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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 1 to
SCHEDULE 13D
Under the Securities Exchange Act of 1934
MICKELBERRY COMMUNICATIONS INCORPORATED
(Name of Issuer)
COMMON STOCK, PAR VALUE $1.00
(Title of Class of Securities)
594780 10 8
(CUSIP Number)
Mr. George Kane
Mickelberry Communications Incorporated
405 Park Avenue
New York, New York 10022
(212) 832-0303
(Name, Address and Telephone Number
of Person Authorized to Receive Notices
and Communications)
March 21, 1995
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box .
Check the following box if a fee is being paid with the statement
[ ].
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SCHEDULE 13D
CUSIP No. 594780 10 8
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
MR. JAMES C. MARLAS
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[ ]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
BK, PF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7. SOLE VOTING POWER
1,871,626
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON 1,871,626
WITH
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,871,626
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.1%
14. TYPE OF REPORTING PERSON*
IN
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SCHEDULE 13D
CUSIP No. 594780 10 8
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UNION CAPITAL CORPORATION
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[ ]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
BK, OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Nevada
7. SOLE VOTING POWER
1,974,065
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON 1,974,065
WITH
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,974,065
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.6%
14. TYPE OF REPORTING PERSON*
CO
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This Amendment No. 1 to Schedule 13D amends and restates in its
entirety the Schedule 13D reporting an event that occurred on November 1, 1994
(the "Schedule 13D") that was filed on November 3, 1994 by Mr. James C. Marlas
and Union Capital Corporation with respect to the common stock, $1.00 par
value (the "Common Stock" or the "Shares"), of Mickelberry Communications
Incorporated (the "Company"), and is being filed pursuant to Rule 13d-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
Item 1. Security and Issuer.
This statement relates to the Common Stock of the Company, which has
its principal executive offices at 405 Park Avenue, New York, New York 10022.
Item 2. Identity and Background.
This statement is being filed by Mr. James C. Marlas ("Mr. Marlas")
and by Union Capital Corporation, a Nevada corporation of which Mr. Marlas is
the sole stockholder ("Union Capital"). Union Capital is engaged in the
business of private consulting and investment.
The business address of Mr. Marlas is 405 Park Avenue, New York, New
York 10022. The address of the principal business and office of Union Capital
is 40 Highland Drive, West Caldwell, New Jersey 07006.
Mr. Marlas is Chairman of the Board, President and Chief Executive
Officer and a Director of the Company. Mr. Marlas is also President of Union
Capital.
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Neither Mr. Marlas nor Union Capital has, during the last five
years, been convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors), nor has any such person, during the last five years,
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which any such person was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Mr. Marlas is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
As of the date hereof, Mr. Marlas beneficially owned 1,871,626
Shares. The aggregate purchase price of the Common Stock purchased by Mr.
Marlas directly, or indirectly through the profit-sharing trust of the
Company, was approximately $7,500,000. The source of funds for the purchase
of all such Common Stock by Mr. Marlas was a combination of personal and
borrowed funds, the profit-sharing trust of the Company and gifts. As of the
date hereof, all of the funds borrowed to purchase Common Stock have been
repaid by Mr. Marlas except for (i) a demand loan (the "Demand Loan") made by
Citibank, N.A. ("Citibank") to Mr. Marlas and Chanticleer Corp. (of which Mr.
Marlas is the sole stockholder) ("Chanticleer") on November 30, 1990 in the
original aggregate principal amount of $535,000 and in the outstanding
principal amount of approximately $460,000, which Loan is secured by a pledge
of 330,639 Shares beneficially
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owned by Union Capital and (ii) a loan (the "Loan") made by Citibank to Mr.
Marlas and Chanticleer on November 30, 1990 in the original principal amount
of $3,250,000 all of which is outstanding, which Loan is secured by a pledge
of $4,200,000 in principal amount of the Company's 8% Convertible Subordinated
Debentures due 2002 (the "Debentures") owned by Mr. Marlas and which are
convertible at any time into 988,235 Shares.
