Exhibit 4
FIRST AMENDMENT
TO
RIGHTS AGREEMENT
This First Amendment to Rights Agreement, dated as of March 5, 1998
(this "Amendment") is executed with respect to the Rights Agreement, dated as of
November 13, 1997 (the "Agreement") between A. P. Green Industries, Inc., a
Delaware corporation (the "Company"), and Xxxxxx Trust and Savings Bank (the
"Rights Agent"). Unless otherwise defined herein, capitalized terms used herein
shall have the same meaning as those set forth in Agreement.
WHEREAS, the Company, on the one hand, and Global Industrial
Technologies, Inc., a Delaware corporation ("Purchaser"), and BGN Acquisition
Corp., a Delaware corporation and wholly-owned subsidiary of Purchaser ("Merger
Sub"), on the other hand, have entered into an Agreement and Plan of Merger,
dated as of March 3, 1998 ("Merger Agreement"), whereby Purchaser has agreed to
acquire the Company pursuant to a two-step transaction consisting of (i) a
tender offer ("Offer") to purchase all of the outstanding shares of Common
Stock, $1.00 par value (the "Common Stock") of the Company at a price of $22.00
per common share in cash net to the seller, subject to the terms and conditions
set forth in Annex A to the Merger Agreement, followed by (ii) a merger of
Merger Sub with and into the Company (the "Merger"); and
WHEREAS, the Merger Agreement requires that, upon acceptance of, and
payment for, by Purchaser, of such number of shares of Common Stock satisfying
the Minimum Condition pursuant to the Offer, all outstanding Rights under the
Agreement will expire and neither the Company, Merger Sub nor Purchaser shall
have any obligations under the Agreement to any holder (or former holder) of
Rights following such consummation of the Offer; and
WHEREAS, the Board of Directors of the Company has unanimously approved
the Merger Agreement, the Offer and the Merger;
NOW, THEREFORE, in consideration of the premises, the parties hereby
agree as follows:
1. Section 7(a) of the Agreement is hereby amended to read in its
entirety as follows:
"(a) The registered holder of any Right Certificate
may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate,
with the form of election to purchase on the reverse side
thereof duly executed, to the Rights Agent at the office of
the Rights Agent, together with payment of the Purchase Price
for each one-hundredth of a Preferred Share as to which the
Rights are exercised, at or prior to the Close of Business or
the earlier of (i) January 6, 2008 (the "Final Expiration
Date"), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof, or (iii) the time at which such
Rights are exchanged as provided in Section 24 hereof. In
addition, all outstanding Rights under this Agreement (whether
or not tendered and purchased pursuant to the Offer (as
defined below)) shall expire upon and as of the acceptance (so
long as Global Industrial Technologies, Inc., a Delaware
corporation ("Purchaser"), BGN Acquisition Corp., a Delaware
corporation and wholly owned subsidiary of Purchaser ("Merger
Sub") or any other wholly-owned direct or indirect subsidiary
of Purchaser thereafter purchases shares of Common Stock
pursuant to the Offer) for payment pursuant to the Offer of
shares of Common Stock which, together with any shares of
Common Stock owned by Purchaser, Merger Sub or any other
wholly-owned direct or indirect
subsidiary of Purchaser, constitutes more than 50% of the
voting power (determined on a fully-diluted basis) of all the
securities of the Company entitled to vote generally in the
election of directors or in connection with a merger, upon
consummation of the Offer (the "Date of Acceptance"). The
earliest date to occur referred to in clauses (i), (ii) and
(iii) in the first sentence of this Section 7(a) or the Date
of Acceptance is herein referred to as the "Expiration Date."
For the purpose of the preceding sentence, the term "Offer"
shall mean the tender offer provided for by, and consummated
in accordance with the terms of, that certain Agreement and
Plan of Merger, dated as of March 3, 1998, as amended from
time to time, by and among the Company, Purchaser and Merger
Sub."
2. The Agreement is hereby amended by adding thereto the following
new Section 3(d):
"Section 3(d). Notwithstanding any provision of this Agreement
to the contrary, none of Purchaser, Merger Sub (each as
defined in Section 7(a)) nor any other wholly-owned direct or
indirect subsidiary of Purchaser shall be or be deemed to
become an Acquiring Person, and no Distribution Date, Stock
Acquisition Date or any other event which would result in the
Rights becoming exercisable shall occur or be deemed to occur,
in either case solely by reason of the execution of the
Agreement and Plan of Merger, dated as of March 3, 1998, as
the same may be amended from time to time, by and among the
Company, Purchaser and Merger Sub, or the announcement,
commencement or consummation of the transactions contemplated
thereby."
IN WITNESS WHEREOF, the undersigned have executed this Amendment to be
duly executed and their seals attested, all as of the day and year first above
written.
Attest: A. P. GREEN INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxxx
Title: Secretary Vice: Vice President, Chief Financial
Officer and Treasurer
Attest: XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxx Xxxxxxxx Name: Xxxxxx Xxxxxxx
Title: Trust Administrator Title: Vice President
