-----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, Ug0yGdcGSBbkb8lcHpMmb7VddDMrzU6eMHl+lU3dzU1WTRlFwq6O1XIyjjEY0s2g X3sSpi1Gl029oONXSz7M4A== 0000922423-95-000059.txt : 19950420 0000922423-95-000059.hdr.sgml : 19950420 ACCESSION NUMBER: 0000922423-95-000059 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19950419 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: 95529559 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. 5 to SCHEDULE 13D Under the Securities Exchange Act of 1934 Marietta Corporation (Name of Issuer) Common Stock, $.01 par value (Title of Class of Securities) 56763410 (CUSIP Number) David P. Levin, Esq. Kramer, Levin, Naftalis, Nessen, Kamin & Frankel 919 Third Avenue New York, New York 10022 (212) 715-9100 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) April 18, 1995 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box: Check the following box if a fee is being paid with this statement: Page 1 of 13 pages Amendment No. 5 to Schedule 13D This Amendment amends the Schedule 13D, dated January 20, 1995, as amended by Amendment No. 1 thereto dated February 15, 1995, Amendment No. 2 thereto dated March 6, 1995, Amendment No. 3 thereto dated April 3, 1995 and Amendment No. 4 thereto dated April 14, 1995 (the "Schedule 13D"), filed by Dickstein & Co., L.P., Dickstein International Limited, Dickstein Partners, L.P., Dickstein Partners Inc., Mark Dickstein, Calibre Capital Advisors, Inc. and Howard R. Shapiro, with respect to the Common Stock, $.01 par value, of Marietta Corporation (the "Schedule 13D"). Notwithstanding this Amendment, the Schedule 13D speaks as of its respective dates. Capitalized terms used without definition have the meanings assigned to them in the Schedule 13D. Item 4 of the Schedule 13D, "Purpose of the Transaction," is hereby amended by adding the following at the end thereof: "On April 17, 1995, Dickstein & Co. and Dickstein International filed a petition in New York State Supreme Court, County of Cortland, for an order directing the Company to convene an annual meeting of the Company's shareholders. A copy of the petition is attached as Exhibit 11. On April 18, the Court entered an order to show cause scheduling a hearing on the petition for April 27, 1995. On April 18, 1995, Mark Dickstein, President of Dickstein Inc., sent a letter to the Board of Directors of the Company in respect of the Company's failure to convene an annual meeting. A copy of Mr. Dickstein's letter is attached hereto as Exhibit 12." Item 7 of the Schedule 13D, "Exhibits," is hereby amended by adding the following Exhibits: Exhibit 11 Application of Dickstein & Co., L.P. and Dickstein International Limited v. Marietta Corporation et al. (N.Y. Sup. Ct. Cortland Co.), filed April 17, 1995. Exhibit 12 Letter, dated April 18, 1995, from Mark Dickstein to the Board of Directors of the Company. 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: April 19, 1995 DICKSTEIN & CO., L.P. By: Alan Cooper, as Vice President of Dickstein Partners Inc., the general partner of Dickstein Partners, L.P., the general partner of Dickstein & Co., L.P. /s/ Alan Cooper Name: Alan Cooper DICKSTEIN INTERNATIONAL LIMITED By: Alan Cooper, as Vice President of Dickstein Partners Inc., the agent of Dickstein International Limited /s/ Alan Cooper Name: Alan Cooper DICKSTEIN PARTNERS, L.P. By: Alan Cooper, as Vice President of Dickstein Partners Inc., the general partner of Dickstein Partners, L.P. /s/ Alan Cooper Name: Alan Cooper 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-11 2 EXHIBIT 11 LETTER EXHIBIT 11 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CORTLAND - ----------------------------------------x Application of : : DICKSTEIN & CO., L.P. and : DICKSTEIN INTERNATIONAL LIMITED, : : Petitioners, : : For a Judgment Pursuant to CPLR : Index No. 31571 Article 78 Directing Respondents to : Hold an Annual Shareholders Meeting, : : Verified Petition - against - : : MARIETTA CORPORATION, ROBERT C. : BUHRMASTER, RONALD C. DEMEO, : DOMINIC J. LAROSA, FRANK MAGRONE, : LEONARD J. SICHEL, STEPHEN D. : TANNEN and THOMAS D. WALSH, : : Respondents. : - ----------------------------------------x Petitioners Dickstein & Co., L.P. ("Dickstein & Co."), and Dickstein International Limited ("Dickstein International"), by their attorneys, True, Walsh & Miller and Kramer, Levin, Naftalis, Nessen, Kamin & Frankel, for their verified petition allege as follows: Nature of this Action 1. This is an action pursuant to Article 78 of the CPLR for an order of mandamus directing respondent Marietta Corporation ("Marietta") and its Board of Directors to convene an annual meeting of Marietta's shareholders within thirteen months of Marietta's last annual meeting, as required by New York law. Petitioners, who together own approximately 14 percent of Marietta's outstanding shares, have repeatedly requested orally and in a series of letters that Marietta's Board schedule a shareholders meeting by April 29, 1995, or thirteen months from the date of Marietta's last shareholders meeting. Despite these requests, the Board has refused to schedule an annual meeting by that date or even to set any date for the annual meeting. 