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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 5
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)
April 18, 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 13 pages
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Amendment No. 5
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 and Amendment No. 4 thereto
dated April 14, 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 April 17, 1995, Dickstein & Co. and Dickstein
International filed a petition in New York State Supreme
Court, County of Cortland, for an order directing the Company to
convene an annual meeting of the Company's shareholders. A copy
of the petition is attached as Exhibit 11. On April 18, the
Court entered an order to show cause scheduling a hearing on the
petition for April 27, 1995.
On April 18, 1995, Mark Dickstein, President of Dickstein
Inc., sent a letter to the Board of Directors of the Company in
respect of the Company's failure to convene an annual meeting. A
copy of Mr. Dickstein's letter is attached hereto as Exhibit 12."
Item 7 of the Schedule 13D, "Exhibits," is hereby amended
by adding the following Exhibits:
Exhibit 11 Application of Dickstein & Co., L.P. and Dickstein
International Limited v. Marietta Corporation et
al. (N.Y. Sup. Ct. Cortland Co.), filed April 17,
1995.
Exhibit 12 Letter, dated April 18, 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 19, 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 11
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF CORTLAND
- ----------------------------------------x
Application of :
:
DICKSTEIN & CO., L.P. and :
DICKSTEIN INTERNATIONAL LIMITED, :
:
Petitioners, :
:
For a Judgment Pursuant to CPLR : Index No. 31571
Article 78 Directing Respondents to :
Hold an Annual Shareholders Meeting, :
: Verified Petition
- against - :
:
MARIETTA CORPORATION, ROBERT C. :
BUHRMASTER, RONALD C. DEMEO, :
DOMINIC J. LAROSA, FRANK MAGRONE, :
LEONARD J. SICHEL, STEPHEN D. :
TANNEN and THOMAS D. WALSH, :
:
Respondents. :
- ----------------------------------------x
Petitioners Dickstein & Co., L.P. ("Dickstein & Co."),
and Dickstein International Limited ("Dickstein International"),
by their attorneys, True, Walsh & Miller and Kramer, Levin,
Naftalis, Nessen, Kamin & Frankel, for their verified petition
allege as follows:
Nature of this Action
1. This is an action pursuant to Article 78 of the
CPLR for an order of mandamus directing respondent Marietta
Corporation ("Marietta") and its Board of Directors to convene an
annual meeting of Marietta's shareholders within thirteen months
of Marietta's last annual meeting, as required by New York law.
Petitioners, who together own approximately 14 percent of
Marietta's outstanding shares, have repeatedly requested orally
and in a series of letters that Marietta's Board schedule a
shareholders meeting by April 29, 1995, or thirteen months from
the date of Marietta's last shareholders meeting. Despite these
requests, the Board has refused to schedule an annual meeting by
that date or even to set any date for the annual meeting.
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2. Petitioners will suffer immediate, irreparable harm
unless their petition is granted. Marietta's actions threaten to
disenfranchise petitioners and dilute their voting rights and
those of Marietta's other shareholders. Petitioners have made a
bid to acquire the company. They have also proposed a slate of
nominees for the Marietta Board of Directors to replace the
incumbent Board. Marietta has, in turn, announced that it is
exploring alternative financial transactions that may
fundamentally change the company. Marietta's failure to schedule
a meeting effectively deprives petitioners of their right to
obtain representation on that Board and shields the Board from
the scrutiny of Marietta's public shareholders. The relief
requested here -- an order directing Marietta to convene an
annual shareholders meeting as soon as practicable after April
29, 1995, but in no event later than 20 days after the hearing on
this application -- is thus urgently needed to prevent
respondents from unlawfully insulating themselves from
accountability to Marietta's public shareholders.
Parties, Jurisdiction and Venue
3. Petitioner Dickstein & Co. is a Delaware limited
partnership with its principal place of business in New York
City, New York. Dickstein & Co. is a fund engaged in various
investment activities.
4. Petitioner Dickstein International is an investment
fund incorporated in the Territory of the British Virgin Islands
with its principal place of business in Hamilton, Bermuda.
Dickstein International engages in investment activities similar
to those of Dickstein & Co.
5. Upon information and belief, respondent Marietta is
a New York corporation with its principal place of business in
Cortland, New York. Marietta specializes in the design,
manufacture, packaging and marketing of toiletries, cosmetics,
pharmaceuticals and household products for hotels and the travel
industry. In 1994, Marietta's sales totalled approximately $68
million.
6. Upon information and belief, respondents Robert C.
Buhrmaster, Ronald C. DeMeo, Dominic J. LaRosa, Frank Magrone,
Leonard J. Sichel, Stephen D. Tannen and Thomas D. Walsh are
members of the Board of Directors of Marietta.
7. Respondents have done business in the State of New
York, are presently doing business in the State, and have trans-
acted business in the State of New York in connection with the
claims in this petition.
