<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 7
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 11, 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
<PAGE>
Amendment No. 7
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, Amendment No. 5 thereto dated April 19,
1995 and Amendment No. 6 thereto dated May 10, 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 "Company").
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 11, 1995, Mark Dickstein, President of Dickstein
Inc., sent a letter to the Board of Directors of the Company and
enclosed a form of confidentiality agreement and side letter that
Dickstein Inc. is prepared to sign. A copy of Mr. Dickstein's
letter, with the form of confidentiality agreement and side
letter, is attached hereto as Exhibit 14."
Item 7 of the Schedule 13D, "Exhibits," is hereby amended
by adding the following Exhibit:
Exhibit 14 Letter dated May 11, 1995, from Mark Dickstein to
the Board of Directors of the Company, and form of
confidentiality agreement and side letter.
2
<PAGE> <PAGE>
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 11, 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
3
PAGE
<PAGE>
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
4
<PAGE>
EXHIBIT 14
DICKSTEIN PARTNERS INC.
Tel: 212-754-4000
Fax: 212-754-5825
May 11, 1995
Board of Directors
Marietta Corporation
37 Huntington Street
Cortland, New York 13045
Gentlemen:
As I indicated to you in my letter of April 13,
Dickstein Partners and Calibre Capital Advisors are eager to
obtain the confidential information that Marietta has for the
last month been providing to other potential bidders. We stated
when we made our proposal four months ago and many times since
that there is a strong possibility that we will be in a position
to offer a higher price for Marietta if you would provide us the
more-detailed nonpublic information that you are providing other
bidders. As of April 13, you were requiring, as a condition to
providing us confidential information, that we agree to forbear
for 12 months from making an uninvited acquisition proposal,
soliciting proxies, or calling an annual shareholders' meeting.
Just as Goldman Sachs did not respond to our request on
April 11 that the standstill provisions be deleted, so too
Marietta failed to respond to our letter of April 13 until April
19, the day after we sued to compel the Board to hold an annual
meeting. It was also not until we sued that the Board responded
to the repeated requests of holders of 30% of the outstanding
shares by calling a shareholders' meeting, for July 14. The
court that heard our suit concluded, over the Board's objections,
that the incumbent directors "have a duty to perform the
ministerial duty of setting the annual meeting," and that we
"have a 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 meeting." In other words,
the Board had, but failed to fulfill, a clear legal duty to call
an annual meeting not later than April 29, 1995 -- just as we had
been calling on you to do for two months before we initiated the
suit. While the court declined to accelerate the July 14 meeting
date that the Board had belatedly set, the court granted an order
of mandamus, ordering the Board not to delay the meeting further.
PAGE
<PAGE>
Immediately after we sued, Marietta offered (in a
document Marietta made public in its court filings) to modify the
standstill to allow us to file new preliminary proxy materials
immediately, to solicit proxies beginning June 16, and to make
new acquisition proposals shortly thereafter. As I do not wish
to chill further dialog by disclosing publicly the details of the
discussions that ensued, we certainly made substantial progress
with the Company's counsel in ironing out the details of the
modified standstill.
This progress seemingly came to an abrupt end when the
court ruled last Friday on our suit. Since then, our repeated
calls to Marietta's counsel were neither accepted nor returned
until late yesterday, when we were advised that we would have
Marietta's comments by 11:00 this morning on a draft we sent last
Friday. Rather than getting those comments this morning, we are
now advised that Goldman Sachs has yet to give its comments to
your counsel. This sudden resumption of Marietta's
unresponsiveness perplexes us, since the necessity and
reasonableness of the standstill provisions should not depend on
whether we have a lawsuit pending. Either Marietta is sincere
about including us in its ongoing bidding process (as your
representatives have often assured us since our suit was
commenced) or it is simply using the standstill provisions as a
pretext for excluding us (as our April 13 letter contended).
As on April 13, our inability to receive a response
from your advisors necessitates that we write you directly. We
enclose the form of confidentiality agreement and related
side letter that we are prepared to sign. We believe that these
versions address every concern that Marietta has expressed. We
urge you to cause Marietta to enter into these agreements with
us, in order for us to participate immediately in your ongoing
bidding process. At a minimum, we are entitled to hear from you
why these agreements are not acceptable.
