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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)
__________________
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. 3 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, 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 2. IDENTITY AND BACKGROUND.
Item 2 is hereby amended and supplemented by adding thereto the following:
The information set forth in Section 9 of the Offer to Purchase has
been revised. The first sentence of the first full paragraph after the
"Selected Consolidated Financial Information" table has been deleted
and the following sentence has been substituted therefor: "Statements
Purchaser may publish, including those in this Offer to Purchase, that
are not strictly historical are forward-looking statements."
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
Item 5 is hereby amended and supplemented by adding thereto the following:
The information set forth in Section 13 of the Offer to Purchase has
been revised. Clause (ii) of the first full paragraph of such section
has been deleted and the following clause has been substituted
therefor: "(ii) on or after March 3, 1998 and prior to the Expiration
Date, any of the following events shall occur:"
ITEM 10. ADDITIONAL INFORMATION.
Item 10 is hereby amended and supplemented by adding thereto the following:
(a)-(c) On March 16, 1998, Purchaser refiled a Notification and Report Form
with respect to the acquisition of Shares pursuant to the Offer and the
Merger with the FTC. Under the provisions of the HSR Act applicable to
the purchase of Shares pursuant to the Offer, such purchases may not be
made until the expiration of a 15-calendar day waiting period following
the refiling by Purchaser. Accordingly, the waiting period under the
HSR Act will expire at 11:59 p.m., New York City time, on March 31,
1998, unless early termination of the waiting period is granted or
Purchaser receives a request for additional information or documentary
material prior thereto. On March 16, 1998, Purchaser issued a press
release announcing the refiling, a copy of which is attached hereto as
Exhibit (a)(13).
(e) On March 12, 1998, the Plaintiff served on the defendants with respect
to the Amended Complaint a Notice of Service and a Plaintiff's First
Request for Production of Documents (collectively, the "First
Request"). The First Request requests that the defendants produce
certain documents for inspection and copying by the Plaintiff's
counsel. The foregoing description of the First Request is qualified in
its entirety by reference to the First Request, a copy of which is
attached hereto as Exhibit (a)(12) and is incorporated herein by
reference.
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ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended and supplemented by adding thereto the following:
(a)(12) First Request 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., served on the defendants on March 12, 1998.
(a)(13) Press Release, dated March 16, 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 17, 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)(12)
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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NOTICE OF SERVICE
PLEASE TAKE NOTICE that the undersigned hereby certifies that on March
12, 1998, he caused copies of this Notice and Plaintiff's First Request for
Production of Documents to be served on defendants, by hand delivery, as
follows:
A.P. Green Industries, Inc. BGN Acquisition Corp.
All Individual Defendants c/o The Corporation Trust Company
c/o The Corporation Trust Company 1209 Orange Street
1209 Orange Street Wilmington, DE 19801
Wilmington, DE 19801
Global Industrial Technologies, Inc.
c/o The Prentice-Hall Corporation
System, Inc.
1013 Centre Road
Wilmington, DE 19801
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ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By______________________________
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899
Attorneys for Plaintiff
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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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PLAINTIFF'S FIRST REQUEST
FOR PRODUCTION OF DOCUMENTS
Pursuant to Rule 34 of the Chancery Court Rules, Plaintiff hereby
requests that Defendants produce the documents hereinafter described for
inspection and copying by Plaintiffs counsel at the law offices of Rosenthal,
Monhait, Gross, & Goddess P.A., 919 N. Market Street, Suite 1401, Wilmington,
Delaware 19801.
DEFINITIONS
1. The term "communications" refers to any exchange of information by
any means of transmission, including, but not limited to, face-to-face
conversations, mail, electronic mail, telegram, overnight delivery, telephone,
facsimile or telex.
