidencing the Shares is accompanied by a separate officer's certificate:
(a) in the form of Appendix II to this Agreement;
(b) executed by an officer of, or other authorized person designated by,
the applicable Purchaser; and
(c) to the effect that (i) the Shares have been sold in accordance with the
Resale Shelf Registration Statement and (ii) the requirement of delivering a
current prospectus has been satisfied.
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Section 3.7. The Company and the Trust, in such proportion as they shall
mutually agree, shall pay all costs and expenses incurred in connection with any
such Resale Shelf Registration Statement (including, without limitation, all
legal and accounting fees and expenses incurred by the Company, and all printing
costs and filing fees incurred in connection with such registration). Except as
set forth in Section 7.1, the Purchasers shall pay (i) the expenses of any
attorneys, accountants or other advisors or professionals which they engage in
connection with the sale of Shares pursuant to the Resale Shelf Registration
Statement and (ii) all brokerage commissions, fees, discounts and transfer
taxes, if any, associated with the Shares being sold by the Purchasers pursuant
to the Resale Shelf Registration Statement.
ARTICLE IV OBLIGATIONS OF THE COMPANY
Section 4.1. Whenever required under Article III hereof to effect the
registration of the Shares, the Company shall as expeditiously as possible:
(a) prepare and file with the Commission such amendments and supplements to
the Resale Shelf Registration Statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Act with
respect to the disposition of all Shares covered by such Resale Shelf
Registration Statement and to keep it effective until the earlier of the dates
specified in Section 3.2(b) hereof;
(b) subject to Section 3.4 hereof, prepare and promptly file with the
Commission and promptly notify the Purchasers of the filing of, such amendment
or supplement to the Resale Shelf Registration Statement and the prospectus as
may be necessary to correct any statements or omissions if, at any time when a
prospectus relating to the Shares is required to be delivered under the Act, any
event has occurred the result of which is that any such prospectus then in
effect would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading;
(c) advise Purchasers promptly after the Company shall have received notice
or obtained knowledge of the issuance of any stop order by the Commission
suspending the effectiveness of such registration statement or the initiation of
any proceeding for that purpose and promptly use its commercially reasonable
best efforts to prevent the issuance or obtain the withdrawal of any stop order;
(d) furnish to Purchasers such number of copies of prospectuses and
preliminary prospectuses in conformity with the requirements of the Act and such
other publicly available documents with respect to the Company as Purchasers may
reasonably request, in order to facilitate the public sale or other disposition
of all or any of the Shares by the Purchasers; and
(e) use its best efforts to register and qualify the Shares covered by the
Resale Shelf Registration Statement under such other securities and blue sky
laws in such states reasonably requested by the Purchasers.
ARTICLE V FURTHER COOPERATION; CONFIDENTIALITY.
Section 5.1. By execution of this Agreement, Purchasers hereby agree that,
prior to the second anniversary of the date of this Agreement, they will not
offer, sell or otherwise dispose of
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any Shares, in the open market or otherwise, during any period when they have
knowledge that a Company registration statement is pending relating to a public
offering or distribution of Company Common Stock (other than as allowed under
this Agreement or other than if the proposed registration (i) is not to be made
on Commission Forms X-0, X-0 or S-3 (or any successor or similar forms); or (ii)
is primarily (A) a registration of securities other than Company Common Stock or
other equity securities of the Company; (B) a registration of a stock option,
incentive compensation, profit sharing, dividend reinvestment, employee stock
purchase or other employee benefit plan or of securities issued or issuable
pursuant to any such plan; or (C) a registration of securities proposed to be
issued in exchange for securities or assets of, or in connection with a merger,
share exchange, consolidation or other business acquisition or combination
involving another corporation or entity (the types of registrations and
registration statements described in clauses (i) and (ii) are herein called the
"Excluded Registrations")) but only so long as such Company registration
statement has not been filed with the Commission or otherwise publicly
disclosed.
Section 5.2. In connection with the Resale Shelf Registration Statement,
the Purchasers shall furnish or cause to be furnished such information with
respect thereto, and render such cooperation, to the Company and any
broker-dealer as the Company or any such broker-dealer may reasonably request.
