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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
A.P. GREEN INDUSTRIES, INC.
(NAME OF SUBJECT COMPANY)
BGN ACQUISITION CORP.
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
(BIDDERS)
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(INCLUDING THE ASSOCIATED RIGHTS)
(Title of Class of Securities)
393059100
(CUSIP NUMBER OF CLASS OF SECURITIES)
GRAHAM L. ADELMAN, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
2121 SAN JACINTO, SUITE 2500
DALLAS, TEXAS 75201
(214) 953-4500
COPIES TO:
JAMES C. MORPHY, ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
(NAME, ADDRESS, AND TELEPHONE NUMBERS OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
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This Amendment No. 1 amends and supplements the information set forth
in the Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") filed by
BGN Acquisition Corp. (the "Merger Sub") and Global Industrial Technologies,
Inc. ("Purchaser") on March 6, 1998 with respect to shares of Common Stock, par
value $1.00 per share, of A.P. Green Industries, Inc. (the "Company"). Unless
otherwise indicated, the capitalized terms used herein shall have the meanings
specified in the Schedule 14D-1 including the Offer to Purchase filed as Exhibit
(a)(1) thereto.
ITEM 10. ADDITIONAL INFORMATION.
Item 10 is hereby amended and supplemented by adding thereto the following:
(e) On March 5, 1998, Paul Liebhard, an alleged stockholder of the Company
(the "Plaintiff"), filed a class action complaint (the "Complaint")
against Mack G. Nichols, James M. Stolze, William F. Morrison, Daniel
Toll, Paul Hummer II, P. Jack O'Bryan and the Company in the Court of
Chancery in the State of Delaware in and for New Castle County (the
"Liebhard Action"). Plaintiff purports to bring the Liebhard Action on
behalf of all common stockholders of the Company (the "Class") and
seeks the certification of Plaintiff as representative of the Class. In
the Liebhard Action, Plaintiff alleges that (i) the terms of the Offer
and the Merger are intrinsically unfair and inadequate from the
standpoint of the stockholders of the Company, (ii) the Board of
Directors of the Company failed to make an informed decision as to the
Offer and the Merger and (iii) the Board of Directors violated their
fiduciary duties of care and loyalty owed to the Company stockholders.
The Liebhard Action seeks (i) injunctive relief enjoining the Company
and its Board of Directors from proceeding with the Offer and the
Merger, (ii) in the event that the Offer and the Merger are
consummated, the recission of such transactions and rescissory damages,
(iii) compensatory damages and (iv) the Plaintiff's costs and
disbursements. The foregoing description of the Liebhard Action is
qualified in its entirety by reference to the Complaint, a copy of
which is attached hereto as Exhibit (a)(10) and is incorporated herein
by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended and supplemented by adding thereto the following:
(a)(10) Class Action Complaint in Paul Liebhard v. Mack G. Nichols, James M.
Stolze, William F. Morrison, Daniel Toll, Paul Hummer II, P. Jack
O'Bryan and A.P. Green Industries, Inc., filed in the Delaware Court of
Chancery on March 5, 1998.
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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.
Date: March 9, 1998
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
BY: /s/ GRAHAM L. ADELMAN
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Name: Graham L. Adelman
Title: Senior Vice President, General
Counsel and Secretary
BGN ACQUISITION CORP.
BY: /s/ GRAHAM L. ADELMAN
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Name: Graham L. Adelman
Title: Senior Vice President
Exhibit (a)(10)
IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
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PAUL LIEBHARD, :
Plaintiff, :
v. :
C.A. No. 16220 NC
MACK G. NICHOLS, JAMES M. STOLZE, :
WILLIAM F. MORRISON, DANIEL TOLL,
PAUL HUMMER II, P. JACK O'BRYAN, and :
A.P. GREEN INDUSTRIES, INC.,
:
Defendants.
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CLASS ACTION COMPLAINT
Plaintiff alleges upon information and belief, except for paragraph 1
hereof, which is alleged upon knowledge, as follows:
1. Plaintiff has been the owner of the common stock of A.P. Green
Industries, Inc. ("Green" or the "Company") since prior to the transaction
herein complained of and continuously to date.
2. Green is a corporation duly organized and existing under the laws of
the State of Delaware. The Company mines, processes, makes and distributes
specialty minerals and mineral based products.
3. Global Industrial Technologies, Inc. ("Global") is a Delaware
corporation based in Dallas, Texas and is engaged in the mining and processing
of minerals and makes refractory products.
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Global also manufactures pneumatic and electric tools, flanges and mining
equipment.
4. Defendants Mack G. Nichols, James M. Stolze, William F. Morrison,
Daniel Toll, Paul Hummer, II and P. Jack O'Bryan constitute Green's Board of
Directors.
5. The individual Defendants are in a fiduciary relationship with
Plaintiff and the other public stockholders of Green and owe them the highest
obligations of good faith and fair dealing.
CLASS ACTION ALLEGATIONS
6. Plaintiff brings this action on his own behalf and as a class
action, pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of
all common stockholders of the Company (except the defendants herein and any
person, firm, trust, corporation, or other entity related to or affiliated with
any of the defendants) and their successors in interest, who are or will be
threatened with injury arising from defendants' actions as more fully described
herein.
