SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant / /
Filed by a Party other than the Registrant /x/
Check the appropriate box:
/x/ Preliminary Proxy Statement
/_/ Definitive Proxy Statement
/_/ Definitive Additional Materials
/x/ Soliciting Material Pursuant to Section 240.14a-11(c) or
Section 240.14a-12
Marietta Corporation
(Name of Registrant as Specified In Its Charter)
Dickstein Partners Inc.
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
/_/ $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or
14a-6(i)(2).
/x/ $500 per each party to the controversy pursuant to Exchange
Act Rule 14a-6(i)(3).*
* Previously paid.
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/_/ Fee computed on table below per Exchange Act Rules
14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction
applies:
________________________________________________________________
(2) Aggregate number of securities to which transaction applies:
________________________________________________________________
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11:(1)
________________________________________________________________
(4) Proposed maximum aggregate value of transaction:
________________________________________________________________
________________
(1) Set forth the amount on which the filing fee is calculated
and state how it was determined
/_/ Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for
which the offsetting fee was paid previously. Identify
the previous filing by registration statement number, or
the form or schedule and the date of its filing.
(1) Amount Previously Paid:
________________________________________________________________
(2) Form, Schedule or Registration Statement No.:
________________________________________________________________
(3) Filing Party:
________________________________________________________________
(4) Date Filed:
________________________________________________________________
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REVISED PRELIMINARY COPIES, DATED JUNE 14, 1995
1995 ANNUAL MEETING OF SHAREHOLDERS
of
MARIETTA CORPORATION
_______________________
PROXY STATEMENT
of
DICKSTEIN PARTNERS INC.
________________________
This Proxy Statement and the accompanying Letter to
Shareholders and BLUE Annual Meeting proxy card are furnished in
connection with the solicitation of proxies by Dickstein Partners
Inc. ("Dickstein Partners") to be used at the 1995 Annual Meeting
of Shareholders of Marietta Corporation ("Marietta") to be held
at the Holiday Inn, 2 River Street, Route 13 and Interstate 81,
Cortland, New York at 10:00 am on Friday, July 14, 1995 and at
any adjournments or postponements thereof (the "Annual Meeting").
At the Annual Meeting, seven Directors of Marietta will
be elected. Dickstein Partners is soliciting your proxy in
support of the election of the seven nominees of Dickstein
Partners named below (the "Dickstein Nominees") as the Directors
of Marietta.
DICKSTEIN PARTNERS HAS MADE A PROPOSAL TO ACQUIRE
PURSUANT TO A MERGER ALL OF THE OUTSTANDING SHARES OF MARIETTA
FOR $11 PER SHARE IN CASH. SEE "PROPOSED ACQUISITION."
ALL DICKSTEIN NOMINEES ARE COMMITTED TO A PROGRAM OF
OFFERING MARIETTA FOR SALE, AND SELLING MARIETTA, TO THE BUYER
WHO IS WILLING TO PAY THE HIGHEST PRICE, SO LONG AS THE PRICE IS
AT LEAST $11 PER SHARE OF MARIETTA COMMON STOCK.
The record date for determining shareholders entitled
to notice of and to vote at the Annual Meeting is June 16, 1995
(the "Record Date"). Shareholders of record at the close of
business on the Record Date will be entitled to one vote at the
Annual Meeting for each share of Marietta Common Stock, par value
$.01 per share (the "Shares"), held on the Record Date.
According to the preliminary proxy statement of Marietta filed
with the Securities and Exchange Commission on June 13, 1995,
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there were 3,596,049 Shares issued and outstanding as of the
close of business on the Record Date.
Dickstein Partners manages private investment funds.
As of the date of this Proxy Statement, two of these funds,
Dickstein & Co., L.P. and Dickstein International Limited
(collectively, the "Dickstein Funds"), beneficially own in the
aggregate 508,000 Shares, or 14.1% of the outstanding Shares.
The address of Dickstein Partners Inc. is 9 West 57th Street, New
York, New York 10019, and its telephone number is (212) 754-4000.
Calibre Capital Advisors, Inc. ("Calibre"), a private investment
firm, may be deemed to be a participant in the solicitation by
Dickstein Partners. As of the date of this Proxy Statement,
Calibre beneficially owns 18,000 Shares, or 0.5% of the
outstanding Shares. The address of Calibre is 66 East 80th
Street, New York, New York 10021, and its telephone number is
(212) 861-8845.
______________________________
This Proxy Statement, the accompanying Letter to
Shareholders and the BLUE Annual Meeting proxy card are first
being furnished to Marietta shareholders on or about June ___,
1995. The principal executive offices of Marietta are located at
37 Huntington Street, Cortland, New York 13045.
IMPORTANT
At the Annual Meeting, Dickstein Partners will seek to
elect the Dickstein Nominees as the Directors of Marietta. The
election of the Dickstein Nominees requires the affirmative vote
of a plurality of the votes cast, assuming a quorum is present or
otherwise represented at the Annual Meeting.
Dickstein Partners urges you to mark, sign, date and
return the enclosed BLUE Annual Meeting proxy card to vote for
election of the Dickstein Nominees.
A vote for the Dickstein Nominees is a vote for
Directors who are committed to a program of offering Marietta for
sale, and selling Marietta, to the buyer who is willing to pay
the highest price, so long as the price is at least $11 per
Share.
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DICKSTEIN PARTNERS URGES YOU NOT TO SIGN ANY PROXY CARD
SENT TO YOU BY MARIETTA. IF YOU HAVE ALREADY DONE SO, YOU MAY
REVOKE YOUR PROXY BY DELIVERING A WRITTEN NOTICE OF REVOCATION OR
A LATER DATED PROXY FOR THE ANNUAL MEETING TO DICKSTEIN PARTNERS,
C/O MACKENZIE PARTNERS, INC., 156 FIFTH AVENUE, NEW YORK 10010,
OR TO THE SECRETARY OF MARIETTA, OR BY VOTING IN PERSON AT THE
ANNUAL MEETING. SEE "PROXY PROCEDURES" BELOW.
THE DICKSTEIN NOMINEES SUPPORT THE SALE OF MARIETTA
All Dickstein Nominees are committed to a sale of
Marietta to the buyer who is willing to pay the highest price, so
long as the price is at least $11 per Share. If elected, the
Dickstein Nominees will, subject to their fiduciary duties, seek
to cause Marietta to offer itself for sale, and to consummate a
sale, to the buyer who is willing to pay the highest price, so
long as the price is at least $11 per Share.
As indicated under "Proposed Acquisition," Dickstein
Partners and Calibre have proposed to acquire, by means of a
merger, 100% of the outstanding stock of Marietta at a price of
$11 per Share in cash.
If, like us, you believe that you should have the
opportunity to receive for all of your Shares the highest price
that a buyer is currently willing to pay, so long as the price is
at least $11 per Share, Dickstein Partners urges you to vote your
BLUE Annual Meeting proxy card FOR each of the Dickstein
Nominees.
ELECTION OF DIRECTORS
According to Marietta's preliminary proxy state-
ment, seven Directors, constituting the entire Board of
Directors of Marietta, will be elected at the Annual Meeting.
