SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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A.P. GREEN INDUSTRIES, INC.
(Exact name of registrant as specified in charter)
DELAWARE 43-0899374
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Green Boulevard
Mexico, Missouri 65265
(Address of principal executive offices) (Zip Code)
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A.P. GREEN INDUSTRIES, INC.
1993 PERFORMANCE PLAN
and
A.P. GREEN INDUSTRIES, INC.
1996 LONG-TERM PERFORMANCE PLAN
(Full titles of the plans)
MICHAEL B. COONEY
Senior Vice President - Law/Administration and Secretary
A.P. Green Industries, Inc.
Green Boulevard
Mexico, Missouri 65265
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (573) 473-3626
Copy to:
ROBERT M. LAROSE, ESQ.
Thompson Coburn
One Mercantile Center
St. Louis, Missouri 63101
(314) 552-6000
<TABLE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of Registration Fee
to be Registered Registered(2) Offering Price Per Share(3) Aggregate Offering Price(3)
- - -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, $1.00 par 700,000 shares $7.75 $5,425,000 $1,643.94
value(1)
===================================================================================================================================
<FN>
(1) Includes one attached Preferred Share Purchase Right per share.
(2) Total includes 300,000 shares reserved for issuance pursuant to the Company's 1993 Performance Plan and 400,000 shares
reserved for issuance pursuant to the Company's 1996 Long-Term Performance Plan.
(3) Estimated solely for purposes of computing the Registration Fee pursuant to the provisions of Section 457(h), based upon the
average of the high and low price reported on the Nasdaq National Market on April 24, 1997.
</FN>
</TABLE>
<PAGE>
A.P. GREEN INDUSTRIES, INC.
1993 PERFORMANCE PLAN
and
1996 LONG-TERM PERFORMANCE PLAN
Item 3. Incorporation of Certain Documents by Reference.
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The following documents filed by A.P. Green Industries, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated herein
by reference:
(i) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
(ii) The Company's Current Report on Form 8-K, dated January 13,
1997, as amended by Form 8-K/A, dated March 17, 1997.
(iii) The description of the Company's Common Stock contained in
Exhibit 4.1 to the Company's Registration Statement on Form
10, dated February 3, 1988, pursuant to Section 12 of the
Securities Exchange Act of 1934 (the "1934 Act").
(iv) The description of the Company's Preferred Stock Purchase
Rights contained in Exhibit 4.2 to the Company's Registration
Statement on Form 10, dated February 3, 1988, pursuant to
Section 12 of the 1934 Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the 1934 Act, after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be made a part hereof from the date of filing of
such documents. Any statements contained herein or in a document incorporated
herein by reference shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained in a
subsequently filed document incorporated herein by reference modifies or
supersedes such document. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of the
Registration Statement.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Section 102 of the General Corporation Law of Delaware allows a
corporation to include in its certificate of incorporation a provision which
limits directors' personal liability to the corporation or its stockholders for
monetary damages from a breach of fiduciary duty as a director, with certain
exceptions. Article Eighth of the Company's Restated Certificate of
Incorporation, as amended, provides such limitation to the fullest extent
permitted by the General Corporation Law of Delaware.
Section 145 of the General Corporation Law of Delaware permits a
corporation, subject to the standards set forth therein, to indemnify any person
in connection with any action, suit or proceeding brought or threatened by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving as such with
<PAGE>
respect to another corporation or entity at the request of the corporation.
Article VIII of the Company's By-Laws provides for full indemnification of its
directors and officers to the extent permitted by Section 145.
The Company maintains a directors' and officers' liability insurance
policy with total annual limits of $15,000,000. Subject to the limits,
retentions, exceptions and other terms and conditions of the policy, the
Company's directors and officers are insured against liability for any actual or
alleged error, misstatement, misleading statement, act or omission in the
discharge of their respective responsibilities to the Company solely in their
capacity as directors and officers of the Company.
Item 8. Exhibits.
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The following exhibits are filed herewith or incorporated herein by
reference:
4.1 Restated Certificate of Incorporation of the Company, filed as
Exhibit 3(a) to the Company's Annual Report on Form 10-K for
the year ended December 31, 1987, and incorporated herein by
reference.
4.2 By-Laws of the Company, as amended and currently in effect,
filed as Exhibit 3(b) to the Company's Annual Report on Form
10-K for the year ended December 31, 1995, and incorporated
herein by reference.
4.3 Rights Agreement, dated as of December 22, 1987, between the
Company and Harris Trust and Savings Bank, as Rights Agent,
filed as Exhibit 4.2 to the Registration Statement on Form 10,
dated February 3, 1988, and incorporated herein by reference.
4.4 A.P. Green Industries, Inc. 1993 Performance Plan, filed as
Appendix A to the Company's definitive Proxy Statement for the
1993 Annual Meeting of Stockholders held May 6, 1993, and
incorporated herein by reference.
4.5 A.P. Green Industries, Inc. 1996 Long-Term Performance Plan,
filed as Appendix A to the Company's definitive Proxy
Statement for the 1996 Annual Meeting of Stockholders held May
9, 1996, and incorporated herein by reference.
5.1 Opinion of Thompson Coburn as to the legality of the
securities being registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Thompson Coburn (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page hereof).
