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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 5)*
MARIETTA CORPORATION
(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE
(Title of Class of Securities)
567634100
(CUSIP Number)
Barry Florescue Charles I. Weissman
701 Southeast 6th Avenue, Suite 204 Shereff, Friedman, Hoffman & Goodman , LLP
Delray Beach, Florida 33483 919 Third Avenue
(407) 272-7746 New York, New York 10022
(212) 758-9500
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 16, 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 / /. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such
class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for
a reporting person's initial filing on this form with respect to the subject
class of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
Schedule 13D Amendment No. 5
Marietta Corporation
This Amendment No. 5 to the statement on Schedule 13D (as defined below)
amends and supplements the statement on Schedule 13D dated September 26, 1994,
as amended by Amendment No. 1 thereto dated November 2, 1994, Amendment No. 2
thereto dated January 20, 1995, Amendment No. 3 thereto dated March 7, 1995, as
amended and restated by Amendment No. 4 thereto dated May 28, 1995 (together,
the "Schedule 13D") by Barry W. Florescue, 286 Bridge Street, Inc. ("286 Bridge
Street") and Florescue Family Corporation ("FFC", and collectively with Mr.
Florescue and 286 Bridge Street, the "Reporting Persons"), relating to the
common stock, $.01 par value per share (the "Common Stock"), of Marietta
Corporation (the "Issuer").
Item 4 Purpose of the Transaction
Item 4 of the Schedule 13D is hereby supplemented as follows:
On June 16, 1995 Mr. Florescue, as President of FFC, in response to a
letter of solicitation dated June 6, 1995 from the Issuer's investment advisor,
Goldman, Sachs & Co., forwarded a letter to the Board of Directors of the Issuer
proposing to acquire all of the outstanding capital stock of the Issuer for
$12.30 per share in cash, subject to the terms and conditions contained in such
letter. The letter is attached hereto as Exhibit H and incorporated herein by
reference.
Item 7 Material to be Filed as Exhibits
Item 7 of the Schedule 13D is hereby supplemented as follows:
Exhibit H. Letter, dated June 16, 1995, from FFC to the Board of
Directors of the Issuer.
Signature
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.
Dated: June 19, 1995
/s/ Barry W. Florescue
BARRY W. FLORESCUE
286 BRIDGE STREET, INC.
By: /s/ Barry W. Florescue
Name: Barry W. Florescue
Title: President
FLORESCUE FAMILY CORPORATION
By: /s/ Barry W. Florescue
Name: Barry W. Florescue
Title: President
EXHIBIT H
Florescue Family Corporation
701 S.E. 6th Street, Suite 204
Delray Beach, Florida 33483
June 16, 1995
Board of Directors
Marietta Corporation
c/o Goldman, Sachs & Co.
85 Broad Street, 23rd Floor
New York, New York 10004
Attention: Jide J. Zeitlin, Vice President - Investment Banking Division
Gentlemen:
This letter sets forth the basic terms pursuant to which Florescue
Family Corporation ("Florescue") proposes (the "Proposal") to acquire all of the
outstanding capital stock of Marietta Corporation, a New York corporation (the
"Company"), for $12.30 per share in cash (the "Acquisition"). The Acquisition
would be effected through a merger (the "Merger") of the Company and a
corporation organized by Florescue ("Newco").
1. Acquisition.
-----------
In the Merger, each outstanding share of common stock, par value $.01
per share, of the Company ("Common Stock") would be converted into the right to
receive $12.30 in cash. The Proposal assumes that no more than (i) 3,596,049
shares of Common Stock are outstanding and (ii) 84,378 shares of Common Stock
are reserved for issuance upon the exercise of outstanding options with an
average purchase price of $8.51 as of the date of this letter and as of the
effective date of the Merger. The Proposal further assumes that the 90,000
shares of Common Stock reserved for issuance upon the exercise of outstanding
SARs are cancelled prior to the effective date of the Merger. The Proposal also
assumes that cash and cash equivalents will be no less than $10,000,000 on the
effective date of the Merger and that the projections previously provided to
Florescue are accurate in all material respects.
