Marcus Corp 8-K, filed Feb 27, 2024
Marcus Corp (MCS)
8-K
2024-02-27
For: 2024-02-21
View Original
Added on
April 09, 2026
About this 8-K
Marcus Corp filed this 8-K on February 27, 2024, reporting on events of February 21, 2024.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 5.03: Charter or bylaw amendment, or fiscal year change
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
| Date of Report | |||||||||||
| (Date of earliest event reported): | |||||||||||
(Exact name of registrant as
specified in its charter)
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) | ||||||||||||
(Address of principal executive offices, including zip code)
(414 ) 905-1000
(Registrant’s telephone number, including area code)
| Not Applicable | ||
| (Former name or former address, if changed since last report) | ||
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |||||
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |||||
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17-CFR 240.14d-2(b)) | |||||
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17-CFR 240.13e-4(c)) | |||||
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol | Name of each exchange on which registered | ||||||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On February 21, 2024, the Compensation Committee (the “Committee”) of the Board of Directors of The Marcus Corporation (the “Company”) amended and restated the Company’s Long-Term Incentive Plan (the “LTIP”) for the Company’s senior executives. The LTIP now includes a mix of three compensation elements: long-term performance cash awards (typically expected to constitute approximately 40% of each annual long-term incentive award), performance stock unit awards (typically expected to constitute approximately 20% of each annual long-term incentive award) and restricted stock or restricted stock units (typically expected to constitute approximately 40% of each annual long-term incentive award).
In addition, on February 21, 2024, the Committee approved 2024 annual long-term equity incentive awards for the Company’s executive officers in the form of performance cash, performance stock unit and restricted stock grants pursuant to the LTIP, with an effective date of February 22, 2024. The performance cash component’s measurement period under the LTIP will initially have a performance period of three consecutive fiscal years of the Company, which for the grants made effective February 22, 2024 will run from fiscal 2024 through fiscal 2026, and may be altered by the Committee or the Company. The performance measures for the performance cash component will initially be the Company’s three-year average return on invested capital (“ROIC”) and its three-year adjusted earnings before interest, taxes, depreciation and amortization (“Adjusted EBITDA”) growth rate, each of which will be measured and calculated independently of each other, but with the relative achievement of the Company’s ROIC levels weighted 75% of the targeted total pay-out amount and the Company’s relative achievement of its Adjusted EBITDA growth rate weighted 25%. Under the LTIP if the Company’s relative ROIC and/or Adjusted EBITDA growth rate over the three-year measurement period is equal to the 25th percentile of the respective Russell 2000 ROIC and/or Adjusted EBITDA growth rate over the measurement period, then the payment made to the LTIP participants will continue to be equal to 25% of the target pay-out amount for such respective performance measure. If the Company achieves performance of either or both measures equal to the 50th percentile, then the pay-out will continue to be 100% of the target pay-out amount for such respective performance measure. If the Company achieves performance of either or both measures equal to or above the 75th percentile, then the pay-out will continue to be 150% of the target pay-out amount for such respective performance measure. Performance achievements in between these percentiles will result in pro rated pay-outs based on the foregoing pay-out ratios.
The Committee also determined that the performance stock unit awards granted as part of each such award will be eligible to be earned based on the Company’s achievement of performance goals expressed in terms of (i) earnings before interest, taxes, depreciation and amortization growth rate ranking relative to the Russell 2000 Index with respect to 25% of the total number of performance stock unit awards, and (ii) average ROIC ranking relative to the Russell 2000 Index with respect to 75% of the total number of performance stock unit awards. The Committee determined these performance stock unit award performance goals will relate to the three-year performance period from fiscal 2024-2026. Under the LTIP, if the Company’s relative ROIC and/or Adjusted EBITDA growth rate over the three-year measurement period is equal to the 25th percentile of the respective Russell 2000 ROIC and/or Adjusted EBITDA growth rate over the measurement period, then the performance stock unit award amount for LTIP participants will be equal to 25% of the target award amount for such respective performance measure. If the Company achieves performance of either or both measures equal to the 50th percentile, then the award will be 100% of the target award amount for such respective performance measure. If the Company achieves performance of either or both measures equal to or above the 75th percentile, then the award will be 150% of the target award amount for such respective performance measure.
The Committee also determined that the restricted stock awards granted as part of each such award will vest with respect to half of the total number of shares of restricted stock included in such award on the second anniversary of the effective date of grant and the other half on the third anniversary of the effective date of grant.
Finally, on February 21, 2024, the Committee, in connection with the retention and considerable efforts of certain senior executives relative to the Company’s operation over the last several years during unique and trying circumstances, approved a special grant of restricted stock awards pursuant to the LTIP, with an effective date of
grant of February 22, 2024, to Gregory Marcus, the Company’s Chairman, President and Chief Executive Officer, Thomas Kissinger, the Company’s Senior Executive Vice President, General Counsel and Secretary, Chad Paris, Chief Financial Officer and Treasurer and Michael Evans, the President of Marcus Hotels & Resorts (the “Special Grant”). The entire Special Grant shall vest on the fourth anniversary of the effective date of the grant.
The grant date target fair value of all awards under the LTIP to the named executive officers, including the Special Grant, ranged from $6,191,584 to $607,064.
A description of the LTIP is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference. The brief summary of the material provisions of the LTIP set forth above is qualified in its entirety by reference to the description filed as an exhibit hereto.
In addition to the amendment and restatement of the LTIP, and consistent with such changes, on February 21, 2024, the Committee also approved a form of The Marcus Corporation 2004 Equity and Incentive Awards Plan Performance Share Award Agreement for the Company’s senior executives (“Executive PSA Agreement”), a form of The Marcus Corporation 2004 Equity and Incentive Awards Plan Performance Share Award Agreement for the Company’s leadership (“Leadership PSA Agreement”), a new form of The Marcus Corporation 2004 Equity and Incentive Awards Restricted Stock Agreement (“RS Agreement”), a form of The Marcus Corporation 2004 Equity and Incentive Awards Plan Restricted Stock Unit Agreement (“RSU Agreement”), as well as a form of The Marcus Corporation 2004 Equity and Incentive Awards Restricted Stock Agreement for the Special Grant (the “Special Grant Agreement”). The Executive PSA Agreement, the Leadership PSA Agreement, RS Agreement, RSU Agreement and Special Grant Agreement are filed as Exhibits 10.2, 10.3, 10.4, 10.5 and 10.6, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On February 22, 2024, the Board of Directors of the Company approved amendments to the by-laws (as amended, the “By-laws”), of the Company to align the By-laws with SEC’s new requirements regarding universal proxies pursuant to Rule 14a-19 and provide clarity around the processes and procedures for the Company’s annual meeting of shareholders.
This description of the By-laws does not purport to be complete and is qualified in its entirety by reference to the full text of the By-laws, which are filed as Exhibit 3 to this Current Report on Form 8-K and are incorporated herein by reference.
Item 9.01.Financial Statements and Exhibits.
(a)Not applicable.
(b)Not applicable.
(c)Not applicable.
(d)Exhibits. The following exhibit is being furnished herewith:
Exhibit Number | |||||
| 3.0 | |||||
| 10.1 | |||||
| 10.2 | |||||
| 10.3 | |||||
| 10.4 | |||||
| 10.5 | |||||
| 10.6 | |||||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | ||||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
THE MARCUS CORPORATION | ||||||||
Date: February 27, 2024 | By: | /s/ Chad M. Paris | ||||||
Chad M. Paris | ||||||||
Chief Financial Officer and Treasurer | ||||||||
Exhibit 3
BY-LAWS
OF
THE MARCUS CORPORATION
(a Wisconsin corporation)
(a Wisconsin corporation)
Amended 3/23/95 (Section 3.01)
Amended 9/28/95 (Section 3.02 and new Section 3.015)
Amended 12/17/98 (Article II)
Amended 1/8/03 (Section 3.02)
Amended 7/18/06 (Section 3.02)
Amended 9/28/95 (Section 3.02 and new Section 3.015)
Amended 12/17/98 (Article II)
Amended 1/8/03 (Section 3.02)
Amended 7/18/06 (Section 3.02)
Amended 1/6/09 (Sections 2.02 and 2.14)
Amended 10/13/15 (Section 2.01)
Amended 4/9/2020 (Sections 2.03, 2.04, 2.07, 2.08, 3.03 and 3.04 and new Section 2.15)
Amended 9/11/2020 (Section 3.12)
Amended 2/22/2024 (Sections 2.02, 2.08 and 2.14)
BY-LAWS
OF
THE MARCUS CORPORATION
(a Wisconsin corporation)
OF
THE MARCUS CORPORATION
(a Wisconsin corporation)
Article I. OFFICES
1.01.Principal and Business Offices. The corporation may have such principal and other business offices, either within or without the State of Wisconsin, as the Board of Directors may designate or as the business of the corporation may require from time to time.
1.02.Registered Office. The registered office of the corporation required by the Wisconsin Business Corporation Law to be maintained in the State of Wisconsin may be, but need not be, identical with the principal office in the State of Wisconsin, and the address of the registered office may be changed from time to time by the Board of Directors or by the registered agent. The business office of the registered agent of the corporation shall be identical to such registered office.
Article II. SHAREHOLDERS
2.01 Annual Meeting. The annual meeting of the shareholders (the “Annual Meeting”) shall be held on such day in April or May of each year as may be designated by or under the authority of the Board of Directors, or at such other time and date as may be fixed by resolution of the Board of Directors. In fixing a meeting date for any Annual Meeting, the Board of Directors may consider such factors as it deems relevant within the good faith exercise of its business judgment. At each Annual Meeting, the shareholders shall elect that number of directors equal to the number of directors whose term expires at the time of such meeting. At any such meeting, only other business properly brought before the meeting in accordance with Section 2.14 of these bylaws may be transacted. If the election of directors shall not be held on the date designated herein, or fixed as herein provided, for any Annual Meeting, or any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of shareholders (a “Special Meeting”) as soon thereafter as is practicable.
2.02 Special Meetings.
(a)A Special Meeting may be called only by (i) Chairman of the Board, (ii) the President or (iii) the Board of Directors and shall be called by the President upon the demand, in accordance with this Section 2.02, of the holders of record of shares representing at least 10% of all the votes entitled to be cast on any issue proposed to be considered at the Special Meeting.
(b)In order that the corporation may determine the shareholders entitled to demand a Special Meeting, the Board of Directors may fix a record date to determine the shareholders entitled to make such a demand (the “Demand Record Date”). The Demand Record Date shall not precede the date upon which the resolution fixing the Demand Record Date is adopted by the Board of Directors and shall not be more than ten days after the date upon which the resolution fixing the Demand Record Date is adopted by the Board of Directors. Any shareholder of record seeking to have shareholders demand a Special Meeting shall, by sending written notice to the Secretary of the corporation by hand or by certified or registered mail, return receipt requested, request the Board of Directors to fix a Demand Record Date. The Board of Directors shall promptly, but in all events within ten days after the date on which a valid request to fix a Demand Record
Date is received, adopt a resolution fixing the Demand Record Date and shall make a public announcement of such Demand Record Date. If no Demand Record Date has been fixed by the Board of Directors within ten days after the date on which such request is received by the Secretary, the Demand Record Date shall be the 10th day after the first date on which a valid written request to set a Demand Record Date is received by the Secretary. To be valid, such written request shall set forth the purpose or purposes for which the Special Meeting is to be held, shall be signed by one or more shareholders of record (or their duly authorized proxies or other representatives), shall bear the date of signature of each such shareholder (or proxy or other representative) and shall set forth all information about each such shareholder and about the beneficial owner or owners, if any, on whose behalf the request is made that would be required to be set forth in a shareholder’s notice described in paragraph (a) (ii) of Section 2.14 of these bylaws.
(c)In order for a shareholder or shareholders to demand a Special Meeting, a written demand or demands for a Special Meeting by the holders of record as of the Demand Record Date of shares representing at least 10% of all the votes entitled to be cast on any issue proposed to be considered at the Special Meeting must be delivered to the corporation. To be valid, each written demand by a shareholder for a Special Meeting shall set forth the specific purpose or purposes for which the Special Meeting is to be held (which purpose or purposes shall be limited to the purpose or purposes set forth in the written request to set a Demand Record Date received by the corporation pursuant to paragraph (b) of this Section 2.02), shall be signed by one or more persons who as of the Demand Record Date are shareholders of record (or their duly authorized proxies or other representatives), shall bear the date of signature of each such shareholder (or proxy or other representative), shall set forth the name and address, as they appear in the corporation’s books, of each shareholder signing such demand and the class and number of shares of the corporation which are owned of record and beneficially by each such shareholder, shall set forth all other information about each such shareholder and about the beneficial owner or owners, if any, on whose behalf the demand is made that would be required to be set forth in a shareholder’s notice described in paragraph (a)(ii) of Section 2.14 of these bylaws, shall be sent to the Secretary by hand or by certified or registered mail, return receipt requested, and shall be received by the Secretary within seventy days after the Demand Record Date.
(d)The corporation shall not be required to call a Special Meeting upon shareholder demand unless, in addition to the documents required by paragraph (c) of this Section 2.02, the Secretary receives a written agreement signed by each Soliciting Shareholder (as defined below), pursuant to which each Soliciting Shareholder, jointly and severally, agrees to pay the corporation’s costs of holding the Special Meeting, including the costs of preparing and mailing proxy materials for the corporation’s own solicitation, provided that if each of the resolutions introduced by any Soliciting Shareholder at such meeting is adopted, and each of the individuals nominated by or on behalf of any Soliciting Shareholder for election as a director at such meeting is elected, then the Soliciting Shareholders shall not be required to pay such costs. For purposes of this Article II, the following terms shall have the meanings set forth below:
(i)“Affiliate” of any Person (as defined herein) shall mean any Person controlling, controlled by or under common control with such first Person.
(ii)“Participant” shall have the meaning assigned to such term in Rule 14a-11 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
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(iii)“Person” shall mean any individual, firm, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity.
(iv)“Proxy” shall have the meaning assigned to such term in Rule 14a-1 promulgated under the Exchange Act.
(v)“Solicitation” shall have the meaning assigned to such term in Rule 14a-11 promulgated under the Exchange Act.
(vi)“Share Information” shall mean (A) the class or series and number of shares of the corporation that are owned, directly or indirectly, of record and/or beneficially by a shareholder, any beneficial owner on whose behalf the shareholder is acting and any of their respective Affiliates, (B) any option, warrant, convertible security, stock appreciation right or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the corporation or with a value derived in whole or in part from the value of any class or series of shares of the corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the corporation or otherwise (a “Derivative Instrument’) directly or indirectly owned beneficially by such shareholder, any such beneficial owner and any of their respective Affiliates, and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the corporation, (C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such shareholder has a right to vote any shares of any security of the corporation, (D) any short interest in any security of the corporation (for purposes of these bylaws, a Person shall be deemed to have a short interest in a security if such Person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (E) any rights to dividends on the shares of the corporation owned beneficially by such shareholder that are separated or separable from the underlying shares of the corporation, (F) any proportionate interest in shares of the corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such shareholder or beneficial owner is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (G) any performance-related fees (other than asset-based fee) that such shareholder, any such beneficial owner and any of their respective affiliates are entitled to based on any increase or decrease in the value of shares of the corporation or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such Person’s immediate family sharing the same household
(vii)“Soliciting Shareholder” shall mean, with respect to any Special Meeting demanded by a shareholder or shareholders, any of the following Persons:
(A)if the number of shareholders signing the demand or demands of meeting delivered to the corporation pursuant to paragraph (c) of this Section 2.02 is ten or fewer, each shareholder signing any such demand;
(B)if the number of shareholders signing the demand or demands of meeting delivered to the corporation pursuant to paragraph (c) of this Section 2.02 is more than ten, each Person who either (I) was a
Participant in any Solicitation of such demand or demands or (II) at the time of the delivery to the corporation of the documents described in paragraph (c) of this Section 2.02 had engaged or intends to engage in any Solicitation of Proxies for use at such Special Meeting (other than a Solicitation of Proxies on behalf of the corporation); or
(C)any Affiliate of a Soliciting Shareholder, if a majority of the directors then in office determine, reasonably and in good faith, that such Affiliate should be required to sign the written notice described in paragraph (c) of this Section 2.02 and/or the written agreement described in this paragraph (d) in order to prevent the purposes of this Section 2.02 from being evaded.
