SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 3
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)
March 31, 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. 3
to
Schedule 13D
This Amendment amends the Schedule 13D, dated January 20,
1995, as amended by Amendment No. 1 thereto dated February 15,
1995 and Amendment No. 2 thereto dated March 6, 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 March 31, 1995, Mark Dickstein, President of Dickstein
Inc., sent a letter to the Board of Directors of the Company.
A copy of the letter is annexed hereto as Exhibit 8 and
incorporated herein by reference."
Item 7 of the Schedule 13D, "Exhibits," is hereby amended
by adding the following Exhibit:
Exhibit 8 Letter, dated March 31, 1995, from Mark Dickstein
to the Board of Directors of the Company.
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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: April 3, 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 8
DICKSTEIN PARTNERS INC.
Mark Dickstein Tel: 212-754-4000
President Fax: 212-754-5825
March 31, 1995
Board of Directors
Marietta Corporation
37 Huntington Street
Cortland, New York 13045
Gentlemen:
We write again to ask that you call an annual meeting of
Marietta's shareholders to be held not later than May 1, 1995, as
we believe you are required to do. We insist at a minimum that
you presently advise the shareholders when the meeting will be
held.
Section 603 of the New York Business Corporation Law
establishes the foundation of corporate democracy for New York
corporations like Marietta -- that directors should stand for
election at least once every 13 months. As a United States
Federal District Court observed in construing Section 603, "under
New York 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).
Since last year's annual meeting was held on March 29, 1994, the
13-month period will end on April 29, 1995, a Saturday. We would
not object if the meeting were held on the following business
day, May 1.
Timely annual elections, in addition to being an absolute
legal right, represent the only practical opportunity for
shareholders to ensure that their interests and wishes are
properly represented by the directors. This accountability is
especially important where, as here, the corporation faces an
important decision and directors own a minute portion of the
stock (and much of what they own was purchased with Company-
funded loans that have yet to be repaid).
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Public companies normally hold annual meetings in the fifth
or sixth month after their fiscal year-end. By this standard,
Marietta should hold its meeting in February or March.
Consistent with that norm, the Company notified the brokerage
community early last January that its 1995 annual meeting was to
be held on March 10 (a date on which the Company ultimately did
hold a Board meeting, which we assume was intended to coincide
with the annual shareholders' meeting). Likewise, the Company's
1994 10-K -- which was executed by all of you on December 23,
1994 -- prospectively incorporated by reference information to be
filed with the Company's proxy statement by the end of January
1995. Thus, by the time we and Calibre Capital Associates made
our acquisition proposal, you were already on record with both
the brokerage community and the S.E.C. that the annual meeting
would be held by March.
On January 17, we and Calibre proposed to acquire Marietta
for $11 per share -- roughly 50% above market prices a month
earlier. In our proposal letter, we requested the opportunity to
discuss our proposal with the Company, and we sought access to
Marietta's non-public information with a view to possibly
increasing the price of our offer.
Concerning the annual meeting, our January 17 letter stated:
As much as we desire to accomplish our
objective amicably, as a precautionary measure,
we are filing with the Securities and Exchange
Commission preliminary proxy material that would
enable us to propose an alternate slate of
directors at the upcoming shareholders' meeting
if we do not reach agreement with the existing
board. Our nominees would run on a platform that
the Company should be sold at the best available
price, but not less than $11 per share.
Those proxy materials were promptly filed and have since been
cleared by the S.E.C.'s staff.
Faced with the prospect of an election contest, the Board
has indefinitely postponed the annual meeting. In discussions we
had with CEO Steven Tannen or Goldman Sachs on January 25,
February 2, February 7, February 8, and March 2, we were informed
that no meeting date had been set, and that no prediction could
be made concerning when the meeting would be held.
We wrote to Mr. Tannen on March 3 to raise a variety of
concerns. In our letter, we called upon the Board "to comply
with its responsibility, under Section 603 of the New York
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Business Corporation Law, to conduct an election of directors by
May 1, 1995." Since then, we have learned through public filings
that at least two other shareholder groups -- those including
Barry Florescue and Elliott Associates -- have independently
voiced concern about the delay in the annual meeting (as well as
sharing other concerns raised in our March 3 letter). Our group,
the Florescue group and the Elliott Associates group, while
independent of each other, own in the aggregate nearly 30% of the
outstanding shares. The Board has yet to respond to our demands
for an annual meeting.
On March 20, we again inquired of Goldman Sachs concerning
the status of the meeting. We were informed on this occasion
that the Company does not share our view that the meeting needs
to be held by May 1. As a result, it was mutually agreed that a
conference call would be held on March 27 for the specific
purpose of affording our respective counsel the opportunity to
exchange views on this point. Although the time of the call had
been cleared with all participants, we were informed when the
call was placed that the Company's counsel, Rubin, Baum & Levin,
was unavailable. Nonetheless, we and our counsel outlined for
Goldman Sachs the legal basis for our view and requested through
Goldman that Rubin Baum advise us whether they disagree. We have
yet to hear their response.
Despite this prolonged and patient effort on our part, we
find ourselves a month away from the May 1 date without the
Company having even filed its own preliminary proxy material with
the S.E.C. You have obviously decided not to hold a timely
annual meeting, but rather to ignore both your statutory duty and
the requests of holders of 30% of the shares.
To reiterate: We insist that the Board convene the annual
meeting of shareholders by May 1. In any case, the Board should
at least advise its shareholders at this time when the next
election of directors will be held.
The delay in convening the shareholders' meeting is all the
more consequential given other developments (or lack thereof) in
the 2 1/2 months since we and Calibre made our acquisition
proposal. The Company has embarked on a surprisingly large $6
million capital expenditure program for fiscal 1995 -- a program
that the Company has made no effort to explain and that could
adversely impact the price that we or other potential bidders
could offer for the Company. Meanwhile, despite our many
requests, the Company has failed to discuss our proposal with us,
to provide us with due-diligence information, or even to provide
us with a draft of a confidentiality agreement.
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We implore you to reconsider the tack you appear to have
chosen. Perhaps at this juncture the direct involvement of
independent board members would be prudent.
Very truly yours,
Mark Dickstein
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