-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JWizZ558IdI5ZcxhuT2jCvbxVruMfb1NFZijgrPVGe2lzuVECnNYfHTYP6bA8PW6 AoRZzrjMQND63FcMKBiHxA== 0000950130-96-000869.txt : 19960320 0000950130-96-000869.hdr.sgml : 19960320 ACCESSION NUMBER: 0000950130-96-000869 CONFORMED SUBMISSION TYPE: SC 13E3/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19960318 SROS: NASD 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 13E3/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-38479 FILM NUMBER: 96535939 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: 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 13E3/A 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 SC 13E3/A 1 AMENDMENT NO. 1 TO SCHEDULE 13E-3 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 -------------------------------------- (Name of Issuer) Marietta Corporation BFMA Holding Corporation Barry Florescue -------------------------------------- (Name of Person(s) Filing Statement) Common Stock $.01 Par Value Per Share -------------------------------------- (Title of Class of Securities) 567634 100 -------------------------------------- (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 [ ]. 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. -2- Item 1. Issuer and Class of Security Subject to the Transaction. - ------- ------------------------------------------------------- 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. - ------ ----------------------- Item 2 of the Statement is hereby amended and supplemented by the addition of the following information: -3- 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. - ------ -------------------------------------------- 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. - ------- ------------------------------------ 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. - ------- ---------------------- 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 -4- 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. - ------- -------------------------------- 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. -5- 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 ---------------------- Barry W. Florescue President and Chief Executive Officer -6- 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 ---------------------- Barry W. Florescue President, Treasurer and Secretary -7- 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 --------------------- Barry W. Florescue -8- 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 -9- EX-99.(C)(5) 2 AMENDMENT NO. 3 TO AGREEMENT & PLAN OF MERGER 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 -------------------- Name: Philip A. Shager Title: CAO, VP, Treasurer Acknowledged and Agreed in all Respects: BFMA HOLDING CORPORATION By: /s/ Barry W. Florescue ------------------------- Name: Barry W. Florescue Title: President BFMA ACQUISITION CORPORATION By: /s/ Barry W. Florescue ------------------------- Name: Barry W. Florescue Title: President EX-99.(D)(5) 3 PRESS RELEASE DATED MARCH 8, 1996 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. -----END PRIVACY-ENHANCED MESSAGE-----