Dickstein Partners proposes that Marietta shareholders
elect the Dickstein Nominees as the Directors of Marietta at the
Annual Meeting. If all Dickstein Nominees are elected, the
Dickstein Nominees would constitute the entire Board of Directors
of Marietta. The Dickstein Nominees are listed below and have
furnished the following information concerning their principal
occupations or employment and certain other matters. Each
Dickstein Nominee, if elected, would hold office until the 1996
Annual Meeting of Shareholders and until a successor has been
elected and qualified or until his earlier death, resignation or
removal. Although Dickstein Partners has no reason to believe
that any of the Dickstein Nominees will be unable to serve as
a director, if any one or more the Dickstein Nominees is not
available for election, the persons named on the BLUE Annual
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Meeting proxy card will vote for the election of such other
nominees as may be proposed by Dickstein Partners.
Dickstein Nominees for Directors
Mark Dickstein, age 36, has been the President of
Dickstein Partners since prior to 1989 and is primarily
responsible for the operations of the Dickstein Funds. He is the
Chairman of the Board of Carson Pirie Scott & Co., a midwest
department store chain. He is also director of KinderCare
Learning Centers, Inc., the largest provider of proprietary child
care in the United States, and Zale Corporation, a national
jewelry retailer. Carson Pirie Scott & Co., KinderCare Learning
Centers, Inc. and Zale Corporation are publicly held. Mr.
Dickstein's business address is c/o Dickstein Partners Inc.,
9 West 57th Street, New York, New York 10019.
Jeffrey E. Ginsberg, age 31, has since 1994 been
managing general partner of APEX Site Management, a company that
he co-founded and that assists real property owners in attracting
telecommunications tenants. Prior to that, since 1991, Mr.
Ginsberg was a co-founder and Director of Acquisitions of
Horizon Cellular Group, an operator of fourteen cellular
telephone systems. From 1989 through 1991, Mr. Ginsberg was
associated with Block B Cellular Corporation, a cellular
telephone operator that he co-founded. From 1988 to
1991, Mr. Ginsberg was also a principal of First Eastern Merchant
Banking Group, an investment banking and venture capital firm
specializing in telecommunications. Mr. Ginsberg's business
address is 200 S. Broad Street, Philadelphia, Pennsylvania 19102.
Lawrence E. Golub, age 35, has since 1994 been
President of Golub Associates Incorporated, an investment and
financial advisory firm that he founded and owns. From 1993 to
1994, Mr. Golub was a Managing Director of Bankers Trust Company,
where he participated in structuring, recapitalizing, hedging and
selling public and private equity investments. From 1992 to
1993, Mr. Golub was a White House Fellow, serving as Special
Assistant to the Secretary of Health and Human Services and as
policy coordinator for the President's cabinet-level health care
reform group. Mr. Golub was a Managing Director of Wasserstein
Perella & Co., Inc. from 1990 to 1992, specializing in corporate
finance, and was a Vice President of Allen & Company
Incorporated, a private investment banking firm, from 1985 to
1990.
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Samuel L. Katz, age 29, has been a Vice President of
Dickstein Partners since July 1993. Previously, since February
1992, Mr. Katz was the Co-Chairman of Saber Capital Inc., a firm
making private equity investments. Before that, since 1988, Mr.
Katz was an Associate and then a Vice President of The Blackstone
Group, an investment and merchant bank, where he focused on
leveraged buyout transactions. Mr. Katz's business address is
c/o Dickstein Partners Inc., 9 West 57th Street, New York, New
York 10019.
Ira W. Krauss, age 49, is President of First Sterling
Corporation, a position he has held since 1983. First Sterling
Corporation is engaged in real estate operation and development.
Mr. Krauss also serves as President of the Board of Education of
the Borough of New Providence, New Jersey. Mr. Krauss's business
address is c/o First Sterling Corporation, 900 Third Avenue,
New York, New York 10022.
Howard R. Shapiro, age 40, has since 1994 been
President of Calibre, a private investment firm that he founded
and owns. Previously, since 1985, Mr. Shapiro was a Vice
President of Manufacturers Hanover Trust Company, where
he was involved in financing for leveraged acquisitions,
recapitalizations and distressed corporate credits. Mr.
Shapiro's business address is c/o Calibre Capital Advisors, Inc.,
66 East 80th Street, New York, New York, 10021.
Ralph E. Stewart, age 47, has since 1993 been a private
management consultant. From 1992 to 1993 he was President and
Chief Operating Officer of Abex Inc., and from 1989 to 1992 he
was President and Chief Executive Officer of Pneumo Abex Corp.,
both of which are manufacturers of aerospace and automotive
components. From 1986 to 1989, Mr. Stewart was a Group Vice
President of Pullman Co., a manufacturer of transportation
equipment and material handling and fluid power products. Mr.
Stewart's address is 3037 Bonnie Brae Crescent, Flossmoor,
Illinois 60422.
In September 1990, the Commodity Futures Trading
Commission (the "CFTC") initiated an administrative proceeding
against Mr. Dickstein alleging that in 1987 certain of his
personal commodities trading activities were in violation of
applicable laws. Specifically, the CFTC claimed that Mr.
Dickstein, in his capacity as a local floor trader, aided and
abetted another floor trader in, among other things, non-
competitive trading and defrauding such floor trader's customers.
Without admitting or denying the CFTC's allegations, Mr.
Dickstein settled this matter in September 1991. As part of
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the settlement, Mr. Dickstein agreed not to engage in commodities
transactions for a period of one year, and for two additional
years not to trade on the floor of any commodities exchange. Mr.
Dickstein also had his commodities floor brokerage license
revoked and paid a $150,000 civil penalty.
It is anticipated that each of the Dickstein Nominees,
upon his election as a director of Marietta, will receive
director's fees consistent with Marietta's past practice.
According to Marietta's preliminary proxy statement, Directors
who are not employees of Marietta receive $500 per month plus
$300 for each meeting attended of the board or any committee plus
reimbursement for travel expenses. It is expected that each
Dickstein Nominee who serves on the independent committee of the
Board of Directors formed to evaluate acquisition proposals will
be assured of receiving a minimum of $10,000 of fees for his
period of service. See "Proposed Acquisition." In addition,
Dickstein Partners has agreed to indemnify each of the Dickstein
Nominees against any claims and expenses, including legal fees,
arising out of his participation in the proxy solicitation for
his election.
Except as set forth above or under "Proposed
Acquisition -- Certain Arrangements" below, none of Dickstein
Partners, Calibre, the Dickstein Nominees or any of their
respective associates (i) has any arrangements or understandings
with any person or persons with respect to any future employment
by Marietta or its affiliates, or with respect to any future
transactions to which Marietta or any of its affiliates may be a
party; (ii) has carried on any occupation or employment with
Marietta or any corporation or organization which is or was a
parent, subsidiary or other affiliate of Marietta; (iii) has
received any cash compensation, cash bonuses, deferred
compensation, compensation pursuant to plans, or other
compensation, from, or in respect of, services rendered to or on
behalf of Marietta; (iv) since October 1, 1993, has engaged in or
has a direct or indirect material interest in any transaction or
series of similar transactions to which Marietta or any of its
subsidiaries was or is a party in which the dollar amount
involved exceeded, or is expected to exceed, $60,000 in the
aggregate; (v) since October 1, 1993, has been indebted to
Marietta or any of its subsidiaries in an amount in excess of
$60,000; or (vi) is a party adverse to Marietta or any
of its subsidiaries in any material proceedings or has a material
interest adverse to the interests of Marietta or any of its
subsidiaries in any such proceedings. No family relationships
exist among the Dickstein Nominees or between any of the
Dickstein Nominees and any Director or executive officer of
Marietta.