Section 5.3. Upon receiving any notice hereunder respecting any pending
registration statement of the Company relating to a public offering or
distribution of Company Common Stock (other than an Excluded Registration), the
Purchasers shall, as long as such information is not otherwise publicly
disclosed, strictly maintain the confidentiality of such pending registration
statement, shall make no public disclosures or comments with respect thereto and
shall not trade in the Company's Common Stock.
ARTICLE VI INDEMNIFICATION IN CONNECTION WITH
RESALE SHELF REGISTRATION STATEMENTS AND THIS AGREEMENT.
Section 6.1. The Company hereby agrees to indemnify and hold harmless each
Purchaser and each other person if any, who controls a Purchaser within the
meaning of the Act against any losses, claims, damages or liabilities, joint or
several, to which any such indemnified party may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Resale Shelf Registration Statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse each such indemnified party for any reasonable legal or any other
reasonable expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, liability, action or proceeding; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the Resale
Shelf Registration Statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of a
Purchaser specifically for use in the preparation thereof. Notwithstanding the
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foregoing provisions of this Section 6.1, the Company will not be liable to a
Purchaser or other indemnified party under the indemnity agreement in this
Section 6.1 for any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense that arises out of such party's (i) failure to
send or give a copy of the final prospectus to the person asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of the Shares to such persons if
such statement or omission was corrected in such final prospectus and the
Company has previously furnished copies thereof in accordance with this
Agreement prior to the time such prospectus was required to be delivered or (ii)
sale of any Shares during any period of suspension pursuant to Section 3.4 of
this Agreement, provided that proper notice of such suspension was provided by
the Company.
Section 6.2. Each of the Purchasers, jointly and severally, shall indemnify
and hold harmless (in the same manner and to the same extent as set forth in
Section 6.1 hereof) the Trust, the trustees of the Trust, the Company, each
director of the Company, each officer of the Company signing the registration
statement and each other person if any, who controls the Company within the
meaning of the Act, with respect to any untrue statement or alleged untrue
statement of any material fact contained in the Resale Shelf Registration
Statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only to the
extent that such statement or alleged statement or omission was made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Purchaser specifically for use in the preparation of the
Resale Shelf Registration Statement, preliminary prospectus, final prospectus,
summary prospectus contained therein, or any, amendment or supplement thereto.
Section 6.3. If for any reason the foregoing indemnification is unavailable
or insufficient to hold any indemnified party harmless, then the indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received or receivable by
the indemnifying party, on the one hand, and such indemnified party, on the
other hand, but also the relative fault of the indemnifying party and any
indemnified party, as well as any other relevant equitable considerations.
Section 6.4. The parties hereto agree that it would not be just and
equitable if contribution pursuant to Section 6.3 hereof were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in Section 6.3 hereof. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in Section 6.1 or 6.2 hereof shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Section 6.5. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Section 6.6. Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not
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relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. The indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
reasonable fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Article VI (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
Section 6.7. Each of the parties hereto hereby agrees to indemnify and hold
harmless each other party hereto against any losses, claims, damages or
liabilities, joint or several, to which such other party may become subject,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any inaccuracy in or any breach of any representation,
warranty, covenant or agreement made by such indemnifying party in this
Agreement. For purposes of this Section 6.7, the procedural provisions of
Sections 6.3, 6.4, 6.5 and 6.6 shall apply.
ARTICLE VII ADDITIONAL MATTERS.
Section 7.1. Upon written request by the Purchasers, the Trust shall
reimburse the Purchasers for up to a total of $15,000 of direct, documented,
out-of-pocket expenses incurred by the Purchasers in the negotiation and
preparation of this Agreement and the Resale Shelf Registration Statement. The
Company and the Trust, in such proportion as they shall mutually agree, shall
pay all costs and expenses incurred by the Company in connection with the
preparation of this Agreement and the Resale Shelf Registration Statement.
Except as otherwise stated in this Agreement, each party shall bear its own
costs in connection with this Agreement, the Resale Shelf Registration Statement
and the transactions contemplated by this Agreement.
Section 7.2. This Agreement shall be governed by and construed and
interpreted in accordance with the internal laws of the State of New York
applicable to contracts made and performed in New York, regardless of the fact
that individuals who are a party hereto may be or become a resident of a state
or jurisdiction other than New York.
