<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 8)
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)
JULY 8, 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 36
Exhibit Index on Page 23
<PAGE> 2
SCHEDULE 13D
CUSIP No. 440699 Page 2 of 36
<TABLE>
<CAPTION>
<S> <C> <C>
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
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 3
SCHEDULE 13D
CUSIP No. 440699 Page 3 of 36
<TABLE>
<CAPTION>
<S> <C> <C>
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
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 4
SCHEDULE 13D
CUSIP No. 440699 Page 4 of 36
<TABLE>
<CAPTION>
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
LOBBERT HOLDING GmbH
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
N/A
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 * Pursuant to Rule 13d-4,
beneficial ownership of
these shares is disclaimed by
16,250,000* Lobbert Holding GmbH
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
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 5
SCHEDULE 13D
CUSIP No. 440699 Page 5 of 36
<TABLE>
<CAPTION>
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JOHANNES LOBBERT
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
N/A
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 * Pursuant to Rule 13d-4, beneficial
ownership of these shares is dis-
16,250,000* claimed by Johannes Lobbert
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*
IN
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 6
SCHEDULE 13D
CUSIP No. 440699 Page 6 of 36
<TABLE>
<CAPTION>
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DIETER LOBBERT
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
N/A
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 * Pursuant to Rule 13d-4, beneficial
ownership of these shares is dis-
16,250,000* claimed by Dieter Lobbert
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*
IN
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 7
SCHEDULE 13D
CUSIP No. 440699 Page 7 of 36
<TABLE>
<CAPTION>
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
MARIA LOBBERT
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
N/A
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 * Pursuant to Rule 13d-4,
beneficial ownership of these
shares is disclaimed by
16,250,000* Maria Lobbert
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*
IN
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 8
SCHEDULE 13D
CUSIP No. 440699 Page 8 of 36
<TABLE>
<CAPTION>
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BRITTA LOBBERT
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
N/A
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 * Pursuant to Rule 13d-4,
beneficial ownership of these
shares is disclaimed by
16,250,000* Britta Lobbert
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*
IN
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 9
AMENDMENT NO. 8 TO SCHEDULE 13D
This Amendment No. 8 dated July 12, 1996 (filed on behalf of B.U.S
Environmental Services, Inc. ("B.U.S"), B.U.S Berzelius Umwelt-Service AG
("B.U.S AG"), Lobbert Holding GmbH ("Lobbert"), Johannes Lobbert, Dieter
Lobbert, Britta Lobbert and Maria Lobbert (collectively, the "Lobbert Family"))
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,
Amendment No. 4 dated October 30, 1995, Amendment No. 5 dated June 14, 1996,
Amendment No. 6 dated June 21, 1996 and Amendment No. 7 dated June 25, 1996 (as
amended, 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.
Item 2, Item 4, Item 5, Item 6 and Item 7 of the Schedule 13D
are hereby amended and restated in their entirety to read as follows:
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, by B.U.S AG, a
corporation organized under the laws of Germany, the principal business of
which is the processing of industrial wastes, by Lobbert, a corporation
organized under the laws of Germany, the principal business of which is owning
stock of B.U.S AG, and by the Lobbert Family, private investors. 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 principal executive office of
Lobbert is Huttenweg 16, 48249, Duelmen, Germany.
The Lobbert Family together owns 100% of Lobbert. Lobbert and the
Lobbert Family together constitute a group for the purposes of this Schedule
13D. Lobbert owns 49% of the voting stock of B.U.S AG, which in turn is the
parent of B.U.S.
As of March 1995, Lobbert owned 52% of B.U.S AG's common stock
("B.U.S AG Common Stock"), but only 40% of B.U.S AG's voting stock due to the
provisions of Section 140 of the German Stock Corporation Law ("Section 140").
Under such provision, preferred stock (which normally has no voting rights)
automatically becomes voting stock if the issuing corporation does not declare
dividends to its preferred stockholders for two consecutive years. B.U.S AG did
not declare a dividend on its preferred stock (the "B.U.S AG Preferred Stock")
for either fiscal 1993 or fiscal 1994. On February 3, 1995, when B.U.S AG
released its audited financial statements for fiscal 1994, which showed no
dividends declared on the B.U.S AG Preferred Stock for such year, the automatic
voting rights provision of Section 140 was officially triggered. Thus, holders
of B.U.S AG Preferred Stock were entitled to vote as a single class with
holders of B.U.S AG Common Stock as of February 3, 1995. As a result, although
Lobbert owned 52% of B.U.S AG Common Stock, it owned only 40% of the voting
stock of B.U.S AG.