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Certain additional information relating to, among other
things, the ownership, purchase and sale of securities of
Marietta by Dickstein Partners, Calibre, the Dickstein Nominees
and their respective associates, or arrangements with respect
thereto, is set forth in "Proposed Acquisition -- Certain
Arrangements" and "Security Ownership of Dickstein Partners,
Calibre and Affiliates" and in Schedule II.
Voting Procedures
Election of the Dickstein Nominees requires the
affirmative vote of a plurality of the votes cast in the election
at the Annual Meeting, assuming a quorum is present or otherwise
represented at the Annual Meeting. Shares voted as abstentions
and "broker non-votes" are considered present at the Annual
Meeting for the purposes of determining the presence of a quorum.
"Broker non-votes" relate to shares of stock held of record by a
broker as to which no discretionary authority or voting
directions exist.
The accompanying BLUE Annual Meeting proxy card will be
voted at the Annual Meeting in accordance with your instructions
on such card. You may vote FOR the election of each of the
Dickstein Nominees as Directors of Marietta or withhold authority
to vote for the election of all the Dickstein Nominees by marking
the proper box on the BLUE Annual Meeting proxy card. You
may also withhold your vote from any one or more of the Dickstein
Nominees by writing the name of such nominee(s) in the space
provided on the BLUE Annual Meeting proxy card. IF NO MARKING IS
MADE, YOU WILL BE DEEMED TO HAVE GIVEN A DIRECTION TO VOTE THE
SHARES REPRESENTED BY THE BLUE ANNUAL MEETING PROXY CARD
FOR THE ELECTION OF ALL THE DICKSTEIN NOMINEES PROVIDED THAT YOU
HAVE SIGNED AND DATED THE PROXY CARD. The Dickstein Funds and
Calibre, which in the aggregate own approximately 14.6% of the
Shares outstanding, will vote their Shares FOR the election of
the Dickstein Nominees.
Dickstein Partners believes that it is in your best
interest to elect the Dickstein Nominees at the Annual Meeting.
All Dickstein Nominees are committed to a program of offering
Marietta for sale, and selling Marietta, to the buyer who is
willing to pay the highest price, so long as the price is at
least $11 per Share.
DICKSTEIN PARTNERS STRONGLY RECOMMENDS A VOTE FOR THE
ELECTION OF THE DICKSTEIN NOMINEES.
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OTHER MATTERS TO BE CONSIDERED AT THE ANNUAL MEETING
Dickstein Partners is not aware of any other matters to
be brought before the Annual Meeting. Should other proposals be
brought before the Annual Meeting, the persons named on the BLUE
Annual Meeting proxy card will abstain from voting on such
proposals unless such proposals adversely affect the interests of
Dickstein Partners as determined by Dickstein Partners in its
sole discretion, in which event such persons will vote on such
proposals at their discretion.
The vote required for approval of any other matter that
may be submitted to shareholders will be as prescribed by
Marietta's charter or bylaws or by applicable law. Generally,
shares voted as abstentions and shares with respect to which a
broker submits a "broker non-vote" on a matter are not counted in
calculating the number of votes cast on the matter and have the
effect of reducing the number of votes required for approval of
the matter.
PROXY PROCEDURES
Shareholders are urged to mark, sign and date the
enclosed BLUE Annual Meeting proxy card and return it to
Dickstein Partners, c/o MacKenzie Partners, Inc., 156 Fifth
Avenue, 9th Floor, New York, New York 10010 in the enclosed
envelope in time to be voted at the Annual Meeting. Execution of
the BLUE Annual Meeting proxy card will not affect your right to
attend the Annual Meeting and to vote in person. Any proxy may
be revoked at any time prior to the Annual Meeting by delivering
a written notice of revocation or a later dated proxy. Only your
latest dated proxy for the Annual Meeting will count.
Only holders of record as of the close of business on
the Record Date will be entitled to vote. If you were a
shareholder of record on the Record Date, you may vote your
shares at the Annual Meeting even if you have sold your shares
after the Record Date. Accordingly, please vote the shares
held by you on the Record Date, or grant a proxy to vote such
shares, on the BLUE Annual Meeting proxy card, even if you have
sold your shares after the Record Date.
If any of your Shares are held in the name of a
brokerage firm, bank, bank nominee or other institution on the
Record Date, only it can vote such Shares and only upon receipt
of your specific instructions. Accordingly, please contact the
person responsible for your account and instruct that person to
have the BLUE Annual Meeting proxy card executed on your
behalf.
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PROPOSED ACQUISITION
On January 17, 1995, Mark Dickstein, the President of
Dickstein Partners, telephoned Marietta and spoke with Philip A.
Shager, Chief Accounting Officer and Treasurer of Marietta. Mr.
Dickstein advised Mr. Shager that Dickstein Partners and Calibre
proposed to acquire all of the outstanding stock of Marietta.
Following the telephone call, Mr. Dickstein sent a letter on
behalf of Dickstein Partners to Chesterfield F. Siebert Sr.,
then Chairman of the Board of Marietta. The letter reflects a
good faith proposal that Dickstein Partners and Calibre would
expect to consummate upon execution of definitive transaction
documentation with Marietta. Prior to the execution of such
documentation, the proposal is subject to change or withdrawal.
The letter read, in part, as follows:
"As I mentioned to Philip Shager by phone
earlier today, Dickstein Partners Inc. and Calibre
Capital Advisors, Inc. propose to acquire, by means
of an all cash merger, 100% of the stock of
Marietta Corporation at a price of $11 per share.
We ask that you afford us the opportunity to meet
with you in the next day or two so that we can
introduce ourselves personally and discuss this
proposal with you.
Based on our review of Marietta Corporation's
publicly available information, we believe $11 per
share to be a fair price for the company. However,
if we are able to review Marietta Corporation's
non-public information there is a strong possibility
that we would be prepared to improve the terms of
our proposal. . .
The acquisition would be subject to the
negotiation of a definitive agreement and other
customary conditions. We would honor Marietta's
existing employment agreements and our present
intention is to retain the existing management team.
We stand ready to expeditiously complete this
transaction, with your cooperation.
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
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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. . . ."
On January 18, 1995, Mr. Dickstein spoke by telephone
to Stephen D. Tannen, President and Chief Executive Officer of
Marietta, and reiterated what he had told Mr. Shager the previous
day and certain points contained in the letter to Mr. Siebert.