By offering to enter into the standstill provisions in
the enclosed draft, we are meeting you more than half way and are
doing what other recent bidders in comparable situations -- WHX
bidding for Goldman Sachs's client Teledyne, and Luxottica
bidding for U.S. Shore -- have not been required to do. We
cannot fathom why a board of directors would refuse this
opportunity to include us in the bidding process and thereby
maximize shareholder value.
Very truly yours,
Mark Dickstein
<PAGE>
<PAGE>
DRAFT 5/11/95
[FOR SETTLEMENT PURPOSES ONLY]
PERSONAL AND CONFIDENTIAL
May 11, 1995
Dickstein Partners Inc.
9 West 57th Street
Suite 4630
New York, New York 10019
Attention: Mr. Mark Dickstein
Calibre Capital Advisors, Inc.
66 East 80th Street
New York, New York 10021
Attention: Mr. Howard Shapiro
Gentlemen:
In connection with your consideration of a possible transaction
with Marietta Corporation (the "Company"), you have requested
information concerning the Company. As a condition to your
being furnished such information, you agree to treat any
information concerning the Company (whether prepared by the
Company, its advisors or otherwise) which is furnished to you by
or on behalf of the Company (herein collectively referred to as
the "Evaluation Material") in accordance with the provisions of
this letter and to take or abstain from taking certain other
actions herein set forth. The term "Evaluation Material" does
not include information which (i) is already in your possession,
provided that such information is not known by you to have been
obtained in violation of another confidentiality agreement with
or other obligation of secrecy to the Company or another party,
(ii) becomes generally available to the public other than as a
result of a disclosure by you or your directors, officers,
employees, agents, advisors or institutional lenders, or (iii)
becomes available to you on a nonconfidential basis from a source
other than the Company or its advisors, provided that such source
is not known by you to be bound by a confidentiality agreement
with or other obligation of secrecy to the Company or another
party.
PAGE
<PAGE>
You hereby agree that the Evaluation Material will be used solely
for the purpose of evaluating a possible transaction between the
Company and you, and that such information will be kept
confidential by you and your advisors and institutional lenders;
provided, however, that (i) any of such information may be
disclosed to your directors, officers and employees and
representatives of your advisors and institutional lenders who
need to know such information for the purpose of evaluating any
such possible transaction between the Company and you (it being
understood that such directors, officers, employees and
representatives shall be informed by you of the confidential
nature of such information and shall be directed by you to treat
such information confidentially), (ii) any disclosure of such
information may be made to which the Company consents in writing,
(iii) any disclosure of such information may be made if, in
the good faith opinion of outside counsel to the party making
such disclosure, such disclosure is required by a court,
governmental body or agency, or legal process, in which event you
shall notify the Company in advance of such disclosure and
cooperate with the Company's efforts to ensure the
confidentiality of such information, and (iv) your prospective
institutional lenders may disclose such information to auditors
and bank regulatory authorities in the course of their review of
the records of such lenders.
You hereby acknowledge that you are aware, and that you will
advise such directors, officers, employees and representatives
who are informed as to the matters which are the subject of this
letter, that the United States securities laws prohibit any
person who has received from an Issuer material, non-public
information concerning the matters which are the subject of this
letter from purchasing or selling securities of such Issuer or
from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities.
In addition, except as outside counsel may advise is required by
law, without the prior written consent of the Company, you will
not, and will direct such directors, officers, employees and
representatives not to, disclose to any person either the fact
that discussions or negotiations are taking place concerning a
possible transaction between the Company and you or any of the
terms, conditions or other facts with respect to any such
possible transaction, including the status thereof.
The "Standstill Provisions" set forth in Exhibit A hereto are
incorporated herein and constitute a part of this agreement.
Although the Company has endeavored to include in the Evaluation
Material information known to it which it believes to be relevant
for the purpose of your investigation, you understand that
neither the Company nor any of its representatives or advisors
PAGE
<PAGE>
have made or make any representation or warranty as to the
accuracy or completeness of the Evaluation Material. You agree
that neither the Company nor its representatives or advisors
shall have any liability to you or any of your representatives,
advisors or institutional lenders resulting from the use of the
Evaluation Material.
In the event that you do not proceed with the transaction which
is the subject of this letter within a reasonable time, you shall
promptly redeliver to the Company all written Evaluation Material
and any other written material containing or reflecting any
information in the Evaluation Material (whether prepared by the
Company, its advisors or otherwise) and will not retain any
copies, extracts or other reproductions in whole or in part of
such written material. All documents, memoranda, notes and other
writings whatsoever prepared by you or your advisors or
institutional lenders based on the information in the Evaluation
Material shall be destroyed, and such destruction shall be
certified in writing to the Company by an authorized officer
supervising such destruction.