(e)Except as provided in the following sentence, any Special Meeting shall be held at such hour and day as may be designated by whichever of the Chairman of the Board, the President or the Board of Directors shall have called such meeting. In the case of any Special Meeting called by the President upon the demand of shareholders (a “Demand Special Meeting”), such meeting shall be held at such hour and day as may be designated by the Board of Directors; provided, however, that the date of any Demand Special Meeting shall be not more than seventy days after the Meeting Record Date (as defined in Section 2.06 hereof); and provided further that in the event that the directors then in office fail to designate an hour and date for a Demand Special Meeting within ten days after the date that valid written demands for such meeting by the holders of record as of the Demand Record Date of shares representing at least 10% of all the votes entitled to be cast on each issue proposed to be considered at the Special Meeting are delivered to the corporation (the “Delivery Date”), then such meeting shall be held at 2:00 P.M. local time on the 100th day after the Delivery Date or, if such 100th day is not a Business Day (as defined below), on the first preceding Business Day. In fixing a meeting date for any Special Meeting, the Chairman of the Board, the President or the Board of Directors may consider such factors as he or it deems relevant within the good faith exercise of his or its business judgment, including, without limitation, the nature of the action proposed to be taken, the facts and circumstances surrounding any demand for such meeting, and any plan of the Board of Directors to call an Annual Meeting or a Special Meeting for the conduct of related business.
(f)The corporation may engage regionally or nationally recognized independent inspectors of elections to act as an agent of the corporation for the purpose of promptly performing a ministerial review of the validity of any purported written demand or demands for a Special Meeting received by the Secretary. For the purpose of permitting the inspectors to perform such review, no purported demand shall be deemed to have been delivered to the corporation until the earlier of (i) five Business Days following receipt by the Secretary of such purported demand and (ii) such date as the independent inspectors certify to the corporation that the valid demands received by the Secretary represent at least 10% of all the votes entitled to be cast on each issue proposed to be considered at the Special Meeting. Nothing contained in this paragraph (f) shall in any way be construed to suggest or imply that the Board of Directors or any shareholder shall not be entitled to contest the validity of any demand, whether during or after such five Business Day period, or to take any other action (including, without limitation, the commencement, prosecution or defense of any litigation with respect thereto).
(g)For purposes of these bylaws, “Business Day” shall mean any day other than a Saturday, a Sunday or a day on which banking institutions in the State of Wisconsin are authorized or obligated by law or executive order to close.
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2.03 Place of Meeting. Subject to Section 2.15, the Chairman of the Board, the President or the Board of Directors may designate any place, either within or without the State of Wisconsin, as the place of meeting for any Annual Meeting or Special Meeting. If no designation is made, the place of meeting shall be the principal office of the corporation. Any meeting may be adjourned to reconvene at any place designated by vote of the Board of Directors or by the Chairman of the Board or the President.
2.04 Notice of Meeting. Written notice stating the date, time, place (if the meeting is to be held in-person) and the means of remote communication (if the meeting is to be held via remote communication) of any meeting of shareholders shall be delivered not less than ten days nor more than sixty days before the date of the meeting (unless a different time is provided by the Wisconsin Business Corporation Law or the articles of incorporation), either personally or by mail, by or at the direction of the President or the Secretary, to each shareholder of record entitled to vote at such meeting and to such other persons as required by the Wisconsin Business Corporation Law. In the event of any Demand Special Meeting, such notice of meeting shall be sent not more than thirty days after the Delivery Date. If mailed, notice pursuant to this Section 2.04 shall be deemed to be effective when deposited in the United States mail, addressed to the shareholder at his or her address as it appears on the stock record books of the corporation, with postage thereon prepaid. Unless otherwise required by the Wisconsin Business Corporation Law or the articles of incorporation of the corporation, a notice of an Annual Meeting need not include a description of the purpose for which the meeting is called. In the case of any Special Meeting, (a) the notice of meeting shall describe any business that the Board of Directors shall have theretofore determined to bring before the meeting and (b) in the case of a Demand Special Meeting, the notice of meeting (i) shall describe any business set forth in the statement of purpose of the demands received by the corporation in accordance with Section 2.02 of these bylaws and (ii) shall contain all of the information required in the notice received by the corporation in accordance with Section 2.14(b) of these bylaws. If an Annual Meeting or Special Meeting is adjourned to a different date, time or place, or will be held by a new or different means of remote communication, the corporation shall not be required to give notice of the new date, time or place, or means of remote communication, if the new date, time or place or means of remote communication, is announced at the meeting before adjournment; provided, however, that if a new Meeting Record Date for an adjourned meeting is or must be fixed, the corporation shall give notice of the adjourned meeting to persons who are shareholders as of the new Meeting Record Date.
2.05 Waiver of Notice. A shareholder may waive any notice required by the Wisconsin Business Corporation Law, the articles of incorporation or these bylaws before or after the date and time stated in the notice. The waiver shall be in writing and signed by the shareholder entitled to the notice, contain the same information that would have been required in the notice under applicable provisions of the Wisconsin Business Corporation Law (except that the time and place of meeting need not be stated) and be delivered to the corporation for inclusion in the corporate records. A shareholder’s attendance at any Annual Meeting or Special Meeting, in person or by proxy, waives objection to all of the following: (a) lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting or promptly upon arrival objects to holding the meeting or transacting business at the meeting; and (b) consideration of a particular matter at the meeting that is not within the purpose described in the meeting notice, unless the shareholder objects to considering the matter when it is presented.
2.06 Fixing of Record Date. The Board of Directors may fix in advance a date not less than ten days and not more than seventy days prior to the date of an Annual Meeting or Special Meeting as the record date for the determination of shareholders entitled to notice of, or to vote at, such meeting (the “Meeting Record Date”). In the case of any Demand Special Meeting, (i) the Meeting Record Date shall be not later than the 30th day after the Delivery Date and (ii) if the Board of Directors fails to fix the Meeting Record Date within thirty days after the Delivery
Date, then the close of business on such 30th day shall be the Meeting Record Date. The shareholders of record on the Meeting Record Date shall be the shareholders entitled to notice of and to vote at the meeting. Except as provided by the Wisconsin Business Corporation Law for a court-ordered adjournment, a determination of shareholders entitled to notice of and to vote at an Annual Meting or Special Meeting its effective for any adjournment of such meeting unless the Board of Directors fixes a new Meeting Record Date, which it shall do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting. The Board of Directors may also fix in advance a date as the record date for the purpose of determining shareholders entitled to take any other action or determining shareholders for any other purpose. Such record date shall not be more than seventy days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. The record date for determining shareholders entitled to a distribution (other than a distribution involving a purchase, redemption or other acquisition of the corporation’s shares) or a share dividend is the date on which the Board of Directors authorized the distribution or share dividend, as the case may be, unless the Board of Directors fixes a different record date.
2.07 Shareholders’ List for Meetings. After a Meeting Record Date has been fixed, the corporation shall prepare a list of the names of all of the shareholders entitled to notice of the meeting. The list shall be arranged by class or series of shares, if any, and show the address of and number of shares held by each shareholder. Such list shall be available for inspection by any shareholder, beginning two business days after notice of the meeting is given for which the list was prepared and continuing to the date of the meeting, at the corporation’s principal office or at a place identified in the meeting notice in the city where the meeting will be held or on a reasonably accessible electronic network if the information required to gain access to the list is provided with the notice of the meeting. A shareholder or his or her agent may, on written demand, inspect and, subject to the limitations imposed by the Wisconsin Business Corporation Law, copy the list, during regular business hours and at his or her expense, during the period that it is available for inspection pursuant to this Section 2.07. The corporation shall make the shareholders’ list available at the meeting and any shareholder or his or her agent or attorney may inspect the list at any time during the meeting or any adjournment thereof. If the meeting is held solely by means of remote communication, the list shall be open to examination by any shareholder during the entire time of the meeting on a reasonably accessible electronic network, and the information required to access the list shall be provided with the notice of the meeting. Refusal or failure to prepare or make available the shareholders’ list shall not affect the validity of any action taken at a meeting of shareholders.
2.08 Quorum and Voting Requirements.
(a)Shares entitled to vote as a separate voting group may take action on a matter at any Annual Meeting or Special Meeting only if a quorum of those shares exists with respect to that matter. If the corporation has only one class of stock outstanding, such class shall constitute a separate voting group for purposes of this Section 2.08. Except as otherwise provided in the articles of incorporation, any bylaw adopted under authority granted in the articles of incorporation, or the Wisconsin Business Corporation Law, a majority of the votes entitled to be cast on the matter shall constitute a quorum of the voting group for action on that matter. Once a share is represented for any purpose at any Annual Meeting or Special Meeting, other than for the purpose of objecting to holding the meeting or transacting business at the meeting, it is considered present for purposes of determining whether a quorum exists for the remainder of the meeting and for any adjournment of that meeting unless a new Meeting Record Date is or must be set for the adjourned meeting. If a quorum exists, except in the case of the election of directors, action on a matter shall be approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the articles of incorporation, any bylaw adopted under authority granted in the articles of incorporation,
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or the Wisconsin Business Corporation Law requires a greater number of affirmative votes. Unless otherwise provided in the articles of incorporation, directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election of directors at any Annual Meeting or Special Meeting at which a quorum is present. For purposes of this Section 2.08, “plurality” means that the individuals with the largest number of votes are elected as directors up to the maximum number of directors to be chosen at the meeting.
(b)The Board of Directors acting by resolution may postpone and reschedule any previously scheduled Annual Meeting or Special Meeting; provided, however, that a Demand Special Meeting shall not be postponed beyond the 100th day following the Delivery Date. Any Annual Meeting or Special Meeting may be adjourned from time to time, whether or not there is a quorum, (i) at any time, upon a resolution by shareholders if the votes cast in favor of such resolution by the holders of shares of each voting group entitled to vote on any matter theretofore properly brought before the meeting exceed the number of votes cast against such resolution by the holders of shares of each such voting group or (ii) at any time by the Chairman of the Board or the President or pursuant to a resolution of the Board of Directors. No notice of the time, place or means of remote communication of adjourned meetings need be given except as required by the Wisconsin Business Corporation Law. At any adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.
2.09 Conduct of Meeting. The Chief Executive Officer, and in his or her absence, the Chairman of the Board or the President, as the case may be, and in their absence, a Vice President in the order provided under Section 4.09 hereof, and in their absence, any person chosen by the shareholders represented at the meeting in person or by proxy shall call any Annual Meeting or Special Meeting to order and shall act as chairperson of the meeting, and the Secretary of the corporation shall act as secretary of all meetings of the shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting.
2.10 Proxies. At any Annual Meeting or Special Meeting, a shareholder may vote his or her shares in person or by proxy. A shareholder may appoint a proxy to vote or otherwise act for the shareholder by signing an appointment form, either personally or by his or her attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent of the corporation authorized to tabulate votes. An appointment is valid for eleven months from the date of its signing unless a different period is expressly provided in the appointment form.
2.11 Voting of Shares. Except as provided in the articles of incorporation or in the Wisconsin Business Corporation Law, each outstanding share of Common Stock is entitled to one (1) vote, and each outstanding share of Class B Common Stock shall be entitled to ten (10) votes, upon each matter voted on at an Annual Meeting or Special Meeting.
2.12 Action without Meeting. Any action required or permitted by the articles of incorporation or these bylaws or any provision of the Wisconsin Business Corporation Law to be taken at an Annual Meeting or Special Meeting may be taken without a meeting of Directors if a written consent or consents, describing the action so taken, is signed by all of the shareholders entitled to vote with respect to the subject matter thereof and delivered to the corporation for inclusion in the corporate records.
2.13 Acceptance of Instruments Showing Shareholder Action. If the name signed on a vote, consent, waiver or proxy appointment corresponds to the name of a shareholder, the
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corporation, if acting in good faith, may accept the vote, consent, waiver or proxy appointment and give it effect as the act of a shareholder. If the name signed on a vote, consent, waiver or proxy appointment does not correspond to the name of a shareholder, the corporation, if acting in good faith, may accept the vote, consent, waiver or proxy appointment and give it effect as the act of the shareholder if any of the following apply:
(a)The shareholder is an entity and the name signed purports to be that of an officer or agent of the entity.
(b)The name purports to be that of a personal representative, administrator, executor, guardian or conservator representing the shareholder and, if the corporation requests, evidence of fiduciary status acceptable to the corporation is presented with respect to the vote, consent, waiver or proxy appointment.
(c)The name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the corporation requests, evidence of this status acceptable to the corporation is presented with respect to the vote, consent, waiver or proxy appointment.
(d)The name signed purports to be that of a pledgee, beneficial owner, or attorney-in-fact of the shareholder and, if the corporation requests, evidence acceptable to the corporation of the signatory’s authority to sign for the shareholder is presented with respect to the vote, consent, waiver or proxy appointment.
(e)Two or more persons are the shareholders as co-tenants or fiduciaries and the name signed purports to be the name of at least one of the co-owners and the person signing appears to be acting on behalf of all co-owners.
The corporation may reject a vote, consent, waiver or proxy appointment if the Secretary or other officer or agent of the corporation who is authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory’s authority to sign for the shareholder.
2.14 Notice of Shareholder Business and Nomination of Directors.
(a)Annual Meetings.
(i)Nominations of persons for election to the Board of Directors of the corporation and the proposal of business to be considered by the shareholders may be made at an Annual Meeting (A) pursuant to the corporation’s notice of meeting, (B) by or at the direction of the Board of Directors or (C) by any shareholder of the corporation who is a shareholder of record at the time of giving of notice provided for in this bylaw and who is entitled to vote at the meeting and complies with the notice and other procedures set forth in this Section 2.14. Clause (C) of this paragraph (a)(i) shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the corporation’s notice of meeting) before an Annual Meeting.
(ii)For nominations or other business to be properly brought before an Annual Meeting by a shareholder pursuant to clause (C) of paragraph (a)(i) of this Section 2.14, the shareholder must have given timely notice thereof in writing to the Secretary of the corporation and such other business must otherwise be a proper matter for shareholder action at the Annual Meeting as determined by the
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Board of Directors in its sole discretion. To be timely, a shareholder’s notice shall be received by the Secretary of the corporation at the principal offices of the corporation not later than the earlier of (A) 45 days in advance of the first annual anniversary (the “Anniversary Date”) of the date set forth in the corporation’s proxy statement for the prior year’s Annual Meeting as the date on which the corporation first mailed definitive proxy materials for the prior year’s Annual Meeting and (B) the later of (x) the 70th day prior to such Annual Meeting and (y) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. Such shareholder’s notice shall be signed by the shareholder of record who intends to make the nomination or introduce the other business (or his duly authorized proxy or other representative), and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder (or proxy or other representative) and any such beneficial owner, and shall set forth: (A) the name and address, as they appear on this corporation’s books, of such shareholder and the beneficial owner or owners, if any, on whose behalf the nomination or proposal is made; (B) the Share Information (which Share Information required by this clause (B) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (C) a representation that such shareholder is a holder of record of shares of the corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to make the nomination or introduce the other business specified in the notice; (D) any Derivative Instrument directly or indirectly owned beneficially by such shareholder and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the corporation; (E) any proxy, contract, arrangement, understanding, or relationship pursuant to which such shareholder has a right to vote any shares of any security of the corporation; (F) any short interest in any security of the corporation (for purposes of this Section 2.14, a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security); (G) any rights to dividends on the shares of the corporation owned beneficially by such shareholder that are separated or separable from the underlying shares of the corporation; (H) any proportionate interest in shares of the corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such shareholder is a general partner or, directly or indirectly, beneficially owns an interest in a general partner; (I) any performance-related fees (other than an asset-based fee) that such shareholder is entitled to based on any increase or decrease in the value of shares of the corporation or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such shareholder’s immediate family sharing the same household (which information shall be supplemented by such shareholder and beneficial owner, if any, not later than 10 days after the record date for the meeting to disclose such ownership as of the record date); and (J) any other information relating to such shareholder and beneficial owner, if any, that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, including a representation that such shareholder and any such beneficial owner intends, or is part of a group that intends, to deliver a proxy statement and form of proxy to solicit the holders of at least 67% of the voting
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power of shares entitled to vote in the election of directors in support of director nominees other than the corporation’s nominees in accordance with Rule 14a-19 under the Exchange Act (“Rule 14a-19”).
(iii)Notwithstanding the foregoing, in the case of any proposed nomination for election or re-election as a director, such shareholder’s notice shall also set forth: (A) the name and residence address of the Person or Persons to be nominated; (B) a description of all arrangements or understandings between such shareholder or beneficial owner or owners and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder, and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the corporation, will act or vote on any issue or question; (C) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and beneficial owner, if any, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant; (D) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Regulation 14A under the Exchange Act, including any information that would be required to be included in a proxy statement filed pursuant to Regulation 14A had the nominee been nominated by the Board of Directors; and (E) the written consent of each nominee to be named in a proxy statement relating to such meeting and accompanying proxy cards and to serve as a director of the corporation if so elected.