In February 1995, Marietta disclosed in a public filing
with the Securities and Exchange Commission that it had retained
Goldman Sachs & Co. to serve as its investment advisor, for
minimum compensation of $1.5 million. Between January 25 and
March 2, representatives of Dickstein Partners had several
conversations with Mr. Tannen and/or Goldman Sachs & Co.
concerning the acquisition proposal of Dickstein Partners and
Calibre and the Annual Meeting. On March 3, 1995, Mr. Dickstein
sent a letter to Mr. Tannen, which read, in part, as follows:
"More than six weeks have passed since we and
Calibre Capital Advisors made our proposal to acquire
Marietta. In our proposal letter, as well as in a
number of conversations with you and Goldman Sachs, we
have repeatedly requested the opportunity to discuss
our proposal with the Company. We have also sought
access to Marietta's non-public information, with a
view to possibly increasing our bid price of $11 per
share -- itself roughly 50% over last December's market
prices. In response, you have merely urged us to be
patient.
Meanwhile, since we made our proposal, the
Company has announced the following:
o Both revenues and earnings for the
first quarter of fiscal 1995 were
less than in the corresponding quarter
of last year.
o In the first quarter, the Company
suffered a loss of $166,126 on its
securities investments -- this on the
heels of a $670,681 securities portfolio
loss in 1994. Combined, these represent
a loss of 29% on investments purchased
at $2,890,504.
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o According to the self-styled `Raid
Defense Fee Letter 6' annexed to the
latest 10-Q, the Company has retained
Goldman Sachs, for minimum compensation
of $1.5 million. From both an expense
and a suitability standpoint, we
question the wisdom of selecting
Goldman. While $1.5 million represents
a minute contribution to Goldman's
earnings, it equates to 67% of
Marietta's earnings for the last four
quarters. And while Goldman is well
known for its blue-chip clientele, we
wonder what experience Goldman has with
companies of Marietta's size, and what
degree of attention Goldman is providing
this engagement.
o The 90,000 options awarded you last
November, at a $7.00 exercise price,
were subject to shareholder approval at
the upcoming annual meeting. Since the
announcement of our offer, the Board has
granted you corresponding stock
appreciation rights (valued at $360,000
at our bid price) that are designed to
circumvent the requirement of
shareholder approval.
o The Company also reported in its first-
quarter 10-Q, without explanation, that
1995 capital expenditures will be
approximately $6 million, $3.6 million
of which had already been authorized.
This is triple the average for the last
six years and twice last year's level --
a surprisingly huge increase in capital
investment, in the face of flat, if not
declining, sales and earnings.
. This announcement came as a
particular surprise because as
recently as December 23, 1994
Marietta stated in its 10-K: `The
Company believes that it has
sufficient production capacity to
meet its anticipated growth for
the foreseeable future.' And
while the 10-K mentioned in one
sentence that there would be
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significant capital improvements
in 1995, the only example given
was $1.5 million of construction
on the Olive Branch facility. The
10-K is devoid of any suggestion
that capital expenditures were
about to increase dramatically
over the prior year's level.
. Further, we doubt that such a
significant capital-expenditure
decision -- one that may well
inhibit the price that can be
offered by ourselves or other
potential bidders -- could not be
delayed until the Board decided
(or allowed the shareholders to
decide) whether to put the Company
up for sale.
Against the backdrop of these developments and the lack
of any response to our offer, your call for patience
has begun to ring hollow. . . .
In addition, on behalf of Dickstein & Co.,
L.P. and Dickstein International Limited (which
together own more than 14% of Marietta's shares),
please be advised that we expect the Board to comply
with its responsibility, under Section 603 of the New
York Corporation Law, to conduct an election of
directors by May 1, 1995."
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On March 13, 1995, Marietta announced that it had
rejected the acquisition proposal of Dickstein Partners and
Calibre. In this connection, Marietta said that its Board of
Directors had received an opinion from Goldman Sachs & Co. that
the consideration offered was inadequate. Marietta also said
that it 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." Marietta indicated that as part of
this process it may engage in discussions with Dickstein
Partners.
Following Marietta's announcement, representatives of
Dickstein Partners had conversations with Marietta and Goldman
Sachs & Co., in which Dickstein Partners continued to request
confidential information of Marietta which might allow Dickstein
Partners and Calibre to improve their acquisition proposal.
Dickstein Partners also made two requests to receive a form of
confidentiality agreement from Marietta, before the confidential
information became available for dissemination. The requests
were made so that the confidentiality agreement could be
negotiated and finalized without delaying the furnishing of
information to Dickstein Partners and Calibre. Both requests
were refused. Dickstein Partners was assured by Marietta that it
would be treated fairly with other prospective bidders and
potential financing sources and that it would receive nonpublic
information concerning Marietta as soon as it was available to
others. Dickstein Partners also reiterated its expectation that
Marietta would convene a timely shareholders meeting for election
of directors as required by law.
On March 31, 1995, Mr. Dickstein sent a letter to the
Board of Directors of Marietta asking the Board to call the
Annual Meeting, which read, in part, as follows:
"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
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. . . .' 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). . . .
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 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.
-14-
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<PAGE>
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. . . ."
-15-
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As of April 10, 1995, Dickstein Partners had not
received any proposed confidentiality agreement or information
from Marietta. On that date, in response to a call by
representatives of Dickstein Partners to Goldman Sachs & Co.,
Dickstein Partners was informed that confidentiality agreements
had already been sent to other persons, some of whom had executed
the agreements and received nonpublic information concerning
Marietta.
On April 11, 1995, Dickstein Partners received a
proposed confidentiality agreement from Marietta. As a condition
to its receiving nonpublic information from Marietta under the
proposed agreement, Dickstein Partners would have been required
to agree that, unless invited by Marietta, neither Dickstein
Partners nor its affiliates would propose any transaction between
or involving Dickstein Partners and Marietta and/or its security
holders, whether by merger, tender offer or otherwise; acquire,
or assist any other persons in acquiring, control of Marietta or
its assets, whether by solicitation of proxies or otherwise; or
request or demand the call of a special or annual meeting of
shareholders.
On April 13, 1995, Mr. Dickstein sent a letter to the
Board of Directors of Marietta on the unacceptability of the
proposed confidentiality agreement and the fairness of the
process by which Marietta was exploring its financial
alternatives. The letter read, in part, as follows:
". . . We have repeatedly contacted your chief
executive officer, Mr. Tannen, and your financial
adviser, Goldman, Sachs & Co., with a view to obtaining
. . . more-detailed nonpublic information. Following
your announcement on March 13 that Marietta was
exploring its financial alternatives, both Mr. Tannen
and Goldman Sachs assured us that Marietta would deal
with us in a fair and evenhanded manner vis-a-vis other
bidders or financing sources in Marietta's efforts to
maximize shareholder value. Specifically, we were
repeatedly assured that we would receive the detailed
nonpublic information as soon as it was available (and
no later than any other prospective bidder or financing
source). When we repeatedly asked to see a draft
confidentiality agreement, we were told that Marietta's
counsel was too busy to prepare a three-page draft, but
that we would receive one as soon as it was ready and
that counsel for Marietta would then immediately meet
with our counsel to resolve any differences `in an
afternoon.'
-16-
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<PAGE>
We placed our most recent follow-up call to
Goldman Sachs on April 10. In response to our inquiry,
we were told that confidentiality agreements had
already been sent the prior week to other interested
parties, some of whom had already signed the agreements
and received the information we had been seeking --
despite all the prior assurances that we would receive
the confidentiality agreement as soon as it was ready
and not later than anyone else.