2. The term "documents" means documents whether fixed in tangible
medium or electronically stored on disk or tape. The word "documents" shall
include, by way of
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example and not by way of limitation, all of the following: papers,
correspondence, trade letters, envelopes, memoranda, telegrams, cables, notes,
messages, reports, studies, press releases, comparisons, books, accounts,
checks, audio and video recordings, pleadings, testimony, articles, bulletins,
pamphlets, brochures, magazines, questionnaires, surveys, charts, newspapers,
calendars, desk calendars, pocket calendars, lists, logs, publications, notices,
diagrams, instructions, diaries, minutes of meetings, corporate minutes, orders,
resolutions, agendas, memorials or notes or oral communications, whether by
telephone or face-to-face, contracts, agreements, drafts of or proposed
contracts or agreements, memoranda of understanding, letters of intent, deal
memoranda, transcriptions of audio or video recordings, computer tapes, computer
diskettes or disks, or any other tangible thing on which any handwriting,
typing, printing, photostatic, electronic or other form of communication or
information is recorded or reproduced, together with all notations on any of the
foregoing, all originals, file copies or other unique copies of the foregoing
and all versions or drafts thereof, whether used or not.
3. The term "Individual Defendants" means defendants Mack G. Nichols,
James M. Stolze, William F. Morrison, Daniel Toll, Paul Hummer II, and P. Jack
O'Bryan.
4. The term "or" should be construed as disjunctive and conjunctive,
and "any" and "all" as used herein shall include "each" and "every." Similarly,
the singular includes the plural, and vice versa.
5. The term "person" means any individual, corporation, partnership,
firm, association, government agency or other organization recognizable at law,
and its agents and employees.
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6. The term "concerning" means relating to, referring to, describing,
evidencing, or constituting. Requests for documents "concerning" any subject
matter include documents concerning communications regarding that subject
matter.
7. The terms "Green" or "the Company" mean A.P. Green Industries, Inc.,
its predecessors, successors, parents, subsidiaries, divisions, affiliates, or
anyone acting or purporting to act on their behalf, including any of their
respective directors, officers, managing agents, agents, employees, attorneys,
accountants, or other representatives.
8. The term "Global" means Global Industrial Technologies, Inc., its
predecessors, successors, parents, subsidiaries, divisions, affiliates, or
anyone acting or purporting to act on their behalf, including any of their
respective directors, officers, managing agents, agents, employees, attorneys,
accountants, or other representatives.
9. The term "the Proposed Transaction" means the contemplated
acquisition of Green by Global that was announced on or about March 4, 1998.
10. The term "Green Acquisition Proposal" means any proposal or
expression of interest (including any by Global) regarding (i) any merger,
consolidation, share exchange, business combination or other similar transaction
or series of related transactions involving Green or any significant subsidiary
of Green; (ii) any sale, lease, exchange, transfer or other disposition of the
assets of Green or any of its subsidiaries constituting 5% or more of the
consolidated assets of Green or accounting for 5% or more of the consolidated
revenues of Green in any one transaction or in a series of related transactions;
and (iii) any offer to purchase, tender offer, exchange offer or any similar
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transaction or series of related transactions made by any person involving 5% or
more of the outstanding shares of any class of capital stock of Green.
II. INSTRUCTIONS
1. All documents shall be produced in the order they are kept in the
ordinary course of business, and shall be produced in their original folders,
binders, covers or containers, or facsimile thereof.
2. Unless otherwise indicated, the relevant time period ("Relevant Time
Period") for each request shall be January 1, 1997 through the date of service
of this document request.
3. These requests relate to all documents which are in Defendants'
possession, custody or control or in the possession, custody or control of the
Company's predecessors, successors, parents, subsidiaries, divisions, or
affiliates, or any of the Company's respective directors, officers, managing
agents, employees, attorneys, accountants, or other representatives.
4. Each Defendant shall produce the original of each document described
below or, if the original is not in its custody, then a copy thereof, and in any
event, all non-identical copies which differ from the original or from the other
copies produced for any reason, including, but not limited to, the making of
notes thereon.