(iv)In the case of any other business that such shareholder proposes to bring before the meeting, such shareholder’s notice shall also set forth: (A) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these bylaws, the language of the proposed amendment; (B) such shareholder’s and beneficial owner’s or owners’ reasons for conducting such business at the meeting; (C) any material interest in such business of such shareholder and beneficial owner or owners; and (D) a description of all agreements, arrangements and understandings between such shareholder and beneficial owner, if any, and any other person or persons (including their names) in connection with the proposal of such business by such shareholder.
(v)Notwithstanding anything in the second sentence of paragraph (a)(ii) of this Section 2.14 to the contrary, in the event that the number of directors to be elected to the Board of Directors of the corporation is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the corporation at least 45 days prior to the Anniversary Date, a shareholder’s notice required by this Section 2.14 shall also be considered timely, but only with respect to nominees for any new
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positions created by such increase, if it shall be received by the Secretary at the principal offices of the corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the corporation.
(b)Special Meetings. Only such business shall be conducted at a Special Meeting as shall have been described in the notice of meeting sent to shareholders pursuant to Section 2.04 of these bylaws. Nominations of persons for election to the Board of Directors may be made at a Special Meeting at which directors are to be elected pursuant to such notice of meeting (i) by or at the direction of the Board of Directors or (ii) by any shareholder of the corporation who (A) is a shareholder of record at the time of giving of such notice of meeting, (B) is entitled to vote at the meeting and (C) complies with the notice and other procedures set forth in this Section 2.14. Clause (ii) of the previous sentence shall be the exclusive means for a shareholder to make nominations before a Special Meeting. Any shareholder desiring to nominate persons for election to the Board of Directors at such a Special Meeting shall cause a written notice to be received by the Secretary of the corporation at the principal offices of the corporation not earlier than ninety days prior to such Special Meeting and not later than the close of business on the later of (x) the 60th day prior to such Special Meeting and (y) the 10th day following the day on which public announcement is first made of the date of such Special Meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Such written notice shall be signed by the shareholder of record who intends to make the nomination or introduce the other business (or his duly authorized proxy or other representative), and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder (or proxy or other representative) and any such beneficial owner, and shall set forth: (A) the name and address, as they appear on the corporation’s books, of such shareholder and the beneficial owner or owners, if any, on whose behalf the nomination is made; (B) the Share Information (which Share Information required by this clause (B) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (C) a representation that such shareholder is a holder of record of shares of the corporation entitled to vote at such Special Meeting and intends to appear in person or by proxy at the meeting to make the nomination specified in the notice; (D) the information required to be included under clauses (D) through (J) of paragraph (a)(ii) of this Section 2.14; (E) the name and residence address of the Person or Persons to be nominated; (F) a description of all arrangements or understandings between such shareholder or beneficial owner or owners and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder, and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the corporation, will act or vote on any issue or question; (G) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and beneficial owner, if any, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant; (H) such other information regarding each nominee proposed by such shareholder and any such
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beneficial owner as would be required to be disclosed in solicitations of proxies for elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Regulation 14A under the Exchange Act, including any information that would be required to be included in a proxy statement filed pursuant to Regulation 14A had the nominee been nominated by the Board of Directors; and (I) the written consent of each nominee to be named in a proxy statement relating to such meeting and accompanying proxy cards and to serve as a director of the corporation if so elected.
(c)General.
(i)Only persons who are nominated in accordance with the procedures set forth in this Section 2.14 shall be eligible to serve as directors. Only such business shall be conducted at an Annual Meeting or Special Meeting as shall have been brought before such meeting in accordance with the procedures set forth in this Section 2.14. In no event may a shareholder provide notice as to nominations pursuant to this Section 2.14 with respect to a greater number of director candidates (as alternates or otherwise) than are subject to election by shareholders at the applicable Annual Meeting or Special Meeting. The chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 2.14 and, if any proposed nomination or business is not in compliance with this Section 2.14, to declare that such defective proposal shall be disregarded.
(ii)For purposes of this Section 2.14, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(iii)Notwithstanding the foregoing provisions of this Section 2.14, a shareholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.14; provided, however, that any references in these By-laws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations or proposals as to any other business to be considered pursuant to Section 2.14(a) or Section 2.14(b) of this bylaw. Nothing in this Section 2.14 shall be deemed to limit the corporation’s obligation to include shareholder proposals in its proxy statement if such inclusion is required by Rule 14a-8 under the Exchange Act.
(iv)Notwithstanding the foregoing provisions of this Section 2.14, unless otherwise required by law, (A) no shareholder giving notice as to nominations or other business pursuant to this Section 2.14 shall solicit proxies in support of director nominees other than the corporation’s nominees unless such shareholder has complied with Rule 14a-19 in connection with the solicitation of such proxies, including the provision to the corporation of notices required hereunder in a timely manner, and (B) if any such shareholder (I) provides notice pursuant to Rule 14a-19(b) and (II) subsequently fails to comply with the requirements of Rule 14a-19(a)(2) and Rule 14a-19(a)(3), including the provision to the corporation of notices required thereunder in a timely manner, or fails to timely provide reasonable evidence sufficient to satisfy the corporation that such shareholder has met the requirements of Rule 14a-19(a)(3) in accordance with the following sentence, then the corporation shall disregard any proxies or votes
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solicited for such shareholder’s nominees. If any shareholder providing notice as to nominations pursuant to this Section 2.14 provides notice pursuant to Rule 14a-19(b), then such shareholder shall (1) promptly notify the corporation if it subsequently fails to comply with the requirements of Rule 14a-19(a)(2) and Rule 14a-19(a)(3) and (2) deliver to the corporation, no later than seven Business Days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3).
(v)Notwithstanding the foregoing provisions of this Section 2.14, unless otherwise required by law, if any shareholder (or a qualified representative thereof) providing note as to nominations or other business that such shareholder proposes to bring before a meeting does not appear at the Annual Meeting or Special Meeting to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation.
(vi)Any shareholder directly or indirectly soliciting proxies from other shareholders must use a proxy card color other than white, which shall be reserved for the exclusive use by the Board of Directors.
2.15 Remote Communications. If authorized by the Board of Directors in its sole discretion, and subject to the other provisions of this Section 2.15 and to any guidelines and procedures adopted by the Board of Directors, shareholders and proxies of shareholders not physically present at a meeting of shareholders may participate in the meeting by means of remote communication. If shareholders or proxies of shareholders participate in a meeting by means of remote communication, the participating shareholders or proxies of shareholders are deemed to be present in person and to vote at the meeting, whether the meeting is held at a designated place or solely by means of remote communication, if the corporation:
(a)has implemented reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a shareholder or proxy of a shareholder;
(b)has implemented reasonable measures to provide shareholders and proxies of shareholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the shareholders, including an opportunity to read or hear the proceedings of the meeting concurrently with the proceedings; and
(c)maintains a record of voting or action by any shareholder or proxy of a shareholder that votes or takes other action at the meeting by means of remote communication.
Article III. BOARD OF DIRECTORS
3.01 General Powers and Number. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation managed under the direction of, the Board of Directors. The number of directors constituting the Board of Directors of the corporation shall initially be seven (7) and thereafter such number as is fixed from time to time by a majority vote of the Board of Directors then in office.
3.015. Directors Emeritus. Any person who has reached sixty-five (65) years of age and has served as a director of the corporation, including service as a director of any corporation with which the corporation is affiliated through common stock ownership, for at least ten years, or as
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an officer and director of the corporation for at least ten years, may, after retirement or resignation from the Board of Directors, be appointed by the Board of Directors as a Director Emeritus to serve until he or she resigns or his or her appointment is terminated by resolution adopted by a majority of the entire Board of Directors. Directors Emeritus shall serve in an advisory capacity to the Board of Directors, shall be entitled to attend meetings of the Board of Directors, shall be reimbursed for their expenses in attending meetings of the Board of Directors, and shall receive the same fees and compensation paid to directors. Directors Emeritus shall have no vote on matters brought before the Board of Directors and shall not be considered as directors under the Articles of Incorporation or Bylaws of the corporation; provided, however, that Directors Emeritus shall be entitled to the liability limitations accorded directors set forth in Section 180.0828 of the Wisconsin Business Corporation Law and the indemnification and expense reimbursement provisions accorded directors under Article VIII of these bylaws, as if such Directors Emeritus were, for such purposes only, directors of the corporation.
3.02 Tenure and Qualifications. Each director shall hold office until the next annual meeting of shareholders and until his or her successor shall have been elected and, if necessary, qualified, or until there is a decrease in the number of directors which takes effect after the expiration of his or her term, or until his or her prior death, resignation or removal. A director may be removed by the shareholders only at a meeting called for the purpose of removing the director, and the meeting notice shall state that the purpose, or one of the purposes, of the meeting is removal of the director. A director may be removed from office with or without cause if the number of votes cast to remove the director exceeds the number of votes cast not to remove such director. A director may resign at any time by delivering written notice which complies with the Wisconsin Business Corporation Law to the Board of Directors, to the President (in his or her capacity as chairperson of the board of directors) or to the corporation. A director’s resignation is effective when the notice is delivered unless the notice specifies a later effective date. Directors need not be residents of the State of Wisconsin or shareholders of the corporation.
3.03 Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this bylaw immediately after the annual meeting of shareholders and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the meeting of shareholders which precedes it (if such meeting was held in-person), or such other suitable place or means of remote communication as may be announced at such meeting of shareholders. Subject to Section 3.13, the Board of Directors may provide, by resolution, the date, time and place, either within or without the State of Wisconsin, or means of remote communication, for the holding of additional regular meetings of the Board of Directors without other notice than such resolution.
3.04 Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chief Executive Officer, the Chairman of the Board, the President, the Secretary or any two directors. Subject to Section 3.13, the President or Secretary may fix any place, either within or without the State of Wisconsin, as the place for holding any special meeting of the Board of Directors, and if no other place is fixed the place of the meeting shall be the principal office of the corporation in the State of Wisconsin.
3.05 Notice; Waiver. Notice of each meeting of the Board of Directors (unless otherwise provided in or pursuant to Section 3.03) shall be given by written notice delivered in person, by telegraph, teletype, facsimile or other form of wire or wireless communication, or by mail or private carrier, to each director at his business address or at such other address as such director shall have designated in writing filed with the Secretary, in each case not less than forty-eight (48) hours prior to the meeting. The notice need not describe the purpose of the meeting of the Board of Directors or the business to be transacted at such meeting. If mailed, such notice shall be deemed to be effective when deposited in the United States mail so addressed, with postage thereon prepaid. If notice is given by telegram, such notice shall be deemed to be
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effective when the telegram is delivered to the telegraph company. If notice is given by private carrier, such notice shall be deemed to be effective when delivered to the private carrier. Whenever any notice whatever is required to be given to any director of the corporation under the articles of incorporation or these bylaws or any provision of the Wisconsin Business Corporation Law, a waiver thereof in writing, signed at any time, whether before or after the date and time of meeting, by the director entitled to such notice shall be deemed equivalent to the giving of such notice. The corporation shall retain any such waiver as part of the permanent corporate records. A director’s attendance at or participation in a meeting waives any required notice to him or her of the meeting unless the director at the beginning of the meeting or promptly upon his or her arrival objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.
3.06 Quorum. Except as otherwise provided by the Wisconsin Business Corporation Law or by the articles of incorporation or these bylaws, a majority of the number of directors specified in Section 3.01 of these bylaws shall constitute a quorum for the transaction of business at any meeting of the Board of Directors. Except as otherwise provided by the Wisconsin Business Corporation Law or by the articles of incorporation or by these bylaws, a quorum of any committee of the Board of Directors created pursuant to Section 3.12 hereof shall consist of a majority of the number of directors appointed to serve on the committee. A majority of the directors present (though less than such quorum) may adjourn any meeting of the Board of Directors or any committee thereof, as the case may be, from time to time without further notice.
3.07 Manner of Acting. The affirmative vote of a majority of the directors present at a meeting of the Board of Directors or a committee thereof at which a quorum is present shall be the act of the Board of Directors or such committee, as the case may be, unless the Wisconsin Business Corporation Law, the articles of incorporation or these bylaws require the vote of a greater number of directors.
3.08 Conduct of Meetings. The Chief Executive Officer, and in his or her absence, the Chairman of the Board or the President, as the case may be, and in their absence, a Vice President, in the order provided under Section 4.09, and in their absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall act as chairperson of the meeting. The Secretary of the corporation shall act as secretary of all meetings of the Board of Directors but in the absence of the Secretary, the presiding officer may appoint any other person present to act as secretary of the meeting. Minutes of any regular or special meeting of the Board of Directors shall be prepared and distributed to each director.
3.09 Vacancies. Except as provided below, any vacancy occurring in the Board of Directors, including a vacancy resulting from an increase in the number of directors, may be filled by any of the following: (a) the shareholders; (b) the Board of Directors; or (c) if the directors remaining in office constitute fewer than a quorum of the Board of Directors, the directors, by the affirmative vote of a majority of all directors remaining in office. In the case of a vacancy created by the removal of a director by vote of the shareholders, the shareholders shall have the right to fill such vacancy at the same meeting or any adjournment thereof. If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group may vote to fill the vacancy if it is filled by the shareholders, and only the remaining directors elected by that voting group may vote to fill the vacancy if it is filled by the directors. A vacancy that will occur at a specific later date, because of a resignation effective at a later date or otherwise, may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs.
3.10 Compensation. The Board of Directors, irrespective of any personal interest of any of its members, may establish reasonable compensation of all directors for services to the corporation as directors or may delegate such authority to an appropriate committee. The Board
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of Directors also shall have authority to provide for or delegate authority to an appropriate committee to provide for reasonable pensions, disability or death benefits, and other benefits or payments, to directors, officers and employees and to their estates, families, dependents or beneficiaries on account of prior services rendered by such directors, officers and employees to the corporation.
3.11 Presumption of Assent. A director who is present and is announced as present at a meeting of the Board of Directors or any committee thereof created in accordance with Section 3.12 hereof, when corporate action is taken, assents to the action taken unless any of the following occurs: (a) the director objects at the beginning of the meeting or promptly upon his or her arrival to holding the meeting or transacting business at the meeting; (b) the director dissents or abstains from an action taken and minutes of the meeting are prepared that show the director’s dissent or abstention from the action taken; (c) the director delivers written notice that complies with the Wisconsin Business Corporation Law of his or her dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting; or (d) the director dissents or abstains from an action taken, minutes of the meeting are prepared that fail to show the director’s dissent or abstention from the action taken, and the director delivers to the corporation a written notice of that failure that complies with the Wisconsin Business Corporation Law promptly after receiving the minutes. Such right of dissent or abstention shall not apply to a director who votes in favor of the action taken.
3.12 Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of all of the directors then in office may create one or more committees, appoint members of the Board of Directors to serve on the committees and designate other members of the Board of Directors to serve as alternates. Each committee shall have one or more members who shall, unless otherwise provided by the Board of Directors, serve at the pleasure of the Board of Directors. A committee may be authorized to exercise the authority of the Board of Directors, except that a committee may not do any of the following: (a) authorize distributions; (b) approve or propose to shareholders action that the Wisconsin Business Corporation Law requires to be approved by shareholders; (c) fill vacancies on the Board of Directors or, unless the Board of Directors provides by resolution that vacancies on a committee shall be filled by the affirmative vote of the remaining committee members, on any Board committee; (d) amend the corporation’s articles of incorporation; (e) adopt, amend or repeal bylaws; (f) approve a plan of merger not requiring shareholder approval; (g) authorize or approve reacquisition of shares, except according to a formula or method prescribed by the Board of Directors; and (h) authorize or approve the issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences and limitations of a class or series of shares, except that the Board of Directors may authorize a committee to do so within limits prescribed by the Board of Directors. Unless otherwise provided by the Board of Directors in creating the committee, a committee may employ counsel, accountants and other consultants to assist it in the exercise of its authority.
3.13 Telephonic Meetings. Except as herein provided and notwithstanding any place set forth in the notice of the meeting or these bylaws, members of the Board of Directors (and any committees thereof created pursuant to Section 3.12 hereof) may participate in regular or special meetings by, or through the use of, any means of communication by which all participants may simultaneously hear each other, such as by conference telephone. If a meeting is conducted by such means, then at the commencement of such meeting the presiding officer shall inform the participating directors that a meeting is taking place at which official business may be transacted. Any participant in a meeting by such means shall be deemed present in person at such meeting. Notwithstanding the foregoing, no action may be taken at any meeting held by such means on any particular matter which the presiding officer determines, in his or her sole discretion, to be inappropriate under the circumstances for action at a meeting held by such means. Such determination shall be made and announced in advance of such meeting.
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3.14 Action Without Meeting. Any action required or permitted by the Wisconsin Business Corporation Law to be taken at a meeting of the Board of Directors or a committee thereof created pursuant to Section 3.12 hereof may be taken without a meeting if the action is taken by all members of the Board or of the committee. The action shall be evidenced by one or more written consents describing the action taken, signed by each director or committee member and retained by the corporation. Such action shall be effective when the last director or committee member signs the consent, unless the consent specifies a different effective date.