Finally, we received on April 11 the
confidentiality agreement that we are being asked to
sign. The agreement would prohibit us for one year
from (among other things) proposing any transaction
between us and the Company and/or its security holders,
acquiring control of the Company (by solicitation of
proxies or otherwise), or requesting a shareholders'
meeting -- all this despite the fact that we had
already proposed to acquire the Company, expressed our
intention to solicit proxies to replace the present
directors, and demanded that the Board of Directors
call the annual meeting of shareholders. We, of
course, will agree to none of these prohibitions -- as
your representatives well knew all along, even as they
assured us that any issues on the confidentiality
agreement would be easily resolved.
The proposed confidentiality agreement is,
plain and simple, an attempt to exclude us -- the only
announced bidder for the Company and the holder of
nearly 15% of its outstanding shares -- from
participating on an equal footing with other interested
parties in the process that the Company is conducting
to explore its financial alternatives. This
transparent effort to exclude us is plainly detrimental
to Marietta's public shareholders and we believe is in
breach of your fiduciary duties to shareholders. It
also flies in the face of assurances made to us that
the process would be conducted fairly and that we would
be given as much opportunity as anyone else to make our
best offer. It is hard to understand how the Board of
Directors, consistent with its fiduciary duty to
shareholders, could exclude us, a serious and
responsible bidder, from the process and not give us
the information we need to make our best bid. . . .
-17-
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<PAGE>
Over the past two months we have given Marietta
the benefit of any doubt regarding its assurances as
to how the exploration-of-financial-alternatives
process would be conducted and how we would be treated.
At this point we cannot help but feel that Marietta has
dealt with us in bad faith. We insist that you do
whatever is necessary, consistent with reasonable
commercial practice, to obtain the best offers from all
responsible persons who express an interest in
acquiring Marietta, including ourselves, and not to
favor any one person over any other. We believe your
fiduciary duty to shareholders requires you to do no
less."
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 Marietta's shareholders. On April 18, 1995,
the court issued an order to show cause scheduling a hearing on
the petition for April 27, 1995. On April 18, 1995, Mr.
Dickstein sent a letter to the Board of Directors of Marietta in
respect of the failure to convene the Annual Meeting, which
read, in part, as follows:
"We have on numerous occasions asked that you
convene a timely annual meeting of Marietta's share-
holders. 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.
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. . . ."
On April 24, 1995, after the Dickstein Funds commenced
legal action to compel the Annual Meeting, the Board of Directors
of Marietta scheduled the meeting for July 14, 1995, more than
fifteen months after Marietta's previous annual meeting. In its
decision on the action of the Dickstein Funds, the court affirmed
-18-
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<PAGE>
that shareholders of Marietta had the clear legal right to
require the Board to set the Annual Meeting not later than the
end of April 1995, since under New York law annual meetings of a
corporation are contemplated to be held no later than thirteen
months after the previous annual meeting. While the court
declined to accelerate the date of the Annual Meeting set by the
Board, the court issued an order of mandamus requiring that the
Annual Meeting be held on July 14, 1995, thereby precluding
further delay.
On May 11, 1995, Mr. Dickstein sent a letter to the
Board of Directors of Marietta, again seeking to enter into
confidentiality arrangements with Marietta on terms addressing
Marietta's concerns while enabling Dickstein Partners and
Calibre to participate fairly in the bidding process. On
May 15, 1995, Marietta and Dickstein Partners and Calibre
executed a confidentiality agreement containing no standstill
provisions. Subsequently, Dickstein Partners and Calibre have
been provided access to non-public information concerning
Marietta. Dickstein Partners and Calibre have had discussions
with Marietta and its representatives concerning their
acquisition proposal and, in furtherance of the proposal, are
participating as a bidder in Marietta's process of "exploring
financial alternatives."
Dickstein Partners continues to seek to negotiate with
Marietta regarding the acquisition proposal. Such negotiations
could result in, among other things, termination of this proxy
solicitation and submission of a different acquisition proposal
to Marietta. Although Dickstein Partners does not presently
intend, in the event the Dickstein Nominees are elected, to alter
the terms of the proposed acquisition to provide for the issuance
of securities or other consideration in exchange for Shares, it
is possible that, depending on the facts and circumstances
existing at the time, the terms might be altered in this or other
respects.
As indicated elsewhere in this Proxy Statement, the
Dickstein Nominees, if elected, will, subject to their fiduciary
duties, seek to cause Marietta to offer itself for sale, and to
consummate a sale, to the buyer who is willing to pay the highest
price, so long as the price is at least $11 per Share. There can
be no assurance, however, that a buyer other than Dickstein
Partners and Calibre will offer to purchase Marietta at all or
for a price that is higher than the price offered by Dickstein
and Calibre. It is anticipated that if the Dickstein Nominees
are elected, the board will form a committee of directors, each
of whom is independent of Dickstein Partners and Calibre and has
no economic interest in the acquisition of Marietta, to consider,
negotiate and determine to recommend approval of the terms of a
sale of Marietta. The members of such an independent committee
-19-
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are currently expected to be Messrs. Bock, Ginsberg, Golub and
Krauss. The independent committee will establish procedures,
possibly including auctioning or actively shopping Marietta, to
maximize the price at which Marietta may be sold.
It is anticipated that a sale of Marietta, including a
sale to Dickstein Partners and Calibre, would be subject to a
separate vote of shareholders at a later time, although if a
buyer approved by the board of directors were to acquire 90% or
more of the outstanding Shares, an acquisition could be effected
without a shareholder vote pursuant to applicable provisions of
the New York Business Corporation law.
Certain Arrangements
Dickstein Partners (on behalf of the Dickstein Funds),
Calibre and Howard Shapiro, President of Calibre and a Dickstein
Nominee, have entered into a Memorandum of Understanding, dated
January 3, 1995 (the "Memorandum"), confirming their intention to
pursue, on a joint basis, the acquisition of Marietta (the
"Acquisition"). Under the Memorandum, the interests of Dickstein
Partners and Calibre in Marietta following the Acquisition would
be in proportion to their respective cash investments in the
Shares purchased by them. The Memorandum provides that Dickstein
Partners reserves total discretion over its own investment and
voting decisions and over the conduct of the Acquisition, and
Calibre reserves total discretion over its investment and voting
decisions and its participation in the Acquisition.
The Memorandum further provides that, after
consummation of the Acquisition when Marietta is no longer a
publicly-held company, and so long as Calibre maintains its
investment in Marietta, Dickstein Partners will cause
Mr. Shapiro to be elected as a director of Marietta and to
receive a fee of $100,000 per annum for his services as a
director. In addition, Dickstein Partners has agreed to pay to
Calibre a contingent fee equal to 11% of the net profits realized
by Dickstein Partners on its investment in Marietta. A non-
refundable advance of $125,000 on the contingent fee is payable
by Dickstein Partners to Calibre upon consummation of the
Acquisition.
Under the Memorandum, Calibre will have the right, on
certain occasions subsequent to the Acquisition when Marietta is
no longer a publicly-held company, to sell its Shares to Marietta
at then current fair market value. In the event that Dickstein
Partners arranges to sell any portion of its investment in
Marietta, in either a privately negotiated transaction or
pursuant to a public offering, Calibre will have the right to
participate, and Dickstein may require Calibre to participate, in
such a sale on a pro rata basis.