The percentage of B.U.S AG's voting stock held by Lobbert,
however, has changed as a result of the following events. First, on April 1,
1996, Lobbert sold 51,526 shares of B.U.S AG Common Stock to a third party,
thus decreasing its total holdings in B.U.S AG to 49% of the B.U.S AG Common
Stock. In addition, at the April 24, 1996 annual meeting of shareholders of
B.U.S AG, the B.U.S AG shareholders authorized the payment of all past-due
dividends to holders of B.U.S AG Preferred Stock. Such past-due dividends were
paid on or about April 25, 1996. Upon such payment, the holders of the B.U.S AG
Preferred Stock lost their voting rights under Section 140. Accordingly, after
the Lobbert sale of B.U.S AG Common Stock as described above and the payment of
the dividend on the B.U.S AG Preferred Stock, Lobbert owns 49% of the voting
stock of B.U.S AG. In addition, as a result of purchases during the last two
months, a shareholder of Lobbert holds in his private capacity less than
one-half of one percent of B.U.S AG Common Stock.
Page 9 of 36
<PAGE> 10
Lobbert and the Lobbert Family are included as reporting persons
in this Schedule 13D, and are providing the information required by Schedule
13D, as if they were deemed beneficial owners of shares of HRD Common Stock.
However, pursuant to Rule 13d-4 of the Securities Exchange Act of 1934, as
amended ("Rule 13d-4"), the filing of this Schedule 13D shall not be construed
as an admission that Lobbert or any member of the Lobbert Family is the
beneficial owner of any Common Stock of HRD.
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, B.U.S AG and Lobbert are set
forth in Appendix A hereto, which is incorporated by reference herein.
During the last five years, none of B.U.S, B.U.S AG, Lobbert or
any member of the Lobbert Family, or, to the best knowledge of B.U.S, B.U.S AG
and Lobbert, any of their respective directors or executive officers:
(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, B.U.S AG, Lobbert or any member of the
Lobbert Family, or, to the best knowledge of B.U.S, B.U.S AG and Lobbert, any of
their respective directors or executive officers are presently the subject of a
pending criminal environmental proceeding.
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
(the "June 13 Letter"), 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. A copy of the June 13 Letter
is filed herewith as Exhibit 4. On June 13, 1996, B.U.S tendered such 2,885,000
shares of Common Stock pursuant to the Tender Offer.
On June 24, 1996, B.U.S filed a complaint in the United States
District Court for the Southern District of New York (the "Complaint") seeking
equitable relief which sought to enable B.U.S either to participate in the
Tender Offer or to sell its shares of HRD Common Stock to HII. For a complete
description of the allegations of and relief sought
Page 10 of 36
<PAGE> 11
by the Complaint, see Item 6. On July 8, 1996, B.U.S filed a voluntary dismissal
of the Complaint as a result of actions taken by HII and HRD subsequent to the
filing of the Complaint, as more fully described in Item 6 below.
In May 1996, B.U.S AG commenced an action in district court in
Frankfurt, Germany against MG alleging that MG violated a duty of care under
German law when it, as the holder in 1990 of a majority of the voting shares of
B.U.S AG, caused B.U.S AG to acquire shares of HRD Common Stock in 1990 at what
B.U.S AG asserts is an excessive purchase price, which resulted in a write down
by B.U.S AG for the 1993/1994 business year. That German action seeks, as an
alternative remedy, an order requiring MG to purchase from B.U.S AG an
aggregate of 24.9% of HRD's shares of Common Stock.
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. Although pursuant to Rule
13d-4 the filing of this Schedule 13D shall not be construed as an admission
that Lobbert or any member of the Lobbert Family is the beneficial owner of any
Common Stock of HRD, Lobbert and the Lobbert Family are included as reporting
persons in this Schedule 13D, and are providing the information required by
Schedule 13D, as if they were deemed beneficial owners of 16,250,000 shares of
HRD Common Stock.
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 Securities and Exchange Commission.
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.