Article IV. OFFICERS
4.01 Number. The principal officers of the corporation shall be a President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. A Chairman of the Board, any number of Vice Presidents, other officers and assistant officers as may be deemed necessary may be elected or appointed by the Board of Directors. The Board of Directors may also authorize any duly appointed officer to appoint one or more officers or assistant officers. The Chief Executive Officer, designated in accordance with Section 4.06 of these By-laws, may from time to time appoint any number of Vice Presidents as he shall determine necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as the Chief Executive Officer shall from time to time determine. Any two or more offices may be held by the same person.
4.02 Election and Term of Office. The officers of the corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of the shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as is practicable. Each officer shall hold office until his or her successor shall have been duly elected or until his or her prior death, resignation or removal.
4.03 Removal. The Board of Directors may remove any officer and, unless restricted by the Board of Directors or these By-laws, an officer may remove any officer or assistant officer appointed by that officer, at any time, with or without cause and notwithstanding the contract rights, if any, of the officer removed. The appointment of an officer does not of itself create contract rights.
4.04 Resignation. An officer may resign at any time by delivering notice to the corporation that complies with the Wisconsin Business Corporation Law. The resignation shall be effective when the notice is delivered, unless the notice specifies a later effective date and the corporation accepts the later effective date.
4.05 Vacancies. A vacancy in any principal office because of death, resignation, removal, disqualification or otherwise, shall be filled by the Board of Directors for the unexpired portion of the term. If a resignation of an officer is effective at a later date as contemplated by Section 4.04 hereof, the Board of Directors may fill the pending vacancy before the effective date if the Board provides that the successor may not take office until the effective date.
4.06 Chief Executive Officer. The Board of Directors shall from time to time designate the Chairman of the Board, if any, or the President of the corporation as the Chief Executive Officer of the corporation. The President shall be the Chief Executive Officer whenever the office of Chairman of the Board of the corporation is vacant. Subject to the control of the Board of Directors, the Chief Executive Officer shall in general supervise and control all of the business and affairs of the corporation. He shall preside at all meetings of the shareholders and of the Board of Directors. He shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint and remove such agents and employees of the corporation as he shall deem necessary, to prescribe their powers, duties and compensation, and to delegate
authority to them. He shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, securities, contracts, leases, reports, and all other documents or other instruments necessary or proper to be executed in the course of the corporation’s regular business, or which shall be authorized by resolution of the Board of Directors; and, except as otherwise provided by law or the Board of Directors, he may authorize any elected Vice President or other officer or agent of the corporation to sign, execute and acknowledge such documents or instruments in his place and stead. In general, he shall perform all duties incident to the office of Chief Executive Officer of the corporation and such other duties as may be prescribed by the Board of Directors from time to time.
4.07 Chairman of the Board. The Chairman of the Board, if one be chosen by the Board of Directors, when present, and in the absence of the Chief Executive Officer if the President is designated as the Chief Executive Officer, shall preside at all meetings of the Board of Directors and of the shareholders and shall perform all duties incident to the office of Chairman of the Board of the corporation and such other duties as may be prescribed by the Board of Directors from time to time.
4.08 President. The President shall be the principal executive officer of the corporation and, subject to the direction of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation; provided, however, that should the Board of Directors elect a Chairman of the Board, any or all of the powers customarily incidental to the office of President may be assigned by the Board of Directors to the Chairman of the Board. If the Chairman of the Board is designated as the Chief Executive Officer, the President shall be the chief operating officer of the corporation. Unless the Board of Directors otherwise provides, in the absence of the Chairman of the Board or in the event of his inability or refusal to act, or in the event of a vacancy in the office of the Chairman of the Board, the President shall perform the duties of the Chairman of the Board, and when so acting shall have all the powers of and be subject to all the restrictions upon the Chairman of the Board. The President shall, when present, preside at all meetings of the shareholders and of the Board of Directors. He or she shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employees of the corporation as he or she shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employees shall hold office at the discretion of the President. He or she shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation’s regular business, or which shall be authorized by resolution of the Board of Directors; and, except as otherwise provided by law or the Board of Directors, he or she may authorize any Vice President or other officer or agent of the corporation to sign, execute and acknowledge such documents or instruments in his or her place and stead. In general he or she shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time.
4.09 The Vice Presidents. In the absence of the Chairman of the Board, if any, and the President or in the event of their death, inability or refusal to act, or in the event for any reason it shall be impracticable for the Chairman of the Board and the President to act personally, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Board of Directors or the Chief Executive Officer, or in the absence of any designation, then in the order of their election) shall perform the duties of the Chairman of the Board and/or the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Chairman of the Board and/or the President. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the corporation; and shall perform such other duties and have such authority as from time to time may be delegated or assigned to him or her by the Chief Executive Officer, the President or the Board of Directors. The execution of any instrument of the corporation by any Vice President shall be conclusive
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evidence, as to third parties, of his or her authority to act in the stead of the Chairman of the Board and/or the President.
4.10 The Secretary. The Secretary shall: (a) keep minutes of the meetings of the shareholders and of the Board of Directors (and of committees thereof) in one or more books provided for that purpose (including records of actions taken by the shareholders or the Board of Directors (or committees thereof) without a meeting); (b) see that all notices are duly given in accordance with the provisions of these bylaws or as required by the Wisconsin Business Corporation Law; (c) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) maintain a record of the shareholders of the corporation, in a form that permits preparation of a list of the names and addresses of all shareholders, by class or series of shares and showing the number and class or series of shares held by each shareholder; (e) sign with the President, or a Vice President, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned by the Chief Executive Officer, the President or by the Board of Directors.
4.11 The Treasurer. The Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) maintain appropriate accounting records; (c) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of Section 5.04; and (d) in general perform all of the duties incident to the office of Treasurer and have such other duties and exercise such other authority as from time to time may be delegated or assigned by the Chief Executive Officer or by the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his or her duties in such sum and with such surety or sureties as the Board of Directors shall determine.
4.12 Assistant Secretaries and Assistant Treasurers. There shall be such number of Assistant Secretaries and Assistant Treasurers as the Board of Directors or the Chief Executive Officer may from time to time authorize. The Assistant Secretaries may sign with the President or a Vice President certificates for shares of the corporation the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties and have such authority as shall from time to time be delegated or assigned to them by the Secretary or the Treasurer, respectively, or by the Chief Executive Officer, the President or the Board of Directors.
4.13 Other Assistants and Acting Officers. The Board of Directors and the Chief Executive Officer shall have the power to appoint, or to authorize any duly appointed officer of the corporation to appoint, any person to act as assistant to any officer, or as agent for the corporation in his or her stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors or the Chief Executive Officer shall have the power to perform all the duties of the office to which he or she is so appointed to be an assistant, or as to which he or she is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors or the appointing officer.
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4.14 Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that he or she is also a director of the corporation.
Article V. CONTRACTS, LOANS,
CHECKS AND DEPOSITS; SPECIAL CORPORATE ACTS
CHECKS AND DEPOSITS; SPECIAL CORPORATE ACTS
5.01 Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of the corporation, and such authorization may be general or confined to specific instances. In the absence of other designation, all deeds, mortgages and instruments of assignment or pledge made by the corporation shall be executed in the name of the corporation by the Chief Executive Officer, the President or one of the Vice Presidents and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer; the Secretary or an Assistant Secretary, when necessary or required, shall affix the corporate seal, if any, thereto; and when so executed no other party to such instrument or any third party shall be required to make any inquiry into the authority of the signing officer or officers.
5.02 Loans. No indebtedness for borrowed money shall be contracted on behalf of the corporation and no evidences of such indebtedness shall be issued in its name unless authorized by or under the authority of a resolution of the Board of Directors. Such authorization may be general or confined to specific instances.
5.03 Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by or under the authority of a resolution of the Board of Directors.
5.04 Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as may be selected by or under the authority of a resolution of the Board of Directors.
5.05 Voting of Securities Owned by this Corporation. Subject always to the specific directions of the Board of Directors, (a) any shares or other securities issued by any other corporation and owned or controlled by this corporation may be voted at any meeting of security holders of such other corporation by the President of this corporation if he or she be present, or in his or her absence by any Vice President of this corporation who may be present, and (b) whenever, in the judgment of the President, or in his or her absence, of any Vice President, it is desirable for this corporation to execute a proxy or written consent in respect to any shares or other securities issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the President or one of the Vice Presidents of this corporation, without necessity of any authorization by the Board of Directors, affixation of corporate seal, if any, or countersignature or attestation by another officer. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the shares or other securities issued by such other corporation and owned by this corporation the same as such shares or other securities might be voted by this corporation.
Article VI. CERTIFICATES FOR SHARES; TRANSFER OF SHARES
6.01 Certificates for Shares. Certificates representing shares of the corporation shall be in such form, consistent with the Wisconsin Business Corporation Law, as shall be determined
by the Board of Directors. Such certificates shall be signed by the President or a Vice President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except as provided in Section 6.06 hereof.
6.02 Facsimile Signatures and Seal. The seal of the corporation, if any, on any certificates for shares may be a facsimile. The signature of the President or Vice President and the Secretary or Assistant Secretary upon a certificate may be facsimiles if the certificate is manually signed on behalf of a transfer agent, or a registrar, other than the corporation itself or an employee of the corporation.
6.03 Signature by Former Officers. The validity of a share certificate is not affected if a person who signed the certificate (either manually or in facsimile) no longer holds office when the certificate is issued.
6.04 Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer the corporation may treat the registered owner of such shares as the person exclusively entitled to vote, to receive notifications and otherwise to have and exercise all the rights and power of an owner. Where a certificate for shares is presented to the corporation with a request to register for transfer, the corporation shall not be liable to the owner or any other person suffering loss as a result of such registration of transfer if (a) there were on or with the certificate the necessary endorsements, and (b) the corporation had no duty to inquire into adverse claims or has discharged any such duty. The corporation may require reasonable assurance that such endorsements are genuine and effective and compliance with such other regulations as may be prescribed by or under the authority of the Board of Directors.
6.05 Restrictions on Transfer. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction imposed by the corporation upon the transfer of such shares.
6.06 Lost, Destroyed or Stolen Certificates. Where the owner claims that certificates for shares have been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, (b) files with the corporation a sufficient indemnity bond if required by the Board of Directors or any principal officer, and (c) satisfies such other reasonable requirements as may be prescribed by or under the authority of the Board of Directors.
6.07 Consideration for Shares. The Board of Directors may authorize shares to be issued for consideration consisting of any tangible or intangible property or benefit to the corporation, including cash, promissory notes, services performed, contracts for services to be performed or other securities of the corporation. Before the corporation issues shares, the Board of Directors shall determine that the consideration received or to be received for the shares to be issued is adequate. The determination of the Board of Directors is conclusive insofar as the adequacy of consideration for the issuance of shares relates to whether the shares are validly issued, fully paid and nonassessable. The corporation may place in escrow shares issued in whole or in part for a contract for future services or benefits, a promissory note, or other property to be issued in the future, or make other arrangements to restrict the transfer of the shares, and may credit distributions in respect of the shares against their purchase price, until the services are performed, the benefits or property are received or the promissory note is paid. If the services are
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not performed, the benefits or property are not received or the promissory note is not paid, the corporation may cancel, in whole or in part, the shares escrowed or restricted and the distributions credited.
6.08 Stock Regulations. The Board of Directors shall have the power and authority to make all such further rules and regulations not inconsistent with law as it may deem expedient concerning the issue, transfer and registration of shares of the corporation.
Article VII. SEAL
7.01 The Board of Directors may provide for a corporate seal for the corporation.
Article VIII. INDEMNIFICATION
8.01 Certain Definitions. All capitalized terms used in this Article VIII and not otherwise hereinafter defined in this Section 8.01 shall have the meaning set forth in Section 180.0850 of the Statute. The following capitalized terms (including any plural forms thereof) used in this Article VIII shall be defined as follows:
(a)“Affiliate” shall include, without limitation, any corporation, partnership, joint venture, employee benefit plan, trust or other enterprise that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Corporation.
(b)“Authority” shall mean the entity selected by the Director or Officer to determine his or her right to indemnification pursuant to Section 8.04.
(c)“Board” shall mean the entire elected and serving Board of Directors of the corporation, including all Directors Emeritus and all members of the Board of Directors of the corporation and Directors Emeritus who are Parties to the subject Proceeding or any related Proceeding.
(d)“Breach of Duty” shall mean the Director or Officer breached or failed to perform his or her duties to the Corporation and his or her breach of or failure to perform those duties is determined, in accordance with Section 8.04, to constitute misconduct under Section 180.0851(2)(a) l, 2, 3 or 4 of the Statute.
(e)“Corporation,” as used herein and as defined in the Statute and incorporated by reference into the definitions of certain other capitalized terms used herein, shall mean this Corporation, including, without limitation, any successor corporation or entity to this Corporation by way of merger, consolidation or acquisition of all or substantially all of the capital stock or assets of this Corporation.
(f)“Director” or “Officer” shall have the meaning set forth in the Statute and shall also include all Directors Emeritus for purposes of the definition of ‘Director’ under this Article VIII; provided, that, for purposes of this Article VIII, it shall be conclusively presumed that any Director or Officer serving as a director, officer, partner, trustee, member of any governing or decision-making committee, employee or agent of an Affiliate shall be so serving at the request of the corporation.
(g)“Disinterested Quorum” shall mean a quorum of the Board who are not Parties to the subject Proceeding or any related Proceeding.
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(h)“Party” shall have the meaning set forth in the Statute; provided, that, for purposes of this Article VIII, the term “Party” shall also include any Director or Officer or employee of the Corporation who is or was a witness in a Proceeding at a time when he or she has not otherwise been formally named a Party thereto.
(i)“Proceeding” shall have the meaning set forth in the Statute; provided, that, in accordance with Section 180.0859 of the Statute and for purposes of this Article VIII, the term “Proceeding” shall also include all Proceedings (i) brought under (in whole or in part) the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, their respective state counterparts, and/or any rule or regulation promulgated under any of the foregoing; (ii) brought before an Authority or otherwise to enforce rights hereunder; (iii) any appeal from a Proceeding; and (iv) any Proceeding in which the Director or Officer is a plaintiff or petitioner because he or she is a Director or Officer; provided, however, that any such Proceeding under this subsection (iv) must be authorized by a majority vote of a Disinterested Quorum.
(j)“Statute” shall mean Sections 180.0850 through 180.0859, inclusive, of the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes, as the same shall then be in effect, including any amendments thereto, but, in the case of any such amendment, only to the extent such amendment permits or requires the Corporation to provide broader indemnification rights than the Statute permitted or required the Corporation to provide prior to such amendment.
8.02 Mandatory Indemnification of Directors and Officers. To the fullest extent permitted or required by the Statute, the Corporation shall indemnify a Director or Officer against all Liabilities incurred by or on behalf of such Director or Officer in connection with a Proceeding in which the Director or Officer is a Party because he or she is a Director or Officer.
8.03 Procedural Requirements.
(a)A Director or Officer who seeks indemnification under Section 8.02 shall make a written request therefor to the Corporation. Subject to Section 8.03(b), within sixty days of the Corporation’s receipt of such request, the Corporation shall pay or reimburse the Director or Officer for the entire amount of Liabilities incurred by the Director or Officer in connection with the subject Proceeding (net of any Expenses previously advanced pursuant to Section 8.05).
(b)No indemnification shall be required to be paid by the Corporation pursuant to Section 8.02 if, within such sixty-day period, (i) a Disinterested Quorum, by a majority vote thereof, determines that the Director or Officer requesting indemnification engaged in misconduct constituting a Breach of Duty or (ii) a Disinterested Quorum cannot be obtained.
(c)In either case of nonpayment pursuant to Section 8.03(b), the Board shall immediately authorize by resolution that an Authority, as provided in Section 8.04, determine whether the Director’s or Officer’s conduct constituted a Breach of Duty and, therefore, whether indemnification should be denied hereunder.
(d)(i) If the Board does not authorize an Authority to determine the Director’s or Officer’s right to indemnification hereunder within such sixty-day period and/or (ii) if indemnification of the requested amount of Liabilities is paid by the Corporation, then it shall be conclusively presumed for all purposes that a Disinterested Quorum has affirmatively determined that the Director or Officer did not engage in misconduct constituting a Breach of Duty and, in the case of subsection (i) above (but not subsection
(ii)), indemnification by the Corporation of the requested amount of Liabilities shall be paid to the Director or Officer immediately.
