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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. 2)
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. 2 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, as amended by Amendment No. 1 to such
Schedule, dated March 9, 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, as amended, 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 10, 1998, the Plaintiff filed an Amended Class Action
Complaint (the "Amended Complaint") against Mack G. Nichols, James M.
Stolze, William F. Morrison, Daniel Toll, Paul Hummer II, P. Jack
O'Bryan, the Company, Purchaser and the Merger Sub in the Court of
Chancery in the State of Delaware in and for New Castle County (the
"Court of Chancery"). Plaintiff purports to bring the Amended Compaint
on behalf of all common stockholders of the Company (the "Class") and
seeks the certification of Plaintiff as representative of the Class. In
the Amended Complaint, Plaintiff alleges that (i) the
Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule
14D-9") filed by the Company with the SEC on March 9, 1998 fails to
disclose material information, (ii) the Schedule 14D-1 fails to
disclose certain "vital" information, (iii) the Company fails to
disclose in the Schedule 14D-9 the rationale for not seeking competing
bids, (iv) the fairness opinion delivered to the Company by Credit
Suisse First Boston fails to disclose relevant information and does not
validate the transaction, (v) certain individual defendants have
substantial conflicts with the Class, (vi) the Board of Directors
failed to act in an informed manner and to maximize shareholder value
and (vii) Purchaser knowingly aided and abetted the Board of Directors'
breach of fiduciary duty. The Amended Complaint seeks (i) injunctive
relief enjoining the defendants 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 or the award of
rescissory damages, (iii) the award of compensatory damages against the
defendants and (iv) the Plaintiff's costs and disbursements. Also on
March 10, 1998, Plaintiff filed a Motion for Preliminary Injunction
seeking to (i) preliminarily enjoin the defendants from consummating
the Offer and (ii) requiring defendants to supplement the materials
sent to the stockholders of the Company. Also on March 10, 1998, the
Plaintiff filed a Motion for Expedited Proceedings seeking a hearing
prior to April 2, 1998.
The foregoing descriptions of the Amended Complaint, the Motion for
Preliminary Injunction and the Motion for Expedited Proceedings are
qualified in their entirety by reference to the Amended Complaint and
such Motions, copies of which are attached hereto as Exhibit (a)(11)
and are incorporated herein by reference.
<PAGE>
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended and supplemented by adding thereto the following:
(a)(11) Amended Class Action Complaint, Motion for Preliminary Injunction and
Motion for Expedited Proceedings in Paul Liebhard v. Mack G. Nichols,
James M. Stolze, William F. Morrison, Daniel Toll, Paul Hummer II, P.
Jack O'Bryan, A.P. Green Industries, Inc., Global Industrial
Technologies, Inc. and BGN Acquisition Corp., filed in the Delaware
Court of Chancery on March 10, 1998.
<PAGE>
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 13, 1998
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
BY: /s/ GRAHAM L. ADELMAN
------------------------------------------------
Name: Graham L. Adelman
Title: Senior Vice President, General Counsel
and Secretary
BGN ACQUISITION CORP.
BY: /s/ GRAHAM L. ADELMAN
------------------------------------------------
Name: Graham L. Adelman
Title: Senior Vice President
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Exhibit (a)(11)
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
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PAUL LIEBHARD,
:
Plaintiff, :
v. :
MACK G. NICHOLS, JAMES M. STOLZE, :
WILLIAM F. MORRISON, DANIEL TOLL, C.A. No. 16220-NC
PAUL HUMMER II, P. JACK O'BRYAN, :
A.P. GREEN INDUSTRIES, INC., GLOBAL
INDUSTRIAL TECHNOLOGIES, INC. and :
BGN ACQUISITION CORP.;
:
Defendants.
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AMENDED CLASS ACTION COMPLAINT
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Plaintiff alleges upon information and belief, except for paragraph 1
hereof, which is alleged upon knowledge, as follows:
1. Plaintiff brings this action pursuant to Rule 23 of the Rules of the Court
of Chancery as a Class action on behalf of all persons, other than defendants
and those in privity with them who own the common stock of A.P. Green
Industries, Inc. ("Green" or the "Company").
2. Plaintiff has been the owner of the common stock of Green since prior to the
transaction herein complained of and continuously to date.
3. 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.
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4. Defendant 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.
5. Defendant BGN Acquisition Corp., is a Delaware Corporation and a wholly
owned subsidiary of Global.
6. Defendant Paul Hummer II, is Chairman of the Board, President and Chief
Executive Officer of Green.
7. Defendants Mack G. Nichols, James M. Stolze, William F. Morrison, Daniel
Toll, and P. Jack O'Bryan are Directors of Green.