You agree that unless and until a definitive agreement between
the Company and you with respect to any transaction referred to
in the first paragraph of this letter has been executed and
delivered, neither the Company nor you will be under any legal
obligation of any kind whatsoever with respect to such a
transaction by virtue of this or any written or oral expression
with respect to such a transaction by any of its directors,
officers, employees, agents or any other representatives or its
advisors or representatives thereof except, in the case of this
letter, for the matters specifically agreed to herein. The
agreement set forth in this paragraph may be modified or waived
only by a separate writing by the Company and you expressly so
modifying or waiving such agreement.
It is agreed that if the Company has entered into or does enter
into a confidentiality agreement containing terms that are in any
respect (including any "standstill" provisions) more favorable to
the other party to such letter than the terms of this letter, you
shall be entitled to the benefit of any such more favorable
terms. The Company will promptly provide to you copies of any
confidentiality agreements that contain any such more-favorable
provisions (with the other parties' identities redacted).
PAGE
<PAGE>
This letter shall be governed by, and construed in accordance
with, the laws of the State of New York.
Very truly yours,
MARIETTA CORPORATION
By:
Goldman, Sachs & Co.
on behalf of Marietta Corporation
Confirmed and Agreed to:
DICKSTEIN PARTNERS INC.
By
Vice President
CALIBRE CAPITAL ADVISORS, INC.
By
President
PAGE
<PAGE>
EXHIBIT A -- STANDSTILL PROVISIONS
1. You have sent to the Company a letter dated
January 17, 1995 which refers to a proposal to acquire all the
stock of the Company by means of an all-cash merger at a price of
$11 per share. You hereby acknowledge that the Evaluation
Material is being furnished to you in consideration of your
agreement that until June 23, 1995, unless such proposal shall
have been specifically invited by the Company, neither you nor
any of your affiliates (as defined under the Securities Exchange
Act of 1934, as amended) will hereafter propose to the Company or
any other person (other than your own affiliates) any transaction
between you and the Company and/or its security holders
pertaining to the Company or its securities, whether by merger,
tender offer or otherwise, except if the Company effects, agrees
to effect, or publicly announces, a specific Extraordinary
Transaction (as hereinafter defined), or seeks or announces an
intention to seek, or files preliminary or definitive proxy
material for the purposes of seeking, stockholder approval with
respect thereto. Nothing in this paragraph 1 shall prohibit you
from disposing of or pledging securities of Company provided that
such disposition or pledge does not necessitate your disclosure
of any information that you are required to keep confidential
under the terms of this letter. Notwithstanding anything to the
contrary herein contained, you shall not be required to withdraw
your proposal to acquire all the stock of the Company by means of
an all-cash merger at a price of $11 per share.
2. The Company agrees that you will be included in
the Company's pending shareholder value process and offered an
opportunity to make a preliminary bid on the same basis as other
third parties and that, following such preliminary bid, you will
be granted (subject to the confidentiality provisions of the
letter to which this Exhibit is attached) substantially the same
access to information and Company personnel and representatives
as is afforded other third parties. In addition, if the Company
invites anyone to submit a definitive bid, you will also be
invited to make such a definitive bid on the same basis.
Thereafter, on each additional occasion on which the Company
invites anyone to submit a definitive bid, you will again be
invited to make a definitive bid on the same basis; it being
understood, however, that if, following a round of definitive
bidding in which you have been invited to participate, the
Company negotiates with one (but not more than one) of the
bidders in that round, that negotiation will not constitute an
additional invitation of a definitive bid. If (i) the Company
PAGE
<PAGE>
does not invite definitive bids by May 26, 1995 or (ii) the
Company fails to comply with the preceding sentences of this
paragraph 2, then you may, by notice to the Company, terminate
your obligations under paragraphs 1 and 3 of this Exhibit A. If
that termination occurs as a result of the preceding clause "i",
the Company's obligations under this paragraph 2 shall also
terminate.