11
Section 7.3. Company, Purchasers and the Trust hereby stipulate that any
action or other legal proceeding arising under or in connection with this
Agreement shall be commenced and prosecuted exclusively and in its entirety in
the Federal District Court in the Northern District of Illinois in Chicago,
Illinois, each party hereby submitting to the personal jurisdiction thereof, and
the parties agree not to raise the objection that such courts are not a
convenient forum. Process and pleadings mailed to a party at the address
provided herein shall be deemed properly served and accepted for all purposes.
THE TRUST, COMPANY AND PURCHASERS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
Section 7.4. The Trust has retained Xxxxxx X. Xxxxx & Co. Incorporated
("Baird") as its agent with respect to the sale of the Shares to the Purchasers
hereunder. The parties recognize the Trust's retention of Baird as its sole
broker, agent or finder with respect to this transaction, the payment of fees to
whom shall be the sole responsibility of the Trust.
Section 7.5. Except as otherwise provided in this Agreement, all notices,
requests, demands and other communications hereunder shall be deemed to be duly
given and received upon personal delivery to the party to be notified with
reasonable evidence of such delivery; when sent by confirmed facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day; five (5) days after having been sent by registered or certified mail, with
postage prepaid; or one (1) day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of
receipt:
(a) If to the Company: to The Marcus Corporation, 000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxxx, Esq. (with a
copy to: Xxxxxx X. Xxxxx, Esq., Xxxxx & Xxxxxxx, 000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 53202).
(b) If to a Purchaser: to the addresses indicated on Exhibit A.
(c) If to the Trust: to The Marcus Corporation, 000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxx (with a copy to X. Xxxxxxx
Xxxxx, Esq., Xxxxxxx & Xxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx,
00000).
(d) Any person entitled to receive notice hereunder may change his address
at which notice is to be received or designate another person to receive notice
by giving notice to all other parties and persons entitled to receive notice in
the manner provided in this Section.
Section 7.6. This Agreement embodies the entire agreement between the
parties hereto with respect to the transactions contemplated herein, and
supersedes all prior agreements and understandings between the parties,
including (but not limited to) the letter of intent executed by the Purchasers
and the Trust as of or about June 26, 2001.
Section 7.7. If any provision contained in this Agreement should be held to
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement shall not
in any way be affected or impaired thereby.
Section 7.8. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute but one and the same instrument. Executed signature pages may be
removed from counterpart agreements and
12
attached to one or more fully executed copies of this Agreement. Signature pages
hereto may be validly and effectively executed by facsimile.
Section 7.9. This Agreement may be assigned by the Purchasers (or any of
them) with the written consent of the Company, which shall not be unreasonably
withheld or delayed. This Agreement shall be binding upon and inure to the
benefit of the respective parties hereto, and any successor and assign of a
Purchaser, the Company or the Trust.
Section 7.10. All nouns, pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
Section 7.11. The headings used in this Agreement are for convenience only
and shall not constitute a part of this Agreement.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
THE BEN AND XXXXX XXXXXX 1992 THE MARCUS CORPORATION
REVOCABLE TRUST ("Trust") ("Company")
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------- ---------------------------------
Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxxx,
Trustee General Counsel and Secretary
By: /s/ Xxxxx Xxxxxx Xxxxxxxxxx
---------------------------------
Xxxxx Xxxxxx Xxxxxxxxxx,
Trustee
LORD XXXXXX RESEARCH FUND, INC. - LORD XXXXXX SECURITIES TRUST - LORD
SMALL-CAP VALUE SERIES XXXXXX MICRO-CAP VALUE FUND
(a "Purchaser") (a "Purchaser")
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
--------------------------------- ---------------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx
Title: Vice President and Title: Vice President and
Secretary Secretary
LORD XXXXXX SECURITIES TRUST -
LORD XXXXXX ALL VALUE FUND
