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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 6
to
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Marietta Corporation
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
56763410
(CUSIP Number)
David P. Levin, Esq.
Kramer, Levin, Naftalis, Nessen, Kamin & Frankel
919 Third Avenue
New York, New York 10022
(212) 715-9100
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
May 5, 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 this
statement:
Page 1 of 8 pages
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Amendment No. 6
to
Schedule 13D
This Amendment amends the Schedule 13D, dated January 20,
1995, as amended by Amendment No. 1 thereto dated February 15,
1995, Amendment No. 2 thereto dated March 6, 1995, Amendment
No. 3 thereto dated April 3, 1995, Amendment No. 4 thereto
dated April 14, 1995 and Amendment No. 5 thereto dated April 19,
1995 (the "Schedule 13D"), filed by Dickstein & Co., L.P.,
Dickstein International Limited, Dickstein Partners, L.P.,
Dickstein Partners Inc., Mark Dickstein, Calibre Capital
Advisors, Inc. and Howard R. Shapiro, with respect to the Common
Stock, $.01 par value, of Marietta Corporation (the "Schedule
13D"). Notwithstanding this Amendment, the Schedule 13D speaks
as of its respective dates. Capitalized terms used without
definition have the meanings assigned to them in the Schedule
13D.
Item 4 of the Schedule 13D, "Purpose of the Transaction,"
is hereby amended by adding the following at the end thereof:
"On May 5, 1995, the court issued its Letter Decision/Order
and Judgment on the petition of Dickstein & Co. and Dickstein
International for an order directing the Company to convene
an annual meeting of the Company's shareholders. A copy of the
Letter Decision/Order and Judgment is attached as Exhibit 13."
Item 7 of the Schedule 13D, "Exhibits," is hereby amended
by adding the following Exhibit:
Exhibit 13 Letter Decision/Order and Judgment,
Application of Dickstein & Co., L.P. and
Dickstein International Limited v. Marietta
Corporation et al., Index No. 31571
(N.Y. Sup. Ct. Cortland Co. May 5, 1995).
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SIGNATURE
After reasonable inquiry and to the best knowledge and
belief of the undersigned, the undersigned certify that the
information set forth in this Statement is true, complete and
correct.
Date: May 10, 1995
DICKSTEIN & CO., L.P.
By: Alan Cooper, as Vice President
of Dickstein Partners Inc., the
general partner of Dickstein
Partners, L.P., the general partner
of Dickstein & Co., L.P.
/s/ Alan Cooper
Name: Alan Cooper
DICKSTEIN INTERNATIONAL LIMITED
By: Alan Cooper, as Vice President
of Dickstein Partners Inc., the
agent of Dickstein International
Limited
/s/ Alan Cooper
Name: Alan Cooper
DICKSTEIN PARTNERS, L.P.
By: Alan Cooper, as Vice President
of Dickstein Partners Inc., the
general partner of Dickstein
Partners, L.P.
/s/ Alan Cooper
Name: Alan Cooper
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DICKSTEIN PARTNERS INC.
By: Alan Cooper, as Vice President
/s/ Alan Cooper
Name: Alan Cooper
/s/ Mark Dickstein
Mark Dickstein
CALIBRE CAPITAL ADVISORS, INC.
By: Howard R. Shapiro, as
President
/s/ Howard R. Shapiro
Name: Howard R. Shapiro
/s/ Howard R. Shapiro
Howard R. Shapiro
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EXHIBIT 13
May 5, 1995
LETTER DECISION
ORDER AND JUDGMENT
TO COMMENCE THE STATUTORY TIME PERIOD FOR APPEALS AS OF
RIGHT (CPLR 5513[a]), YOU ARE ADVISED TO SERVE A COPY
OF THIS ORDER AND JUDGMENT, WITH NOTICE OF ENTRY, UPON
ALL PARTIES.
John M. Hinchcliff, Esq.
True, Walsh & Miller
101 North Tioga Street
Suite 205
Ithaca, New York 14850
Alan R. Friedman, Esq.
Kramer, Levin, Naftalis,
Nessen, Kamin & Frankel
919 Third Avenue
New York, New York 10022
Martin J. Schwartz, Esq.
Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza - 29th Floor
New York, New York 10112
RE: APPLICATION OF DICKSTEIN & CO., L.P. and DICKSTEIN
INTERNATIONAL LIMITED, Petitioners, for a Judgment
Pursuant to CPLR Article 78 Directing Respondents
to Hold an Annual Shareholders Meeting - against -
MARIETTA CORPORATION, ROBERT C. BUHRMASTER, RONALD
C. DEMEO, DOMINIC J. LA ROSA, FRANK MAGRONE,
LEONARD J. SICHEL, STEPHEN D. TANNEN and THOMAS D.
WALSH
Cortland Co. Index #31571; RJI #95-0124M
Petitioners, owners of approximately 14% of the outstanding
stock of respondent Marietta Corporation ("Marietta"), by order
to show cause dated April 18, 1995 and petition verified April
14, 1995, seek an order of mandamus and judgment pursuant to CPLR
article 78 compelling Marietta and its respondent board of
directors ("Board") to convene an annual meeting of shareholders
of Marietta as soon as practicable.
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Counsel presented oral argument at a term of this court held
May 1, 1995, adjourned from April 27, 1995 at their request.
According to petitioners, they have made a bid to acquire
the company (rejected by Marietta) and have proposed a slate of
nominees to replace the incumbent Marietta Board. Marietta's by-
laws state that the annual meeting of shareholders, when they
shall elect directors, shall be held in each year "... on such
date ... as may be fixed by the Board of Directors..." (Article
II, Section 2).