8. 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
9. Plaintiff brings this action on its 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.
10. 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
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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 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
11. The primary portion of Green's business centers on processing material
to build refractories - heat resistant coatings - for makers of steel, aluminum,
glass and other products. Additionally, the Company is also engaged in the
mining and processing of lime products. The Company is engaged in a very
cyclical and economically sensitive business and the Company's fortunes
generally lag the overall economy by approximately six months.
12. The Company's recent financial results have been exceptional. On
February 12, 1998, Green issued a press release announcing its financial results
for the fourth quarter and year ended December 31, 1997. For the fourth quarter
of 1997, net sales increased 12.4% to $70.5 million
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from $62.7 million in the 1996 fourth quarter and gross profit increased 29.8%
to $12.9 million compared with $9.9 million in the fourth quarter of 1996.
Additionally, net earnings grew substantially to $2,905,000, or $0.34 per share,
compared with $335,000, or $0.04 per share, in the fourth quarter of 1996. The
press release also reported that "[f]or the full year period, net sales rose
7.5% to $277.9 million versus $258.5 million in 1996 and gross profit was up to
13.5% to $50.1 million compared to $44.1 million at year-end 1996. Net earnings
for 1997 increased to $8.1 million, or $0.98 per share, diluted, compared to
$4.7 million, or $0.57 per share, diluted, in 1996."
13. The Company's recent surge in revenues and income reflect the expansion
taking place in basic industries throughout the world. As a result, Green's
stock price has steadily surged from $12-5/8 on February 11, 1998, the day
before its earnings announcement, to $17-11/16, on March 3, 1998, the day before
the proposed transaction was announced.
GLOBAL ACTS TO ACQUIRE GREEN
14. 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 (the "Merger"). Under the terms of the transaction as
presently proposed, BGN will commence a cash tender offer for all of Green's
outstanding common shares at a price of $22 per share. Following the tender
offer, the company will be merged into BGN pursuant to which the Company will
become a wholly owned subsidiary of Global. Shares of Green not tendered will be
converted by merger into the right to receive $22 per share.
15. On or about March 9, 1998, Defendants mailed to Green's shareholders a
Solicitation/Recommendation Statement on 14D-9 (the "14D-9") purportedly
describing, inter alia, the merger transaction, the history of the negotiations
between the companies, the opinion of Green's financial advisor and certain
other purportedly relevant information.
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16. The 14D-9 fails to disclose material information necessary for Green
shareholders to make an informed decision. As noted above in paragraph 12, on
February 12, 1998, Green announced its financial and operating results for the
fourth quarter and year ended December 31, 1997. However, the most recent
financial information for the Company in the Tender Offer Statement on Schedule
14D-1 (the "14D-1") is operating results for the nine months ended September 30,
1997. The failure to include the more recent financial information in the 14D-9
is inexcusable in light of the fact that Global's financial results for its
fiscal year ended October 31, 1997 and for the first fiscal quarter ended
January 31, 1998 are contained in the 14D-1. Green shareholders are being asked
to make an irrevocable decision regarding their investment in Green on the basis
of incomplete information.
17. Moreover, the 14D-1 only provides a cursory summary of the Company's
projected earnings per share for 1998, 1999 and 2000. No meaningful or detailed
information is provided to the Company's public shareholders, although Global
"was provided with certain financial information and projections prepared by
Company management." This information is vital to the ability of Green's
shareholders to properly evaluate the $22 per share buy-out price, but has not
been shared in any fashion with Green's shareholders, in the 14D-9 or otherwise.
DEFENDANTS FAIL TO DISCLOSE THE RATIONALE
FOR NOT SEEKING COMPETING BIDS
18. Attached to the 14D-9 is a letter dated March 2, 1998, from Credit Suisse
First Boston ("CSFB"), Green's financial advisor, to the Company's Board of
Directors (the "fairness opinion") opining that the proposed transaction is fair
to Green's public shareholders from a financial point of view. The fairness
opinion states:
In connection with our engagement, two parties (one of which was
the Acquiror) were identified by the Company's management as most
likely to have the greatest strategic interest in and largest
potential cost savings to be achieved through a combination with
the Company. These parties were approached to solicit indications of
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interest in a possible acquisition of the Company and preliminary
discussions were conducted with each of these parties prior to the
date hereof. We did not approach any other parties to solicit possible
indications of interest in acquiring the Company.
