-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, J712fXzTyQeRY1rx3C6LHIvrxZR6Lto5bt3s74amcdJ9OQkZombvBzXT6sLYosHw uDB8DujpTKbaOLVftsP2iw== 0000922423-95-000021.txt : 19950609 0000922423-95-000021.hdr.sgml : 19950609 ACCESSION NUMBER: 0000922423-95-000021 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19950306 SROS: NONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MARIETTA CORP CENTRAL INDEX KEY: 0000792969 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 161074992 STATE OF INCORPORATION: NY FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-38479 FILM NUMBER: 95518688 BUSINESS ADDRESS: STREET 1: 37 HUNTINGTON ST CITY: CORTLAND STATE: NY ZIP: 13045 BUSINESS PHONE: 6077536746 MAIL ADDRESS: STREET 1: 37 HUNTINGTON STREET CITY: CORTLAND STATE: NY ZIP: 13045 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DICKSTEIN PARTNERS INC CENTRAL INDEX KEY: 0000922415 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 133537972 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 9 WEST 57TH STREET CITY: NEW YORK STATE: NY ZIP: 10019 MAIL ADDRESS: STREET 1: 9 WEST 57TH STREET CITY: NEW YORK STATE: NY ZIP: 10019 SC 13D/A 1 MARIETTA CORPORATION 13D AMENDMENT FILING SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Amendment No. 2 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) March 3, 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 6 pages Amendment No. 2 to Schedule 13D This Amendment amends the Schedule 13D, dated January 20, 1995, as amended by Amendment No. 1 thereto, dated February 15, 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 March 3, 1995, Mark Dickstein, President of Dickstein Inc., sent a letter to Stephen D. Tannen, Chief Executive Officer of the Company. A copy of the letter is annexed hereto as Exhibit 7 and incorporated herein by reference." Item 7 of the Schedule 13D, "Exhibits," is hereby amended by adding the following Exhibit: Exhibit 7 Letter, dated March 3, 1995, from Mark Dickstein to Stephen D. Tannen. 2 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: March 6, 1995 DICKSTEIN & CO., L.P. By: Alan Cooper, as Vice President of Dickstein Partners Inc., the general partner of Dickstein Partners, L.P., the general partner of Dickstein & Co., L.P. /s/ Alan Cooper Name: Alan Cooper DICKSTEIN INTERNATIONAL LIMITED By: Alan Cooper, as Vice President of Dickstein Partners Inc., the agent of Dickstein International Limited /s/ Alan Cooper Name: Alan Cooper DICKSTEIN PARTNERS, L.P. By: Alan Cooper, as Vice President of Dickstein Partners Inc., the general partner of Dickstein Partners, L.P. /s/ Alan Cooper Name: Alan Cooper 3 DICKSTEIN PARTNERS INC. By: Alan Cooper, as Vice President /s/ Alan Cooper Name: Alan Cooper /s/ Mark Dickstein Mark Dickstein CALIBRE CAPITAL ADVISORS, INC. By: Howard R. Shapiro, as President /s/ Howard R. Shapiro Name: Howard R. Shapiro /s/ Howard R. Shapiro Howard R. Shapiro 4 EX-7 2 EXHIBIT 7 LETTER EXHIBIT 7 DICKSTEIN PARTNERS INC. Mark Dickstein Tel: 212-754-4000 President Fax: 212-754-5825 March 3, 1995 Mr. Stephen D. Tannen Marietta Corporation 37 Huntington Street Cortland, New York 13045 Dear Steve: 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. 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 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. Steve, I appreciate the cordial tone of our few conversations, including yesterday's. I remain committed to a constructive dialogue if the Board will only afford us the opportunity. But the Board has been unresponsive by any reasonable measure, and I think that we and Marietta's other stockholders deserve better. We believe that we are entitled to a response to our proposal immediately following the Board's meeting next Friday. Let me reiterate our willingness to consider increasing our offering price if justified by Marietta's non-public information, to which we have been seeking access for the last six weeks. Please also be aware that our negotiations with lenders have advanced successfully in the interim, confirming our earlier expectation that the proposed acquisition can be readily financed. 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. In accordance with the requirements of securities laws, we will be filing a copy of this letter in an amendment to our 13D. We look forward to hearing from you. Sincerely, Mark Dickstein cc: Board of Directors of Marietta Corporation -----END PRIVACY-ENHANCED MESSAGE-----