The last annual meeting of Marietta's shareholders was held
March 29, 1994. March 10, 1995 was the tentative date for the
annual meeting, but Marietta did not issue a press release
announcing the date, nor formally notify shareholders, and the
meeting was not held.
Section 603(a) of the Business Corporation Law ("BCL")
provides that if no date has been fixed by or under the by-laws
for the annual meeting of shareholders and if "for a period of
thirteen months after ... the last annual meeting, there is a
failure to elect a sufficient number of directors ... the board
shall call a special meeting for the election of directors."
Section 603(a) further provides that shareholders of ten
percent of the voting shares may demand such special meeting and
specify its date (at least sixty days from the demand) if either
the special meeting is not called by the
board within two weeks after the expiration
of the thirteen month period, or
if it is so called, but there is a "failure
to elect" such directors for a period of two
months after the expiration of the thirteen
month period (i.e., fifteen months from the
last annual election).
At a regularly scheduled meeting of Marietta's Board on
April 24, 1995, the annual meeting of shareholders was set for
July 14, 1995. Marietta is within the thirteen month, two week
period to call a special meeting. However, the date of July 14,
1995 is beyond both the thirteen month period and the fifteen
month period within which to elect directors.
First of all, the court finds that an order of mandamus (a
matter of discretion with the court) may be granted here because
petitioners have demonstrated that respondents have a duty to
perform the ministerial duty of setting the annual meeting (not
unlike determining what records are not confidential and
therefore subject to the right of inspection); petitioners have a
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clear legal right to have that duty performed because under the
law, annual meetings are contemplated to occur no later than
thirteen months after the last such meeting (Ocilla Industries,
Inc. v Katz, 677 F. Supp. 1291, 1301 [E.D.N.Y. 1987]; Kantrowitz
& Slutsky, White on New York Corporations sec. 602, at 6-101);
and no adequate remedy at law is available to petitioners, BCL
sec. 603(a) not being an exclusive remedy (Silver v Farrell, 113
Misc 2d 443; Ocilla Industries, Inc. v Katz, 677 F. Supp. 1291
[E.D.N.Y. 1987]). Here, petitioners' remedy under BCL sec.
603(a) is calculated to provide for a meeting no earlier than
August 28, 1995.(1)
With petitioners having met their burden, the court must
consider and weigh all factors in determining whether to exercise
its discretion and grant an order of mandamus. Shareholders are
entitled to their timely annual meeting to exercise corporate
democracy and elect the directors of their corporation.
Among the examples of prejudice and irreparable harm alleged
by petitioners as a result of the annual meeting scheduled as
late as July 14, 1995 include the disfranchisement of
shareholders by the improper extension of the terms of the
directors, and the possibilities that the Board will enter into a
merger agreement providing for a substantial breakup fee if not
approved by shareholders; borrow substantial money for
recapitalization with the debt callable upon change of Board
membership; and sell substantial assets not requiring shareholder
approval.
Petitioners submit that a meeting by May 29, 1995 is
"reasonable" and by June 8, 1995 is "entirely practicable"
(Affidavit of Daniel C. Burch par. 4).
Marietta submits that in fixing the July 14, 1995 date, the
Board looked to the advice of its financial advisor, Goldman
Sachs, to explore various financial alternatives in the best
interest of Marietta and its shareholders; and that the July 14,
1995 date offers the shareholders opportunity to obtain the best
judgment and advice of management, and still allows petitioners
to solicit proxies for their own slate of directors representing
their own agenda (Respondents' Verified Answer, par. 32).
__________________
(1) The BCL sec. 603(a) right of the ten percent
shareholders to set the annual meeting under the facts here does
not arise until "there is a failure to elect ... for a period of
two months ..." While it can presently be anticipated, such
failure can not be declared until June 29, 1995 (See Ocilla
Industries, Inc. v Katz, 677 F. Supp. 1291, 1301), and a further
sixty day notice from the date of the demand would be required.
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Although petitioners' roles in their relationship with
respondent Marietta overlap, some distinction does exist between
petitioners' status as bidders to acquire and shareholders to
vote. Most of petitioners' examples of Board conduct which could
harm Marietta amount to mere speculation and do not persuade the
court that a July 14, 1995 meeting date will cause irreparable
harm to petitioners.
The conduct of the affairs of a business corporation is
entrusted to its board of directors and the court finds that the
facts presented provide no reason to disrupt the schedule of
dates now in place for determining record shareholders and
convening the annual meeting.
The court is confident that the meeting will take place as
scheduled. However, by granting an order of mandamus, the court
will add certainty to the situation and provide additional
confidence to all concerned.
CONCLUSION
Without award for costs, disbursements and attorneys' fees,
the petition for an order of mandamus and judgment is granted for
the reasons stated herein to the extent that respondents Marietta
Corporation, Robert C. Buhrmaster, Ronald C. Demeo, Dominic J.
LaRosa, Frank Magrone, Leonard J. Sichel, Stephen D. Tannen, and
Thomas D. Walsh are directed to hold the annual meeting of the
shareholders of respondent Marietta Corporation on July 14, 1995
and to give due and proper notice to such meeting with the
required information to the shareholders as provided by law and
the by-laws of the corporation.
It is so Ordered, Adjudged and Decreed.
ENTER
__________________________
PHILLIP R. RUMSEY
Supreme Court Justice
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