8.04 Determination of Indemnification.
(a)If the Board authorizes an Authority to determine a Director’s or Officer’s right to indemnification pursuant to Section 8.03, then the Director or Officer requesting indemnification shall have the absolute discretionary authority to select one of the following as such Authority:
(i)An independent legal counsel; provided, that such counsel shall be mutually selected by such Director or Officer and by a majority vote of a Disinterested Quorum or, if a Disinterested Quorum cannot be obtained, then by a majority vote of the Board;
(ii)A panel of three arbitrators selected from the panels of arbitrators of the American Arbitration Association in Wisconsin; provided, that (A) one arbitrator shall be selected by such Director or Officer, the second arbitrator shall be selected by a majority vote of a Disinterested Quorum or, if a Disinterested Quorum cannot be obtained, then by a majority vote of the Board, and the third arbitrator shall be selected by the two previously selected arbitrators, and (B) in all other respects (other than this Article VIII), such panel shall be governed by the American Arbitration Association’s then existing Commercial Arbitration Rules; or
(iii)A court pursuant to and in accordance with Section 180.0854 of the Statute.
(b)In any such determination by the selected Authority there shall exist a rebuttable presumption that the Director’s or Officer’s conduct did not constitute a Breach of Duty and that indemnification against the requested amount of Liabilities is required. The burden of rebutting such a presumption by clear and convincing evidence shall be on the Corporation or such other party asserting that such indemnification should not be allowed.
(c)The Authority shall make its determination within sixty days of being selected and shall submit a written opinion of its conclusion simultaneously to both the Corporation and the Director or Officer.
(d)If the Authority determines that indemnification is required hereunder, the Corporation shall pay the entire requested amount of Liabilities (net of any Expenses previously advanced pursuant to Section 8.05), including interest thereon at a reasonable rate, as determined by the Authority, within ten days of receipt of the Authority’s opinion; provided, that, if it is determined by the Authority that a Director or Officer is entitled to indemnification against Liabilities’ incurred in connection with some claims, issues or matters, but not as to other claims, issues or matters, involved in the subject Proceeding, the Corporation shall be required to pay (as set forth above) only the amount of such requested Liabilities as the Authority shall deem appropriate in light of all of the circumstances of such Proceeding.
(e)The determination by the Authority that indemnification is required hereunder shall be binding upon the Corporation regardless of any prior determination that the Director or Officer engaged in a Breach of Duty.
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(f)All Expenses incurred in the determination process under this Section 8.04 by either the Corporation or the Director or Officer, including, without limitation, all Expenses of the selected Authority, shall be paid by the Corporation.
8.05 Mandatory Allowance of Expenses.
(a)The Corporation shall pay or reimburse from time to time or at any time, within ten days after the receipt of the Director’s or Officer’s written request therefor, the reasonable Expenses of the Director or Officer as such Expenses are incurred; provided, the following conditions are satisfied:
(i)The Director or Officer furnishes to the Corporation an executed written certificate affirming his or her good faith belief that he or she has not engaged in misconduct which constitutes a Breach of Duty; and
(ii)The Director or Officer furnishes to the Corporation an unsecured executed written agreement to repay any advances made under this Section 8.05 if it is ultimately determined by an Authority that he or she is not entitled to be indemnified by the Corporation for such Expenses pursuant to Section 8.04.
(b)If the Director or Officer must repay any previously advanced Expenses pursuant to this Section 8.05, such Director or Officer shall not be required to pay interest on such amounts.
8.06 Indemnification and Allowance of Expenses of Certain Others.
(a)The Board may, in its sole and absolute discretion as it deems appropriate, pursuant to a majority vote thereof, indemnify a director or officer of an Affiliate (who is not otherwise serving as a Director or Officer) against all Liabilities, and shall advance the reasonable Expenses, incurred by such director or officer in a Proceeding to the same extent hereunder as if such director or officer incurred such Liabilities because he or she was a Director or Officer, if such director or officer is a Party thereto because he or she is or was a director or officer of the Affiliate.
(b)The Corporation shall indemnify an employee who is not a Director or Officer, to the extent he or she has been successful on the merits or otherwise in defense of a Proceeding, for all reasonable Expenses incurred in the Proceeding if the employee was a Party because he or she was an employee of the Corporation.
(c)The Board may, in its sole and absolute discretion as it deems appropriate, pursuant to a majority vote thereof, indemnify (to the extent not otherwise provided in Section 8.06(b) hereof) against Liabilities incurred by, and/or provide for the allowance of reasonable Expenses of, an employee or authorized agent of the Corporation acting within the scope of his or her duties as such and who is not otherwise a Director or Officer.
8.07 Insurance. The Corporation may purchase and maintain insurance on behalf of a Director or Officer or any individual who is or was an employee or authorized agent of the Corporation against any Liability asserted against or incurred by such individual in his or her capacity as such or arising from his or her status as such, regardless of whether the Corporation is required or permitted to indemnify against any such Liability under this Article VIII.
8.08 Notice to the Corporation. A Director, Officer or employee shall promptly notify the Corporation in writing when he or she has actual knowledge of a Proceeding which may
result in a claim of indemnification against Liabilities or allowance of Expenses hereunder, but the failure to do so shall not relieve the Corporation of any liability to the Director, Officer or employee hereunder unless the Corporation shall have been irreparably prejudiced by such failure (as determined, in the case of Directors or Officers only, by an Authority selected pursuant to Section 8.04(a)).
8.09 Severability. If any provision of this Article VIII shall be deemed invalid or inoperative, or if a court of competent jurisdiction determines that any of the provisions of this Article VIII contravene public policy, this Article VIII shall be construed so that the remaining provisions shall not be affected, but shall remain in full force and effect, and any such provisions which are invalid or inoperative or which contravene public policy shall be deemed, without further action or deed by or on behalf of the Corporation, to be modified, amended and/or limited, but only to the extent necessary to render the same valid and enforceable; it being understood that it is the Corporation’s intention to provide the Directors and Officers with the broadest possible protection against personal liability allowable under the Statute.
8.10 Nonexclusivity of Article VIII. The rights of a Director, Officer or employee (or any other person) granted under this Article VIII shall not be deemed exclusive of any other rights to indemnification against Liabilities or allowance of Expenses which the Director, Officer or employee (or such other person) may be entitled to under any written agreement, Board resolution, vote of shareholders of the Corporation or otherwise, including, without limitation, under the Statute. Nothing contained in this Article VIII shall be deemed to limit the Corporation’s obligations to indemnify against Liabilities or allow Expenses to a Director, Officer or employee under the Statute.
8.11 Contractual Nature of Article VIII; Repeal or Limitation of Rights. This Article VIII shall be deemed to be a contract between the Corporation and each Director, Officer and employee of the Corporation and any repeal or other limitation of this Article VIII or any repeal or limitation of the Statute or any other applicable law shall not limit any rights of indemnification against Liabilities or allowance of Expenses then existing or arising out of events, acts or omissions occurring prior to such repeal or limitation, including, without limitation, the right to indemnification against Liabilities or allowance of Expenses for Proceedings commenced after such repeal or limitation to enforce this Article VIII with regard to acts, omissions or events arising prior to such repeal or limitation.
Article IX. AMENDMENTS
9.01 By Shareholders. These bylaws may be amended or repealed and new bylaws may be adopted by the shareholders at any annual or special meeting of the shareholders at which a quorum is in attendance.
9.02 By Directors. Except as otherwise provided by the Wisconsin Business Corporation Law or the articles of incorporation, these bylaws may also be amended or repealed and new bylaws may be adopted by the Board of Directors by affirmative vote of a majority of the number of directors present at any meeting at which a quorum is in attendance; provided, however, that the shareholders in adopting, amending or repealing a particular bylaw may provide therein that the Board of Directors may not amend, repeal or readopt that bylaw.
9.03 Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors which would be inconsistent with the bylaws then in effect but which is taken or authorized by affirmative vote of not less than the number of shares or the number of directors required to amend the bylaws so that the bylaws would be consistent with such action shall be given the same effect as though the bylaws had been temporarily amended or suspended so far, but only so far, as is necessary to permit the specific action so taken or authorized.
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Exhibit 10.1
THE MARCUS CORPORATION
Long-Term Incentive Plan (LTIP) Terms
As amended and restated as of February 21, 2024
I. Plan Sponsor:
This Long-Term Incentive Plan (“LTIP”) is sponsored by The Marcus Corporation (the “Company”).
II. Plan Objectives:
The objectives of the LTIP are to:
•Reward key employees for their contributions to the longer-term profitability, return and growth of the Company.
•Focus key employees on the long-term success of the Company and promote retention.
•Align key employee rewards with shareholder interests.
•Provide competitive total compensation opportunities.
III. Effective Date:
This LTIP as amended and restated is effective for fiscal year 2024 and for subsequent fiscal years unless modified or terminated by the Company.
IV. Plan Year:
A plan year will coincide with the Company’s fiscal year (“Plan Year”).
V. Administration:
This LTIP will be administered by the Compensation Committee of the Company’s Board of Directors (the “Committee”), which reserves the authority to amend, interpret or terminate this LTIP in whole or in part at any time. The Committee may delegate responsibility for this LTIP’s ministerial functions to such officers of the Company as it determines in its sole discretion from time to time.
VI. Eligibility and Participation:
All employees of the Company who are members of the Company’s Executive Committee are eligible to participate in this LTIP. Participants will be selected annually by the Committee or at such other times as the Committee may determine.
VII. Grant of LTIP Awards:
Unless determined otherwise by the Committee, each Plan Year, participants selected by the Committee may be granted all or some of the following LTIP awards, which will initially be weighted as described below (or as otherwise determined by the Committee) based on the total LTIP award determined by the Committee to be provided to the participant for that Plan Year:
•Long-term incentive (“LTI”) cash award – 40% weight
•Performance share award – 20% weight
•Restricted stock or restricted stock unit (“RS”) award – 40% weight
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The performance shares and RS components of each LTIP award will be made under the Company’s 2004 Equity and Incentive Awards Plan (or any successor equity plan) and subject to all terms and conditions of such plan and any corresponding award agreement. The LTI cash awards will be subject to the terms and conditions described herein.
VIII. LTI Cash Award Terms:
A. LTI Target Opportunity:
Each participant’s LTI cash award target opportunity will be expressed as either a percentage of the participant’s base salary at the beginning of the performance period, a percentage of a selected financial measure, a fixed dollar amount or a combination thereof, as determined by the Committee.
B. LTI Cash Award Performance Period:
Except to the extent otherwise determined by the Committee or the Company, LTI cash awards will have a performance period of three consecutive fiscal years of the Company. For example, the performance period for LTI cash awards granted in fiscal 2024 will be measured from the start of the fiscal 2024 through the end of fiscal 2026. The Committee may, in its discretion, shorten or lengthen this performance period for future LTI cash awards.
C. LTI Cash Award Opportunity Weighting and Allocation:
LTI cash awards will be earned if either the ROIC goal or the EBITDA goal is achieved for the performance period. Each LTI cash award will be initially weighted 75% ROIC and 25% EBITDA growth rate, or such other weights as the Committee may determine. The goals operate independently – an award will be paid if the ROIC goal is met, even if the EBITDA growth rate goal is not.
D. Financial Performance Goals:
1. The initial financial performance goals for the LTI cash award shall be average ROIC and Adjusted EBITDA compound annual growth for the performance period, or such other goals as the Committee may determine.
2. “ROIC” equals the Company’s income, determined before extraordinary items but reduced by any preferred dividends, divided by the Company’s total invested capital, as determined by the Company’s Chief Financial Officer, subject to confirmation by the Committee. Total invested capital is the sum of the value of the Company’s long-term debt, any preferred stock (carrying value), minority interest (balance sheet) and total common equity.
3. Average ROIC for the performance period will be determined by averaging the ROIC for each fiscal year of the Company within the performance period. The Committee also has the discretion, upon the recommendation by the Company’s Chief Financial Officer, to break the Average ROIC portion of the LTI Performance Cash award into separate annual calculations for each year of the performance period. For example, under this methodology, each year of a five-year grant would be weighted at 25% of the total LTI cash award (for a total of 75%, as noted above).
4. “Adjusted EBITDA” equals the Company’s operating income as reported on its published earnings statement before depreciation and amortization and impairment charges, plus any gains or losses from unconsolidated joint ventures
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and adjusted for any significant nonrecurring items, as determined by the Company’s Chief Financial Officer, subject to confirmation by the Committee.
5. Adjusted EBITDA growth rate for the performance period will be the compound annualized rate of growth of Adjusted EBITDA, measured starting with the Company’s Adjusted EBITDA for the fiscal year prior to the beginning of the performance period and ending with the Company’s Adjusted EBITDA for the last fiscal year of the performance period. For example, for the fiscal 2024 through fiscal 2026 performance period, the growth rate will be calculated based on the compound annualized rate of growth from the end of fiscal 2023 through fiscal 2026, and by using the Company’s Adjusted EBITDA for its fiscal 2023 as the beginning basis for such measurement.
6. The Committee retains the ability to consider whether an adjustment of the financial goals for any year within the performance period is necessitated by exceptional circumstances. This ability is intended to be narrowly and infrequently used.
E. LTI Cash Award Calculation:
1. The first step in determining a LTI cash award payment is to determine the Company’s average ROIC and Adjusted EBITDA compound growth rate for the performance period, as described above.
2. The second step is to rank the Company’s actual performance for each such financial metric against the same financial metric determined for companies included in the Russell 2000 index (the “Peer Group”) for the performance period.
3. If the Company’s actual performance for a financial metric is in the 25th percentile of the Peer Group, then 25% of the applicable participant’s LTI cash award target opportunity for that financial metric will have been earned. If the Company’s actual performance for a financial metric is in the 50th percentile of the Peer Group, then 100% of the applicable participant’s LTI cash award target opportunity for that financial metric will have been earned. If the Company’s actual performance for a financial metric is in the 75th percentile of the Peer Group, then 150% of the applicable participant’s LTI cash award target opportunity for that financial metric will have been earned.
4. If the Company’s actual performance for a financial metric is below the 25th percentile of the peer group, no LTI award for that financial metric will be payable for that performance period.
5. If the Company’s actual performance for a financial metric is above the 75th percentile of the Peer Group, no more than the maximum LTI cash award for that financial metric will be payable for that performance period.
6. The table below illustrates how the “interval” created by these levels of achievement will determine the actual LTI cash award payout applicable to each financial metric:
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Threshold – 25th percentile of peer group | Target - 50th percentile of peer group | Maximum – 75th percentile of peer group | |||||||||
LTI Cash Award Earned | 25% of target | 100% of Target | 150% of Target | ||||||||
7. If the Company’s actual financial performance falls between the threshold, target and maximum levels, then the percentage of LTI cash award earned will be interpolated.
8. The actual LTIP cash award earned is calculated by multiplying the percentage of target LTI cash award earned (as calculated above) for the applicable financial metric (either average ROIC or EBITDA growth) by the participant’s target LTI cash award attributable to the achievement of that financial metric. If the target LTI cash award is expressed as a percentage of salary, this percentage is then multiplied by the participant’s base salary for the first fiscal year of the performance period to calculate the amount of the participant’s LTI cash award attributable to the achievement of the particular financial goal. If the target LTI cash award is expressed as a percentage of a selected financial metric or fixed dollar amount, the calculated percentage is multiplied by the identified metric or amount.
9. Attachment A provides an example of the LTIP cash award calculation.
F. Eligibility for Incentive Award:
To receive an LTI cash payment for a performance period, a participant must be employed on the date on which LTI cash awards are actually paid to LTIP participants, except as described under “Termination of Employment” below.
G. Form and Timing of LTI Cash Payout:
It is anticipated that the determination of the extent to which the performance goals have been achieved, and the amount of LTI cash earned, will be made within 150 days following the end of the performance period. As soon as reasonably practicable after such determination has been made (but in no event later than the end of the fiscal year immediately following the end of the performance period), payment of the earned LTI cash amounts will be paid in cash.
H. New Hires and Promotions:
An employee who is hired or promoted into an Executive Committee position would be eligible for an LTI cash award during the next available performance period at the discretion of the Committee.
I. Transfers:
Subject to Section VIII(J) below, participants who transfer out of the Executive Committee during a performance period (but who otherwise remain employed by the Company) will receive a prorated LTI cash payment based on the number of
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months worked as a member of the Executive Committee during the applicable performance period, rounded to the nearest whole month, as a fraction of the total number of months in the applicable performance period, unless otherwise determined by the Committee.
J. Termination of Employment:
1. Voluntary or Involuntary Termination:
Notwithstanding any other provision of this LTIP but subject to Sections VIII(J)(2), (3), and (4), upon an employee’s voluntary termination of employment or the involuntary termination of an employee’s employment by the Company with or without cause, any LTI cash award that otherwise would have been earned will be forfeited in its entirety.