5 2. Petitioners will suffer immediate, irreparable harm unless their petition is granted. Marietta's actions threaten to disenfranchise petitioners and dilute their voting rights and those of Marietta's other shareholders. Petitioners have made a bid to acquire the company. They have also proposed a slate of nominees for the Marietta Board of Directors to replace the incumbent Board. Marietta has, in turn, announced that it is exploring alternative financial transactions that may fundamentally change the company. Marietta's failure to schedule a meeting effectively deprives petitioners of their right to obtain representation on that Board and shields the Board from the scrutiny of Marietta's public shareholders. The relief requested here -- an order directing Marietta to convene an annual shareholders meeting as soon as practicable after April 29, 1995, but in no event later than 20 days after the hearing on this application -- is thus urgently needed to prevent respondents from unlawfully insulating themselves from accountability to Marietta's public shareholders. Parties, Jurisdiction and Venue 3. Petitioner Dickstein & Co. is a Delaware limited partnership with its principal place of business in New York City, New York. Dickstein & Co. is a fund engaged in various investment activities. 4. Petitioner Dickstein International is an investment fund incorporated in the Territory of the British Virgin Islands with its principal place of business in Hamilton, Bermuda. Dickstein International engages in investment activities similar to those of Dickstein & Co. 5. Upon information and belief, respondent Marietta is a New York corporation with its principal place of business in Cortland, New York. Marietta specializes in the design, manufacture, packaging and marketing of toiletries, cosmetics, pharmaceuticals and household products for hotels and the travel industry. In 1994, Marietta's sales totalled approximately $68 million. 6. Upon information and belief, respondents Robert C. Buhrmaster, Ronald C. DeMeo, Dominic J. LaRosa, Frank Magrone, Leonard J. Sichel, Stephen D. Tannen and Thomas D. Walsh are members of the Board of Directors of Marietta. 7. Respondents have done business in the State of New York, are presently doing business in the State, and have trans- acted business in the State of New York in connection with the claims in this petition. 8. Venue is proper in this county pursuant to CPLR 503. 6 Factual Background 9. Marietta has had a troubled history for some time. During the past three years, two of its high-ranking executive officers have been convicted of securities fraud. Its former president and chief executive officer was convicted, among other things, of violating federal securities laws relating to false statements contained in the Company's financial reports and was sentenced to 21 months in prison. Marietta's former chief financial officer pled guilty to securities fraud and related charges and received a one-year sentence. 10. In January 1995, Dickstein & Co. purchased approximately 347,900 shares of Marietta, or 9.7 percent of its outstanding stock. At the same time, Dickstein International purchased 160,100 shares of Marietta, or 4.4 percent of its outstanding stock. 11. On January 17, 1995, Mark Dickstein, the President of Dickstein Partners Inc. (an affiliate of Dickstein & Co. and the advisor to Dickstein International) proposed to Marietta that Dickstein Partners and another entity acquire 100 percent of the stock of Marietta for $11 a share, or approximately 50 percent above its trading price a month earlier. Dickstein Partners thereafter filed preliminary proxy materials with the Securities and Exchange Commission that would enable Dickstein Partners to propose an alternative slate of directors at the 1995 annual shareholders meeting if no buyout agreement were reached with the existing Board. The nominees Dickstein Partners proposed for the Marietta Board were committed to a program of offering Marietta for sale and selling the company to the buyer who was willing to pay the highest price, so long as the price was at least $11 a share. Marietta's Failure to Schedule an Annual Meeting 12. Article II(2) of Marietta's bylaws (Exh. A, attached) provides that Marietta will convene an annual meeting of shareholders "on such date and at such hour as may be fixed by the Board of Directors," at which time "the shareholders shall elect directors and transact such other business as may properly come before the meeting." Section 603 of New York's Business Corporation Law requires that a New York corporation hold an annual shareholders meeting at least once every thirteen months. Since the last Marietta shareholders meeting was held on March 29, 1994, Marietta was required to hold another annual meeting by April 29, 1995. 