5. If production of a document is withheld pursuant to a claim of
privilege, as to each such withheld document state the following information:
a. which privilege is claimed;
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b. a precise statement of the facts upon which said claim of
privilege is based; and
c. the following information describing each purportedly
privileged document:
i. its nature, e.g., agreement, letter, memorandum, etc.;
ii. the date it was prepared;
iii. the date it bears;
iv. the date it was sent;
v. the date it was received;
vi. the identity of the person preparing it;
vii. the identity of the person sending it;
viii. the identity of each person to whom it was sent or was
to have been sent, including all addressees and all recipients of copies;
ix. a statement as to whom each identified person represented
or purported to represent at all relevant times; and
d. a precise description of the place where each copy of that
document is kept, including the title or description of the file in which said
document may be found and the location of such file.
6. Whenever a document is not produced in full or is produced in
redacted form, so indicate on the document and state with particularity the
reason or reasons it is not being produced in full and describe to the best of
your knowledge, information and belief, and with as much particularity as
possible, those portions of the document which are not
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being produced.
7. If a document responsive to these requests was at any time in
Defendants' possession, custody or control but now is no longer available for
production, as to each such document state the following information:
a. whether the document is missing or lost;
b. whether it has been destroyed;
c. whether the document has been transferred or delivered to
another person or entity and, if so, at whose request;
d. whether the document has been otherwise disposed of; and
e. a precise statement of the circumstances surrounding the
disposition of the document and the date of the document's disposition.
III. DOCUMENTS TO BE PRODUCED BY DEFENDANTS
1. All documents concerning the Proposed Transaction.
2. All documents concerning any Green Acquisition Proposal.
3. Green's annual and quarterly reports to shareholders which were
disseminated during the Relevant Time Period, and each release or shareholder
update, if any, which was disseminated to shareholders during the Relevant Time
Period.
4. All documents concerning any communications between any Defendant
and any financial advisor/investment banker concerning the Proposed Transaction
or any Green Acquisition Proposal.
5. All documents concerning any plan, effort or attempt to sell, merge,
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consolidate, combine or otherwise transfer ownership or control of the Company
prior to the announcement of the Proposed Transaction.
6. All documents concerning any proposal from or discussion with any
party concerning the possible acquisition of Green or control thereof, either by
merger, purchase of all or a portion of Green's stock by tender offer or
otherwise, or the like.
7. The articles of incorporation and the by-laws of Green, including
all amendments thereto.
8. The minutes of all meetings of the Board of Directors of Green, or
any committee thereof, whether formal or informal, and all notes taken thereat
by the Secretary of the meeting or by any other person attending said meeting,
concerning the Proposed Transaction or any Green Acquisition Proposal.
9. All documents prepared by or on behalf of Green or Global concerning
the Proposed Transaction or any Green Acquisition Proposal.
10. All appraisals, analyses, reviews or other documents concerning the
value, market value or fair value of Green's stock and/or any of the assets or
businesses of Green made, received or reviewed by or on behalf of Green or
Global and/or their financial advisors or any of their officers or directors.
11. All documents concerning any evaluation or review of any of the
terms or conditions of the Proposed Transaction or any Green Acquisition
Proposal, including but not limited to the consideration to be offered to
Green's public stockholders.
12. All documents concerning the determination of the price to be paid
in the Proposed Transaction.
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13. All documents received by Green or any of its officers or
directors, or Global or any of officers or directors from any financial
advisors/investment bankers retained by any of them including, without
limitation, Credit Suisse First Boston ("CSFB") concerning such advisors'
evaluation or review of the Proposed Transaction or any Green Acquisition
Proposal.
14. All documents, including, without limitation, financial forecasts,
supplied by Green or Global and/or their officers or directors to any financial
advisors/investment bankers retained by Green including, without limitation,
CSFB and/or Global or any of their officers or directors, to evaluate or review
the Proposed Transaction or any Green Acquisition Proposal.
15. All of Green's filings with and submissions to the Securities and
Exchange Commission ("SEC").
16. All documents concerning the Proposed Transaction or any
transaction submitted by Green and/or Global to any federal, state or local
governmental agency.
17. All income statements, balance sheets and cash flow statements of
Green and Global.
18. All documents regarding the financial condition of Green or any of
its affiliated companies or companies in which it, directly or indirectly, has
an investment in excess of $10 million.
