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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
Amendment No. 1
(Final Amendment)
to
Schedule 13E-3
Rule 13e-3 Transaction Statement
(Pursuant to Schedule 13(e) of the
Securities Exchange Act of 1934)
MARIETTA CORPORATION
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(Name of Issuer)
Marietta Corporation
BFMA Holding Corporation
Barry Florescue
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(Name of Person(s) Filing Statement)
Common Stock
$.01 Par Value Per Share
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(Title of Class of Securities)
567634 100
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(CUSIP Number of Class of Securities)
Barry W. Florescue
MARIETTA CORPORATION
37 Huntington Street
Cortland, New York 13045
(607) 753-6746
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications
on Behalf of the Person(s) Filing Statement)
copies to:
GREGG LERNER, ESQ.
RUBIN BAUM LEVIN CONSTANT & FRIEDMAN
30 Rockefeller Plaza
New York, New York 10112
(212) 698-7705
and
CHARLES I. WEISSMAN, ESQ.
SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
919 Third Avenue
New York, New York 10022
(212) 758-9500
This statement is filed in connection with (check the appropriate box):
a. [x] The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C, or rule 13e-3(c) under the
Securities Exchange Act of 1934.
b. [ ] The filing of a registration statement under the Securities Act of
1933.
c. [ ] A tender offer.
d. [ ] None of the above.
Check the following box if soliciting materials or information referred to in
checking box (a) are preliminary copies [ ].
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Marietta Corporation (the "Company"), BFMA Holding Corporation
("Parent") and Barry W. Florescue hereby amend and supplement the Rule 13e-3
Transaction Statement on Schedule 13E-3 originally filed on February 7, 1996
(the "Statement"), with this Amendment No. 1 (the "Final Amendment"). This
Final Amendment is being filed in order to report the results of the Special
Meeting of Shareholders of the Company, which was held for the purpose of
approving the Agreement and Plan of Merger, dated as of August 26, 1996, as
amended by the First Amendment, Second Amendment and Third Amendment, dated as
of November 30, 1995, January 26, 1996 and March 8, 1996, respectively
(collectively, the "Merger Agreement"), by and among the Company, Parent and
BFMA Acquisition Corporation ("Newco"), and the merger of Newco with and into
the Company (the "Merger"), with the Company as the surviving corporation. The
Merger, which was consummated on March 8, 1996, was the final step in the
acquisition by Parent of the entire equity interest in the Company.
Newco, which was a party to the Statement, is not a party hereto
because it no longer exists as a result of the Merger.
Only those items of the Statement that are amended and supplemented
hereby are included herein. Unless otherwise defined herein, all capitalized
terms shall have the respective meanings ascribed to them in the Statement.
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Item 1. Issuer and Class of Security Subject to the Transaction.
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Item 1 of the Statement is hereby amended and supplemented by the
addition of the following information:
(b) Upon the consummation of the Merger, all of the issued and outstanding
shares of common stock, par value $.01 per share, of the Company (the "Shares")
which were then issued and outstanding, other than Shares held by Parent, Newco
or any of their affiliates (except for certain shares held in an Individual
Retirement Account for the benefit of Mr. Florescue), and Shares held by the
Company as treasury stock were converted into the right to receive $10.25 in
cash without interest. In addition, each option ("Option") outstanding under
the Company's 1986 Incentive Stock Option Plan or 1986 Stock Option Plan
(together, the "Options") were surrendered for cancellation in exchange for the
difference between $10.25 per Share and the Option exercise price. All Shares
of the Company held by Newco, Parent and any of their affiliates (except for
certain shares held in an Individual Retirement Account for the benefit of Mr.
Florescue), and all Shares owned by the Company as treasury stock have been
cancelled. Immediately prior to the Merger, there were a total of 100 shares
of common stock, par value $.01 per share, of Newco, issued and outstanding.
(Pursuant to the terms of the Merger Agreement, at the Merger, the certificate
of incorporation of Newco became the certificate of incorporation of the
surviving corporation). As a result, there are presently 100 Shares of the
Company issued and outstanding and Parent is the sole shareholder of the
Company.
Item 2. Identity and Background.
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Item 2 of the Statement is hereby amended and supplemented by the
addition of the following information:
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Pursuant to the terms of the Merger Agreement, at the Merger, the sole
director of Newco (Mr. Florescue) became the sole director of the Company.
Item 3. Past Contracts, Transactions or Negotiations.
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Item 3 of the Statement is hereby amended and supplemented by the
addition of the following information:
On March 8, 1996, the Company, Parent and Newco executed Amendment No.
3 to the Merger Agreement wherein the Company agreed to waive the requirement
set forth in Section 3.11 of the Merger Agreement, that Parent designate a
branch or trust company located in the United States with assets in excess of
$500,000,000 to serve as the Exchange Agent (as such term is defined in the
Merger Agreement).
Item 10. Interest in Securities of the Issuer.
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Item 10 of the Statement is hereby amended and supplemented by the
following information:
(a) As a result of consummation of the Merger on March 8, 1996, Parent has
acquired the entire equity interest in the Company. There are 100 issued and
outstanding Shares of the Company, all of which are owned by Parent.
Item 16. Additional Information.