Page 11 of 36
<PAGE> 12
(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. Although pursuant to Rule 13d-4 the filing of this
Schedule 13D shall not be construed as an admission that Lobbert or any member
of the Lobbert Family is the beneficial owner of any Common Stock of HRD,
Lobbert and the Lobbert Family are included as reporting persons in this
Schedule 13D, and are providing the information required by Schedule 13D, as if
they were deemed to share the power to direct the vote and the power to direct
the disposition of the 16,250,000 shares of HRD Common Stock.
(c) On April 1, 1996, Lobbert sold 3% of B.U.S AG's Common Stock
to a third party. Although pursuant to Rule 13d-4 the filing of this Schedule
13D shall not be construed as an admission that Lobbert or any member of the
Lobbert Family is the beneficial owner of any Common Stock of HRD, Lobbert and
the Lobbert Family are included as reporting persons in this Schedule 13D, and
are providing the information required by Schedule 13D, as if they were deemed
beneficial owners of 16,250,000 shares of HRD Common Stock.
(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, 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.
Page 12 of 36
<PAGE> 13
In the June 13 Letter, HII claimed that, pursuant to the
Shareholders Agreement, it is entitled to a right of first refusal, which it had
30 days to exercise with respect to the HRD shares tendered by B.U.S pursuant to
the Tender Offer described in Item 4. B.U.S understands that HII believed it had
until July 10, 1996 to decide whether to exercise this purported right of first
refusal; by that date, HRD could have purchased the shares of HRD Common Stock
tendered by the other HRD stockholders and, in such case, HRD's Tender Offer
would have been consummated. As a result, B.U.S would have been forced to
maintain ownership of the HRD shares which it would have otherwise been entitled
to tender. Therefore, on June 24, 1996, B.U.S filed a Complaint against HRD and
HII claiming that the structure of the Tender Offer was intentionally designed
to prevent B.U.S from participating in the Tender Offer in violation of the
Securities Exchange Act of 1934, as amended. As a result, B.U.S's Complaint
sought an order (i) compelling HRD to either accept the HRD shares tendered by
B.U.S pursuant to the Tender Offer or, alternatively, requiring HII to exercise
the right of first refusal to which HII claimed it was entitled under the
Shareholders Agreement, and to purchase the shares tendered by B.U.S pursuant to
the terms and conditions of the Tender Offer; and (ii) preliminarily enjoining
HRD from accepting or rejecting any HRD shares tendered pursuant to the Tender
Offer or making payment for such shares until HII first decided whether to
exercise its purported right of first refusal. A copy of the Complaint is filed
herewith as Exhibit 5 and is incorporated herein by reference.
By letter dated June 27, 1996, a copy of which is filed herewith
as Exhibit 6 (the "Letter to the Court"), HRD and HII, through counsel, informed
the Court of the following events: (i) by letter dated June 27, 1996 (the "June
27 Letter") (Exhibit A to the Letter to the Court), HII informed B.U.S that HII
agreed to waive its purported right of first refusal with respect to the tender
by B.U.S of 2,885,000 shares of Common Stock pursuant to the Tender Offer; (ii)
on June 27, 1996, HRD announced in a press release (Exhibit B to the Letter to
the Court), that the Tender Offer would be extended until midnight on July 2,
1996, unless further extended; and (iii) at a meeting of the Board of Directors
of HRD to be held on June 28, 1996, a resolution (Exhibit C to the Letter to the
Court) would be proposed which, if adopted, would authorize HRD to repurchase up
to 4,636,600 shares of Common Stock, consisting of up to 1,751,600 shares from
its public shareholders and 2,885,000 shares tendered by B.U.S. On June 28,
1996, HRD announced in a press release, a copy of which is filed herewith as
Exhibit 7, that it (i) amended the Tender Offer in order to increase the number
of shares to be repurchased to 4,636,600 shares of Common Stock, including all
1,751,600 shares held by its public stockholders and 2,885,000 shares tendered
by B.U.S and (ii) extended the Tender Offer to 5:00 p.m. on July 12, 1996.
Accordingly, because HRD and HII, prior to the Court's adjudication of B.U.S's
motion for a temporary restraining order and preliminary injunction, took the
actions which HRD had requested that the Court order HRD and HII to take, on
July 2, 1996, B.U.S withdrew its motion.