19. Since no information is provided concerning the potential value to be
received in competing bids, investors are unable to properly consider the Merger
because they have no way of knowing if the Merger price is low in relation to
what Green could receive in an open market auction or, at the very least, by
soliciting other bids. Defendants fail to disclose the Company's purported
rationale in directing its financial advisor not to conduct a formal auction and
to limit the universe of potential buyers to the two companies chosen by Green's
management.
THE FAIRNESS OPINION FAILS TO DISCLOSE RELEVANT
INFORMATION AND DOES NOT VALIDATE THE TRANSACTION
20. The fairness opinion recites a litany of various documents relied on by CSFB
in rendering the fairness opinion, including "publicly available business and
financial information", and "financial forecasts provided to (CSFB) by the
Company." Yet none of this information is provided to shareholders in the 14D-9
or accounted for in the fairness opinion.
21. Furthermore, neither the 14D-9 nor the fairness opinion contains a
discussion of the various financial analysis presumably performed by CSFB. The
14D-9 and the fairness opinion are silent with respect to what valuation
methodologies were employed by CSFB in rendering its fairness opinion and
whether there was any deviation from standardized investment banking practices.
Accordingly, Green shareholders cannot determine from these materials what the
intrinsic value of the shares is and why the proposed acquisition by Global is
preferable to other alternatives or is fair.
THE INDIVIDUAL DEFENDANTS HAVE
SUBSTANTIAL CONFLICTS WITH THE CLASS
22. The merger agreement creates disabling conflicts of interest by conferring
extraordinary benefits on the individual defendants and certain members of the
Company's senior management.
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The merger agreement provides that all options, whether presently exercisable or
not, will be canceled in exchange for a lump sum cash payment. However,
defendant Hummer may elect to convert options for 75,000 shares of Green stock
into options for 105,375 shares of Global stock. Additionally, defendant Hummer
and certain members of senior management have been rewarded with Severance
Enhancement Agreements, which provide for lump sum cash payments ranging from
one half to 2.99 times the officers then-current annual base salary and full
year bonuses in case of termination.
DEFENDANTS HAVE FAILED TO ACT IN AN INFORMED
MANNER AND TO MAXIMIZE SHAREHOLDER VALUE
23. By entering into the Merger Agreement with Global, the Green Board has
initiated a process to sell the Company which imposes heightened fiduciary
responsibilities and requires 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.
24. 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.
25. 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.
26. The Individual Defendants' fiduciary obligations under these circumstances
require them to:
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a. Undertake an appropriate evaluation of Green's net worth as a
merger/acquisition candidate; and
b. Engage in a meaningful auction with third parties in an attempt to
obtain the best value for Green's public shareholders.
27. 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.
28. 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.
29. 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.
30. By reason of the foregoing, each member of the Class will suffer irreparable
injury and
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damages absent injunctive relief by this Court.
GLOBAL IS AN AIDER AND ABETTOR
31. Global has knowingly aided and abetted the breaches of fiduciary duty
committed by the Individual Defendants. Global has agreed to the favorable
treatment of options held by Green's directors and senior management to assure
their agreement and cooperation in and to a transaction which will not maximize
value for Green shareholders. Global has so agreed to enable it to acquire Green
at the lowest possible price although the favorable treatment of employee and
directorial options has necessarily injected personal motives into the
negotiations and compromised the undivided loyalty which the Individual
Defendants owe to Green's public shareholders.
32. 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. Preliminary 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
prejudgment and post- judgment interest at the maximum rate allowable
by law, arising from the proposed transaction;
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e. Awarding plaintiff its costs and disbursements and reasonable
allowances for fees of plaintiff's counsel and experts and
reimbursement of expenses; and
f. Granting plaintiff and the Class such other and further relief as the
Court may deem just and proper.
Dated: March 10, 1998
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By:______________________________________
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilimington, DE 19899-1070
(302) 656-4433
Attorney for Plaintiff
OF COUNSEL:
BERNSTEIN LIEBARD & LIFSHITZ
274 Madison Avenue
New York, NY 10016
(212) 779-1414
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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
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PAUL LIEBHARD,
:
Plaintiff, :
v. :
MACK G. NICHOLS, JAMES M. STOLZE, :
WILLIAM F. MORRISON, DANIEL TOLL, C.A. No. 16220-NC
PAUL HUMMER II, P. JACK O'BRYAN, :
A.P. GREEN INDUSTRIES, INC., GLOBAL
INDUSTRIAL TECHNOLOGIES, INC. and :
BGN ACQUISITION CORP.;
:
Defendants.