3. You have filed a report on Schedule 13D with the
Securities and Exchange Commission (the "SEC") in which you state
that (i) you presently own 14.6% of the outstanding shares of
common stock, and (ii) you may solicit proxies to elect a new
slate of directors and to vote on other matters at the next
meeting of shareholders of the Company, and (iii) you have filed
proxy soliciting materials with the SEC with respect to that
meeting. You hereby acknowledge that the Evaluation Material is
being furnished to you in consideration of your agreement that,
until the earliest of (x) June 16, 1995, (y) the date on which
the Company (or its board of directors) commences a solicitation
of proxies, and (z) the date on which the exception set forth at
the end of the second sentence of paragraph 1 shall occur,
neither you nor any of your affiliates (as hereinabove defined)
will take any further steps to acquire, or to assist, advise, or
encourage any other persons in acquiring, directly or indirectly,
control of the Company, whether by solicitation of proxies
or otherwise. Neither the preceding sentence nor any other
provision of this letter shall prohibit you from filing and
clearing revised proxy soliciting material with the SEC or
indicating publicly and in your filings under Section 13(d) of
the Securities Exchange Act of 1934, as amended, that you intend
to solicit proxies to elect your own slate of directors and to
vote on other matters at a meeting of shareholders of the
Company; provided, however, that nothing in this sentence shall
permit you to make any proposal that you would otherwise be
prohibited from making under paragraph 1 hereof.
4. The Company has set July 14, 1995 as the date for
the holding of the annual meeting of shareholders, and has been
order by the New York State Supreme Court to hold that meeting on
that date. The Company will not call a shareholders' meeting to
be held prior to July 14, 1995. If a meeting of shareholders of
the Company shall be called for a date prior to July 14, 1995,
all your agreements set forth in paragraphs 1 and 3 above shall
terminate forthwith. You will not request or demand the call, or
participate with or in any way assist any other person in
requesting or demanding the call of a special or annual meeting
of shareholders to be held prior to July 14, 1995.
5. The Company and you, as the case may be, shall be
entitled to equitable relief, including injunction, in the event
of any breach of the provisions of this Exhibit A.
PAGE
<PAGE>
6. "Extraordinary Transaction" means any of the
following actions or transactions undertaken by the Company or
any of its subsidiaries (other than transactions exclusively
among the Company and wholly owned subsidiaries thereof):
(i) The issuance of shares of common stock (or
options or rights to acquire such shares) in one or more
transactions representing more than 3% of the number of
shares of common stock currently outstanding, or the
issuance of any equity security of the Company other than
common stock.
(ii) The declaration or payment of a dividend or
other distribution to shareholders, or the repurchase of
common stock for cash, securities (including securities of
the Company) or other consideration (other than the
repurchase of shares of common stock for cash in one or more
transactions representing not more than 1% of the number of
shares of common stock currently outstanding).
(iii) The acquisition or disposition (by
purchase, sale, lease, exchange or otherwise) of a material
amount of properties or assets other than in the ordinary
course of business.
(iv) A merger, consolidation or other business
combination.
(v) Liquidation or dissolution.
(vi) The incurrence of any material obligation
that would prohibit, or would accelerate as a result of, a
change in the composition of the board of directors.
(vii) An amendment of the bylaws or
certificate of incorporation.
(viii) Any amendment of or waiver under the
Company's shareholder rights plan, or any redemption of the
rights thereunder, or the creation of any new "poison pill"
rights.
PAGE
<PAGE>
DRAFT 5/11/95
[FOR SETTLEMENT PURPOSES]
May 11, 1995
Dickstein Partners Inc.
9 West 57th Street
Suite 4630
New York, New York 10019
Attention: Mr. Mark Dickstein
Calibre Capital Advisors, Inc.
66 East 80th Street
New York, New York 10021
Attention: Mr. Howard Shapiro
Gentlemen:
Reference is made to the confidentiality letter
agreement of even date herewith (the "Agreement") between
Marietta Corporation (the "Company") and you. To induce you to
enter into the Agreement, the Company hereby confirms as follows:
1. The Company hereby represents to you that (i) no
amendment has been made to the Company's bylaws or shareholder
rights plan from the versions thereof heretofore filed by the
Company with the Securities and Exchange Commission, (ii) there
has not been any waiver under that shareholder rights plan nor
any redemption of the rights thereunder, and (iii) no further
"poison pill" rights have been created.
2. The Company agrees to provide you with timely
shareholder lists in order to enable you to conduct any proxy
solicitation you are permitted to make under the terms of the
Agreement with respect to the upcoming annual meeting of the
Company's stockholders.
MARIETTA CORPORATION
By
President
<PAGE>
