<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 5)
HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC.
(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE
(Title of Class of Securities)
440699
(CUSIP Number)
GARY APFEL, ESQ.
KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP
425 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 836-7055
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
JUNE 13, 1996
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with this statement / /. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of less than five percent of such class.
See Rule 13d-7.)
Page 1 of 16
Exhibit Index on Page 14
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SCHEDULE 13D
CUSIP No. 440699 Page 2 of 16
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
B.U.S. ENVIRONMENTAL SERVICES, INC.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 16,250,000
REPORTING
PERSON WITH 9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
16,250,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
16,250,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
44.8%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP No. 440699 Page 3 of 16
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
B.U.S. BERZELIUS UMWELT-SERVICE AG
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC, AF, BK
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
GERMANY
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 16,250,000
REPORTING
PERSON WITH 9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
16,250,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
16,250,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
44.8%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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AMENDMENT NO. 5 TO SCHEDULE 13D
This Amendment No. 5 dated June 14, 1996 (filed on behalf of
B.U.S. Environmental Services, Inc. ("B.U.S.") and B.U.S Berzelius
Umwelt-Service AG ("B.U.S. AG") to the Schedule 13D dated August 3, 1990 filed
on behalf of B.U.S., B.U.S. AG and Metallgesellschaft AG ("MG"), as amended by
Amendment No. 1 dated July 8, 1994, Amendment No. 2 dated April 18, 1995,
Amendment No. 3 dated September 11, 1995 and Amendment No. 4 dated October 30,
1995 (the "Schedule 13D"), relates to the common stock, $.01 par value ("Common
Stock"), of Horsehead Resource Development Company, Inc., a Delaware corporation
("HRD"). Capitalized terms used and not defined herein shall have the meanings
ascribed to them in the Schedule 13D.
The Schedule 13D is hereby amended and restated in its
entirety to read as follows:
ITEM 1. SECURITY AND ISSUER.
The class of equity securities to which this statement
relates is the Common Stock of HRD. The principal executive offices of HRD are
located at 110 East 59th Street, New York, New York 10022.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is being filed by B.U.S., a Delaware
corporation, the principal business of which is owning the stock of HRD, and
by B.U.S. AG, a corporation organized under the laws of Germany, the principal
business of which is the processing of industrial wastes. The principal
executive office of B.U.S. is c/o B.U.S Berzelius Umwelt Service AG,
Vinckeufer 3, 47119 Duisburg, Germany. The principal executive office of
B.U.S. AG is Vinckeufer 3, 47119 Duisburg, Germany.
The name, business address, citizenship, present principal
occupation or employment (and the name, principal business and the address of
the corporation or other organization in which such employment is conducted) of
each director and executive officer of B.U.S., and B.U.S. AG are set forth in
Appendix A hereto, which is incorporated by reference herein.
During the last five years, none of B.U.S. or B.U.S. AG or,
to the best knowledge of B.U.S. and B.U.S. AG, any of their respective directors
or executive officers:
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(a) has been convicted in any criminal proceeding
(excluding traffic violations or similar misdemeanors), or
(b) has been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a
result of such proceeding is or was subject to a judgment,
decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or
state securities laws or finding any violations with respect
to such laws.
In addition, none of B.U.S. or B.U.S. AG or, to the best
knowledge of B.U.S. and B.U.S. AG, any of their respective directors or
executive officers, are presently the subject of a pending criminal
environmental proceeding.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The 9,750,000 shares of Common Stock acquired by B.U.S. on
July 24, 1990, as described in Item 5(a) below, were acquired for a purchase
price of $124,312,500. The source of such funds was an interim financing
arrangement made by B.U.S. and B.U.S. AG which was refinanced by B.U.S. AG from
the proceeds of a public rights issue. Specifically, B.U.S. AG contributed the
sum of $124,312,500 to the capital of B.U.S. B.U.S. AG financed the
$124,312,500 capital contribution from the following sources: (i) $15,038,824
from working capital, (ii) a loan from MG in the amount of $50,000,000 due on
September 26, 1990 at an interest rate of 8.4375%, (iii) two loans from
Metallbank GmbH, a bank organized under the laws of the Federal Republic of
Germany, in the amounts of $11,792,453 and $17,570,755, respectively, due on
August 6, 1990 and August 8, 1990, respectively, at an interest rate of 8.2%,
(iv) a loan from Trinkaus & Burkhardt, a bank organized under the laws of the
Federal Republic of Germany, in the amount of $14,740,566 due on August 6, 1990
at an interest rate of 8.25%, and (v) a loan from Salomon Oppenheim, a bank
organized under the laws of the Federal Republic of Germany, in the amount of
$15,169,902 due on August 6, 1990 at an interest rate of 8.3125%. B.U.S. AG
refinanced each of the loans listed above from the proceeds of a public rights
issue whereby the holders of rights which were attached to outstanding
securities of B.U.S. AG and which were traded on the Frankfurt Stock Exchange
during the period from August 3 through August 15, 1990, were allowed to
purchase additional shares of common or preferred stock of B.U.S. AG for 440
deutsche marks per common share and 340 deutsche marks per preferred share. The
rights could be exercised by the holders thereof at any time during the period
from August 3 through August 27, 1990.