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Item 16 of the Statement is hereby amended and supplemented by the
addition of the following information:
At the Special Meeting of Shareholders of the Company that was held on
March 7, 1996, 2,803,566 Shares were represented in person or by proxy;
2,769,153 Shares or 77% of the
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total Shares then outstanding were voted in favor of the proposal to approve the
Merger Agreement; 32,939 Shares or 1% of the total Shares then outstanding were
voted against the proposal; and 1,474 shares of the total Shares then
outstanding abstained. The number of Shares voted in favor of the Merger
Agreement was sufficient to approve the Merger Agreement. On March 8, 1996, a
Certificate of Merger was filed with the Department of State of the State of New
York and the Merger became effective on March 8, 1996.
As a result of the Merger, the Company is wholly-owned by Parent. A
Form 15 is to be filed concurrently with this Statement with the Securities and
Exchange Commission to deregister the Shares under Section 12(g) of the
Securities Exchange Act of 1934 because the number of holders of record of the
Shares has been reduced to fewer than 300 persons.
Item 17. Material to be filed as Exhibits.
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Item 17 of the Statement is hereby amended and supplemented by the
addition of the following information.
(c)(5) Amendment No. 3 dated March 8, 1996, to the Agreement and Plan of
Merger, dated as of August 26, 1995, by and among BFMA Holding Corporation, BFMA
Acquisition Corporation and Marietta Corporation.
(d)(5) Press release, dated March 8, 1996, issued by Marietta Corporation.
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SIGNATURE
After due 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: March 18, 1996 Marietta Corporation
By: /s/ Barry W. Florescue
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Barry W. Florescue
President and Chief Executive Officer
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SIGNATURE
After due 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: March 18, 1996 BFMA Holding Corporation
By: /s/ Barry W. Florescue
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Barry W. Florescue
President, Treasurer and Secretary
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SIGNATURE
After due 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: March 18, 1996 /s/ Barry W. Florescue
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Barry W. Florescue
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EXHIBIT INDEX
PAGE IN SEQUENTIALLY
EXHIBIT NO. DESCRIPTION NUMBERED COPY
- ----------- ----------- -------------
(c)(5) Amendment No. 3, dated March 8, 1996,
to Agreement and Plan of Merger, dated
as of August 26, 1995, by and among
BFMA Holding Corporation, BFMA
Acquistion Corporation and Marietta
Corporation.
(d)(5) Press Release, dated March 8, 1996,
issued by Marietta Corporation
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EXHIBIT (C)(5)
MARIETTA CORPORATION
37 Huntington Street
Cortland, New York 13045
March 8, 1996
BFMA Holding Corporation
701 S.E., 6th Street, Suite 204
Delray Beach, Florida 33483
Ladies and Gentlemen:
Reference is hereby made to the Agreement and Plan of Merger, dated as
of August 26, 1995, as amended by Amendment No. 1 thereto, dated as of November
30, 1995 and Amendment No. 2 thereto, dated as of January 26, 1996 (the "Merger
Agreement"), by and among BFMA Holding Corporation, a Delaware corporation (the
"Parent"), BFMA Acquisition Corporation, a New York corporation which is wholly
owned subsidiary of the Parent ("Newco") and Marietta Corporation, a New York
corporation (the "Company"). All capitalized terms used herein, unless otherwise
defined herein, shall have the meanings ascribed to such terms in the Merger
Agreement.
The Parent has requested that the Company consent to the appointment of
Continental Stock Transfer and Trust Company (the company named as the Exchange
Agent in the Proxy Statement) as the Exchange Agent pursuant to the Merger
Agreement and waive the requirement set forth in Section 3.11 of the Merger
Agreement, that the Parent designate a branch or trust company located in the
United States with assets in excess of $500,000,000 to serve as the Exchange
Agent. The Company hereby consents to the Parent's designation of Continental
Stock Transfer and Trust Company as the Exchange Agent upon the consumation of
the Merger and requests that the Parent and Newco signify their acknowledgment
and agreement with the foregoing terms of this letter by signing this letter in
the space provided for their respective signatures below.
Very truly yours,
MARIETTA CORPORATION
By:/s/ Philip A. Shager
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Name: Philip A. Shager
Title: CAO, VP, Treasurer
Acknowledged and Agreed in all Respects:
BFMA HOLDING CORPORATION
By: /s/ Barry W. Florescue
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Name: Barry W. Florescue
Title: President
BFMA ACQUISITION CORPORATION
By: /s/ Barry W. Florescue
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Name: Barry W. Florescue
Title: President
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EXHIBIT (d)(5)
MARIETTA CORPORATION
ANNOUNCES MERGER
CORTLAND, NEW YORK - MARCH 8, 1996 - MARIETTA CORPORATION ("MARIETTA") (NASDAQ :
MRTA) announced today that the merger of a corporation controlled by Barry W.
Florescue with and into Marietta had been consummated. Each holder of shares of
Marietta Common Stock outstanding immediately prior to the effective date of the
merger will receive $10.25 per share in cash, except for shares owned by Mr.
Florescue or his affiliates and shares held by shareholders who exercise
dissenter's rights. Shareholders will receive in the near future letters of
instructions with respect to the procedures for obtaining payment for their
shares.
Marietta specializes in the design, manufacture, packaging, marketing, and
distribution of guest amenity programs to the travel and lodging industry in the
United States and abroad, and provides customized "sample-size" and
"unit-of-use" packaging products and services to companies in the toiletries,
cosmetics, pharmaceuticals, and household products industries.