19. All insurance policies issued to or for the benefit of Green or the
Individual Defendants which may provide coverage for liability for any or all of
the claims asserted in this action.
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20. All documents concerning any negotiations, discussions, meetings or
communications between Green and Global concerning the Proposed Transaction or
any Green Acquisition Proposal.
21. All documents concerning the transmittal or exchange of non-public
documents or other information between Green and Global or any of their
representatives or advisors concerning the Proposed Transaction or any Green
Acquisition Proposal.
22. All non-public documents concerning Green's businesses and affairs
transmitted or made available to Global by Green or any representative of Green.
23. All documents concerning any projections or analyses of Green's
financial and operational results and all documents used in preparing such
projections and analyses.
24. All documents concerning any projections or analyses of the
financial and operational results of the combined company following consummation
of the Proposal Transaction.
25. All documents concerning Green's business plans or planning
documents for future operations.
26. All documents concerning Green's budgets, forecasts of operations
and results of operations, including, but not limited to, all documents
concerning any variances of Green's actual results from its forecasted results.
27. All documents concerning any grant or exercise of stock options to
any officer or director of Green.
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28. All documents concerning the identification by Green's management
of parties to approach to solicit interest in a possible acquisition of Green.
29. All documents concerning the exercise of options to purchase Green
stock in connection with the Proposed Merger.
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30. All documents concerning Green or Global's policies regarding the
retention or destruction of documents.
Dated: March 12, 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
Stanley D. Bernstein
Michael S. Egan
274 Madison Avenue
New York, NY 10016
(212) 779-1414
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EXHIBIT (a)(13)
[GLOBAL INDUSTRIAL TECHNOLOGIES, INC. LOGO]
FOR IMMEDIATE RELEASE
INVESTOR CONTACT: GEORGE PASLEY MEDIA CONTACT: LARRY NANCE
V.P. COMMUNICATIONS MANAGER, CORPORATE RELATIONS/PUBLIC AFFAIRS
214-953-4510 214-953-4518
WEB SITE: PRNEWSWIRE.COM/GIX
GLOBAL INDUSTRIAL TECHNOLOGIES, INC. REFILES ITS NOTIFICATION AND
REPORT FORM WITH THE FEDERAL TRADE COMMISSION
DALLAS, TEXAS (MARCH 16, 1998) -- Global Industrial Technologies, Inc. (NYSE:
GIX) announced today that, pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act, it has refiled a Notification and Report Form with the Federal
Trade Commission in connection with its tender offer to purchase for cash all
outstanding shares of A.P. Green Industries, Inc. (NYSE: APK) at $22 per share.
As a result of the refiling, the expiration of the 15-calendar day waiting
period will expire at 11:59 p.m., EST, on March 31, 1998, unless
early termination of the waiting period is granted or Global Industrial
Technologies receives a request for additional information or documentary
material prior to such date.
Global Industrial Technologies is a major manufacturer of technologically
advanced industrial products that support high-growth markets around the world.
Its Harbison-Walker subsidiary operates 15 refractory plants in five countries,
including the United States, Canada, Mexico, Chile and Germany.
# # #
Statements the Company may publish, including those in this announcement, that
are not strictly historical are "forward-looking" statements under the safe
harbor provisions of the Private Securities Litigation Reform Act of 1995.
Although the Company believes the expectations reflected in such forward-looking
statements are based on reasonable assumptions, it can give no assurance that
its expectations will be realized. Forward-looking statements involve known and
unknown risks which may cause the Company's actual results and corporate
developments to differ materially from those expected. Factors that could cause
results and developments to differ materially from the Company's expectations
include, without limitation, changes in manufacturing and shipment schedules,
delays in completing plant construction and acquisitions, currency exchange
rates, new product and technology developments, competition within each business
segment, cyclicity of the markets for the products of a major segment,
litigation, significant cost variances, the effects of acquisitions and
divestitures, and other risks described from time to time in the Company's SEC
reports including quarterly reports on Form 10-Q, annual reports on Form 10-K
and reports on Form 8-K.
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