SEC Company Response from MARCUS CORP (MCS) (CIK 0000062234) (MCS) — May 28, 2010
MARCUS CORP (MCS) (CIK 0000062234)
Date: May 28, 2010 · CIK: 0000062234 · Accession: 0000950130-10-001134
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 001-12604
Referenced dates: May 26, 2010
Letter
VIA EDGAR AND FEDERAL EXPRESS Division of Corporation Finance Filed August 11, 2009 Definitive 14A Filed September 4, 2009 File No. 001-12604
Dear Ms. Barros:
On behalf of our client, The Marcus Corporation, a Wisconsin corporation (the “Company”), set forth below are the Company’s responses to the comments of the Staff (the “Staff”) of the Securities and Exchange Commission (the “Commission”) set forth in the Staff’s letter, dated May 26, 2010 (the “Comment Letter”), with respect to the above-referenced filings. The numbered items set forth below repeat (in bold italics) the comments of the Staff reflected in the Comment Letter, and following such comments are the Company’s responses (in regular type).
Definitive Proxy Statement on Schedule 14A
Compensation Discussion and Analysis, page 11
Total Compensation, page 14
1. We note your response to our prior comment #1. In your response you state that your compensation committee has not specifically considered your relative corporate performance and/or shareholder return in comparison to your surveyed group of benchmarked sectors or other peer groups or indices. Your disclosure on page 14 under this subheading, however, indicates that for fiscal 2009, the total direct compensation paid to your named executive officers generally fell between the 50th and 75th percentile of the total direct compensation amounts paid to executives holding equivalent positions at your surveyed group of benchmarked sectors and that in establishing these relative levels of compensation, your compensation committee believed that this relative level of total direct compensation was consistent with your corporate financial performance, the individual performance of your named executive officers, your prior shareholder return and was reasonable in its totality. Please provide further disclosure indicating how the compensation committee decided to set the total direct compensation to your NEOs at levels which fell between the 50th and 75th percentile of the total direct compensation paid to executives holding equivalent positions at your surveyed group of benchmarked sectors.
BOSTON
BRUSSELS
CHICAGO
DETROIT
JACKSONVILLE
LOS ANGELES
MADISON
MILWAUKEE
NEW YORK
ORLANDO
SACRAMENTO
SAN DIEGO
SAN DIEGO/DEL MAR
SAN FRANCISCO
SILICON VALLEY
TALLAHASSEE
TAMPA
TOKYO
WASHINGTON, D.C.
Ms. Sonia Barros
May 28, 2010
Page 2
Please provide this disclosure in future filings and tell us what the revised disclosure would look like in a supplemental response.
We respectfully advise the Staff that in response to the Staff’s comment, the Company will add the following bolded disclosure to the Staff’s referenced paragraph under the “Compensation Discussion and Analysis – Total Compensation” section of its subsequent proxy statements:
For fiscal [2009], the total direct compensation (i.e., salary and annual cash bonus) paid to our named executive officers generally fell between the 50th and 75 th percentile of the total direct compensation amounts paid to executives holding equivalent positions at our surveyed group of benchmarked sectors. In establishing these relative levels of compensation, our Committee first established the relative level of our named executive officers’ base salary at between the 50th and 75th percentile of the salary paid to similarly situated executives at our surveyed group of benchmarked sectors. These decisions were based on the considerations discussed in more detail below under “Elements of Compensation - Base Salaries.” Then, our Compensation Committee established the relative level of our named executive officers’ targeted annual cash bonus award that, if earned, would result in our payment of total direct compensation amounts that would generally fall between the 50th and 75th percentile of the total direct compensation paid to similarly situated executives at our surveyed group of benchmarked companies. These decisions were based on the considerations discussed in more detail below under “Elements of Compensation – Annual Cash Bonuses.” Our Committee subjectively believed that the targeted relative levels of total direct compensation to our named executive officers resulting from this process generally reflected the highly experienced nature of our senior executive team and was generally consistent with our historical corporate financial performance, the individual performance of our named executive officers and our prior shareholder return. Our Committee also believed that these total direct compensation levels were reasonable in their totality and supported our core compensation philosophies and principles. However, in establishing these relative compensation levels, our Committee did not specifically compare any of the criteria listed in the prior two sentences to our surveyed group of benchmarked sectors. For fiscal [2010], our Committee established the range of potential total direct compensation payable to our named executive officers at the same relative levels compared to updated recent information for our benchmarked sectors.
* * * * *
Additionally, as requested, we are also enclosing with this response letter a letter from the Company executed by its Chief Financial Officer and Treasurer acknowledging that:
•
the Company is responsible for the adequacy and accuracy of the disclosure in its filings;
•
Staff comments or changes to disclosure in response to Staff comments do not foreclose the Commission from taking any action with respect to the filings; and
•
the Company may not assert Staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States.
Ms. Sonia Barros
May 28, 2010
Page 3
If the Staff has any questions with respect to the foregoing, please contact the undersigned at (414) 297-5662 or Thomas F. Kissinger, the Company’s Vice President, General Counsel and Secretary, at (414) 905-1390.
