-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ClfQ5jfa/PGRwcLuhfJZKPUhdwbt3+dcTfEddP9ybBt1BeMJW9hyAB4OzZpmugGz iC2GigxtIViytL/bxjaHQA== 0000929624-98-000525.txt : 19980311 0000929624-98-000525.hdr.sgml : 19980311 ACCESSION NUMBER: 0000929624-98-000525 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19980310 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GREEN A P INDUSTRIES INC CENTRAL INDEX KEY: 0000826619 STANDARD INDUSTRIAL CLASSIFICATION: STRUCTURAL CLAY PRODUCTS [3250] IRS NUMBER: 430899374 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: SEC FILE NUMBER: 005-39125 FILM NUMBER: 98561612 BUSINESS ADDRESS: STREET 1: GREEN BLVD CITY: MEXICO STATE: MO ZIP: 65265 BUSINESS PHONE: 5734733626 MAIL ADDRESS: STREET 1: GREEN BLVD CITY: MEXICO STATE: MO ZIP: 65265 FORMER COMPANY: FORMER CONFORMED NAME: A P GREEN INDUSTRIES INC DATE OF NAME CHANGE: 19900619 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GREEN A P INDUSTRIES INC CENTRAL INDEX KEY: 0000826619 STANDARD INDUSTRIAL CLASSIFICATION: STRUCTURAL CLAY PRODUCTS [3250] IRS NUMBER: 430899374 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: GREEN BLVD CITY: MEXICO STATE: MO ZIP: 65265 BUSINESS PHONE: 5734733626 MAIL ADDRESS: STREET 1: GREEN BLVD CITY: MEXICO STATE: MO ZIP: 65265 FORMER COMPANY: FORMER CONFORMED NAME: A P GREEN INDUSTRIES INC DATE OF NAME CHANGE: 19900619 SC 14D9/A 1 A.P. GREEN INDUSTRIES, INC. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- SCHEDULE 14D-9 SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 1) ---------------- 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) ---------------- WITH A COPY TO: ROBERT M. LAROSE, ESQ. THOMPSON COBURN ONE MERCANTILE CENTER ST. LOUIS, MISSOURI 63101 (314) 552-6000 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 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 1 EXHIBIT INDEX 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.
2 EX-6 2 CLASS ACTION COMPLAINT DATED MARCH 5, 1998 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. 3 (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; 4 (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 5 -----END PRIVACY-ENHANCED MESSAGE-----