Page 13 of 36
<PAGE> 14
By letter dated July 2, 1996, a copy of which is filed herewith as
Exhibit 8, counsel for HRD advised that HRD's "tender offer will either be
completed and all shares that have been tendered, including [B.U.S's], accepted,
or the tender offer will be terminated." As a result of the foregoing, it is
B.U.S's understanding that the 2,885,000 shares of Common Stock tendered by
B.U.S may be purchased by HRD pursuant to the Tender Offer without interference
from HII and its purported right of first refusal, and that HRD intends to
purchase such shares upon the terms and conditions of the Tender Offer. As a
result, on July 8, 1996, B.U.S filed a notice that it was voluntarily dismissing
its Complaint without prejudice. Upon the consummation of the Tender Offer,
B.U.S will own 13,365,000 shares of HRD Common Stock, which constitutes more
than one-third of the authorized Common Stock of HRD.
On February 6, 1995, HII filed an amended complaint against
B.U.S, B.U.S AG and MG in the Supreme Court of the State of New York (the "State
Court Action") seeking to block the 1994 transfer of common shares of B.U.S AG
from MG to Lobbert on the grounds that such transfer violates the right of first
refusal of the Shareholders Agreement. Alternatively, HII sought compensatory
damages in the State Court Action. Pursuant to an agreement dated February 17,
1995, between MG and Lobbert (the "1995 Agreement"), a copy of which is filed
herewith as Exhibit 9, MG is obligated to indemnify Lobbert if Lobbert is liable
for damages due to a non-appealable decision in the State Court Action or other
court relating to the alleged violation of the right of first refusal. The 1995
Agreement further provides that such indemnification is limited to the purchase
price paid by Lobbert for the B.U.S AG shares; if damages in excess of the
purchase price result, Lobbert may withdraw from its purchase of the B.U.S AG
shares. Under such circumstances, ownership of the shares of B.U.S AG sold by MG
to Lobbert would revert to MG. However, on May 8, 1996, judgment was entered
dismissing the State Court Action, although HII has filed a post-judgment motion
and appeal.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<CAPTION>
<S> <C> <C>
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.
Exhibit 5: Complaint, dated June 24, 1996, B.U.S Environmental Services, Inc.
v. Horsehead Resource Development Company, Inc. and Horsehead
Industries, Inc.
Exhibit 6: Letter, including exhibits thereto, dated June 27,
1996, from Shereff, Friedman, Hoffman & Goodman, LLP,
counsel to HRD ("SFH&G"), to the Honorable Denny Chin,
United States District Court for the
Southern District of New York.
Exhibit 7: Press release of HRD dated June 28, 1996.
</TABLE>
Page 14 of 36
<PAGE> 15
<TABLE>
<CAPTION>
<S> <C>
Exhibit 8: Letter, dated July 2, 1996, from SFH&G to Kaye,
Scholer, Fierman, Hays & Handler, LLP, counsel to B.U.S
and B.U.S AG.
Exhibit 9: Agreement, dated February 17, 1995, between MG and Lobbert.
</TABLE>
Page 15 of 36
<PAGE> 16
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: July 12, 1996
B.U.S ENVIRONMENTAL SERVICES, INC.
By: /s/ G. OKON
------------------------------------
Name: DR. G. OKON
Title: PRESIDENT
Page 16 of 36
<PAGE> 17
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: July 12, 1996
B.U.S BERZELIUS UMWELT-SERVICE AG
By: /s/ G. OKON
------------------------------------
Name: DR. G. OKON
Title: MEMBER OF THE BOARD
By: /s/ R. KOLA
------------------------------------
Name: R. KOLA
Title: MEMBER OF THE BOARD
Page 17 of 36
<PAGE> 18
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: July 8, 1996
LOBBERT HOLDING GmbH
By: /s/ CHRISTOPH AUPERS
------------------------------------
Name: Christoph Aupers
Title: Managing Director
LOBBERT FAMILY
By: /s/ JOHANNES LOBBERT
------------------------------------
Johannes Lobbert
By: /s/ DIETER LOBBERT
------------------------------------
Dieter Lobbert
By: /s/ BRITTA LOBBERT
------------------------------------
Britta Lobbert
By: /s/ MARIA LOBBERT
------------------------------------
Maria Lobbert
Page 18 of 36
<PAGE> 19
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 Pres- German
Service AG ident 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
Jurgen Tietz B.U.S Berzelius Umwelt- Secretary of B.U.S German
Service AG Environmental Services,
Vinckeufer 3 Inc.