B.U.S. purchased 6,474,000 shares of Common Stock from HRD on
July 26, 1988 for an aggregate purchase price of $25,000,000 and received the
right to purchase from HRD an additional 26,000 shares of Common Stock for
nominal consideration. The
Page 5 of 16
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source of such funds was the following financing by B.U.S.: (i) a loan from MG
in the amount of $9,020,000 due on October 1, 1990 at an interest rate of
9.8325%, (ii) a loan from Metallgesellschaft Corporation, a Delaware corporation
and a wholly-owned subsidiary of MG, in the amount of $8,990,000 due on October
1, 1990 at an interest rate of 9.625%, and (iii) $6,990,000 from working
capital.
ITEM 4. PURPOSE OF TRANSACTION
The 9,750,000 shares of Common Stock acquired on July 24, 1990
as described in Item 5(a) below were acquired for investment purposes and to
utilize, through HRD, MG's and B.U.S. AG's environmental services capabilities
and technologies in the United States. On May 16, 1996, HRD commenced an issuer
tender offer (the "Tender Offer") for up to 1,751,600 shares of Common Stock to
all holders of Common Stock. By letter, dated June 10, 1996, B.U.S. (a)
informed Horsehead Industries, Inc. ("HII") that B.U.S. desires to tender
2,885,000 shares of Common Stock pursuant to the Tender Offer and (b) requested
that HII inform B.U.S. whether (1) HII believes it is entitled to purchase
these shares instead of HRD, and (2) HII does in fact elect to purchase the
shares at the price and on the terms and conditions set forth in the Tender
Offer. A copy of the June 10, 1996 letter is filed herewith as Exhibit 3. By
letter dated June 13, 1996, HII responded to B.U.S.'s June 10, 1996 letter by
advising B.U.S. that the proposed tender by B.U.S. of 2,885,000 shares of Common
Stock pursuant to the Tender Offer is subject to the restrictions in the
Shareholders Agreement (as defined in Item 6 below), which purportedly prevents
B.U.S. from transferring any of its shares of Common Stock until the applicable
provisions of the Shareholders Agreement are met. On June 13, 1996, B.U.S.
tendered such 2,885,000 shares of Common Stock to HRD pursuant to the Tender
Offer.
As a public company with the obligation to act in its
stockholders' best interests, B.U.S. AG reserves the right to take appropriate
actions in the furtherance of such interests in the future, directly or through
B.U.S., if circumstances so require, including actions of the kind described in
clauses (a) through (j) of Item 4 of Schedule 13D to the extent permitted by
law and contract, including the Shareholders Agreement.
Except as otherwise indicated in this statement, neither
B.U.S. nor B.U.S. AG has any plans or proposals with respect to HRD that relate
to or would result in any of the actions specified in clauses (a) through (j)
of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) B.U.S. and B.U.S. AG beneficially own 16,250,000
shares of Common Stock, representing approximately 44.8% of the 36,237,500
shares of Common Stock reported by HRD (in the HRD Offer to Purchase relating
to the Tender Offer) to be outstanding as of May 15, 1996.
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<PAGE> 7
As described in the second paragraph of Item 3, B.U.S.
purchased 6,474,000 shares of Common Stock from HRD and received the right to
purchase from HRD an additional 26,000 shares of HRD Common Stock (which it
later exercised) on July 26, 1988, prior to an underwritten public offering on
July 9, 1990 by HRD of 3,737,500 shares of its Common Stock (including shares
sold pursuant to the underwriters' exercise of their over-allotment option). For
a description of the offering, see HRD's Registration Statement on Form S-1 (No.
33-34808), as amended, filed with the SEC.