(a Purchaser")
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and
Secretary
14
Exhibit A
to Share Purchase
and Registration Rights Agreement
PURCHASER INFORMATION
------------------------ ------------------ ----------------------------- ----------- ---------------------------
Additional Address for Number of Account Information
Purchaser Address Notification Purposes Shares (for Transfer of Shares)
------------------------ ------------------ ----------------------------- ----------- ---------------------------
Lord Xxxxxx Research 00 Xxxxxx Xxxxxx Xxxxxx, Xxxxxx & Xxxxxxxxx 1,366,500 Bank of New York, DTC 901
Fund, Inc. - Small-Cap Jersey City, NJ 0000 X. Xxxxxx, X.X. Account number: 007651
Value Series 07302-3973 Xxxxxxxxxx, X.X. 00000-0000 Attn: Xxxxx Xxxxxxx
Attn: Xxxxxxxx Xxxxx
------------------------ ------------------ ----------------------------- ----------- ---------------------------
Lord Xxxxxx Securities 00 Xxxxxx Xxxxxx Xxxxxx, Xxxxxx & Xxxxxxxxx 372,000 Bank of New York, DTC 901
Trust - Lord Xxxxxx Jersey City, NJ 0000 X. Xxxxxx, X.X. Account number: 007616
All Value Fund 07302-3973 Washington, D.C. 20037-1420 Attn: Xxxxx Xxxxxxx
Attn: Xxxxxxxx Xxxxx
------------------------ ------------------ ----------------------------- ----------- ---------------------------
Lord Xxxxxx Securities 00 Xxxxxx Xxxxxx Xxxxxx, Xxxxxx & Xxxxxxxxx 11,500 Bank of New York, DTC 901
Trust - Lord Xxxxxx Jersey City, NJ 0000 X. Xxxxxx, X.X. Account number: 218258
Micro-Cap Value Fund 07302-3973 Washington, D.C. 20037-1420 Attn: Xxxxx Xxxxxxx
Attn: Xxxxxxxx Xxxxx
------------------------ ------------------ ----------------------------- ----------- ---------------------------
TOTAL 1,750,000
------------------------ ------------------ ----------------------------- ----------- ---------------------------
TRUST WIRE INSTRUCTIONS
The wiring instructions are as follows:
Bank One
000 Xxxx Xxxxxxxxx Xxx.
Xxxxxxxxx, Xxxxxxxxx
The Ben and Xxxxx Xxxxxx 1992 Revocable Trust
ABA#: 000000000
Checking Account #:632962387
Appendix I
to Share Purchase
and Registration Rights Agreement
QUESTIONNAIRE
The Marcus Corporation,
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Gentlemen:
Pursuant to the certain Share Purchase and Registration Rights Agreement,
dated as of July 16, 2001 ("Agreement") by and between, among others, The Marcus
Corporation ("Company") and the undersigned, the undersigned hereby furnishes
the following information:
1. The name, exactly as it should appear in the Resale Shelf Registration
Statement is _____________________________.
2. The exact name that the Shares purchased pursuant to the Agreement are to
be registered in is _______________________________.
3. The mailing address of the registered holder listed in response to above
is:
_______________________________
_______________________________
_______________________________
_______________________________
4. The Tax Identification Number of the registered holder listed above is
_____________________.
Very truly yours,
Official Name of Purchaser:________________
By:________________________________________
Name:__________________________________
Title:_________________________________
Business Address:______________________
Business Phone:________________________
E-mail Address:________________________
Facsimile Number:______________________
Date:__________________________________
cc: Xxxxxx X. Xxxxx
Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Appendix II
to Share Purchase
and Registration Rights Agreement
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
The Marcus Corporation,
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Gentlemen:
Pursuant to Section 3.6 of that certain Share Purchase and Registration
Rights Agreement, dated as of July 16, 2001 ("Agreement") by and between, among
others, The Marcus Corporation ("Company") and the undersigned, the undersigned
hereby certifies that on _____, 200_, it sold ______ shares of the Company's
Common Stock in accordance with the Resale Shelf Registration Statement. The
undersigned further certifies that the prospectus delivery requirements under
the Securities Act of 1933 have been satisfied.
Very truly yours,
Official Name of Purchaser:________________
By:________________________________________
Name:__________________________________
Title:_________________________________
Business Address:______________________
Business Phone:________________________
E-mail Address:________________________
Facsimile Number:______________________
Date:__________________________________
cc: Xxxxxx X. Xxxxx
Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000