-20-
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The Memorandum provides that, until Dickstein Partners
terminates its participation with Calibre in respect of Marietta,
Dickstein Partners will bear all the expenses of the parties.
Following consummation of the Acquisition when Marietta is no
longer a publicly-held company, Dickstein will be entitled to
receive reasonable and customary expenses incurred in connection
with the management of Marietta, and it and/or its partners and
principals will be entitled to receive up to $100,000 per year in
the aggregate for performance of duties as directors and other
bona fide services to Marietta.
Dickstein Partners has the right at any time, by
written notice, to terminate the collaboration between Dickstein
Partners and Calibre contemplated by the Memorandum. If
Dickstein Partners terminates such collaboration, Calibre will
nonetheless retain its rights under the Memorandum, except as
otherwise provided. Dickstein has agreed to indemnify
Calibre against claims asserted on account of alleged wrongful
acts or omissions arising in connection with the matters
described in the Memorandum, including the purchase of Shares
contemplated thereby.
It is anticipated that Dickstein Partners will engage
Ralph Stewart, a Dickstein Nominee, as a consultant to assist
in any due diligence review of Marietta conducted in connection
with the proposed acquisition of Marietta by Dickstein Partners
and Calibre. It is also anticipated that Mr. Stewart would serve
as a management consultant to Dickstein Partners in respect of
Marietta for a limited period following consummation of such an
acquisition. Mr. Stewart would be compensated on a per diem
basis at the rate of approximately $1,000 per day, plus
reimbursement of expenses.
Except as aforesaid or as provided under "Election of
Directors" above, none of Dickstein Partners, Calibre, the
Dickstein Nominees nor any of their respective associates is, or
since October 1, 1993 has been, a party to any contract,
arrangement or understanding with any person with respect to
securities of Marietta.
Change in Control
Based upon publicly available information concerning
Marietta, the following would be the consequences of a change in
control of Marietta occasioned by the election of the Dickstein
Nominees to a majority of the board of directors of Marietta (a
"Dickstein Change of Control").
Upon the occurrence of a Dickstein Change of Control
without the approval of the existing directors of Marietta, all
outstanding unvested stock options of Marietta would become
-21-
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<PAGE>
immediately exercisable. As of June 1, 1995, there were
outstanding stock options to acquire 84,378 Shares, of which
options with respect to at least 16,206 Shares had not yet
vested.
Marietta has granted to Stephen D. Tannen, Marietta's
President and Chief Executive Officer, cash-only stock
appreciation rights in respect of 90,000 Shares, with a base
price of $7.00 per share and subject to a maximum amount payable
of $630,000. The stock appreciation rights, which otherwise
would vest through November 1997, would become immediately
excisable upon the occurrence of a Dickstein Change of Control
without the approval of the existing directors of Marietta.
SOLICITATION OF PROXIES
Proxies may be solicited by mail, advertisement,
telephone or telecopier or in person. Solicitations may be made
by directors, officers and employees of Dickstein Partners or
Calibre, none of whom will receive additional compensation for
such solicitations. Dickstein Partners has requested banks,
brokerage houses and other custodians, nominees and fiduciaries
to forward all its solicitation materials to the beneficial
owners of the Shares they hold of record. Dickstein Partners
will reimburse these record holders for customary clerical
and mailing expenses incurred by them in forwarding these
materials to their customers.
Dickstein Partners has retained MacKenzie Partners,
Inc. (the "Agent") for solicitation and advisory services in
connection with the solicitation, for which the Agent is to
receive a fee of $________, together with reimbursement for its
reasonable out-of-pocket expenses. Dickstein Partners has also
agreed to indemnify the Agent against certain liabilities
and expenses, including liabilities and expenses under the
federal securities laws. The Agent will solicit proxies for the
Annual Meeting from individuals, brokers, banks, bank nominees
and other institutional holders. It is anticipated that the
Agent will employ approximately 35 persons to solicit
shareholders for the Annual Meeting.
Certain information about directors and officers of
Dickstein Partners and Calibre who, in each case, may also assist
in soliciting proxies, is set forth in the attached Schedule I.
The entire expense of soliciting proxies for the Annual
Meeting is being borne by Dickstein Partners. Dickstein Partners
may seek reimbursement for such expenses from Marietta, but does
not expect that the question of such reimbursement will be
submitted to a vote of shareholders. Costs incidental to this
-22-
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<PAGE>
solicitation of proxies include expenditures for printing,
postage, legal, accounting, public relations, advertising and
related expenses and are expected to be approximately $________;
costs incurred to the date of this Proxy Statement are
approximately $_________.
If Dickstein Partners should withdraw, or materially
change the terms of, this solicitation of proxies prior to the
Annual Meeting, Dickstein Partners will supplement this Proxy
Statement or otherwise publicly disseminate information regarding
such withdrawal or change and, in appropriate circumstances, will
provide shareholders with a reasonable opportunity to revoke
their proxies prior to the Annual Meeting.
SECURITY OWNERSHIP OF DICKSTEIN PARTNERS,
CALIBRE AND AFFILIATES
As of the date of this Proxy Statement, the Dickstein
Funds beneficially own an aggregate of 508,000 Shares,
representing approximately 14.1% of the Shares outstanding on the
Record Date. The Shares beneficially owned by the Dickstein
Funds are owned as set forth in the following table:
Shares Percentage
Name and Address of Beneficially of Shares
Beneficial Owner Owned Outstanding
- ------------------- ------------ -----------
Dickstein & Co., L.P. 347,900 9.7%
c/o Dickstein Partners Inc.
9 West 57th Street
New York, New York 10019
Dickstein International Limited 160,100 4.4%
129 Front Street
Hamilton HM 12, Bermuda
Dickstein Partners is the general partner of Dickstein
Partners, L.P., which is the general partner of Dickstein & Co.,
L.P. Dickstein Partners is also the advisor to Dickstein
International Limited. Mark Dickstein, a Dickstein Nominee, is
the President and sole stockholder of Dickstein Partners. By
reason of such relationships, Dickstein Partners, L.P. may be
deemed to beneficially own the Shares owned by Dickstein & Co.,
L.P., and Dickstein Partners and Mark Dickstein may be deemed to
beneficially own the shares owned by Dickstein & Co., L.P., and
Dickstein International Limited. Each of Dickstein Partners,
L.P., Dickstein Partners and Mark Dickstein disclaims
beneficial ownership of the Shares which it or he may be deemed
-23-
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to own by reason of such relationships, except to the extent of
its or his actual economic interest in the Dickstein Funds. The
Dickstein Funds invest primarily in special situations, including
the purchase of securities and other obligations of companies
that are financially distressed or have recently emerged from
bankruptcy, and risk-arbitrage transactions.
As of the date of this Proxy Statement, Calibre
beneficially owns an aggregate of 18,000 Shares, representing
approximately 0.5% of the Shares outstanding on the Record Date.
Mr. Howard Shapiro, a Dickstein Nominee, may be deemed to
beneficially own the Shares owned by Calibre.