2. Retirement:
Notwithstanding any other provision of this LTIP, upon a participant’s retirement from the Company at normal or early retirement age, a prorated LTI cash award payment will be made based on the number of months the participant was employed during the performance period, rounded to the nearest whole month, as a fraction of the total number of months in the applicable performance period, unless otherwise determined by the Committee. This payment will be made at the time that LTI cash awards are otherwise normally paid to active participants, and will be based on actual goal achievement.
3. Death:
Notwithstanding any other provision of this LTIP, upon a participant’s death, a prorated LTI cash award payment will be made to his/her beneficiary as designated under the Company’s 401k Retirement Savings Plan, or if no beneficiary has been designated, to the participant’s estate, based on the number of months the participant was employed during the performance period, rounded to the nearest whole month, as a fraction of the total number of months in the applicable performance period, unless otherwise determined by the Committee. This payment will be made at the time that LTI cash awards are otherwise normally paid to active participants, and will be based on actual goal achievement.
4. Disability:
Notwithstanding any other provision of this LTIP, upon termination of a participant’s employment due to permanent disability, as defined in the Company’s Long-Term Disability Plan, a prorated LTI cash award payment will be made based on the number of months the participant was employed during the performance period, rounded to the nearest whole month, as a fraction of the total number of months in the applicable performance period, unless otherwise determined by the Committee. This payment will be made at the time that LTI cash awards are otherwise normally paid to active participants, and will be based on actual goal achievement.
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Attachment A: Illustration of LTI Cash Award Calculation
(Target Award Expressed as a Pct. Of Salary)
Assumptions:
Base Salary | $500,000 | |||||||||||||
| Total LTI Opportunity (all awards) | 50% | |||||||||||||
Performance Period | 3 years | |||||||||||||
| % of Salary | Dollars | |||||||||||||
Total LTI Cash Target Bonus Opportunity | 20% | $100,000 | ||||||||||||
Based on EBITDA Growth (25%) | 5% | $25,000 | ||||||||||||
Based on Avg. ROIC (75%) | 15% | $75,000 | ||||||||||||
Financial Measure Table – Threshold/Maximum | ||||||||||||||
Russell 2000 Index | 3-Year EBITDA Growth | % of Target Bonus Earned | ||||||||||||
25th Percentile | 1% | 25% | ||||||||||||
50th Percentile | 12% | 100% | ||||||||||||
75th Percentile | 29% | 150% | ||||||||||||
| Marcus Corp. | 3% (30th percentile) | 39% | ||||||||||||
| Russell 2000 Index | 3-Year Avg. ROIC | % of Target Bonus Earned | ||||||||||||
25th Percentile | 1% | 25% | ||||||||||||
50th Percentile | 6% | 100% | ||||||||||||
75th Percentile | 11% | 150% | ||||||||||||
| Marcus Corp. | 5% (45th percentile) | 85% | ||||||||||||
Calculation:
LTI Cash Award Earned | ||||||||
3-Year EBITDA Growth (39% of $25,000 target opportunity) | $9,750 | |||||||
3-Year Avg. ROIC (85% of $75,000 target opportunity) | 63.750 | |||||||
Total Incentive Award | $73,500 | |||||||
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Exhibit 10.2
THE MARCUS CORPORATION
2004 EQUITY AND INCENTIVE AWARDS PLAN
PERFORMANCE SHARE AWARD AGREEMENT
PERFORMANCE SHARE AWARD AGREEMENTTHIS PERFORMANCE SHARE AWARD AGREEMENT (this “Agreement”) is made and entered into as of the grant date specified on the attached cover page (the “Grant Date”) by and between THE MARCUS CORPORATION, a Wisconsin corporation (the “Company”), and the Participant named on the attached cover page (the “Participant”).
WITNESSETH:
WHEREAS, the terms of The Marcus Corporation 2004 Equity and Incentive Awards Plan (the “Plan”), to the extent not stated herein, are specifically incorporated by reference in this Agreement and capitalized terms used herein which are not otherwise defined shall have the meaning set forth in the Plan;
WHEREAS, the Plan provides for the grant of various equity-based incentive awards, including grants of performance share awards, to be granted to certain key employees of the Company or a subsidiary thereof;
WHEREAS, the Participant is now employed by the Company or a subsidiary thereof in a key capacity and has exhibited judgment, initiative and efforts which have contributed materially to the successful performance of the Company; and
WHEREAS, the Company desires to award the Participant with a conditional future grant of Shares to the Participant, subject to the conditions provided herein to provide the Participant with the opportunity to increase his stock ownership in the Company;
NOW, THEREFORE, in consideration of the promises and of the covenants and agreements herein set forth, the parties mutually covenant and agree as follows:
1.Grant of Performance Shares. Subject to the terms and conditions of this Agreement and the Plan and the satisfaction of the criteria set forth in this Agreement, the Participant is granted the conditional right to receive certain Shares at a future date (the “Performance Shares”) as set forth in this Agreement to the extent performance criteria are achieved and other vesting requirements set forth herein are satisfied. The target number of Performance Shares granted to the Participant (the "Target Performance Shares"), the applicable performance criteria (the “Performance Goals”) and the performance period over which performance will be measured (the “Performance Period”) are all set forth in Attachment A hereto.
2.Performance Criteria. The Performance Shares shall be earned in an amount, ranging from zero to 150% of the Target Performance Shares, to the extent the Performance Goals are achieved and the other vesting requirements set forth herein are satisfied. Promptly, and in no event later than one hundred fifty (150) days, following the end of the Performance Period, the Committee shall determine, in its sole and absolute discretion, the extent to which the Performance Goals have been achieved and the number of Performance Shares that have been earned.
3.Termination of Employment.
(a)If the Participant dies or becomes permanently disabled while he is in the employ of the Company or any subsidiary, or if his employment is terminated by reason of his retirement in accordance with the then effective retirement plan or policy of the Company or any subsidiary, provided that the Participant has given at least six (6) months’ advance written notice of such retirement, in each case prior to the date on which the Performance Shares are settled, then the Participant (or his beneficiary or estate, in the case of death), will remain eligible to earn a pro rata
portion, determined by the Committee in its sole and absolute discretion, of the Performance Shares, based on actual achievement of the Performance Goals following the end of the Performance Period. Any Performance Shares that do not remain eligible to be earned on a pro rata basis in accordance with the preceding sentence will be automatically forfeited upon such termination.
(b)If the Participant’s employment is terminated by the Company or any subsidiary for any reason or if the Participant terminates his employment with the Company or any subsidiary for any reason (other than, in each case, one of the reasons set forth in Section 3(a)), then any Performance Shares that have not yet been paid shall automatically be forfeited upon such termination.
4. Settlement of Performance Shares. As soon as reasonably practicable after the Committee has determined the achievement of the Performance Goals and the resulting number of Performance Shares earned (but in no event later than the end of the fiscal year immediately following the end of the Performance Period), the Company will issue one Share in settlement of each Performance Share that has been earned and vested, subject to applicable withholding for taxes. Notwithstanding anything to the contrary in the foregoing, the Company shall not be required to deliver any fractional Shares, but may pay, in lieu thereof, the Fair Market Value of such fractional Shares.
5. No Stockholder Rights; Transferability; Securities Law Restrictions. The Performance Shares are not transferable and do not represent any rights as a stockholder of the Company. They represent a mere unfunded promise to pay. The Performance Shares are subject to the transfer restrictions set forth in the Plan. After the Shares underlying the Performance Shares have been issued (if any), any Shares shall thereafter be transferable by the Participant, subject to the terms of any shareholder agreement or Company policy then in effect, provided that the Participant agrees for himself and his heirs, legatees and legal representatives, with respect to all Shares acquired pursuant to this Agreement (or any Shares issued pursuant to a stock dividend or stock split thereon or any securities issued in lieu thereof or in substitution or exchange therefor):
(a) that the Participant and the Participant’s heirs, legatees and legal representatives will not sell or otherwise dispose of such shares except pursuant to a registration statement filed by the Company that has been declared effective by the Securities and Exchange Commission under the Securities Act of 1933 (the “Act”), or except in a transaction which is determined by counsel to the Company to be exempt from registration under the Act and any applicable state securities laws; and
(b) to execute and deliver to the Company such investment representations and warranties, and to take such other actions, as counsel for the Company determines may be necessary or appropriate for compliance with the Act and any applicable securities laws.
6. Recoupment or Claw Back. The Performance Shares awarded under this Agreement, any payment made in settlement thereof, any Shares issued in settlement thereof and the proceeds from any subsequent transfer shall be subject to any applicable compensation recovery, clawback, recoupment or similar policy maintained by the Company.
7. Tax Withholding.
(a) No later than the date as of which an amount first becomes includable in the Participant’s gross income for federal income tax purposes with respect to the Performance Shares, the Participant shall pay to the Company, or make arrangements satisfactory to the Company regarding the payment of, any federal, state, local or foreign taxes of any kind required by law to be withheld with respect to such amount. The obligations of the Company under this Agreement and the Plan, shall be conditional on the Participant making such payment or arrangements, and the Company and any Affiliate shall, to the extent permitted by law, have the right to deduct any such taxes from any payment otherwise due to the Participant.
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(b) To the extent permitted by the Committee, the Participant may be permitted to satisfy tax withholding requirements by either (i) previously owned Shares or (ii) having the Company withhold a portion of Shares otherwise deliverable pursuant to this Agreement, in either case having a fair market value (as determined by the Committee) on the date income is recognized by the Participant equal to the amount needed to satisfy any withholding obligations, provided that the amount of Shares withheld or delivered may not exceed the total maximum statutory withholding obligations associated with the transaction to the extent needed for the Company to avoid an accounting charge. If the number of Shares determined pursuant to the preceding sentence shall include a fractional share, then the number of shares delivered to, or withheld by, the Company shall be rounded up to the next highest whole number and the Company shall deliver to the Participant cash in an amount equal to the then fair market value (as determined by the Committee) of the fractional Share delivered or withheld in excess of the amount needed to satisfy any withholding obligations, unless the Participant makes other arrangements satisfactory to the Company for payment of such amount.
8. No Right to Employment. It is fully understood that nothing contained in this Agreement or the Plan shall be deemed to confer upon the Participant any right to continue in the employ of the Company or any subsidiary, nor to interfere in any way with the right of the Company or any subsidiary to terminate the employment of the Participant at any time for any reason.
9.Interpretation by Committee. As a condition of the granting of the Performance Shares, the Participant agrees, for himself and his legal representatives, that the Plan and this Agreement shall be subject to discretionary interpretation by the Committee and that any interpretation by the Committee of the terms of the Plan and this Agreement shall be final, binding and conclusive on the Participant and his legal representatives in all respects and shall not be subject to challenge or dispute by the Participant or his legal representatives.
10.Modification. Subject to the applicable provisions of the Plan, at any time and from time to time the Committee may direct execution of an instrument providing for the modification, extension or renewal of this Agreement; provided, however, that no such modification, extension or renewal shall (a) confer on the Participant any right or benefit which could not be conferred on him by a grant of performance shares under the Plan at such time or (b) except to the extent the Committee determines that such modification, extension or renewal is in the best interest of the Participant or any other person(s) as may then have an interest in the Performance Shares, materially and adversely affect the value of the Performance Shares without the written consent of the Participant.
11.Miscellaneous.
(a) If the Company fails to enforce any provision of this Agreement at any time, that failure will in no way constitute a waiver of such provision or of any other provision hereof.
(b) If any provision of this Agreement is held illegal, unenforceable or invalid for any reason, such illegality, unenforceability or invalidity will not affect the legality, enforceability or validity of the remaining provisions of this Agreement, and the Agreement will be construed and enforced as if the illegal, unenforceable or invalid provision had not been included in the Agreement.
(c) This Agreement will be binding on and inure to the benefit of the Participant and the Participant’s heirs and personal representatives and to benefit of the Company and its successors and legal representatives.
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Attachment A: Performance Criteria
| Target Performance Shares | [___] | |||||||||||||
| Threshold Performance Shares | 25% of Target Shares | |||||||||||||
| Maximum Performance Shares | 150% of Target Shares | |||||||||||||
| Measurement Period | FY2024-FY2026 | |||||||||||||
| Performance Goals | ||||||||||||||
| 3-Year EBITDA Growth Rate Ranking Relative to Russell 2000 Index: 25% Weighting | ||||||||||||||
| 3-Year Average Return on Invested Capital Ranking Relative to Russell 2000 Index: 75% Weighting | ||||||||||||||
| Performance Goals Scale and Weighting | ||||||||||||||
3-Year EBITDA Growth Ranking Relative to Russell 2000 Index | % of Target | % of Target Shares Earned After 25% Weighting | ||||||||||||
25th Percentile (Threshold) | 25% | 6.25% | ||||||||||||
50th Percentile (Target) | 100% | 25% | ||||||||||||
75th Percentile or above (Maximum) | 150% | 37.5% | ||||||||||||
| 3-Year Average ROIC Ranking Relative to Russell 2000 Index | 3-Year Avg. ROIC | % of Target Shares Earned After 75% Weighting | ||||||||||||
25th Percentile (Threshold) | 25% | 18.75% | ||||||||||||
50th Percentile (Target) | 100% | 75% | ||||||||||||
75th Percentile or above (Maximum) | 150% | 112.5% | ||||||||||||
Exhibit 10.3
THE MARCUS CORPORATION
2004 EQUITY AND INCENTIVE AWARDS PLAN
PERFORMANCE SHARE AWARD AGREEMENT
PERFORMANCE SHARE AWARD AGREEMENTTHIS PERFORMANCE SHARE AWARD AGREEMENT (this “Agreement”) is made and entered into as of the grant date specified on the attached cover page (the “Grant Date”) by and between THE MARCUS CORPORATION, a Wisconsin corporation (the “Company”), and the Participant named on the attached cover page (the “Participant”).
WITNESSETH:
WHEREAS, the terms of The Marcus Corporation 2004 Equity and Incentive Awards Plan (the “Plan”), to the extent not stated herein, are specifically incorporated by reference in this Agreement and capitalized terms used herein which are not otherwise defined shall have the meaning set forth in the Plan;
WHEREAS, the Plan provides for the grant of various equity-based incentive awards, including grants of performance share awards, to be granted to certain key employees of the Company or a subsidiary thereof;
WHEREAS, the Participant is now employed by the Company or a subsidiary thereof in a key capacity and has exhibited judgment, initiative and efforts which have contributed materially to the successful performance of the Company; and
WHEREAS, the Company desires to award the Participant with a conditional future grant of Shares to the Participant, subject to the conditions provided herein to provide the Participant with the opportunity to increase his stock ownership in the Company;
NOW, THEREFORE, in consideration of the promises and of the covenants and agreements herein set forth, the parties mutually covenant and agree as follows:
1.Grant of Performance Shares. Subject to the terms and conditions of this Agreement and the Plan and the satisfaction of the criteria set forth in this Agreement, the Participant is granted the conditional right to receive certain Shares at a future date (the “Performance Shares”) as set forth in this Agreement to the extent performance criteria are achieved and other vesting requirements set forth herein are satisfied. The target number of Performance Shares granted to the Participant (the "Target Performance Shares"), the applicable performance criteria (the “Performance Goals”) and the performance period over which performance will be measured (the “Performance Period”) are all set forth in Attachment A hereto.
2.Performance Criteria. The Performance Shares shall be earned in an amount, ranging from zero to 100% of the Target Performance Shares, to the extent the Performance Goals are achieved and the other vesting requirements set forth herein are satisfied. Promptly, and in no event later than one hundred fifty (150) days, following the end of the Performance Period, the Committee shall determine, in its sole and absolute discretion, the extent to which the Performance Goals have been achieved and the number of Performance Shares that have been earned.
3.Termination of Employment.
(a)If the Participant dies or becomes permanently disabled while he is in the employ of the Company or any subsidiary, or if his employment is terminated by reason of his retirement in accordance with the then effective retirement plan or policy of the Company or any subsidiary, provided that the Participant has given at least six (6) months’ advance written notice of such retirement, in each case prior to the date on which the Performance Shares are settled, then the Participant (or his beneficiary or estate, in the case of death), will remain eligible to earn a pro rata
4887-9443-1143.1
portion, determined by the Committee in its sole and absolute discretion, of the Performance Shares, based on actual achievement of the Performance Goals following the end of the Performance Period. Any Performance Shares that do not remain eligible to be earned on a pro rata basis in accordance with the preceding sentence will be automatically forfeited upon such termination.
(b)If the Participant’s employment is terminated by the Company or any subsidiary for any reason or if the Participant terminates his employment with the Company or any subsidiary for any reason (other than, in each case, one of the reasons set forth in Section 3(a)), then any Performance Shares that have not yet been paid shall automatically be forfeited upon such termination.