On July 24, 1990, following the offering, B.U.S.
acquired 9,750,000 shares of Common Stock from Horsehead Investment Management
Corporation ("HIMC") at a price per share of $12.75 pursuant to the Shareholders
Agreement, dated July 26, 1988, among HRD, B.U.S. and HII referred to in Item 6
and the Letter Agreement, dated May 30, 1990, among HRD, B.U.S. and HII (the
"Letter Agreement"), copies of which are filed as Exhibits 2(a) and (b) hereto,
respectively.
(b) B.U.S. and B.U.S. AG share the power to vote or
direct the vote and the power to dispose of or to direct the disposition of
16,250,000 shares of HRD Common Stock.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
B.U.S., HRD, HII and HIMC (each a "Shareholder" and
collectively, the "Shareholders") are parties to the Shareholders Agreement
dated July 26, 1988, a copy of which is attached hereto as Exhibit 2(a), as
amended by the Amendment to the Shareholders Agreement dated July 24, 1990, a
copy of which is attached hereto as Exhibit 2(c) (as amended, the "Shareholders
Agreement"). The Shareholders Agreement prohibits transfers of Common Stock by
a Shareholder except: (i) in a cash sale in compliance with the right of "first
refusal" and "tag-along" rights of the other Shareholders; (ii) to an
affiliate, as defined in the Shareholders Agreement, (iii) in sales in "brokers
transactions" of up to 1% of the outstanding Common Stock during any 90-day
period; and (iv) pursuant to certain registration rights.
Pursuant to the Shareholders Agreement the By-laws of HRD
were amended to provide that the minimum number of directors of HRD shall be
five. Until June 30, 1998,
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each of B.U.S. and HII will have the right under the Shareholders Agreement, so
long as it owns at least 20% of the outstanding Common Stock, to propose two
nominees to HRD's Board of Directors and, so long as it owns less than 20% but
at least 5% of the outstanding Common Stock, to propose one nominee. Each of
B.U.S. and HII have agreed to vote their shares and shares controlled by them
for the election of the other's nominees in the circumstances described in the
preceding sentence.
The foregoing is a summary of the Shareholders Agreement, a
copy of which is attached hereto as Exhibits 2(a) and (c), and is qualified by
reference to the full text of the Shareholders Agreement which is incorporated
by reference herein.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1: Joint Filing Agreement among B.U.S. and B.U.S. AG, dated
April 17, 1995.
Exhibit 2: (a) Shareholders Agreement among B.U.S., HRD and HII,
dated July 26, 1988.
(b) Letter Agreement among B.U.S., HRD and HII, dated May
30, 1990.
(c) Amendment to the Shareholders Agreement among B.U.S.,
HRD, HII and HIMC, dated July 24, 1990.
Exhibit 3: Letter, dated June 10, 1996, from B.U.S. to HII.
Exhibit 4: Letter, dated June 13, 1996, from HII to B.U.S.
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SIGNATURE
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.
Dated: June 13, 1996
B.U.S. ENVIRONMENTAL SERVICES, INC.
By: /s/ DR. G. OKON
-------------------------------
Name: Dr. G. Okon
Title: President
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<PAGE> 10
SIGNATURE
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.
Dated: June 13, 1996
B.U.S BERZELIUS UMWELT-SERVICE AG
By: /s/ G. OKON /s/ R. KOLA
-----------------------------------
Name: Dr. G. Okon R. Kola
Title: Members of the Board
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APPENDIX A
Set forth below is the information required by Item 2 of
Schedule 13D for each executive officer and director of
B.U.S. Environmental Services, Inc.
<TABLE>
<CAPTION>
Present Principal
Name Business Address Occupation Citizenship
- ---- ---------------- ----------------- -----------
<S> <C> <C> <C>
Dr. Guenter Okon B.U.S Berzelius Umwelt- Chairman of Board of German
Service AG Directors, President
Vinckeufer 3 and Treasurer of B.U.S.
47119 Duisburg Environmental Services
Germany Inc. and Speaker of the
Executive Board of B.U.S
Berzelius Umwelt Service
AG
Rolf Kola B.U.S Berzelius Umwelt- Director and Vice Pre- German
Service Ag sident of B.U.S. Environ-
Vinckeufer 3 mental Services Inc. and
47119 Duisburg Member of the Board of
Germany B.U.S Berzelius Umwelt
Service AG
</TABLE>
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<PAGE> 12
<TABLE>
<S> <C> <C> <C>
Jurgen Tietz B.U.S Berzelius Umwelt- Secretary of B.U.S. German
Service AG Environmental Services
Vinckeufer 3 Inc.