Except as set forth above, none of Dickstein Partners,
Calibre, any of the Dickstein Nominees or any of their respective
associates owns beneficially or of record any securities of
Marietta or any of its subsidiaries. Schedule II sets forth
certain additional information relating to the Shares
beneficially owned by the Dickstein Funds and Calibre.
OTHER INFORMATION
Security Ownership of Certain Beneficial Owners
Certain information regarding Shares held by Marietta's
directors, nominees, management and other 5% shareholders is
contained in Marietta's preliminary proxy statement and is
incorporated herein by reference.
Proposals of Security Holders
Information concerning the date by which proposals of
security holders intended to be presented at the next annual
meeting of shareholders of Marietta must be received by Marietta
for inclusion in Marietta's proxy statement and form of proxy for
that meeting will be contained in Marietta's definitive proxy
statement and is incorporated herein by reference.
Dickstein Partners assumes no responsibility for the
accuracy or completeness of any information contained herein
which is based on, or incorporated by reference to, Marietta's
preliminary or definitive proxy statement or other public
filings.
-24-
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________________________________
PLEASE INDICATE YOUR SUPPORT OF THE DICKSTEIN NOMINEES
BY COMPLETING, SIGNING AND DATING THE ENCLOSED BLUE ANNUAL
MEETING PROXY CARD AND RETURN IT PROMPTLY TO MACKENZIE PARTNERS,
INC., 156 FIFTH AVENUE, 9TH FLOOR, NEW YORK, NEW YORK 10010 IN
THE ENCLOSED ENVELOPE. NO POSTAGE IS NECESSARY IF THE ENVELOPE
IS MAILED IN THE UNITED STATES
DICKSTEIN PARTNERS INC.
June 14, 1995
-25-
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SCHEDULE I
INFORMATION CONCERNING DIRECTORS AND OFFICERS
OF DICKSTEIN PARTNERS AND CALIBRE
The following table sets forth the name and the present
principal occupation or employment, and the name, principal
business and address of any corporation or other organization in
which such employment is carried on, of the directors and
officers of Dickstein Partners and Calibre who, in each case, may
also solicit proxies from Marietta shareholders. The principal
business address of each of the sole director and the officers of
Dickstein Partners named below is c/o Dickstein Partners Inc.,
9 West 57th Street, New York, New York 10019, and the principal
business address of each of the sole director and the officers of
Calibre named below is c/o Calibre Capital Advisors, Inc., 66
East 80th Street, New York, New York 10021.
Director and Officers of Dickstein Partners Inc.
Present Principal Occupation or
Name and Positions Held Employment
- ----------------------- -------------------------------
Mark Dickstein President and Sole Director
President and Sole Director of Dickstein Partners Inc.
Tod Black Vice President of Dickstein
Vice President Partners Ind.
David Brail Vice President of Dickstein
Vice President Partners Inc.
Mark D. Brodsky Vice President of Dickstein
Vice President Partners Inc.
Alan S. Cooper Vice President and General
Vice President and General Counsel of Dickstein Partners
Counsel Inc.
Steven Cornick Vice President of Dickstein
Vice President Partners Inc.
Edward Farr Vice President of Dickstein
Vice President Partners Inc.
Samuel L. Katz Vice President of Dickstein
Vice President Partners Inc.
S-I-1
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Present Principal Occupation or
Name and Positions Held Employment
- ----------------------- -------------------------------
Mark Kaufman Vice President of Dickstein
Vice President Partners Inc.
Arthur Wrubel Vice President of Dickstein
Vice President Partners Inc.
Director and Officers of Calibre Capital Advisors, Inc.
Present Principal Occupation or
Name and Positions Held Employment
- ----------------------- -------------------------------
Howard R. Shapiro President and Sole Director of
President and Sole Director Calibre Capital Advisors, Inc.
Susan E. Buechley Vice President of Calibre
Vice President Capital Advisors, Inc.
S-I-2
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<PAGE>
SCHEDULE II
SHARES HELD BY DICKSTEIN PARTNERS, CALIBRE, THEIR RESPECTIVE
DIRECTORS AND OFFICERS, AND THE DICKSTEIN NOMINEES
Except as disclosed in this Schedule or in the
accompanying Proxy Statement, none of Dickstein Partners,
Calibre, any of their respective directors or officers named in
Schedule I or the Dickstein Nominees, or any of their respective
associates, owns any securities of Marietta or any subsidiary
of Marietta, beneficially or of record, has purchased or sold any
of such securities within the past two years or is or was within
the past year a party to any contract, arrangement or
understanding with any person with respect to any such
securities. Shares purchased by Dickstein & Co., L.P. and
Dickstein International Limited were funded out of these
entities' working capital, which may at any time include margin
loans made by brokerage firms in the ordinary course of their
business.
Dickstein & Co., L.P.
Number of Shares
Date Purchased Sold
1/4/95 100,000
1/12/95 79,500
1/13/95 8,500
1/16/95 42,500
1/17/95 117,400
Dickstein International Limited
Number of Shares
Date Purchased Sold
1/4/95 46,000
1/12/95 36,500
1/13/95 4,000
1/16/95 19,500
1/17/95 54,100
S-II-1
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<PAGE>
Calibre Capital Advisors, Inc.
Number of Shares
Date Purchased Sold
10/6/94 3,000
10/18/94 500
10/27/94 5,000
10/28/94 1,100
11/16/94 3,000
11/18/94 2,000
11/23/94 3,000
S-II-2
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<PAGE>
IMPORTANT
Your proxy is important. No matter how many Shares you
own, please give Dickstein Partners your proxy FOR the election
of the Dickstein Nominees by:
MARKING the enclosed BLUE Annual Meeting proxy card,
SIGNING the enclosed BLUE Annual Meeting proxy card,
DATING the enclosed BLUE Annual Meeting proxy card
and
MAILING the enclosed BLUE Annual Meeting proxy card
TODAY in the envelope provided (no postage is required if
mailed in the United States).
If you have already submitted a proxy to Marietta for
the Annual Meeting, you may change your vote to a vote FOR the
election of the Dickstein Nominees by marking, signing, dating
and returning the enclosed BLUE proxy card for the Annual
Meeting, which must be dated after any proxy you may have
submitted to Marietta. Only your latest dated proxy for the
Annual Meeting will count at such meeting.
If you have any questions or require any additional
information concerning this Proxy Statement or the proposal by
the Dickstein Group to acquire Marietta, please contact MacKenzie
Partners, Inc. at the address set forth below or Dickstein
Partners at (212) 754-4000. IF ANY OF YOUR SHARES ARE HELD IN
THE NAME OF A BROKERAGE FIRM, BANK NOMINEE OR OTHER SUCH
INSTITUTION, ONLY IT CAN VOTE SUCH SHARES AND ONLY UPON RECEIPT
OF YOUR SPECIFIC INSTRUCTIONS. ACCORDINGLY, PLEASE CONTACT THE
PERSON RESPONSIBLE FOR YOUR ACCOUNT AND INSTRUCT THAT PERSON TO
HAVE THE BLUE ANNUAL MEETING PROXY CARD EXECUTED ON YOUR BEHALF.
MACKENZIE PARTNERS, INC.