4. Settlement of Performance Shares. As soon as reasonably practicable after the Committee has determined the achievement of the Performance Goals and the resulting number of Performance Shares earned (but in no event later than the end of the fiscal year immediately following the end of the Performance Period), the Company will issue one Share in settlement of each Performance Share that has been earned and vested, subject to applicable withholding for taxes. Notwithstanding anything to the contrary in the foregoing, the Company shall not be required to deliver any fractional Shares, but may pay, in lieu thereof, the Fair Market Value of such fractional Shares.
5. No Stockholder Rights; Transferability; Securities Law Restrictions. The Performance Shares are not transferable and do not represent any rights as a stockholder of the Company. They represent a mere unfunded promise to pay. The Performance Shares are subject to the transfer restrictions set forth in the Plan. After the Shares underlying the Performance Shares have been issued (if any), any Shares shall thereafter be transferable by the Participant, subject to the terms of any shareholder agreement or Company policy then in effect, provided that the Participant agrees for himself and his heirs, legatees and legal representatives, with respect to all Shares acquired pursuant to this Agreement (or any Shares issued pursuant to a stock dividend or stock split thereon or any securities issued in lieu thereof or in substitution or exchange therefor):
(a) that the Participant and the Participant’s heirs, legatees and legal representatives will not sell or otherwise dispose of such shares except pursuant to a registration statement filed by the Company that has been declared effective by the Securities and Exchange Commission under the Securities Act of 1933 (the “Act”), or except in a transaction which is determined by counsel to the Company to be exempt from registration under the Act and any applicable state securities laws; and
(b) to execute and deliver to the Company such investment representations and warranties, and to take such other actions, as counsel for the Company determines may be necessary or appropriate for compliance with the Act and any applicable securities laws.
6. Recoupment or Claw Back. The Performance Shares awarded under this Agreement, any payment made in settlement thereof, any Shares issued in settlement thereof and the proceeds from any subsequent transfer shall be subject to any applicable compensation recovery, clawback, recoupment or similar policy maintained by the Company.
7. Tax Withholding.
(a) No later than the date as of which an amount first becomes includable in the Participant’s gross income for federal income tax purposes with respect to the Performance Shares, the Participant shall pay to the Company, or make arrangements satisfactory to the Company regarding the payment of, any federal, state, local or foreign taxes of any kind required by law to be withheld with respect to such amount. The obligations of the Company under this Agreement and the Plan, shall be conditional on the Participant making such payment or arrangements, and the Company and any Affiliate shall, to the extent permitted by law, have the right to deduct any such taxes from any payment otherwise due to the Participant.
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(b) To the extent permitted by the Committee, the Participant may be permitted to satisfy tax withholding requirements by either (i) previously owned Shares or (ii) having the Company withhold a portion of Shares otherwise deliverable pursuant to this Agreement, in either case having a fair market value (as determined by the Committee) on the date income is recognized by the Participant equal to the amount needed to satisfy any withholding obligations, provided that the amount of Shares withheld or delivered may not exceed the total maximum statutory withholding obligations associated with the transaction to the extent needed for the Company to avoid an accounting charge. If the number of Shares determined pursuant to the preceding sentence shall include a fractional share, then the number of shares delivered to, or withheld by, the Company shall be rounded up to the next highest whole number and the Company shall deliver to the Participant cash in an amount equal to the then fair market value (as determined by the Committee) of the fractional Share delivered or withheld in excess of the amount needed to satisfy any withholding obligations, unless the Participant makes other arrangements satisfactory to the Company for payment of such amount.
8. No Right to Employment. It is fully understood that nothing contained in this Agreement or the Plan shall be deemed to confer upon the Participant any right to continue in the employ of the Company or any subsidiary, nor to interfere in any way with the right of the Company or any subsidiary to terminate the employment of the Participant at any time for any reason.
9.Interpretation by Committee. As a condition of the granting of the Performance Shares, the Participant agrees, for himself and his legal representatives, that the Plan and this Agreement shall be subject to discretionary interpretation by the Committee and that any interpretation by the Committee of the terms of the Plan and this Agreement shall be final, binding and conclusive on the Participant and his legal representatives in all respects and shall not be subject to challenge or dispute by the Participant or his legal representatives.
10.Modification. Subject to the applicable provisions of the Plan, at any time and from time to time the Committee may direct execution of an instrument providing for the modification, extension or renewal of this Agreement; provided, however, that no such modification, extension or renewal shall (a) confer on the Participant any right or benefit which could not be conferred on him by a grant of performance shares under the Plan at such time or (b) except to the extent the Committee determines that such modification, extension or renewal is in the best interest of the Participant or any other person(s) as may then have an interest in the Performance Shares, materially and adversely affect the value of the Performance Shares without the written consent of the Participant.
11.Miscellaneous.
(a) If the Company fails to enforce any provision of this Agreement at any time, that failure will in no way constitute a waiver of such provision or of any other provision hereof.
(b) If any provision of this Agreement is held illegal, unenforceable or invalid for any reason, such illegality, unenforceability or invalidity will not affect the legality, enforceability or validity of the remaining provisions of this Agreement, and the Agreement will be construed and enforced as if the illegal, unenforceable or invalid provision had not been included in the Agreement.
(c) This Agreement will be binding on and inure to the benefit of the Participant and the Participant’s heirs and personal representatives and to benefit of the Company and its successors and legal representatives.
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Attachment A: Performance Criteria
| Target Performance Shares | [___] | |||||||||||||
| Threshold Performance Shares | 25% of Target Shares | |||||||||||||
| Maximum Performance Shares | 100%of Target Shares | |||||||||||||
| Measurement Period | FY2024-FY2026 | |||||||||||||
| Performance Goals | ||||||||||||||
| 3-Year EBITDA Growth Rate Ranking Relative to Russell 2000 Index: 25% Weighting | ||||||||||||||
| 3-Year Average Return on Invested Capital Ranking Relative to Russell 2000 Index: 75% Weighting | ||||||||||||||
| Performance Goals Scale and Weighting | ||||||||||||||
3-Year EBITDA Growth Ranking Relative to Russell 2000 Index | % of Target | % of Target Shares Earned After 25% Weighting | ||||||||||||
25th Percentile (Threshold) | 25% | 6.25% | ||||||||||||
50th Percentile or above (Maximum) | 100% | 25% | ||||||||||||
| 3-Year Average ROIC Ranking Relative to Russell 2000 Index | 3-Year Avg. ROIC | % of Target Shares Earned After 75% Weighting | ||||||||||||
25th Percentile (Threshold) | 25% | 18.75% | ||||||||||||
50th Percentile or above (Maximum) | 100% | 75% | ||||||||||||
4887-9443-1143.1
Exhibit 10.4
THE MARCUS CORPORATION
2004 EQUITY AND INCENTIVE AWARDS PLAN
RESTRICTED STOCK AGREEMENT
2004 EQUITY AND INCENTIVE AWARDS PLAN
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (this “Agreement”) is made and entered into as of the grant date specified on the attached cover page (the “Grant Date”) by and between THE MARCUS CORPORATION, a Wisconsin corporation (the “Company”), and the Participant named on the attached cover page (the “Participant”).
WITNESSETH:
WHEREAS, the terms of The Marcus Corporation 2004 Equity and Incentive Awards Plan (the “Plan”), to the extent not stated herein, are specifically incorporated by reference in this Agreement and defined terms used herein which are not otherwise defined shall have the meaning set forth in the Plan;
WHEREAS, the Plan provides for the grant of various equity-based incentive awards, including grants of restricted shares of the Company’s Common Stock, $1 par value (“Common Stock”), to be granted to certain key employees of the Company or a subsidiary thereof;
WHEREAS, the Participant is now employed by the Company or a subsidiary thereof in a key capacity and has exhibited judgment, initiative and efforts which have contributed materially to the successful performance of the Company; and
WHEREAS, the Company desires to grant the Participant the Restricted Stock (as defined below) in recognition of Participant’s past and expected future efforts as an employee of the Company or a subsidiary thereof and to provide the Participant with the opportunity to increase his stock ownership in the Company.
NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows:
1.Grant of Restricted Stock. Subject to the terms and conditions of the Plan and this Agreement, the Company hereby grants the Participant the number of shares of Common Stock set forth on the attached cover page (the “Restricted Stock”).
2.Restrictions. The Restricted Stock may not be sold, transferred, pledged, assigned or otherwise alienated or hypothecated. Notwithstanding the foregoing, except as otherwise provided in Section 3, such restrictions shall lapse and the Restricted Stock shall vest with respect to the following amounts of Restricted Stock in accordance with the following schedule provided that the Participant is then still employed by the Company or a subsidiary on the relevant date below:
| Elapsed Period of Time after the Grant Date | Cumulative Percentage of Restricted Stock no Longer Subject to Restrictions | ||||
| Prior to the first anniversary of the Grant Date | 0% | ||||
| From the second anniversary of the Grant Date to the third anniversary of the Grant Date | 50% | ||||
| From and after the third anniversary of the Grant Date | 100% | ||||
The period during which any of the Restricted Stock is subject to the restrictions in this Section 2 shall hereinafter be referred to as the “Restriction Period” with respect to the portion of the shares of Restricted Stock still subject to restriction. The Committee, as the administrator of the Plan, may, at any time or from time to time, accelerate all or any part of the Restriction Period with respect to all or any portion of the Restricted Stock.
3.Termination of Employment.
(a)If the Participant dies while he is in the employ of the Company or any subsidiary, or if his employment is terminated by reason of his retirement in accordance with the then effective retirement plan or policy of the Company or any subsidiary, or his permanent disability, the Restriction Period shall automatically terminate and all of the shares of the Restricted Stock shall be free of all restrictions imposed by Section 2.
(b)If the Participant’s employment is terminated by the Company or any subsidiary for any reason or if the Participant terminates his employment with the Company or any subsidiary for any reason (other than, in each case, one of the reasons set forth in Section 3(a)), then any shares of Restricted Stock which then remain subject to the restrictions of Section 2 at the date of such termination shall automatically be forfeited and returned to the Company.
4.Deposit of Restricted Shares. One or more certificates evidencing the shares of Restricted Stock shall be issued by the Company in the Participant’s name. The Company shall cause the issued certificate(s) to be delivered to the Secretary of the Company (or his designee) as a depository for safekeeping until a forfeiture occurs or the restrictions imposed by Section 2 hereof terminate. Promptly after the restrictions imposed by Section 2 hereof terminate with respect to some or all of the shares of Restricted Stock, the Company shall deliver stock certificates representing such shares to Participant. Upon request of the Company, Participant shall deliver to the Company a stock power, endorsed in blank, relating to the Restricted Stock then subject to the restrictions of Section 2.
5.Securities Law Restrictions; Market Stand-Off. In addition to the restrictions set forth above, the shares of Restricted Stock granted hereunder may not be sold or offered for sale except pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Act”), or in a transaction which, in the opinion of legal counsel for the Company, is exempt from the registration provisions of the Act. In connection with any underwritten public offering by the Company of its equity securities pursuant to an effective registration statement filed under the Act, you agree that you shall not directly or indirectly sell, make any short sale of, loan, hypothecate, pledge, offer, grant or sell any option or other contract for the purchase of, purchase any option or other contract for the sale of, or otherwise dispose of or transfer or agree to engage in any of the foregoing transactions with respect to, any shares acquired under this Agreement (whether or not subject to restrictions or risk of forfeiture at the time of such offering) without the prior written consent of the Company and the Company’s underwriters. Such restriction shall be in effect for such period of time following the date of the final prospectus for the offering as may be requested by the Company or such underwriters. In no event, however, shall such period exceed one hundred eighty (180) days. In addition, if required by underwriters for the Company, you agree to enter into a lock-up agreement with respect to any shares acquired under this Agreement.
6.Voting Rights; Dividends and Other Distributions. During the Restriction Period and prior to any forfeiture of the Restricted Stock, the Participant will, subject to the restrictions set forth in Section 2, have all rights as a shareholder with respect to the shares of Restricted Stock which then remain subject to such restrictions (including voting rights and the right to receive dividends or other distributions the record date for which occurs prior to the forfeiture of the Restricted Stock); provided, however, that if any such dividends or distributions are paid in stock of the Company, such shares shall be subject to the same restrictions and risk of forfeiture as the Restricted Stock with respect to which they were paid.
7.Tax Withholding.
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(a)No later than the date as of which an amount first becomes includable in the Participant’s gross income for federal income tax purposes with respect to the Restricted Stock, the Participant shall pay to the Company, or make arrangements satisfactory to the Company regarding the payment of, any federal, state, local or foreign taxes of any kind required by law to be withheld with respect to such amount. The obligations of the Company under this Agreement and the Plan, including the obligation to release from custody the Restricted Stock upon the expiration of the Restriction Period, shall be conditional on the Participant making such payment or arrangements, and the Company and any Affiliate shall, to the extent permitted by law, have the right to deduct any such taxes from any payment otherwise due to the Participant.
(b)The Participant shall be permitted to satisfy the Company’s tax withholding requirements by either (i) delivering shares of previously owned Common Stock or (ii) having the Company withhold a portion of the shares of Common Stock otherwise deliverable pursuant to this Agreement, in either case having a fair market value (as determined by the Committee) on the date income is recognized by the Participant equal to the amount needed to satisfy any withholding obligations, provided that the amount of Shares withheld or delivered may not exceed the total maximum statutory withholding obligations associated with the transaction to the extent needed for the Company to avoid an accounting charge. If the number of shares of Common Stock determined pursuant to the preceding sentence shall include a fractional share, then the number of shares delivered to, or withheld by, the Company shall be rounded up to the next highest whole number and the Company shall deliver to the Participant cash in an amount equal to the then fair market value (as determined by the Committee) of the fractional share of Common Stock delivered or withheld in excess of the amount needed to satisfy any withholding obligations, unless the Participant makes other arrangements satisfactory to the Company for payment of such amount.
8.No Right to Employment. It is fully understood that nothing contained in this Agreement or the Plan shall be deemed to confer upon the Participant any right to continue in the employ of the Company or any subsidiary, nor to interfere in any way with the right of the Company or any subsidiary to terminate the employment of the Participant at any time for any reason.
9.Interpretation by Committee. As a condition of the granting of the Restricted Stock, the Participant agrees, for himself and his legal representatives, that the Plan and this Agreement shall be subject to discretionary interpretation by the Committee and that any interpretation by the Committee of the terms of the Plan and this Agreement shall be final, binding and conclusive on the Participant and his legal representatives in all respects and shall not be subject to challenge or dispute by the Participant or his legal representatives.
10.Modification. Subject to the applicable provisions of the Plan, at any time and from time to time the Committee may direct execution of an instrument providing for the modification, extension or renewal of this Agreement; provided, however, that no such modification, extension or renewal shall (a) confer on the Participant any right or benefit which could not be conferred on him by a grant of restricted shares of Common Stock under the Plan at such time or (b) except to the extent the Committee determines that such modification, extension or renewal is in the best interest of the Participant or any other person(s) as may then have an interest in the Restricted Stock, materially and adversely affect the value of the Restricted Stock without the written consent of the Participant.
11.Miscellaneous.
(a)If the Company fails to enforce any provision of this Agreement at any time, that failure will in no way constitute a waiver of such provision or of any other provision hereof.
(b)If any provision of this Agreement is held illegal, unenforceable or invalid for any reason, such illegality, unenforceability or invalidity will not affect the legality, enforceability or validity of the remaining provisions of this Agreement, and the Agreement will be construed and enforced as if the illegal, unenforceable or invalid provision had not been included in the Agreement.
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(c)This Agreement will be binding on and inure to the benefit of the Participant and the Participant’s heirs and personal representatives and to benefit of the Company and its successors and legal representatives.
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Exhibit 10.5
THE MARCUS CORPORATION
2004 EQUITY AND INCENTIVE AWARDS PLAN
RESTRICTED STOCK UNIT AGREEMENT
2004 EQUITY AND INCENTIVE AWARDS PLAN
RESTRICTED STOCK UNIT AGREEMENT
THIS RESTRICTED STOCK UNIT AGREEMENT (this “Agreement”) is made and entered into as of the grant date specified on the attached cover page (the “Grant Date”) by and between THE MARCUS CORPORATION, a Wisconsin corporation (the “Company”), and the Participant named on the attached cover page (the “Participant”).
WITNESSETH:
WHEREAS, the terms of The Marcus Corporation 2004 Equity and Incentive Awards Plan (the “Plan”), to the extent not stated herein, are specifically incorporated by reference in this Agreement and capitalized terms used herein which are not otherwise defined shall have the meaning set forth in the Plan;
WHEREAS, the Plan provides for the grant of various equity-based incentive awards, including grants of restricted stock unit awards, to be granted to certain key employees of the Company or a subsidiary thereof;
WHEREAS, the Participant is now employed by the Company or a subsidiary thereof in a key capacity and has exhibited judgment, initiative and efforts which have contributed materially to the successful performance of the Company; and
WHEREAS, the Company desires to grant the Participant restricted stock units relating to Shares in recognition of Participant’s past and expected future efforts as an employee of the Company or a subsidiary thereof and to provide the Participant with the opportunity to receive Shares.
NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows:
1.Grant of Restricted Stock Units. Subject to the terms and conditions of the Plan and this Agreement, the Company hereby grants the Participant the number of Restricted Stock Units set forth on the attached cover page (the “Restricted Stock Units”).
2.Vesting Schedule. The Restricted Stock Units shall, except as otherwise provided in Section 3 or the Plan, vest in accordance with the following schedule, provided that the Participant is continuously employed by the Company or a subsidiary until the applicable vesting date below:
| Vesting Date | Cumulative Percentage of Restricted Stock Units Vested | ||||
| Prior to the second anniversary of the Grant Date | 0% | ||||
| The second anniversary of the Grant Date | 50% | ||||
| The third anniversary of the Grant Date | 100% | ||||
3.Termination of Employment; Leave of Absence.
(a)If the Participant dies or becomes permanently disabled while he is in the employ of the Company or any subsidiary, or if his employment is terminated by reason of his retirement in accordance with the then effective retirement plan or policy of the Company or any subsidiary, provided that the Participant has given at least six (6) months’ advance written notice of such retirement, in each case prior to the date on which all of the Restricted Stock Units are vested, then the Participant (or his beneficiary or estate, in the case of death), will become vested in a pro rata portion, determined by the Committee in its sole and absolute discretion, of the Restricted Stock Units that have not previously vested. Any Restricted Stock Units that do not vest on a pro rata basis in accordance with the preceding sentence will be automatically forfeited upon such termination.
(b)If the Participant’s employment is terminated by the Company or any subsidiary for any reason or if the Participant terminates his employment with the Company or any subsidiary for any reason (other than, in each case, one of the reasons set forth in Section 3(a)), then any unvested Restricted Stock Units shall automatically be forfeited upon such termination.
(c)If the Participant takes an approved unpaid leave of absence from the Company or any subsidiary, the Committee may, in its sole discretion, delay any vesting date(s) to take into account the period(s) during which the Participant was not actively employed by the Company or any subsidiary.
4.Settlement of Restricted Stock Units. As soon as practicable, and no later than thirty (30) days, after the Restricted Stock Units vest, subject to any six-month delay required for purposes of compliance with Code section 409A if the Participant is a “specified Participant” at the time of such separation from service as contemplated by Section 18(b) of the Plan, the Company will settle Restricted Stock Units by issuing one Share for each Restricted Stock Unit that vested, subject to applicable withholding for taxes.
Notwithstanding anything to the contrary in the foregoing, the Company shall not be required to deliver any fractional Shares, but may pay, in lieu thereof, the Fair Market Value of such fractional Shares.
5.No Stockholder Rights; Transferability; Securities Law Restrictions. The Restricted Stock Units are not transferable and do not represent any rights as a stockholder of the Company. They represent a mere unfunded promise to pay. In addition to the restrictions set forth in this Agreement, the Restricted Stock Units are subject to the transfer restrictions set forth in the Plan. After the Restricted Stock Units have been settled, any Shares issued in settlement of the Restricted Stock Units shall thereafter be transferable by the Participant, subject to the terms of any shareholder agreement or Company policy then in effect, provided that the Participant agrees for himself and his heirs, legatees and legal representatives, with respect to all Shares acquired pursuant to this Agreement (or any Shares issued pursuant to a stock dividend or stock split thereon or any securities issued in lieu thereof or in substitution or exchange therefor):
(a) that the Participant and the Participant’s heirs, legatees and legal representatives will not sell or otherwise dispose of such shares except pursuant to a registration statement filed by the Company that has been declared effective by the Securities and Exchange Commission under the Securities Act of 1933 (the “Act”), or except in a transaction which is determined by counsel to the Company to be exempt from registration under the Act and any applicable state securities laws; and
(b) to execute and deliver to the Company such investment representations and warranties, and to take such other actions, as counsel for the Company determines may be necessary or appropriate for compliance with the Act and any applicable securities laws.
6.Recoupment or Claw Back. The Restricted Stock Units awarded under this Agreement, any payment made in settlement thereof, any Shares issued in settlement thereof and the
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4880-2301-9682.5
proceeds from any subsequent transfer shall be subject to any applicable compensation recovery, clawback, recoupment or similar policy maintained by the Company.
7.Tax Withholding.
(a) No later than the date as of which an amount first becomes includable in the Participant’s gross income for federal income tax purposes with respect to the Restricted Stock Units, the Participant shall pay to the Company, or make arrangements satisfactory to the Company regarding the payment of, any federal, state, local or foreign taxes of any kind required by law to be withheld with respect to such amount. The obligations of the Company under this Agreement and the Plan shall be conditional on the Participant making such payment or arrangements, and the Company and any Affiliate shall, to the extent permitted by law, have the right to deduct any such taxes from any payment otherwise due to the Participant.
(b) To the extent permitted by the Committee, the Participant may be permitted to satisfy tax withholding requirements by either (i) delivering previously owned Shares or (ii) having the Company withhold a portion of the Shares or cash payment otherwise deliverable pursuant to this Agreement, in either case having a fair market value (as determined by the Committee) on the date income is recognized by the Participant equal to the amount needed to satisfy any withholding obligations, provided that the amount of Shares withheld or delivered (or cash payment withheld) may not exceed the total maximum statutory withholding obligations associated with the transaction to the extent needed for the Company to avoid an accounting charge. If the number of Shares determined pursuant to the preceding sentence shall include a fractional Share, then the number of Shares delivered to, or withheld by, the Company shall be rounded up to the next highest whole number and the Company shall deliver to the Participant cash in an amount equal to the then fair market value (as determined by the Committee) of the fractional Share delivered or withheld in excess of the amount needed to satisfy any withholding obligations, unless the Participant makes other arrangements satisfactory to the Company for payment of such amount.
8.No Right to Employment. It is fully understood that nothing contained in this Agreement or the Plan shall be deemed to confer upon the Participant any right to continue in the employ of the Company or any subsidiary, nor to interfere in any way with the right of the Company or any subsidiary to terminate the employment of the Participant at any time for any reason.
9.Interpretation by Committee. As a condition of the granting of the Restricted Stock Units, the Participant agrees, for himself and his legal representatives, that the Plan and this Agreement shall be subject to discretionary interpretation by the Committee and that any interpretation by the Committee of the terms of the Plan and this Agreement shall be final, binding and conclusive on the Participant and his legal representatives in all respects and shall not be subject to challenge or dispute by the Participant or his legal representatives.
10.Modification. Subject to the applicable provisions of the Plan, at any time and from time to time the Committee may direct execution of an instrument providing for the modification, extension or renewal of this Agreement; provided, however, that no such modification, extension or renewal shall (a) confer on the Participant any right or benefit which could not be conferred on him by a grant of restricted stock units under the Plan at such time or (b) except to the extent the Committee determines that such modification, extension or renewal is in the best interest of the Participant or any other person(s) as may then have an interest in the Restricted Stock Units, materially and adversely affect the value of the Restricted Stock Units without the written consent of the Participant.
11.Miscellaneous.
(a) If the Company fails to enforce any provision of this Agreement at any time, that failure will in no way constitute a waiver of such provision or of any other provision hereof.
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4880-2301-9682.5
(b) If any provision of this Agreement is held illegal, unenforceable or invalid for any reason, such illegality, unenforceability or invalidity will not affect the legality, enforceability or validity of the remaining provisions of this Agreement, and the Agreement will be construed and enforced as if the illegal, unenforceable or invalid provision had not been included in the Agreement.
(c) This Agreement will be binding on and inure to the benefit of the Participant and the Participant’s heirs and personal representatives and to benefit of the Company and its successors and legal representatives.
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4880-2301-9682.5
Exhibit 10.6
THE MARCUS CORPORATION
2004 EQUITY AND INCENTIVE AWARDS PLAN
RESTRICTED STOCK AGREEMENT
2004 EQUITY AND INCENTIVE AWARDS PLAN
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (this “Agreement”) is made and entered into as of the grant date specified on the attached cover page (the “Grant Date”) by and between THE MARCUS CORPORATION, a Wisconsin corporation (the “Company”), and the Participant named on the attached cover page (the “Participant”).
WITNESSETH:
WHEREAS, the terms of The Marcus Corporation 2004 Equity and Incentive Awards Plan (the “Plan”), to the extent not stated herein, are specifically incorporated by reference in this Agreement and defined terms used herein which are not otherwise defined shall have the meaning set forth in the Plan;
WHEREAS, the Plan provides for the grant of various equity-based incentive awards, including grants of restricted shares of the Company’s Common Stock, $1 par value (“Common Stock”), to be granted to certain key employees of the Company or a subsidiary thereof;
WHEREAS, the Participant is now employed by the Company or a subsidiary thereof in a key capacity and has exhibited judgment, initiative and efforts which have contributed materially to the successful performance of the Company; and
WHEREAS, the Company desires to grant the Participant the Restricted Stock (as defined below) in recognition of Participant’s past and expected future efforts as an employee of the Company or a subsidiary thereof and to provide the Participant with the opportunity to increase his stock ownership in the Company.
NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows:
1.Grant of Restricted Stock. Subject to the terms and conditions of the Plan and this Agreement, the Company hereby grants the Participant the number of shares of Common Stock set forth on the attached cover page (the “Restricted Stock”).
2.Restrictions. The Restricted Stock may not be sold, transferred, pledged, assigned or otherwise alienated or hypothecated. Notwithstanding the foregoing, except as otherwise provided in Section 3, such restrictions shall lapse and the Restricted Stock shall vest with respect to the following amounts of Restricted Stock in accordance with the following schedule provided that the Participant is then still employed by the Company or a subsidiary on the relevant date below:
| Elapsed Period of Time after the Grant Date | Cumulative Percentage of Restricted Stock no Longer Subject to Restrictions | ||||
| Prior to the fourth anniversary of the Grant Date | 0% | ||||
| From and after the fourth anniversary of the Grant Date | 100% | ||||
The period during which any of the Restricted Stock is subject to the restrictions in this Section 2 shall hereinafter be referred to as the “Restriction Period” with respect to the portion of the shares of Restricted Stock still subject to restriction. The Committee, as the administrator of the Plan, may, at
any time or from time to time, accelerate all or any part of the Restriction Period with respect to all or any portion of the Restricted Stock.
3.Termination of Employment.
(a)If the Participant dies or become permanently disabled while he is in the employ of the Company or any subsidiary, or if, on or after the third anniversary of the Grant Date, his employment is terminated by reason of his retirement in accordance with the then effective retirement plan or policy of the Company or any subsidiary, provided that the Participant has given at least six (6) months’ advance written notice of such retirement, then the Restriction Period shall automatically terminate and all of the shares of the Restricted Stock shall be free of all restrictions imposed by Section 2.
(b)If the Participant’s employment is terminated by the Company or any subsidiary for any reason or if the Participant terminates his employment with the Company or any subsidiary for any reason (other than, in each case, as set forth in Section 3(a)), then any shares of Restricted Stock which then remain subject to the restrictions of Section 2 at the date of such termination shall automatically be forfeited and returned to the Company.
4.Deposit of Restricted Shares. One or more certificates evidencing the shares of Restricted Stock shall be issued by the Company in the Participant’s name. The Company shall cause the issued certificate(s) to be delivered to the Secretary of the Company (or his designee) as a depository for safekeeping until a forfeiture occurs or the restrictions imposed by Section 2 hereof terminate. Promptly after the restrictions imposed by Section 2 hereof terminate with respect to some or all of the shares of Restricted Stock, the Company shall deliver stock certificates representing such shares to Participant. Upon request of the Company, Participant shall deliver to the Company a stock power, endorsed in blank, relating to the Restricted Stock then subject to the restrictions of Section 2.
5.Securities Law Restrictions; Market Stand-Off. In addition to the restrictions set forth above, the shares of Restricted Stock granted hereunder may not be sold or offered for sale except pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Act”), or in a transaction which, in the opinion of legal counsel for the Company, is exempt from the registration provisions of the Act. In connection with any underwritten public offering by the Company of its equity securities pursuant to an effective registration statement filed under the Act, you agree that you shall not directly or indirectly sell, make any short sale of, loan, hypothecate, pledge, offer, grant or sell any option or other contract for the purchase of, purchase any option or other contract for the sale of, or otherwise dispose of or transfer or agree to engage in any of the foregoing transactions with respect to, any shares acquired under this Agreement (whether or not subject to restrictions or risk of forfeiture at the time of such offering) without the prior written consent of the Company and the Company’s underwriters. Such restriction shall be in effect for such period of time following the date of the final prospectus for the offering as may be requested by the Company or such underwriters. In no event, however, shall such period exceed one hundred eighty (180) days. In addition, if required by underwriters for the Company, you agree to enter into a lock-up agreement with respect to any shares acquired under this Agreement.
6.Voting Rights; Dividends and Other Distributions. During the Restriction Period and prior to any forfeiture of the Restricted Stock, the Participant will, subject to the restrictions set forth in Section 2, have all rights as a shareholder with respect to the shares of Restricted Stock which then remain subject to such restrictions (including voting rights and the right to receive dividends or other distributions the record date for which occurs prior to the forfeiture of the Restricted Stock); provided, however, that if any such dividends or distributions are paid in stock of the Company, such shares shall be subject to the same restrictions and risk of forfeiture as the Restricted Stock with respect to which they were paid.
7.Tax Withholding.
(a)No later than the date as of which an amount first becomes includable in the Participant’s gross income for federal income tax purposes with respect to the Restricted Stock, the
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Participant shall pay to the Company, or make arrangements satisfactory to the Company regarding the payment of, any federal, state, local or foreign taxes of any kind required by law to be withheld with respect to such amount. The obligations of the Company under this Agreement and the Plan, including the obligation to release from custody the Restricted Stock upon the expiration of the Restriction Period, shall be conditional on the Participant making such payment or arrangements, and the Company and any Affiliate shall, to the extent permitted by law, have the right to deduct any such taxes from any payment otherwise due to the Participant.
(b)The Participant shall be permitted to satisfy the Company’s tax withholding requirements by either (i) delivering shares of previously owned Common Stock or (ii) having the Company withhold a portion of the shares of Common Stock otherwise deliverable pursuant to this Agreement, in either case having a fair market value (as determined by the Committee) on the date income is recognized by the Participant equal to the amount needed to satisfy any withholding obligations, provided that the amount of Shares withheld or delivered may not exceed the total maximum statutory withholding obligations associated with the transaction to the extent needed for the Company to avoid an accounting charge. If the number of shares of Common Stock determined pursuant to the preceding sentence shall include a fractional share, then the number of shares delivered to, or withheld by, the Company shall be rounded up to the next highest whole number and the Company shall deliver to the Participant cash in an amount equal to the then fair market value (as determined by the Committee) of the fractional share of Common Stock delivered or withheld in excess of the amount needed to satisfy any withholding obligations, unless the Participant makes other arrangements satisfactory to the Company for payment of such amount.
8.No Right to Employment. It is fully understood that nothing contained in this Agreement or the Plan shall be deemed to confer upon the Participant any right to continue in the employ of the Company or any subsidiary, nor to interfere in any way with the right of the Company or any subsidiary to terminate the employment of the Participant at any time for any reason.
9.Interpretation by Committee. As a condition of the granting of the Restricted Stock, the Participant agrees, for himself and his legal representatives, that the Plan and this Agreement shall be subject to discretionary interpretation by the Committee and that any interpretation by the Committee of the terms of the Plan and this Agreement shall be final, binding and conclusive on the Participant and his legal representatives in all respects and shall not be subject to challenge or dispute by the Participant or his legal representatives.
10.Modification. Subject to the applicable provisions of the Plan, at any time and from time to time the Committee may direct execution of an instrument providing for the modification, extension or renewal of this Agreement; provided, however, that no such modification, extension or renewal shall (a) confer on the Participant any right or benefit which could not be conferred on him by a grant of restricted shares of Common Stock under the Plan at such time or (b) except to the extent the Committee determines that such modification, extension or renewal is in the best interest of the Participant or any other person(s) as may then have an interest in the Restricted Stock, materially and adversely affect the value of the Restricted Stock without the written consent of the Participant.
11.Miscellaneous.
(a)If the Company fails to enforce any provision of this Agreement at any time, that failure will in no way constitute a waiver of such provision or of any other provision hereof.
(b)If any provision of this Agreement is held illegal, unenforceable or invalid for any reason, such illegality, unenforceability or invalidity will not affect the legality, enforceability or validity of the remaining provisions of this Agreement, and the Agreement will be construed and enforced as if the illegal, unenforceable or invalid provision had not been included in the Agreement.
(c)This Agreement will be binding on and inure to the benefit of the Participant and the Participant’s heirs and personal representatives and to benefit of the Company and its successors and legal representatives.
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