Very truly yours,
/s/ Steven R. Barth
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CORRESP 1 filename1.htm Correspondence VIA EDGAR AND FEDERAL EXPRESS May 28, 2010 ATTORNEYS AT LAW 777 EAST WISCONSIN AVENUE MILWAUKEE, WI 53202-5306 414.271.2400 TEL 414.297.4900 FAX www.foley.com WRITER’S DIRECT LINE 414.297.5662 sbarth@foley.com EMAIL CLIENT/MATTER NUMBER 052560-0206 Ms. Sonia Barros Special Counsel Division of Corporation Finance U.S. Securities and Exchange Commission 100 F Street, N.E. Washington, DC 20549-7010 Re: The Marcus Corporation Form 10-K for Fiscal Year Ended May 28, 2009 Filed August 11, 2009 Definitive 14A Filed September 4, 2009 File No. 001-12604 Dear Ms. Barros: On behalf of our client, The Marcus Corporation, a Wisconsin corporation (the “Company”), set forth below are the Company’s responses to the comments of the Staff (the “Staff”) of the Securities and Exchange Commission (the “Commission”) set forth in the Staff’s letter, dated May 26, 2010 (the “Comment Letter”), with respect to the above-referenced filings. The numbered items set forth below repeat (in bold italics) the comments of the Staff reflected in the Comment Letter, and following such comments are the Company’s responses (in regular type). Definitive Proxy Statement on Schedule 14A Compensation Discussion and Analysis, page 11 Total Compensation, page 14 1. We note your response to our prior comment #1. In your response you state that your compensation committee has not specifically considered your relative corporate performance and/or shareholder return in comparison to your surveyed group of benchmarked sectors or other peer groups or indices. Your disclosure on page 14 under this subheading, however, indicates that for fiscal 2009, the total direct compensation paid to your named executive officers generally fell between the 50th and 75th percentile of the total direct compensation amounts paid to executives holding equivalent positions at your surveyed group of benchmarked sectors and that in establishing these relative levels of compensation, your compensation committee believed that this relative level of total direct compensation was consistent with your corporate financial performance, the individual performance of your named executive officers, your prior shareholder return and was reasonable in its totality. Please provide further disclosure indicating how the compensation committee decided to set the total direct compensation to your NEOs at levels which fell between the 50th and 75th percentile of the total direct compensation paid to executives holding equivalent positions at your surveyed group of benchmarked sectors. BOSTON BRUSSELS CHICAGO DETROIT JACKSONVILLE LOS ANGELES MADISON MILWAUKEE NEW YORK ORLANDO SACRAMENTO SAN DIEGO SAN DIEGO/DEL MAR SAN FRANCISCO SILICON VALLEY TALLAHASSEE TAMPA TOKYO WASHINGTON, D.C. Ms. Sonia Barros May 28, 2010 Page 2 Please provide this disclosure in future filings and tell us what the revised disclosure would look like in a supplemental response. We respectfully advise the Staff that in response to the Staff’s comment, the Company will add the following bolded disclosure to the Staff’s referenced paragraph under the “Compensation Discussion and Analysis – Total Compensation” section of its subsequent proxy statements: For fiscal [2009], the total direct compensation (i.e., salary and annual cash bonus) paid to our named executive officers generally fell between the 50th and 75 th percentile of the total direct compensation amounts paid to executives holding equivalent positions at our surveyed group of benchmarked sectors. In establishing these relative levels of compensation, our Committee first established the relative level of our named executive officers’ base salary at between the 50th and 75th percentile of the salary paid to similarly situated executives at our surveyed group of benchmarked sectors. These decisions were based on the considerations discussed in more detail below under “Elements of Compensation - Base Salaries.” Then, our Compensation Committee established the relative level of our named executive officers’ targeted annual cash bonus award that, if earned, would result in our payment of total direct compensation amounts that would generally fall between the 50th and 75th percentile of the total direct compensation paid to similarly situated executives at our surveyed group of benchmarked companies. These decisions were based on the considerations discussed in more detail below under “Elements of Compensation – Annual Cash Bonuses.” Our Committee subjectively believed that the targeted relative levels of total direct compensation to our named executive officers resulting from this process generally reflected the highly experienced nature of our senior executive team and was generally consistent with our historical corporate financial performance, the individual performance of our named executive officers and our prior shareholder return. Our Committee also believed that these total direct compensation levels were reasonable in their totality and supported our core compensation philosophies and principles. However, in establishing these relative compensation levels, our Committee did not specifically compare any of the criteria listed in the prior two sentences to our surveyed group of benchmarked sectors. For fiscal [2010], our Committee established the range of potential total direct compensation payable to our named executive officers at the same relative levels compared to updated recent information for our benchmarked sectors. * * * * * Additionally, as requested, we are also enclosing with this response letter a letter from the Company executed by its Chief Financial Officer and Treasurer acknowledging that: • the Company is responsible for the adequacy and accuracy of the disclosure in its filings; • Staff comments or changes to disclosure in response to Staff comments do not foreclose the Commission from taking any action with respect to the filings; and • the Company may not assert Staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. Ms. Sonia Barros May 28, 2010 Page 3 If the Staff has any questions with respect to the foregoing, please contact the undersigned at (414) 297-5662 or Thomas F. Kissinger, the Company’s Vice President, General Counsel and Secretary, at (414) 905-1390. Very truly yours, /s/ Steven R. Barth Steven R. Barth Enclosure cc: Douglas Neis – The Marcus Corporation Thomas Kissinger – The Marcus Corporation