47119 Duisburg
Germany
</TABLE>
Page 19 of 36
<PAGE> 20
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>
Page 20 of 36
<PAGE> 21
Set forth below is the information required by Item 2 of Schedule 13D
for the Management of Lobbert Holding GmbH.
<TABLE>
<CAPTION>
Present Principal
Name Business Address Occupation Citizenship
- ---- ---------------- ------------------ -----------
<S> <C> <C> <C>
Dipl.-Betr. Lobbert Holding GmbH Managing Director German
Christoph Aupers Huttenweg 16, 48249 of Lobbert Holding GmbH
Duelmen, Germany
</TABLE>
Page 21 of 36
<PAGE> 22
Set forth below is the information required by Item 2 of Schedule 13D
for each member of the Lobbert Family.
<TABLE>
<CAPTION>
Present Principal
Name Business Address Occupation Citizenship
- ---- ---------------- ------------------ -----------
<S> <C> <C> <C>
Johannes Lobbert Lobbert Holding GmbH Investor German
Huttenweg 16, 48249
Duelmen, Germany
Dieter Lobbert Lobbert Holding GmbH Investor German
Huttenweg 16, 48249
Duelmen, Germany
Britta Lobbert Lobbert Holding GmbH Investor German
Huttenweg 16, 48249
Duelmen, Germany
Maria Lobbert Lobbert Holding GmbH Investor German
Huttenweg 16, 48249
Duelmen, Germany
</TABLE>
Page 22 of 36
<PAGE> 23
<TABLE>
<CAPTION>
EXHIBIT INDEX
<S> <C> <C>
Exhibit 1: Joint Filing Agreement among B.U.S and Previously filed
B.U.S 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 and Previously filed
HII, dated May 30, 1990.*
(c) Amendment to the Shareholders Agreement Previously filed
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.* Previously filed
Exhibit 4: Letter, dated June 13, 1996, from HII to B.U.S.* Previously filed
Exhibit 5: Complaint, dated June 24, 1996, B.U.S Previously filed
Environmental Services, Inc. v. Horsehead
Resource Development Company, Inc. and
Horsehead Industries, Inc.*
Exhibit 6: Letter, including exhibits thereto, dated June 27,
1996, from Shereff, Friedman, Hoffman & Goodman, LLP,
counsel to HRD ("SFH&G"), to the Honorable Denny Chin,
United States District Court for the Southern District
of New York.
Exhibit 7: Press release of HRD dated June 28, 1996.
Exhibit 8: Letter, dated July 2, 1996, from SFH&G to Kaye,
Scholer, Fierman, Hays & Handler, LLP, counsel to B.U.S
and B.U.S AG.
Exhibit 9: Agreement, dated February 17, 1995, between MG and Lobbert.
</TABLE>
- --------
* Exhibit referenced hereby is incorporated by reference herein.
Page 23 of 36
<PAGE> 1
Exhibit 6
[SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP Letterhead]
June 27, 1996
BY HAND
- -------
Honorable Denny Chin
United States District Judge
United States District Court
500 Pearl Street
New York, New York
Re: B.U.S. Environmental Services, Inc. v. Horsehead
Resource Development Company, Inc. et al., 96 Civ. 4754 (DC)
Dear Judge Chin:
We represent defendant Horsehead Resource Development Company, Inc.
("HRD") in the above-referenced action. This letter is respectfully submitted
on behalf of HRD in response to the application of plaintiff B.U.S.
Environmental Services, Inc. ("BUS") for a temporary restraining order. Counsel
for defendant Horsehead Industries, Inc. ("HII") has authorized me to state
that HII joins in this response. For the reasons stated below, there is no
basis for such emergency relief. Indeed, by tomorrow afternoon, Friday, June
28, 1996, this case will have been rendered entirely moot by intervening events.
Specifically, earlier today, by letter dated June 27, 1996 (a copy of
which is annexed hereto as Exhibit A), HRD was informed by HII that it had
waived its right of first refusal as to the 2,885,000 shares of common stock of
HRD tendered by BUS solely in connection with the current tender offer by HRD.
Since plaintiff seeks as an alternative form of relief an order enjoining HRD
from accepting or rejecting the tender "until HII announces whether it will
purchase ... the shares tendered by BUS," HII's notice of waiver by itself
moots plaintiff's claim for injunctive relief.
In addition, earlier today, HRD announced publicly in a press release
that it was extending the tender offer through and including July 2, 1996. A
copy of that press release is annexed hereto as Exhibit B.