7. This action is properly maintainable as a class action because:
(a) The class is so numerous that joinder of all members is
impracticable. As of March 21, 1997, there were
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approximately 8,024,000 shares of Green common stock outstanding owned by
hundreds, if not thousands, of record and beneficial holders.
(b) There are questions of law and fact which are common to the
class including, inter alia, the following: (i) whether defendants have breached
their fiduciary and other common law duties owed by them to plaintiff and the
members of the class; and (ii) whether the class is entitled to injunctive
relief or damages as a result of the wrongful conduct committed by defendants.
(c) Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. The claims
of the plaintiff are typical of the claims of other members of the class and
plaintiff has the same interests as the other members of the class. Plaintiff
will fairly and adequately represent the class.
(d) Defendants have acted in a manner which affects plaintiff and
all members of the class alike, thereby making appropriate injunctive relief
and/or corresponding declaratory relief with respect to the class as a whole.
(e) The prosecution of separate actions by individual members of
the Class would create a risk of inconsistent or varying adjudications with
respect to individual members of the
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Class, which would establish incompatible standards of conduct for defendants,
or adjudications with respect to individual members of the Class which would, as
a practical matter, be dispositive of the interests of other members or
substantially impair or impede their ability to protect their interests.
SUBSTANTIVE ALLEGATIONS
8. On March 4, 1998, Green and Global announced that they had entered
into a definitive merger agreement whereby Global will acquire Green in a
transaction valued at $195 million. Under the terms of the transaction as
presently proposed, Global will commence a cash tender offer for all of Green's
outstanding common shares at a price of $22 per share. Shares of Green not
tendered will be converted by merger into the right to receive $22 per share.
9. By entering into the agreement with Global, the Green Board has
initiated a process to sell the Company which imposes heightened fiduciary
responsibilities and required enhanced scrutiny by the Court. However, the terms
of the proposed transaction were not the result of an auction process or active
market check; they were arrived at without a full and thorough investigation by
the Individual Defendants; and they are
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intrinsically unfair and inadequate from the standpoint of the Green
shareholders.
10. The Individual Defendants failed to make an informed decision, as
no market check of the Company's value was obtained. In agreeing to the merger,
the Individual Defendants failed to properly inform themselves of Green's
highest transactional value.
11. The Individual Defendants have violated the fiduciary duties owed
to the public shareholders of Green. The Individual Defendants' agreement to the
terms of the transaction, its timing, and the failure to auction the Company and
invite other bidders, and defendants' failure to provide a market check
demonstrate a clear absence of the exercise of due care and of loyalty to
Green's public shareholders.
12. The Individual Defendants' fiduciary obligations under these
circumstances require them to:
(a) Undertake an appropriate evaluation of Green's net worth as a
merger/acquisition candidate; and
(b) Engage in a meaningful market check with third parties in an
attempt to obtain the best value for Green's public shareholders.
13. The Individual Defendants have breached their fiduciary duties by
reason of the acts and transactions complained of herein, including their
decision to merge with Global without making the requisite effort to obtain the
best offer possible.
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14. Plaintiff and other members of the Class have been and will be
damaged in that they have not and will not receive their fair proportion of the
value of Green's assets and business, and will be prevented from obtaining fair
and adequate consideration for their shares of Green common stock.
15. The consideration to be paid to class members in the proposed
merger is unfair and inadequate because, among other things:
(a) The intrinsic value of Green's common stock is materially in
excess of the amount offered for those securities in the merger giving due
consideration to the anticipated operating results, net asset value, cash flow,
and profitability of the Company;
(b) The merger price is not the result of an appropriate
consideration of the value of Green because the Green Board approved the
proposed merger without undertaking steps to accurately ascertain Green's value
through open bidding or at least a "market check mechanism"; and
(c) By entering into the agreement with Global, the Individual
Defendants have allowed the price of Green stock to be capped, thereby depriving
plaintiff and the Class of the opportunity to realize any increase in the value
of Green stock.
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16. By reason of the foregoing, each member of the Class will suffer
irreparable injury and damages absent injunctive relief by this Court.
17. Plaintiff and other members of the Class have no adequate remedy at
law.
WHEREFORE, plaintiff and members of the Class demand judgment against
defendants as follows:
a. Declaring that this action is properly maintainable as a class action
and certifying plaintiff as the representative of the Class;
b. Preliminarily and permanently enjoining defendants and their counsel,
agents, employees and all persons acting under, in concert with, or for
them, from proceeding with, consummating, or closing the proposed
transaction;
c. In the event that the proposed transaction is consummated, rescinding
it and setting it aside, or awarding rescissory damages to the Class;
d. Awarding compensatory damages against defendants, individually and
severally, in an amount to be determined at trial, together with
pre-judgment and post-judgment interest;
e. Awarding plaintiff his costs and disbursements including reasonable
allowances for fees and expenses of plaintiff's counsel and experts;
and
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f. Granting plaintiff and the Class such other and further relief as the
Court may deem just and proper.
Dated: March 5, 1998
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By: ____________________________________
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899-1070
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
BERNSTEIN LIEBHARD & LIFSHITZ
274 Madison Avenue
New York, NY 10016
(212) 779-1414