47119 Duisburg
Germany
Andre Guenoun B.U.S Berzelius Umwelt- Asst. Secretary of B.U.S. U.S.
Service AG Environmental Services
Vinckeufer 3 Inc.
47119 Duisburg
Germany
</TABLE>
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<PAGE> 13
Set forth below is the information required by Item 2 of Schedule
13D for each member of the Management Board of B.U.S Berzelius
Umwelt Service AG
<TABLE>
<CAPTION>
Present Principal
Name Business Address Occupation Citizenship
- ---- ---------------- ----------------- -----------
<S> <C> <C> <C>
Rolf Kola B.U.S Berzelius Umwelt- Member of Executive German
Service AG Board of B.U.S
Vinckeufer 3 Berzelius Umwelt-
47119 Duisburg Service AG
Germany
Dr. Guenter Okon B.U.S Berzelius Umwelt- Speaker of Executive German
Service AG Board of B.U.S
Vinckeufer 3 Berzelius Umwelt-
47119 Duisburg Service AG
Germany
</TABLE>
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EXHIBIT INDEX
<TABLE>
<S> <C> <C>
Exhibit 1: Joint Filing Agreement among B.U.S. and B.U.S. Previously filed
AG, dated April 17, 1995*.
Exhibit 2: (a) Shareholders Agreement among B.U.S., Previously filed
HRD and HII, dated July 26, 1988.*
(b) Letter Agreement among B.U.S., HRD Previously filed
and HII, dated May 30, 1990.*
(c) Amendment to the Shareholders Previously filed
Agreement among B.U.S., HRD, HII and
HIMC, dated July 24, 1990.*
Exhibit 3: Letter, dated June 10, 1996, from B.U.S. to HII.
Exhibit 4: Letter, dated June 13, 1996, from HII to B.U.S.
</TABLE>
______________________
* Exhibit referenced hereby is incorporated by reference herein.
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<PAGE> 1
EXHIBIT 3
---------
[B.U.S. Environmental Services, Inc. Letterhead]
Mr. William E. Flaherty
Chairman and Chief Executive Officer
Horsehead Industries, Inc.
110 East 59th Street
New York, New York 10022
U.S.A.
June 10, 1996
Dear Mr. Flaherty:
As stated in my letter of May 24, HRD has made a tender offer to purchase
up to 1,751,600 shares of its common stock at $5.75 per share (the "Offer").
You, of course, have a copy of the Offer.
B.U.S. Environmental Services, Inc. desires to tender 2,885,000 shares of
its HRD common stock in response to the Offer. Accordingly, I renew my
request, set forth in my letter of May 24, that HII inform us as to whether
(1) it believes it is entitled to purchase these shares instead of HRD,
and (2) it does in fact elect to purchase the shares at the price and on
the terms and conditions set forth in the Offer.
You indicated in your May 31, 1996 letter that if we had a specific
intention you would respond "at that time." Since, as you know, June 15 is
the deadline for the Offer, your response is required as soon as possible.
Very truly yours,
B.U.S. Environmental Services, Inc.
/s/ DR. G. OKON
- ------------------------------------
Dr. G. Okon
-President-
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<PAGE> 1
EXHIBIT 4
---------
[HORSEHEAD INDUSTRIES, INC.]
June 13, 1996
Dr. Gunter Okon
B.U.S. Environmental Services, Inc.
c/o B.U.S. Berzelius Umwelt-Service AG
Vinckenfer 3
D-47119 Duisburg
Germany
Dear Dr. Okon:
This is in response to your letter of June 10, 1996 in which you notified
Horsehead Industries, Inc. ("HII") of B.U.S. Environmental Services, Inc.
("BES") desire to sell 2,885,000 shares of the stock in Horsehead Resource
Development Company, Inc. ("HRD") held by BES to HRD under the terms of the
Offer.
Please be advised that BES' proposed sale of HRD stock is subject to the
restrictions in the Shareholders Agreement, including specifically Section 1.2
- - Right of First Refusal, and that BES can not transfer any of its HRD stock
until the provisions of the Shareholders Agreement are fully complied with. HII
is considering what action it intends to take with respect to its rights under
the Shareholders Agreement and will respond to your notice in accordance with
the terms of the Shareholders Agreement.
Sincerely,
/s/ WM. FLAHERTY
-----------------------------
William E. Flaherty
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