Page 24 of 36
<PAGE> 2
[SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP LETTERHEAD]
Hon. Denny Chin
June 27, 1996
Page 2
Finally, a meeting of the Board of Directors of HRD has been noticed
for tomorrow, June 28, 1996, at which the sole agenda item for the Board is to
approve a resolution to modify the tender offer to expand the number of shares
that may be tendered pursuant to the offer thereby allowing BUS to tender its
2,885,000 shares of HRD. A copy of the confirmation of that notice of the Board
meeting is annexed hereto as Exhibit C. The Company has advised me that it
fully expects that the Board will approve this resolution.
Accordingly, there is simply no need or basis for emergency restraint
in this action, which as indicated above, will be rendered moot by tomorrow
afternoon. If the Court nonetheless wishes to hear further from the parties, we
will, of course, appear before the Court at 4:30 p.m. today.
Respectfully submitted,
/s/ Andrew J. Levander
-----------------------
Andrew J. Levander
cc: James D. Herschlein, Esq.
David J. Eiseman, Esq.
Enclosures
Page 25 of 36
<PAGE> 3
Exhibit A
Page 26 of 36
<PAGE> 4
[HORSEHEAD INDUSTRIES, INC. LETTERHEAD]
June 27, 1996
VIA FACSIMILE
- -------------
B.U.S. Environmental Services, Inc.
c/o B.U.S Berzelius Umwelt-Service AG
Vinckeufer 3
D-47119 Duisburg
Germany
Gentlemen:
Reference is made to your June 10, 1996 letter to Horsehead Industries, Inc.
("HII") in which, pursuant to the terms of the Shareholders Agreement dated
July 26, 1988, as amended, by and among B.U.S. Environmental Services, Inc.
("BUS"), Horsehead Resource Development Co., Inc. ("HRD") and HII, you notified
HII of the desire of B.U.S. to tender 2,885,000 shares of its HRD common stock
in response to the tender offer made by HRD to purchase shares of its common
stock at $5.75 per share (the "Offer").
Please be advised that HII hereby agrees to waive its right of first refusal
pursuant to the Shareholders Agreement solely with respect to the tender by
BUS, pursuant all terms and conditions of the Offer, of 2,885,000 shares of
common stock. HII reserves all of its rights under the Shareholders Agreement,
including but not limited to its right of first refusal, should the terms and
conditions of the Offer change or should BUS tender a different number of
shares of HRD common stock.
Sincerely,
/s/ RONALD J. STATILE
------------------------------
Ronald J. Statile
Vice President
cc: Horsehead Resource Development Co., Inc.
Page 27 of 36
<PAGE> 5
Exhibit B
Page 28 of 36
<PAGE> 6
Media Contact
(212) 527-3003
HORSEHEAD RESOURCE DEVELOPMENT
GOING PRIVATE, EXTENDS CASH TENDER OFFER
NEW YORK, NY, June 27, 1996 (NASDAQ-HHRD) Horsehead Resource
Development Co., Inc. (HRD) announced today that it has extended its offer to
repurchase all 1,751,600 shares of its common stock held by its public
stockholders. The offer will now expire on July 2, 1996 at 12:00 midnight,
unless extended. As of June 26, 1996 a total of approximately 1,172,000 shares
have been tendered in response to the offer. The purchase price for each share
of common stock is $5.75 per share in cash. The offer is subject to various
terms and conditions described in offering materials that have been distributed
to public stockholders. Chemical Mellon Shareholder Services L.L.C. is the
depositary and Morrow & Co., Inc. is the information agent. After the
repurchase, HRD's shares will no longer be listed on NASDAQ or registered under
the Federal securities laws.
Page 29 of 36
<PAGE> 7
Exhibit C
Page 30 of 36
<PAGE> 8
Inter-Office Correspondence
[HORSEHEAD RESOURCE DEVELOPMENT CO., INC. LETTERHEAD]
Location: New York
To: David O. Carpenter
James H. Dowling
David N. Judelson
Rolf Kola
Gunter Okon
Mark G. Solow
Tinkham Veale II
From: William E. Flaherty Date: June 27, 1996
Subject: HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC.