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<PAGE>
Item 9. Undertakings.
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers and sales are
being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof), which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect
to the plan of distribution previously disclosed
in the registration statement or any material
change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
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<PAGE>
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Mexico, State of Missouri, on April 28, 1997.
A.P. GREEN INDUSTRIES, INC.
By /s/Paul F. Hummer II
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Paul F. Hummer II
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Paul F. Hummer II, Gary L. Roberts and Michael B. Cooney, and each of
them (with full power to each of them to act alone), his true and lawful
attorneys-in-fact and agents for him and on his behalf and in his name, place
and stead, in any and all capacities to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with exhibits and any and all other documents filed with respect thereto, with
the Securities and Exchange Commission (or any other governmental or regulatory
authority), granting unto said attorneys, and each of them, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in and about the premises in order to effectuate the same
as fully to all intents and purposes as he himself might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Paul F. Hummer II Chairman of the Board, President April 28, 1997
- - ----------------------- and Chief Executive Officer (Principal
Paul F. Hummer II Executive Officer)
/s/ Gary L. Roberts Vice President, Chief Financial April 28, 1997
- - ----------------------- Officer and Treasurer (Principal
Gary L. Roberts Financial and Accounting Officer)
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<PAGE>
Signature Title Date
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/s/ P. Jack O'Bryan Director April 28, 1997
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P. Jack O'Bryan
/s/ Donald E. Lasater Director April 28, 1997
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Donald E. Lasater
/s/ William F. Morrison Director April 28, 1997
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William F. Morrison
/s/ Daniel R. Toll Director April 28, 1997
- - -----------------------
Daniel R. Toll
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<PAGE>
EXHIBIT INDEX
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Exhibit No.
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4.1 Restated Certificate of Incorporation of the Company, filed as
Exhibit 3(a) to the Company's Annual Report on Form 10-K for the
year ended December 31, 1987, and incorporated herein by reference.
4.2 By-Laws of the Company, as amended and currently in effect, filed
as Exhibit 3(b) to the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, and incorporated herein by reference.
4.3 Rights Agreement, dated as of December 22, 1987, between the
Company and Harris Trust and Savings Bank, as Rights Agent, filed
as Exhibit 4.2 to the Registration Statement on Form 10, dated
February 3, 1988, and incorporated herein by reference.
4.4 A.P. Green Industries, Inc. 1993 Performance Plan, filed as
Appendix A to the Company's definitive Proxy Statement for the 1993
Annual Meeting of Stockholders held May 6, 1993, and incorporated
herein by reference.
4.5 A.P. Green Industries, Inc. 1996 Long-Term Performance Plan, filed
as Appendix A to the Company's definitive Proxy Statement for the
1996 Annual Meeting of Stockholders held May 9, 1996, and
incorporated herein by reference.
5.1 Opinion of Thompson Coburn as to the legality of the securities
being registered.
23.1 Consent of KPMG Peat Marwick LLP with regards to the use of its
Report on A.P. Green Industries, Inc.'s financial statements.
23.2 Consent of Thompson Coburn (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page hereof).
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Exhibit 5.1
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[Thompson Coburn Letterhead]
April 28, 1997
A.P. Green Industries, Inc.
Green Boulevard
Mexico, Missouri 65265
Re: Registration Statement on Form S-8 -- 700,000 Shares of A.P. Green
Industries, Inc. Common Stock, $1.00 par value, and attached Preferred
Share Purchase Rights
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Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by A.P. Green Industries, Inc., a Delaware corporation
(the "Company"), on April 29, 1997, with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended, pertaining to the proposed
issuance by the Company of up to 700,000 shares of the Company's common stock,
$1.00 par value, and attached Preferred Share Purchase Rights (the "Shares"), as
provided in the A.P. Green Industries, Inc. 1993 Performance Plan and 1996
Long-Term Performance Plan (collectively the "Plans"), we have examined such
corporate records of the Company, such laws and such other information as we
have deemed relevant, including the Company's Restated Certificate of
Incorporation, By-Laws, as amended, resolutions adopted by the Board of
Directors relating to such issuance, certificates received from state officials
and statements we have received from officers and representatives of the
Company. In delivering this opinion, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to the originals of all documents submitted to us as certified,
photostatic or conformed copies, the authenticity of originals of all such
latter documents, and the correctness of statements submitted to us by officers
and representatives of the Company.
Based solely on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and is validly existing under the laws
of the State of Delaware; and
2. The Shares to be issued by the Company pursuant to the Registration
Statement have been duly authorized and, when issued by the Company in
accordance with the Plans, will be duly and validly issued and will be
fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement. We further consent to the filing of copies of this opinion with
agencies of such states and other jurisdictions as you deem necessary in the
course of complying with the laws of the states and jurisdictions regarding the
sale and issuance of the Shares in accordance with the Registration Statement.
Very truly yours,
/s/ Thompson Coburn
Exhibit 23.1
Independent Auditors' Consent
The Board of Directors and Stockholders
A.P. Green Industries, Inc.:
We consent to the use of our report dated February 10, 1997 incorporated herein
by reference. Our report refers to a change in the method of accounting for
postemployment benefits.
/s/ KPMG Peat Marwick LLP
St. Louis, Missouri
April 28, 1997