7 13. In January 1995, and shortly before Dickstein Partners made its proposal to acquire the company and proposed a slate of directors for the annual meeting, Marietta had informed the brokerage community that its annual meeting would take place on March 10, 1995, with a January 29, 1995 record date. But faced with the prospect of an election contest, Marietta's Board refused to set the annual shareholders meeting date. 14. On March 13, 1995, Marietta announced that it had rejected the Dickstein Partners' acquisition proposal as inadequate and had instructed its management to explore "possible financial alternatives available to Marietta," which might include "a merger, an acquisition or disposition of assets or securities, a recapitalization or other form of business combination transaction." 15. Over the past two and a half months, Dickstein Partners repeatedly discussed the holding of an annual meeting with the company. In telephone conversations with Marietta or its advisors on January 25, February 2, February 7, February 8, and March 2, 1995, Dickstein Partners raised when the Marietta annual shareholders meeting would be held. On each occasion, the company said no meeting date had been set and no prediction could be made as to when the meeting might take place. On March 3, 1995, Mr. Dickstein then wrote to Marietta (Exhibit B, attached) and reiterated that the Dickstein funds expected the Board to comply with its responsibility under Section 603 of the Business Corporation law and requested that an annual meeting be scheduled by April 29, 1995. Again, on March 31, 1995, Mr. Dickstein wrote to the Marietta Board (Exhibit C, attached), asking that an annual meeting be held by May 1, 1995 (the next business day after April 29, a Saturday) and insisting at a minimum that the Board advise the shareholders when a meeting will be held. Respondents, however, have ignored these requests. 16. Other large shareholders of Marietta, unrelated to Dickstein Partners, have also voiced concern about the company's delay in scheduling an annual meeting. In filings with the Securities and Exchange Commission and/or letters to the company, the Elliott Associates group, which holds approximately 6.33 percent of Marietta's outstanding shares, and the Florescue group, holders of 8.7 percent of the outstanding shares, both supported Dickstein Partners' request that the Board set a prompt date for the annual meeting (Exhibit D, attached). 8 17. To date, and in violation of New York law and well-established principles of corporate democracy, Marietta and its Board have refused to schedule an annual shareholders meeting. Marietta has not filed any preliminary proxy materials with the Commission. It has not set a record date. It is impossible under the company's bylaws and other applicable rules for Marietta's Board to convene an annual meeting by April 29, 1995 as required by law. At the same time, Marietta has announced that it is considering alternative financial transactions that may fundamentally alter the company. The Need for Immediate Relief 18. New York law recognizes that one of the fundamental rights of a corporate shareholder is the right to vote at an annual meeting on candidates for the board of directors and on other matters of interest to the corporation and its shareholders. By refusing to schedule an annual meeting in accordance with New York law, Marietta and its Board have disenfranchised petitioners -- as well as all other non-director shareholders of the company. By frustrating petitioners' voting rights as well as their right to obtain representation on Marietta's Board, respondents have shielded their actions from shareholder accountability and inflicted on petitioners substantial and irreparable harm. The delay is all the more consequential given Dickstein Partners' bid, the Board's rejection of it, the prospect of a proxy contest, and the consideration by a potentially lame duck Board of transactions that may fundamentally alter the company. Immediate relief is thus urgently needed. 