JUNE 28, 1996 BOARD OF DIRECTORS MEETING
This note is to confirm the telephonic meeting of the Board of Directors of
Horsehead Resource Development Company, Inc. at 1:00 p.m. New York time on
Friday June 28, 1996. This meeting was scheduled by notice dated June 21, 1996.
The only item on the agenda for this meeting is the adoption of the resolution
set forth below:
RESOLVED, that the Corporation repurchase up to 4,636,600 shares of its
common stock, consisting of up to 1,751,600 shares from its public
shareholders and 2,885,000 shares from B.U.S. Environmental Services,
Inc., at $5.75 per share and cease to be a public company.
If you have not already confirmed your availability for this telephonic
meeting, please confirm with my assistant, Vicki Mayo, at 212-527-2910, whether
you will be available to participate in this meeting, and, if so, the telephone
number at which you may be reached.
WEF
cc: William M. Quirk
Page 31 of 36
<PAGE> 1
Exhibit 7
Copyright 1996 PR Newswire Association, Inc.
PR Newswire
June 28, 1996, Friday
SECTION: Financial News
DISTRIBUTION: TO BUSINESS EDITOR
LENGTH: 192 words
HEADLINE: HORSEHEAD RESOURCE DEVELOPMENT GOING PRIVATE; ANNOUNCES AMENDED
TENDER OFFER AND FINAL EXTENSION
BODY:
Horsehead Resource Development Co., Inc. (HRD) (Nasdaq: HHRD) announced
today that it has amended its tender offer in order to increase the number of
shares repurchased. The amended offer is to repurchase 4,636,600 shares of
HRD's common stock, including all 1,751,600 shares held by its public
stockholders and 2,885,000 shares held by B.U.S Environmental Services, Inc.
The offer will now expire on July 12, 1996 at 5:00 p.m. HRD does not intend to
further extend the offer.
NEW YORK, June 28: As of June 25, 1996 a total of approximately
4,057,000 shares have been tendered in response to the offer. The purchase
price for each share of common stock is $5.75 per share in cash. The offer is
subject to various terms and conditions described in offering materials that
have been distributed to public stockholders. Chemical Mellon Shareholder
Services L.L.C. is the depositary and Morrow & Co., Inc., is the information
agent. After the repurchase, HRD's shares will no longer be listed on Nasdaq or
registered under the Federal securities laws. CONTACT: Horsehead Resource
Development Co., Inc., 212-527-3003
LANGUAGE: ENGLISH
Page 32 of 36
<PAGE> 1
EXHIBIT 8
[SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP Letterhead]
July 2, 1996
BY TELECOPY AND MAIL
- --------------------
James Herschlein, Esq.
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Re: B.U.S. Environmental Services, Inc. v. Horsehead
Resource Development Company, Inc., 96 Civ. 4754 (DC)
-----------------------------------------------------
Dear Jim:
In light of recent developments, the above-referenced action has
clearly been rendered moot. Horsehead Resource Development Company, Inc.'s
tender offer will either be completed and all shares that have been tendered,
including your client's, accepted, or the tender offer will be terminated.
Given these circumstances, we hereby request that plaintiff immediately file
with the Court a stipulation dismissing the action with prejudice and without
costs.
Sincerely,
/s/ Andrew J. Levander
-----------------------
Andrew J. Levander
AJL:yc
cc: David Eiseman, Esq. (by telecopy)
Page 33 of 36
<PAGE> 1
EXHIBIT 9
TRANSLATION
- -----------
SUPPLEMENTARY AGREEMENT TO THE PURCHASE CONTRACT
------------------------------------------------
between
Metallgesellschaft AG, Reuterweg 14, 60323 Frankfurt am Main
- - "Seller" -
and
Lobbert Holding GmbH, Huttenweg 16, 48249 Dulmen
- - "Buyer" -
SECTION 1
Basis, Prior Instruments
On 11/25/1994, the Seller and the Buyer entered into a Purchase
Contract for the common shares of the B.U.S. Berzelius Umwelt-Service AG, to
which are appended as annexes a pledge contract, a declaration of the Lobbert
Brothers and an arbitration contract (hereinafter: Prior Instrument).
On 02/06/1995, Horsehead Industries Inc. brought a suit in the Supreme
Court of the State of New York in expansion of a suit originally brought only
against B.U.S. Environmental Services Inc. now also against the Seller and
B.U.S. AG. Horsehead Industries Inc. therein represented the opinion that it
could block the transaction agreed upon in the prior instrument based upon a
Shareholders Agreement relating to a common participation of Horsehead
Industries Inc. and the B.U.S. Environmental Services Inc. in Horsehead
Resource Development Inc., or else seek compensation for damages. The
complaint of 02/06/1995 is known to the parties to this Supplementary Agreement.