As of the date hereof, Union Capital beneficially owned 1,974,065
Shares. The aggregate purchase price of the Common Stock purchased by Union
Capital was approximately $1,530,000. The source of funds for the purchase of
all such Common Stock by Union Capital was a combination of contributed
capital and borrowed funds. As of the date hereof, all of the funds borrowed
to purchase Common Stock have been repaid by Union Capital.
By virtue of Rule 13d-3 under the Securities Exchange Act of 1934
(the "Act") and because of his status as the sole stockholder of Union
Capital, Mr. Marlas may be deemed the beneficial owner of all of the Common
Stock purchased by Union Capital.
Item 4. Purpose of Transaction.
On November 1, 1994, Mr. Marlas proposed to acquire, through a
merger transaction, all the Shares not owned by him for a cash purchase price
of $3.25 per share. Mr. Marlas beneficially owns approximately 48% of the
Company's outstanding Common Stock, not including Shares issuable upon
conversion of the Debentures held by him.
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The proposal was made subject to a number of conditions, including
the execution of a definitive merger agreement satisfactory to the Company and
Mr. Marlas, a satisfactory agreement reached with institutional investors
holding the Debentures, the receipt of all necessary consents and governmental
approvals and the receipt of financing.
Mr. Marlas increased the proposed cash purchase price from $3.25 to
$4.25 per share. On March 21, 1995, the Board of Directors of the Company
approved the revised offer by Mr. Marlas. The merger transaction will be
effected through Mickelberry Acquisition Corporation, a company wholly owned
by Mr. Marlas.
Depending on market conditions and other factors, Mr. Marlas may
purchase additional Shares or other securities of the Company. Mr. Marlas
also may sell or otherwise dispose of all or portions of any such Shares or
other securities.
Other than changes in the capitalization, corporate structure and/or
governing documents resulting from a transaction of the type described above,
Mr. Marlas has no present plans or proposals with respect to any other action
referred to in instructions (a) through (j) of Item 4 of the form of Schedule
13D.
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Item 5. Interest in Securities of the Issuer.
As of the date hereof, Mr. Marlas and Union Capital each
beneficially owned the aggregate number and percentage of outstanding Common
Stock set forth below*:
Beneficial Owner Number of Shares Percentage**
Mr. James C. Marlas 1,871,626 (1)(2) 27.1%
Union Capital Corporation 1,974,065 (3) 28.6%
No transactions in the Common Stock were effected by Mr. Marlas or
Union Capital within the 60 day period prior to the date of this filing.
___________________
* Mr. Marlas filed with the SEC a Schedule 13D with respect to his
interests in the Common Stock on June 16, 1971 which was subsequently
amended through and including an amendment number 6 filed with the SEC on
or about March 20, 1975. Thereafter Mr. Marlas filed with the SEC a
Schedule 13G on or about March 1979 which was subsequently amended
through and including an amendment number 8 filed with the SEC on
February 7, 1994.
** Based on 6,907,640 Shares comprised of the sum of (x) 5,886,072 Shares
outstanding as of September 30, 1994, (y) 988,235 Shares which may be
acquired upon conversion at any time by Mr. Marlas of $4,200,000 in
principal amount of the Debentures held by him, and (z) 33,333 Shares
which may be acquired by Mr. Marlas upon the exercise of certain options.
(1) Include (a) 988,235 Shares which may be acquired upon
conversion at any time by Mr. Marlas of $4,200,000 in principal
amount of Debentures held by him, (b) 127,555 Shares purchased
for the benefit of Mr. Marlas by the profit-sharing trust of
the Company, and (c) 33,333 Shares which may be acquired upon
the exercise of certain options granted to Mr. Marlas.
(2) As to all of which there is sole power to dispose or to direct
the disposition of such Shares.
(3) As to all of which there is sole power to dispose or to direct
the disposition of such Shares.
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Pursuant to the pledge by Mr. Marlas of its Debentures to secure the
Loan, Citibank has the right to receive the proceeds of any sale or redemption
of said Debentures in reduction of the principal amount of the Loan .