156 Fifth Avenue
New York, New York 10010
Tel: (212) 929-5500 (call collect)
or
Call Toll-Free (800) 322-2885
PAGE
<PAGE>
IMPORTANT
If your shares are registered in your own name, you may
mail or fax your BLUE proxy card (both sides) to MacKenzie
Partners, Inc. at the address or fax number listed below.
If your shares are held in "street name" held by your
brokerage firm or bank immediately instruct your broker or bank
representative to sign Dickstein Partners' BLUE proxy card on
your behalf. If you have any questions on voting your shares,
please call:
MACKENZIE
PARTNERS, INC.
156 Fifth Avenue
New York, NY 10010
CALL TOLL-FREE (800) 322-2885
FAX: (212) 929-0308
PAGE
<PAGE>
MARIETTA CORPORATION
ANNUAL MEETING OF SHAREHOLDERS
THIS PROXY IS SOLICITED BY DICKSTEIN PARTNERS INC.
The undersigned shareholder of Marietta Corporation
hereby appoints each of Mark D. Brodsky and Alan S. Cooper, and
each of them with full power of substitution, for and in the name
of the undersigned, to represent and to vote, as designated
below, all shares of common stock of Marietta Corporation
that the undersigned is entitled to vote if personally present at
the 1995 Annual Meeting of Shareholders of Marietta Corporation
to be held on July 14, 1995 at 10:00 A.M. at The Holiday Inn, 2
River Street, Route 13 and Interstate 81, Cortland, New York, and
at any adjournment or postponement thereof. The undersigned
hereby revokes any previous proxies with respect to the matters
covered by this Proxy.
DICKSTEIN PARTNERS INC. RECOMMENDS A VOTE FOR ELECTION OF ITS
NOMINEES NAMED BELOW.
(Please mark each proposal with an "X" in the appropriate box)
ELECTION OF DIRECTORS:
Election of Mark Dickstein, Jeffrey E. Ginsberg, Lawrence E.
Golub, Samuel L. Katz, Ira W. Krauss, Howard R. Shapiro and Ralph
E. Stewart.
/_/ FOR all nominees except as /_/ WITHHOLD AUTHORITY for all
marked below nominees
(INSTRUCTION: To withhold authority to vote for one or more
nominees, mark FOR above and print the name(s) of the person(s)
with respect to whom you wish to withhold authority in the space
provided below.)
_________________________________________________________________
IN THEIR DISCRETION, THE PROXIES ARE AUTHORIZED TO
VOTE UPON SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE
MEETING OR ANY ADJOURNMENT THEREOF.
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PLEASE MARK, SIGN, DATE AND RETURN THIS PROXY CARD PROMPTLY IN
THE ENCLOSED ENVELOPE PROVIDED.
This Proxy, when properly executed, will be voted in the
manner marked herein by the undersigned shareholder. IF NO
MARKING IS MADE, THIS PROXY WILL BE DEEMED TO BE A DIRECTION TO
VOTE FOR THE NOMINEES OF DICKSTEIN PARTNERS.
Please date and sign this proxy
exactly as your name appears hereon.
____________________________________
(Signature)
____________________________________
(Signature, if held jointly)
____________________________________
(Title)
Dated:______________________________
When shares are held by joint tenants,
both should sign. When signing as
attorney-in-fact, executor,
administrator, trustee, guardian,
corporate officer or partner, please
give full title as such. If a
corporation, please sign in
corporate name by President or other
authorized officer. If a partnership,
please sign in partnership name by
authorized person.
To vote in accordance with the Dickstein Partners recommendation,
just sign and date this proxy; no boxes need to be checked.
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DICKSTEIN PARTNERS INC.
Mark Dickstein Tel: (212) 754-4000
President Fax: (212) 754-5825
June [ ], 1995
Dear Fellow Marietta Shareholders:
At the Marietta Corporation shareholders' meeting on
July 14, you will decide who will serve as the directors of the
Company for the ensuing year. We solicit your vote for our
nominees, who are committed to a program of offering Marietta for
sale and selling Marietta to the highest bidder so long as the
price is at least $11 per share.
On January 17, 1995, Dickstein Partners and Calibre
Capital Advisors announced their interest in acquiring all of the
shares of Marietta they do not already own for $11 per share in
cash. Dickstein Partners and Calibre own an aggregate of 14.6%
of the outstanding shares. Dickstein Partners earnestly believes
that a sale of Marietta to the highest bidder represents the best
opportunity to maximize the value of your shares. The $11 price
we have offered is fully 50% above market prices a month before
we announced our acquisition proposal.
The incumbent Marietta board of directors, with the
assistance of its investment banker, Goldman Sachs & Co., has
already had five months to evaluate and respond to our
acquisition proposal, to solicit others, and to explore its other
alternatives. During that period, Marietta has shared
confidential information with us and other potential bidders, and
we continue to have discussions with Marietta concerning our
offer. However, the incumbent board has never publicly committed
itself to a sale of the Company at a minimum of $11 per share
(or, for that matter, at any price). Further, while no other
party has publicly offered $11 or more per share for Marietta,
the incumbent Board last March rejected our offer.
In light of this history, the upcoming annual meeting
will present shareholders with a pivotal choice. At the meeting,
you can elect a slate of directors that is publicly committed to
seeking the sale of the Company for the highest price obtainable,
so long as the price is at least $11 per share. Your
alternative is to re-elect the incumbent directors, who:
o Continue to equivocate, even in the proxy materials
they are mailing you, about whether Marietta will be
sold or will remain an independent company.
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o Have a negligible equity stake in the Company.
o Have presided over disappointing operating results. In
particular, comparing the second quarter of this year
to last year's, the Company's operating income dropped
from a positive $901,000 to a negative $99,000, and
earnings per share dropped from 16 cents to zero.
o Announced (shortly after we submitted our acquisition
proposal) that the current fiscal year's capital
expenditures will be $6 million ($1.64 per share) --
twice the prior year's level and triple the average for
the last six years. Such a dramatic increase in
capital expenditures could easily inhibit the sale of
the Company or lower the price that bidders are
prepared to pay.
o Have agreed to pay Goldman Sachs a fee of about
$1,750,000 (nearly 50 cents per share) if our $11
per share bid succeeds, and $140,000 more for each
$1.00 per share increase in acquisition price.
You are now faced with a clear choice. Do you wish
to re-elect the incumbent directors, who have over the last five
months accomplished nothing in response to an acquisition
proposal and who still equivocate as to whether, when and how
they will act? Or would you rather elect a board, which is
committed to putting the Company up for sale and selling it to
the highest bidder, so long as that price is at least $11 per
share? The choice is yours.
We urge you to vote your BLUE Annual Meeting proxy card
FOR each of the nominees proposed by Dickstein Partners and mail
it promptly in the enclosed envelope. Please review the
accompanying proxy materials for information concerning Dickstein
Partners, our nominees, and our and Calibre's joint proposal to
acquire Marietta. If you require any further information or have
questions, please call us directly at (212) 754-4000 or call
MacKenzie Partners, Inc. at the numbers listed below.
We appreciate your prompt consideration of this
important matter.
Very truly yours,
MARK DICKSTEIN
President
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If you have questions or need assistance in voting your
shares, please contact:
MACKENZIE
PARTNERS, INC.
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
or
Call Toll-Free 800-322-2885
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