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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
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A.P. GREEN INDUSTRIES, INC.
(NAME OF SUBJECT COMPANY)
A.P. GREEN INDUSTRIES, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, PAR VALUE
$1.00 PER SHARE
(TITLE OF CLASS OF SECURITIES)
393059100
(CUSIP NUMBER OF CLASS OF SECURITIES)
MICHAEL B. COONEY, ESQ.
SENIOR VICE PRESIDENT--LAW/ADMINISTRATION AND SECRETARY
A.P. GREEN INDUSTRIES, INC.
GREEN BOULEVARD
MEXICO, MISSOURI 65265
(573) 473-3626
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE
NOTICE AND COMMUNICATION ON BEHALF OF THE PERSON(S) FILING STATEMENT)
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WITH A COPY TO:
ROBERT M. LAROSE, ESQ.
THOMPSON COBURN
ONE MERCANTILE CENTER
ST. LOUIS, MISSOURI 63101
(314) 552-6000
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This Amendment No. 1 amends and supplements the information set forth in the
Solicitation/Recommendation Statement Pursuant to Section 14(d)(4) of the
Securities Exchange Act of 1934 on Schedule 14D-9 (the "Schedule 14D-9") filed
by A.P. Green Industries, Inc. (the "Company") on March 6, 1998 with respect
to shares of Common Stock, par value $1.00 per share, of the Company,
including the associated rights to purchase the Company's Series B Junior
Participating Preferred Stock issued pursuant to the Rights Agreement, dated
as of November 13, 1997, as amended by that certain First Amendment to Rights
Agreement, dated as of March 5, 1998, between the Company and Harris Trust and
Savings Bank, as Rights Agent. Unless otherwise indicated, the capitalized
terms used herein shall have the meanings specified in the Schedule 14D-9.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
Item 8 is hereby amended by adding thereto the following:
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 its 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 rescission 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 copy of the Complaint, a copy of which is
attached hereto as Exhibit 6 and is incorporated herein by reference.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Item 9 is hereby amended and supplemented by adding thereto the following:
Exhibit 6 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.
After reasonable 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.
A. P. GREEN INDUSTRIES, INC.
/s/ Michael B. Cooney
By: _________________________________
Name:Michael B. Cooney
Title: Senior Vice President-
Law/Administration and
Secretary
Dated: March 10, 1998
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EXHIBIT INDEX
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Exhibit 6 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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EXHIBIT 6
IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
PAUL LIEBHARD,
Plaintiff,
v.
C.A. No. 16220
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.
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. 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 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.
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(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 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 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 transnational 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.
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;
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(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.
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
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
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