Board of Directors
Marietta Corporation
c/o Goldman, Sachs & Co.
June 16, 1995
Page 2
2. Financing.
---------
The willingness of Florescue to proceed to the execution and delivery
of a definitive agreement relating to the Merger (the "Merger Agreement") and
the consummation of the Acquisition is subject to financing. Florescue has
retained Dabney/Resnick, Inc. ("Dabney/Resnick") to act as its financial adviser
in connection with the Acquisition. Dabney/Resnick has delivered to Florescue a
"highly confident" letter concerning its ability to raise the financing needed
to consummate the Acquisition, a copy of which is annexed hereto. Florescue
expects to have commitment letters at the time of execution of the Merger
Agreement, subject to customary terms and conditions.
3. Due Diligence.
-------------
Please note that the Proposal is based only on the information which
Florescue has received to date and is subject to Florescue's satisfactory
completion of its due diligence. The information which Florescue has previously
requested but has not received includes, among other things, the cost accounting
analysis relating to inventory, finished goods and cost of sales, all minutes of
meetings of Marietta's Board of Directors for the past five years and all of the
new information concerning Marietta's contract packing program which has been
alluded to in our recent conversations with management. Further, Florescue has
requested but has not been granted access to Marietta's significant customers,
including, without limitation, Procter & Gamble, Marriott, Colgate-Palmolive and
L'Oreal. Florescue believes that all of the foregoing information is important
to its overall analysis of the Company. Florescue believes that it can complete
its due diligence in a timely manner.
4. Draft Merger Agreement.
----------------------
Florescue has reviewed the draft Merger Agreement (the "Draft
Agreement") provided in the Goldman, Sachs & Co. Incorporated ("Goldman, Sachs")
bid solicitation letter dated June 6, 1995. In addition to the representations
and warranties contained in the Draft Agreement, Florescue would expect certain
additional representations and warranties of the Company to be added to the
Draft Agreement concerning such matters as its undisclosed liabilities,
inventories, accounts receivable, contracts, employee matters, compliance with
laws (including environmental laws), insurance, title to assets, relationships
with customers and affiliate transactions. Florescue does not believe that the
request for additional representations and
Board of Directors
Marietta Corporation
c/o Goldman, Sachs & Co.
June 16, 1995
Page 3
warranties should be burdensome to the Company insofar as the representations
and warranties will not survive the closing of the Merger and will simply
require the Company to perform some additional due diligence.
In addition to the conditions contained in the Draft Agreement,
Florescue expects that the Merger Agreement would provide that consummation of
the Acquisition would be subject to satisfaction of certain other conditions,
including, without limitation, the following:
a. Holders of sixty-six and two-thirds percent of the
outstanding shares of Common Stock shall have voted in favor of the Merger, and
dissenters' rights under applicable state laws shall have been perfected by
holders of no more than a percentage of the outstanding Common Stock to be
agreed upon in the Merger Agreement;
b. There shall not have occurred any material adverse change in
the Company's business, condition (financial or otherwise), prospects or
properties, including its relationships with customers;
c. The Board of Directors of the Company shall have received an
opinion from Goldman, Sachs as to the fairness of the Acquisition to the
Company's shareholders from a financial point of view; and
d. The parties shall have exchanged appropriate closing
opinions of counsel and officer's certificates.
Furthermore, Florescue expects that the Merger Agreement would provide
that, in the event the Company's Board of Directors accepts the Proposal,
Florescue would receive fair remuneration from the Company if the Board
subsequently withdrew or materially modified or changed its support for the
Proposal in a manner adverse to Florescue or the Merger Agreement, once
executed, is terminated.
We are prepared to keep the Proposal open until 5:00 p.m., New York
City time, on June 23, 1995. Please contact the undersigned (office tel. (407)
272-7555; home tel. (407) 276-4708) or our counsel, Charles I. Weissman of
Shereff, Friedman, Hoffman & Goodman, LLP (office tel. (212) 891-9268; home tel.