19. Petitioners have no adequate remedy of law. 20. Petitioners are proceeding by order to show cause to insure that the petition is heard and their injury redressed in a prompt and expeditious fashion. No Prior Request 21. No prior request has been made for the relief requested here. Wherefore, petitioners demand judgment in the nature of mandamus pursuant to Article 78 of the CPLR (i) Ordering Marietta and its directors to convene an annual meeting of Marietta's shareholders as soon as practicable, but in no event later than 20 days after the hearing on this application; 9 PAGE (ii) awarding costs and disbursements of this action, including reasonable attorneys' fees; and (iii) awarding such other and further relief as the Court deems just and proper. Dated: New York, New York April 14, 1995 True, Walsh & Miller 101 North Tioga Street Suite 205 Ithaca, New York 14850 (607) 273-4200 -and- Kramer, Levin, Naftalis, Nessen, Kamin & Frankel 919 Third Avenue New York, New York 10022 (212) 715-9100 Attorneys for Petitioners Dickstein & Co., L.P. and Dickstein International Limited 10 Verification STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) Mark D. Brodsky, being duly sworn, deposes and says: 1. I am a Vice President of Dickstein Partners Inc. Dickstein Partners Inc. is the advisor to Petitioner Dickstein international Limited, and the general partner of Dickstein Partners, L.P., which is the general partner of Petitioner Dickstein & Co., L.P. 2. I have read the foregoing Verified Petition and am fully familiar with the facts alleged therein. Those facts are true to the best of my knwoledge, information and belief. /s/ Mark D. Brodsky Mark D. Brodsky Sworn to before me this 14th day of April, 1995 /s/Alan A. Friedman Notary Public 11 EX-12 3 EXHIBIT 12 LETTER EXHIBIT 12 DICKSTEIN PARTNERS INC. Mark Dickstein Tel: 212-754-4000 President Fax: 212-754-5825 April 18, 1995 Board of Directors Marietta Corporation 37 Huntington Street Cortland, NY 13045 Gentlemen: We have on numerous occasions asked that you convene a timely annual meeting of Marietta's shareholders. You have neither called a meeting nor afforded us the elementary courtesy of a response to our requests. It is now impossible for you to hold the meeting by the statutorily mandated day of April 29. You have therefore left us no choice but to bring suit to compel the holding of the meeting. Perhaps you have been advised that you can delay holding the annual shareholders' meeting indefinitely or at least until the expiration of the 15-month period mentioned in Section 603 of the New York Business Corporation Law. But that is not the case. The Federal District Court, in the case we cited in our March 31 letter, made clear that "under New York Law, annual meetings are contemplated to occur no later than thirteen months after the last such meeting...." While Section 603 provides a remedy - a special shareholders' meeting - if the annual share- holders' meeting is not held within the prescribed 13-month period, the court ruled that the remedy is not exclusive, and that the disenfranchisement of shareholders resulting from the failure to hold a timely annual meeting is in violation of the New York statute and poses a serious risk of irreparable harm. 12 We demand that you act immediately to convene the shareholders' meeting on the earliest possible date, rather than waiting for the court to order you to do so - as we have no doubt it will. Your failure to call a meeting is already a breach of fiduciary duty. Every day that you unlawfully perpetuate your purported term of office beyond April 29 - whether by continued delay in calling the meeting, or by calling the meeting for other than the earliest possible date - will entail an additional breach of duty. It is our position that after April 29 your continued tenure as directors will be wrongful. With each passing day until your successors are elected, each of you will be preventing your successors from taking actions that they would have taken if you had not wrongfully delayed their election. We will use, and will urge your successors to use, every effort to hold you (and other persons aiding and abetting your breach of duty) personally liable for all expenditures, liabilities, obligations and damages incurred by Marietta and its shareholders as a result, including all costs incurred by Marietta in connection with our suit. We may also seek to invalidate agreements that Marietta purports to enter into under the authority of directors who have wrongfully extended the term of their office by refusing to hold an annual election. In the face of this and prior demands, we believe your continued attempt wrongfully to extend your term of office is willful and deliberate, and it is our position that you will not be entitled to indemnification or exculpation by Marietta. Sincerely, Mark Dickstein 13 -----END PRIVACY-ENHANCED MESSAGE-----