8. Venue is proper in this county pursuant to CPLR
503.
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Factual Background
9. Marietta has had a troubled history for some time.
During the past three years, two of its high-ranking executive
officers have been convicted of securities fraud. Its former
president and chief executive officer was convicted, among other
things, of violating federal securities laws relating to false
statements contained in the Company's financial reports and was
sentenced to 21 months in prison. Marietta's former chief
financial officer pled guilty to securities fraud and related
charges and received a one-year sentence.
10. In January 1995, Dickstein & Co. purchased
approximately 347,900 shares of Marietta, or 9.7 percent of its
outstanding stock. At the same time, Dickstein International
purchased 160,100 shares of Marietta, or 4.4 percent of its
outstanding stock.
11. On January 17, 1995, Mark Dickstein, the President
of Dickstein Partners Inc. (an affiliate of Dickstein & Co. and
the advisor to Dickstein International) proposed to Marietta that
Dickstein Partners and another entity acquire 100 percent of the
stock of Marietta for $11 a share, or approximately 50 percent
above its trading price a month earlier. Dickstein Partners
thereafter filed preliminary proxy materials with the Securities
and Exchange Commission that would enable Dickstein Partners to
propose an alternative slate of directors at the 1995 annual
shareholders meeting if no buyout agreement were reached with the
existing Board. The nominees Dickstein Partners proposed for the
Marietta Board were committed to a program of offering Marietta
for sale and selling the company to the buyer who was willing to
pay the highest price, so long as the price was at least $11 a
share.
Marietta's Failure to Schedule an Annual Meeting
12. Article II(2) of Marietta's bylaws (Exh. A,
attached) provides that Marietta will convene an annual meeting
of shareholders "on such date and at such hour as may be fixed by
the Board of Directors," at which time "the shareholders shall
elect directors and transact such other business as may properly
come before the meeting." Section 603 of New York's Business
Corporation Law requires that a New York corporation hold an
annual shareholders meeting at least once every thirteen months.
Since the last Marietta shareholders meeting was held on March
29, 1994, Marietta was required to hold another annual meeting by
April 29, 1995.
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13. In January 1995, and shortly before Dickstein
Partners made its proposal to acquire the company and proposed a
slate of directors for the annual meeting, Marietta had informed
the brokerage community that its annual meeting would take place
on March 10, 1995, with a January 29, 1995 record date. But
faced with the prospect of an election contest, Marietta's Board
refused to set the annual shareholders meeting date.
14. On March 13, 1995, Marietta announced that it had
rejected the Dickstein Partners' acquisition proposal as
inadequate and had instructed its management to explore "possible
financial alternatives available to Marietta," which might
include "a merger, an acquisition or disposition of assets or
securities, a recapitalization or other form of business
combination transaction."
15. Over the past two and a half months, Dickstein
Partners repeatedly discussed the holding of an annual meeting
with the company. In telephone conversations with Marietta or
its advisors on January 25, February 2, February 7, February 8,
and March 2, 1995, Dickstein Partners raised when the Marietta
annual shareholders meeting would be held. On each occasion, the
company said no meeting date had been set and no prediction could
be made as to when the meeting might take place. On March 3,
1995, Mr. Dickstein then wrote to Marietta (Exhibit B, attached)
and reiterated that the Dickstein funds expected the Board to
comply with its responsibility under Section 603 of the Business
Corporation law and requested that an annual meeting be scheduled
by April 29, 1995. Again, on March 31, 1995, Mr. Dickstein wrote
to the Marietta Board (Exhibit C, attached), asking that an
annual meeting be held by May 1, 1995 (the next business day
after April 29, a Saturday) and insisting at a minimum that the
Board advise the shareholders when a meeting will be held.
Respondents, however, have ignored these requests.
16. Other large shareholders of Marietta, unrelated to
Dickstein Partners, have also voiced concern about the company's
delay in scheduling an annual meeting. In filings with the
Securities and Exchange Commission and/or letters to the company,
the Elliott Associates group, which holds approximately 6.33
percent of Marietta's outstanding shares, and the Florescue
group, holders of 8.7 percent of the outstanding shares, both
supported Dickstein Partners' request that the Board set a prompt
date for the annual meeting (Exhibit D, attached).
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17. To date, and in violation of New York law and
well-established principles of corporate democracy, Marietta and
its Board have refused to schedule an annual shareholders
meeting. Marietta has not filed any preliminary proxy materials
with the Commission. It has not set a record date. It is
impossible under the company's bylaws and other applicable rules
for Marietta's Board to convene an annual meeting by April 29,
1995 as required by law. At the same time, Marietta has
announced that it is considering alternative financial
transactions that may fundamentally alter the company.