Having said this in advance, the following supplement to the prior
instrument is agreed upon.
SECTION 2
Payment Term Relating to the 1st Purchase Price Installment
The total amount of DM 34,000,000.00 (in words; thirty four million
Deutsche Marks) is to be paid on 02/22/1995 for the 1st purchase price
installment. The remaining amount shall be due for payment at the latest on
02/27/1995.
Page 34 of 36
<PAGE> 2
SECTION 3
Transfer Of The Shares, Pledge Agreement
The transfer shall be effected according to Section 3 of the Prior
Instrument, however, immediately against payment of the partial amount of the
1st purchase price installment of DM 34,000,000.00 due on 02/22/1995.
To secure the monetary amount of a total of DM 16,000,000.00
additionally owed from the 1st purchase price installment, shares in the
countervalue of DM 16,000,000.00 shall be pledged in a corresponding
application of the pledge Contract to the Seller that shall be added as Annex 1
of the Prior Instrument. Countervalue shall be understood to be the amount
that corresponds to the purchase price for the shares agreed upon in the Prior
Instrument; 1% of the sold shares thus has a countervalue of DM 1,000,000.00
The pledge shall be canceled in the amount of the countervalue without
delay respectively against the payment of additional amounts of the 1st
purchase price installment.
It is clarified that the pledging of the 2nd purchase price installment
according to Section 3 of the paragraph 2 of the Prior Installment shall
remain unaffected.
SECTION 4
No Disposal Until The 1st Purchase Price Is Paid In Full
The Buyer undertakes not to dispose of the transferred shares through
alienation to a third party until the 1st purchase price is paid in full. No
alienation to third parties or a similar legal transaction shall be deemed to
have taken place when the shares are pledged or transferred to a financial
institute for the securing of the financing for the payment of the purchase
price. The seller shall cooperate in the conclusion of such an assignment or
pledging that serves for security.
SECTION 5
Guaranty
In the event that the Buyer is subject to damages due to a
non-appealable decision of a court or arbitration tribunal against B.U.S. AG or
B.U.S. Environmental Services Inc. in the lawsuit with Horsehead Industries
Inc. mentioned in Section 1 of this agreement, or due to the non-appealable
decision of a court in another proceeding based on what has been established by
the court or is taken as the basis for its decision to be the lack of a right
of disposal of the Seller or non-observance of the rights of third parties with
respect to the shares sold under the prior instrument, the Seller shall release
the Buyer from all disadvantages resulting to him in this connection. The
parties to this agreement are agreed, that with the above arrangement no claims
will be accepted by either side in connection with the Horsehead Industries
lawsuit mentioned in Section 1.
Page 35 of 36
2
<PAGE> 3
This liability is limited to the purchase price. If higher
damages should result, the Buyer shall have the right to withdraw from the
Contract. Section 7(4) and (5) of the Prior Instrument shall apply
correspondingly.
The Seller shall compensate for the required costs of legal defense
incurred for B.U.S. AG or B.U.S. Environmental Services Inc. in the proceeding
mentioned in Section 1, provided that the respective measures are carried out
in accordance with the Seller.
SECTION 6
Notice and Setting of the Grace Period, Late Interest
The contracting parties are further agreed, that the guarantee bond
mentioned in Annex 2 to the Prior Instrument, therein Paragraph 3, with the
content of the notice and the setting of the grace period (Section 326 Code of
Civil Law) shall only be made if the 1st purchase price is not fully paid by
02/27/1995 inclusive.
The contracting parties are further agreed, that the late interest
applicable to the first purchase price installment shall only be asserted after
02/27/1995 has passed, upon the not yet paid portion of the 1st purchase price
installment as of that point in time.
SECTION 7
Continued Validity of the Prior Instrument
The validity of all the other remaining stipulations of the Prior
Instrument shall remain unaltered.
Frankfurt am Main, on February 17, 1995
s/
- ---------------------------------------
(Metallgesellschaft Aktiengesellschaft)
Dulmen, on February 17, 1995
s/
- ---------------------------------------
(Lobbert Holding GmbH)
Page 36 of 36
3
