Item 1.01. Entry into a Material Definitive Agreement.
Purchase Agreement
On
The Company offered and sold the Notes to the Initial Purchasers in reliance on
the exemption from registration provided by Section 4(a)(2) of the Securities
Act of 1933, as amended (the "Securities Act"), and for resale by the Initial
Purchasers to persons reasonably believed to be qualified institutional buyers
pursuant to the exemption from registration provided by Rule 144A under the
Securities Act. The Company relied on these exemptions from registration based
in part on representations made by the Initial Purchasers in the Purchase
Agreement. The shares of the Company's common stock, par value
To the extent that any shares of the Common Stock are issued upon conversion of the Notes, they will be issued in transactions anticipated to be exempt from registration under the Securities Act by virtue of Section 3(a)(9) thereof because no commission or other remuneration is expected to be paid in connection with conversion of the Notes and any resulting issuance of shares of the Common Stock.
The Purchase Agreement includes customary representations, warranties and covenants by the Company and customary closing conditions. Under the terms of the Purchase Agreement, the Company has agreed to indemnify the Initial Purchasers against certain liabilities.
The foregoing description of the Purchase Agreement is qualified in its entirety by reference to the Purchase Agreement attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Notes Offering
The Notes were issued pursuant to an indenture (the "Indenture"), dated
The Notes are the Company's senior unsecured obligations and rank (i) senior in right of payment to any of the Company's indebtedness that is expressly subordinated in right of payment to the Notes; (ii) equal in right of payment to any of the Company's unsecured indebtedness that is not so subordinated; (iii) effectively junior in right of payment to any of the Company's secured indebtedness to the extent of the value of the assets securing such indebtedness; and (iv) structurally junior to all indebtedness and other liabilities (including trade payables) of the Company's subsidiaries.
The Notes bear interest from
Prior to
The initial conversion rate is 90.8038 shares of Common Stock per
If the Company undergoes certain fundamental changes, holders of Notes may require the Company to repurchase for cash all or part of their Notes for a purchase price equal to 100% of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest to, but excluding, the fundamental change repurchase date. In addition, if a make-whole fundamental change occurs prior to the maturity date, the Company will, under certain circumstances, increase the conversion rate for holders who convert Notes in connection with such make-whole fundamental change.
The Company may not redeem the Notes before maturity and no "sinking fund" is provided for the Notes.
The Indenture includes covenants customary for securities similar to the Notes, sets forth certain events of default after which the Notes may be declared immediately due and payable and sets forth certain types of bankruptcy or insolvency events of default involving the Company and certain of its subsidiaries after which the Notes become automatically due and payable.
The foregoing description of the Indenture and the Notes is qualified in its . . .
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of Registrant.
The information provided in Item 1.01 of this Form 8-K concerning the Indenture, the Notes and the Capped Call Transactions is hereby incorporated into this Item 2.03.
Item 3.02. Unregistered Sale of
The information set forth in Item 1.01 above is incorporated herein by reference.
3
Item 9.01. Financial Statements and Exhibits.
(a) Not applicable. (b) Not applicable. (c) Not applicable.
(d) Exhibits. The following exhibits are being filed herewith:
Exhibit Number (4.1) Indenture, datedSeptember 22, 2020 , betweenThe Marcus Corporation andU.S. Bank, N.A. , as trustee. (10.1) Purchase Agreement, datedSeptember 17, 2020 , betweenThe Marcus Corporation andJ.P. Morgan Securities LLC , as representative of the Initial Purchasers. (10.2) Form of Capped Call Transaction Confirmation. (104) Cover Page Interactive Data File (embedded within the Inline XBRL document) 4 Forward-looking statements
Certain matters discussed in this Report are "forward-looking statements"
intended to qualify for the safe harbors from liability established by the
Private Securities Litigation Reform Act of 1995. These statements include, but
are not limited to, statements concerning the effects of the Capped Call
Transactions and expected use of the net proceeds from the offering of the
Notes. Forward-looking statements may generally be identified as such because
the context of such statements include words such as we "believe," "anticipate,"
"expect" or words of similar import. These statements involve risks and
uncertainties that could cause actual results to differ materially from those
that we expect. For information about other potential factors that could affect
the Company's business and financial results, please review the "Risk Factors"
described in Exhibit 99.2 to the Company's Current Report on Form 8-K filed with
the
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