(914) 723-3880), should you have any questions concerning
Board of Directors
Marietta Corporation
c/o Goldman, Sachs & Co.
June 16, 1995
Page 4
the Proposal or Richard A. Bloom of Dabney/Resnick (office tel. (310) 246-3748;
home tel. (310) 452-1937) should you wish to discuss the nature of Florescue's
financing commitments.
Yours very truly,
FLORESCUE FAMILY CORPORATION
By: /s/ Barry W. Floerscue
---------------------------------
Barry W. Florescue, President
cc: Barry A. Adelman, Esq.
Rubin Baum Levin Constant & Friedman
DABNEY
RESNICK
INCORPORATED
150 SOUTH RODEO DRIVE, SUITE 100 BEVERLY HILLS, CA 90212
310-246-3700 800-929-2299 FAX 310-246-3794
June 16, 1995
Barry Florescue
Florescue Family Corporation
701 S.E. 6th Avenue
Delray Beach, FL 33483
Dear Mr. Florescue:
You have advised Dabney/Resnick, Inc. ("D/R") that it is the intention of
Florescue Family Corporation or a subsidiary thereof (collectively, the
"Company") to acquire (the "Acquisition") all of the issued and outstanding
common stock of Marietta Corporation (the "Target"). You have advised us that
the total purchase price for the Acquisition together with required repayment of
existing indebtedness and transaction related expenses the total financing
requirements of the Acquisition will not exceed $46 million. In addition, you
have advised us that the Acquisition will be consummated pursuant to an
agreement and plan of merger (the "Merger Agreement") to be entered into and
negotiated between the Company and the Target. You have asked D/R to act as
exclusive placement agent of up to $46 million of debt or equity securities (the
"Securities") to finance the Acquisition. Based upon the information provided to
us, financing for the Acquisition will take the form of senior or subordinated
debt of up to $40 million and up to $8 million of equity capital.
Based on the information you have provided to us to date and our analysis of the
current market for similar securities, we are pleased to inform you that we are
highly confident of our ability to place the Securities, subject to the matters
set forth in the following paragraph.
Our ability to consummate the sale or placement of the Securities is subject to:
(i) the terms and conditions of the Securities and all other debt and equity
financing for the Acquisition (including any debt to be assumed) and all related
documentation being satisfactory in form and substance to D/R; (ii) the purchase
price and other terms and conditions of the Acquisition being satisfactory in
form and substance to D/R; (iii) the execution and delivery of documentation
with respect to the Acquisition and all related transactions in form and
substance satisfactory to D/R; (iv) the absence of any material adverse change
in the business, condition (financial or otherwise), results of operations,
assets, liabilities or prospects of the Company or the Target; (v) the receipt
of all necessary governmental, regulatory and third party approvals and consents
in connection with the Acquisition; (vi) the execution and delivery of
documentation with respect to the Securities and the offering and sale thereof
that is satisfactory in form and substance to D/R and the purchasers of such
Securities; (vii) satisfactory completion of the due diligence investigation by
the purchasers of such Securites; (viii) satisfactory market condition for new
issuances of high yield debt and equity securities or in the securities markets
in general.
Please note that this letter is not a commitment by D/R or any associate to
purchase or place the Securities, and no such commitment will be binding unless
contained in a signed written agreement. This letter shall be treated as
confidential and is being provided to the Company solely in connection with the
Company's proposed acquisition of the Target and may not be used, circulated,
quoted or otherwise referred to in any document, except with D/R's prior written
consent. Notwithstanding the foregoing, this letter may be submitted to the
Target's Board of Directors (the "Target Board") provided that the Target Board
treats this letter as confidential.
We look forward to working with you to complete the Acquisition.
Very truly yours,
DABNEY/RESNICK, INC.
By: /s/ Richard Bloom
-----------------
Richard A. Bloom
Senior Vice President