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MOTION FOR PRELIMINARY INJUNCTION
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Plaintiff hereby moves, pursuant to Court of Chancery Rule 65, for an
Order:
1. Preliminarily enjoining defendants and all persons acting in concert with
them from proceeding with, consummating or otherwise closing the tender offer by
BGN Acquisition Corp. (the "Tender Offer") for all of the issued and outstanding
shares of A.P. Green Industries, Inc. ("Green"); and
2. Requiring defendants to supplement their materials furnished to Green's
shareholders in connection with the Tender Offer by disclosing all material
facts and correcting the omissions described in Plaintiff's Amended Class Action
Complaint in this action.
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The grounds for this Motion are set forth in Plaintiff's Amended Class
Action Complaint and will be more fully set forth in plaintiff's opening brief
and other papers to be filed in support of this motion.
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
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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
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PAUL LIEBHARD,
:
Plaintiff, :
v. :
MACK G. NICHOLS, JAMES M. STOLZE, :
WILLIAM F. MORRISON, DANIEL TOLL, C.A. No. 16220-NC
PAUL HUMMER II, P. JACK O'BRYAN, :
A.P. GREEN INDUSTRIES, INC., GLOBAL
INDUSTRIAL TECHNOLOGIES, INC. and :
BGN ACQUISITION CORP.;
:
Defendants.
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MOTION FOR EXPEDITED PROCEEDINGS
--------------------------------
Plaintiff, by his attorneys, respectively moves the Court to schedule
his Motion for Preliminary Injunction, served and filed herewith, for a hearing
prior to April 2, 1998, the presently scheduled date for the closing of the
tender offer (the "Tender Offer") by BGN Acquisition Corp. ("BGN") for all the
issued and outstanding shares of A.P. Green Industries, Inc. ("Green") at $22
per share. As grounds for this Motion, plaintiff represents as follows:
1. Plaintiff alleges that he is a stockholder of Green. He brings this action on
behalf of all Green stockholders, contending that the defendant directors of
Green, aided and abetted by Global Industrial Technologies, Inc ("Global"),
BGN's parent, have breached their fiduciary duties to plaintiff and the proposed
class by failing to take appropriate steps
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to ascertain the best transaction available to Green's shareholders; thereby
failing to make informed judgments concerning Global's acquisition of Green; and
by failing to include in materials disseminated to Green's shareholders in
connection with the Tender Offer information material to the decision facing
Green's shareholders of whether or not to tender their shares. These allegations
are particularized in Plaintiff's Amended Class Action Complaint, served and
filed on March 10, 1998 (the "Complaint").
2. Among other things, the Complaint alleges that BGN's Tender Offer Circular
("14D- 1") and Green's Solicitation/Recommendation Statement on 14D-9 ("14D-9"),
which are dated March 6, 1998, but which were not electronically accessible
until March 9, 1998 and were not publicly available in hard copy until March 10,
1998, omit material information in a number of respects:
a. neither the 14D-1 nor the 14D-9 contains any information on Green's
financial and operating results for the fourth quarter and year ended December
31, 1997, even though that information has been available since February 12,
1998.
b. the 14D-9 fails to offer any reason why Green's financial advisor,
Credit Suisse First Boston ("CSFB"), was not requested to and did not solicit
from more than one party interest in a potential business combination with
Green;
c. the 14D-9 fails to disclose information on which CSFB based its
fairness opinion, including management-prepared internal analyses and forecasts;
and
d. the 14D-9 fails to disclose what valuation methodologies CSFB
employed in rendering its fairness opinion.
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3. In short, the Complaint alleges that Green's shareholders are being denied
the opportunity to make an informed judgment on the Tender Offer and that the
individual defendants have failed in their duty to maximize shareholder value in
a change of control transaction. Accordingly, plaintiff seeks a preliminary
injunction against completion of the Tender Offer. This Court has previously
held that lack of complete information in connection with a Tender Offer and
loss of the opportunity to obtain the best available transaction in a change of
control context can constitute irreparable injury sufficient to warrant
preliminary injunctive relief. See, e.g., Joseph v. Shell Oil Company, Del. Ch.,
482 A.2d 335 (1984); Paramount Communications v. QVC Network, Del. Supr., 637
A.2d 34 (1993).
4. Since the Tender Offer is scheduled to close on April 2, 1998, plaintiff
requests that the Court hear his preliminary injunction motion sufficiently
prior to that date to permit a decision and Order if the Court is persuaded the
Tender Offer should be enjoined.
5. Plaintiff has not previously applied for this relief.
WHEREFORE, plaintiff respectfully requests the Court to enter an Order
in the form attached hereto.
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
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OF COUNSEL
BERNSTEIN LIEBHARD & LIFSHITZ
274 Madison Avenue
New York, NY 10016
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