Mr. Marlas may be deemed, by virtue of his position as the sole
stockholder of Union Capital, pursuant to Rule 13d-3 under the Act, to own
beneficially the Common Stock beneficially owned by Union Capital.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Mr. Marlas has been granted certain options under the Company's 1992
Stock Option Plan to acquire 50,000 Shares. The option price is equal to 110%
of the fair market value of the Common Stock on the date of grant. As of the
date hereof, option to purchase 33,333 Shares are exercisable and option to
purchase 16,667 are unexercisable.
In addition, Citibank has certain rights and remedies with respect
to the pledge of Shares by Mr. Marlas and Union Capital made to secure the
performance of each of the Demand Loan and the Loan, as the case may be.
Except as otherwise set forth in this statement, to the best
knowledge of each of the undersigned, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) among or between each of
the undersigned and any other person with respect to any securities of the
Company, including but not limited to transfer or voting of any of the
securities, finder's fees, joint ventures, loan or option
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arrangements, puts or calls, guarantees of profits, division of profits or
loss, or the giving or withholding of proxies.
Item 7. Materials to be Filed as Exhibits.
Exhibit 1 - Joint Filing Agreement.
Exhibit 2 - $3,250,000 Demand Note (Multiple Advances) dated
November 30, 1990 by and among Citibank, Mr. Marlas
and Chanticleer.*
Exhibit 3 - $535,000 Demand Note (Multiple Advances) dated
November 30, 1990 by and among Citibank, Mr. Marlas
and Chanticleer.*
Exhibit 4 - Option Agreement by and between Mr. Marlas and the
Company.*
Exhibit 5 - Press Release, dated March 21, 1995, issued by the
Company.
_______________
* Previously filed in paper format at the time of the original filing of
this Schedule 13D on November 3, 1994.
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After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct.
Date: March 23, 1995
By: /s/ JAMES C. MARLAS
James C. Marlas
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After reasonable inquiry and to the best of our knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: March 23, 1995
UNION CAPITAL CORPORATION
By: /s/ JAMES C. MARLAS
James C. Marlas
President
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EXHIBIT 1
AGREEMENT REGARDING
JOINT FILING OF SCHEDULE 13D
This will evidence our agreement, in accordance with SEC Rule 13d-
1(f), that the attached statement on Schedule 13D is filed on behalf of the
undersigneds.
By: /s/ JAMES C. MARLAS
James C. Marlas
UNION CAPITAL CORPORATION
By: /s/ JAMES C. MARLAS
James C. Marlas
President
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EXHIBIT 5
FOR: Mickelberry Communications Inc.
405 Park Avenue
New York, NY 10022
CONTACT: Gregory J. Garville
212-832-4297
FOR IMMEDIATE RELEASE
MICKELBERRY COMMUNICATIONS INCORPORATED
APPROVES MERGER AGREEMENT
New York City, March 21, 1995: Mickelberry Communications Incorporated
(NYSE:MBC) announced today that the Board has approved an Agreement and Plan
of Merger with an affiliate of Mr. James C. Marlas, the Chairman, President
and Chief Executive Officer of the Company, pursuant to which the holders of
all of the shares of the Company's Common Stock not owned by Mr. Marlas will
receive a cash purchase price of $4.25 per share. Mr. Marlas beneficially
owns, directly or indirectly, approximately 48% of the Company's Common Stock,
not including shares issuable upon conversion of debentures owned by him.
The Company's special committee of Directors has evaluated Mr. Marlas'
proposal and has recommended that the Company enter into the merger
transaction and the Board of Directors has approved the Agreement and Plan of
Merger.
Subject to receiving certain additional information, it is expected that
a definitive Agreement and Plan of Merger will be executed within the next
week. The consummation of the transactions will be subject to a number of
conditions, including (a) the approval of the Agreement by the affirmative
vote of at least (1) the holders of a majority of the shares outstanding or
(2) 66 2/3% of the votes cast by the holders of the shares voting at a special
meeting, whichever is greater, (b) a satisfactory agreement reached with
institutional investors holding the Company's Convertible Subordinated
Debentures regarding the early retirement of these securities, (c) the receipt
of all necessary consents and governmental approvals, (d) the holders of not
more than 5% of the outstanding shares of Common Stock, shall have exercised
their appraisal rights in the Merger, and (e) the receipt of third-party
financing.