The Need for Immediate Relief
18. New York law recognizes that one of the
fundamental rights of a corporate shareholder is the right to
vote at an annual meeting on candidates for the board of
directors and on other matters of interest to the corporation and
its shareholders. By refusing to schedule an annual meeting in
accordance with New York law, Marietta and its Board have
disenfranchised petitioners -- as well as all other non-director
shareholders of the company. By frustrating petitioners' voting
rights as well as their right to obtain representation on
Marietta's Board, respondents have shielded their actions from
shareholder accountability and inflicted on petitioners
substantial and irreparable harm. The delay is all the more
consequential given Dickstein Partners' bid, the Board's
rejection of it, the prospect of a proxy contest, and the
consideration by a potentially lame duck Board of transactions
that may fundamentally alter the company. Immediate relief is
thus urgently needed.
19. Petitioners have no adequate remedy of law.
20. Petitioners are proceeding by order to show cause
to insure that the petition is heard and their injury redressed
in a prompt and expeditious fashion.
No Prior Request
21. No prior request has been made for the relief
requested here.
Wherefore, petitioners demand judgment in the nature of
mandamus pursuant to Article 78 of the CPLR
(i) Ordering Marietta and its directors to convene an
annual meeting of Marietta's shareholders as soon
as practicable, but in no event later than 20 days
after the hearing on this application;
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(ii) awarding costs and disbursements of this action,
including reasonable attorneys' fees; and
(iii) awarding such other and further relief as the Court
deems just and proper.
Dated: New York, New York
April 14, 1995
True, Walsh & Miller
101 North Tioga Street
Suite 205
Ithaca, New York 14850
(607) 273-4200
-and-
Kramer, Levin, Naftalis,
Nessen, Kamin & Frankel
919 Third Avenue
New York, New York 10022
(212) 715-9100
Attorneys for Petitioners
Dickstein & Co., L.P. and
Dickstein International Limited
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Verification
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Mark D. Brodsky, being duly sworn, deposes and says:
1. I am a Vice President of Dickstein Partners Inc.
Dickstein Partners Inc. is the advisor to Petitioner Dickstein
international Limited, and the general partner of Dickstein
Partners, L.P., which is the general partner of Petitioner
Dickstein & Co., L.P.
2. I have read the foregoing Verified Petition and
am fully familiar with the facts alleged therein. Those facts
are true to the best of my knwoledge, information and belief.
/s/ Mark D. Brodsky
Mark D. Brodsky
Sworn to before me this
14th day of April, 1995
/s/Alan A. Friedman
Notary Public
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EXHIBIT 12
DICKSTEIN PARTNERS INC.
Mark Dickstein Tel: 212-754-4000
President Fax: 212-754-5825
April 18, 1995
Board of Directors
Marietta Corporation
37 Huntington Street
Cortland, NY 13045
Gentlemen:
We have on numerous occasions asked that you convene a
timely annual meeting of Marietta's shareholders. You have
neither called a meeting nor afforded us the elementary courtesy
of a response to our requests. It is now impossible for you to
hold the meeting by the statutorily mandated day of April 29.
You have therefore left us no choice but to bring suit to compel
the holding of the meeting.
Perhaps you have been advised that you can delay
holding the annual shareholders' meeting indefinitely or at least
until the expiration of the 15-month period mentioned in Section
603 of the New York Business Corporation Law. But that is not
the case. The Federal District Court, in the case we cited in
our March 31 letter, made clear that "under New York Law, annual
meetings are contemplated to occur no later than thirteen months
after the last such meeting...." While Section 603 provides a
remedy - a special shareholders' meeting - if the annual share-
holders' meeting is not held within the prescribed 13-month
period, the court ruled that the remedy is not exclusive, and
that the disenfranchisement of shareholders resulting from the
failure to hold a timely annual meeting is in violation of the
New York statute and poses a serious risk of irreparable harm.
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We demand that you act immediately to convene the
shareholders' meeting on the earliest possible date, rather than
waiting for the court to order you to do so - as we have no doubt
it will. Your failure to call a meeting is already a breach of
fiduciary duty. Every day that you unlawfully perpetuate your
purported term of office beyond April 29 - whether by continued
delay in calling the meeting, or by calling the meeting for other
than the earliest possible date - will entail an additional
breach of duty.
It is our position that after April 29 your continued
tenure as directors will be wrongful. With each passing day
until your successors are elected, each of you will be preventing
your successors from taking actions that they would have taken if
you had not wrongfully delayed their election. We will use, and
will urge your successors to use, every effort to hold you (and
other persons aiding and abetting your breach of duty) personally
liable for all expenditures, liabilities, obligations and
damages incurred by Marietta and its shareholders as a result,
including all costs incurred by Marietta in connection with our
suit. We may also seek to invalidate agreements that Marietta
purports to enter into under the authority of directors who have
wrongfully extended the term of their office by refusing to hold
an annual election.
In the face of this and prior demands, we believe your
continued attempt wrongfully to extend your term of office is
willful and deliberate, and it is our position that you will not
be entitled to indemnification or exculpation by Marietta.
Sincerely,
Mark Dickstein
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