Summary of current administrative and legal proceedings

Overview of legal and administrative proceedings

For the most part, these proceedings are related to the restructuring of the Company, which was completed in July 2019. The Company strongly refutes any allegation of wrongdoing or impropriety in this respect.

Nyrstar has also communicated about these proceedings in its press releases and other publications. For convenience purposes, the Company provides an overview and brief summary thereof on this page. This overview is updated on a regular basis.

Nyrstar is currently involved in the following procedures:

• proceedings on the merits before the Antwerp Commercial Court, Turnhout division, in which some shareholders have filed, in 2020, a minority claim and an individual liability claim against some of the current and former directors of Nyrstar, against former auditor Deloitte Bedrijfsrevisoren CV (“Deloitte”) and against Trafigura PTE Ltd. and Trafigura Group PTE Ltd. (the “Trafigura Companies”). On 11 March 2024, the shareholders in that case also filed a request for interim measures. This request will be dealt with in the course of 2024;
• proceedings before the Sanctions Committee of the Belgian Financial Services and Markets Authority (“FSMA”) regarding Nyrstar’s disclosures; and
• criminal investigations.

Below, Nyrstar will provide further explanation regarding each of these ongoing procedures.

Subsequently, there will be a brief overview of procedures that have already been concluded.

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Overview of the ongoing proceedings

I. Litigation between Nyrstar, a group of shareholders and others

A. Proceedings on the merits against, among others, Nyrstar and some of its current and former directors

On 29 May 2020, a group of shareholders summoned Nyrstar and some of its current directors as well as the Company’s former auditor, Deloitte, to appear before the Antwerp Commercial Court, Turnhout Division. This writ of summons was corrected on a number of points by a new writ of summons on 9 November 2020.

Nyrstar learned that, around the same time, the same group of shareholders had also issued writs of summons against certain former directors of Nyrstar and against the Trafigura Companies.

• a minority claim on behalf of Nyrstar for alleged shortcomings in the director’s management and breaches of the Belgian Code of Companies and Associations (“BCCA”) and Nyrstar’s Articles of Association. This minority claim is a derivative action in which any proceeds would accrue to Nyrstar (and not to the plaintiff shareholders). In particular, the plaintiffs claim that the defendant directors, Deloitte and the Trafigura Companies should be ordered jointly and severally to pay damages to Nyrstar, estimated in the (corrected) summons to be at least EUR 1.2 billion. Nyrstar understands that the plaintiff shareholders today estimate the alleged damages to be at least EUR 2 billion;
• a direct liability claim against, among others, certain current and former directors for errors which (allegedly) caused individual damages to the plaintiff shareholders. On this basis, the plaintiffs are seeking personal damages, provisionally estimated at EUR 1;
• a claim against Nyrstar for the reimbursement of costs incurred by the plaintiff shareholders which are not reimbursed by the other defendants.

The handling of these claims was postponed for an indefinite period immediately after the introductory hearing on 18 November 2020 (at the request of the plaintiff shareholders), with the exception of the proceedings against the Trafigura Companies, where submissions have been exchanged between the latter and the plaintiff shareholders. Nyrstar understands that the group of plaintiff shareholders has, in these submissions, filed a claim against the Trafigura Companies for annulment of certain transactions since 2015.

By interlocutory judgment dated 26 July 2022, the Antwerp Commercial Court, Turnhout division, joined the proceedings against the Trafigura Companies with the proceedings against some of the current and former directors of Nyrstar, as well as Deloitte. Subsequently, on 27 February 2023, thirteen new plaintiff shareholders voluntarily intervened in these proceedings (which, for the remainder, remain postponed for an indefinite period at the request of the plaintiff shareholders).

On 22 January 2024, Deloitte submitted a trial brief in these proceedings. In this brief, Deloitte demands that the actions of the plaintiff shareholders be dismissed as inadmissible, or at least as unfounded, and that the plaintiff shareholders be ordered to pay the legal costs. In subordinate order, Deloitte requests that Nyrstar and the directors involved in these proceedings be ordered jointly and severally, in solidum, or one in the absence of the other to indemnify Deloitte for all convictions (including interest and costs) it would incur against the plaintiff shareholders.

Nyrstar notes that neither the liability claims nor the claim for annulment have been filed against Nyrstar. Nyrstar formally contests the plaintiff shareholders’ claims and will defend itself against them in these proceedings on the merits.

B. Request for interim measures in the framework of the proceedings on the merits

On 11 March 2024, the plaintiff shareholders filed a motion for interim measures on the basis of art. 19, (3) of the Judicial Code. They filed this motion in the framework of the (joined) proceedings on the merits pending before the Antwerp Commercial Court, Turnhout division, against Nyrstar, certain current and former directors, the Trafigura Companies and Deloitte. The plaintiff shareholders request the Court to grant the following interim measures:

• The appointment of a provisional administrator in the Company (or, in subordinate order, an ad hoc trustee), for a period of 12 months, with the possibility of extension, at least until a final decision is rendered in the proceedings on the merits, with the assignment to provisionally take over all tasks of management and administration in the broadest sense;
• The immediate suspension of the enforceability of all, or at least part, of the obligations under the Limited Recourse Loan Facility entered into between the Company and NN2 Newco Limited, until a final decision is rendered in the proceedings on the merits and at least for the entire duration of the mandate of the provisional administrator or ad hoc trustee;
• An order against, among others, the Company to produce a series of documents within a period of 48 hours following the decision in these proceedings, on a penalty fine of EUR 25,000 per day of delay;

  
  

• A conviction to advance the costs of the provisional administrator or ad hoc trustee.

The plaintiff shareholders request the Court to only decide on the request for interim measures, and to further postpone any further decision on the remainder of the case.

II. Investigation by the FSMA and proceedings before its Sanctions Committee regarding disclosure by Nyrstar

In September 2019, the Management Committee of the FSMA decided to launch an investigation into Nyrstar’s disclosures. The FSMA itself has communicated about this investigation on multiple occasions:

• Initially, the FSMA investigation focused on the information disclosed on the commercial relationship with Trafigura. However, in a press release dated 29 May 2020, the FSMA announced that the investigation was expanded to include two additional elements: the information disclosed (i) on the expected profit contribution from the redevelopment of the Australian Port Pirie smelter and the total cost of this project, and (ii) on Nyrstar’s solvency and liquidity position at the end of 2018.
• In a press release dated 25 July 2022, the FSMA provided an update on the investigation. Among others, the FSMA stated that the auditor had prepared a provisional report.
• In a press release dated 30 September 2022, the FSMA announced that, after deliberating on the auditor’s final report, the FSMA’s Management Committee had decided to initiate proceedings against Nyrstar before the FSMA’s Sanctions Committee, which may result in the imposition of an administrative fine. It is for the Sanctions Committee to decide whether an infringement has occurred and to decide on the possible imposition of an administrative fine. The FSMA’s press release also explained which grievances the Management Committee had retained with respect to Nyrstar and explained that the Management Committee had forwarded the notification of grievances to the Public Prosecutor of the Antwerp district (see below, under III.). Finally, the press release stated that the Management Committee had asked the auditor to prepare an additional report on the possible application of an administrative fine to each of the directors (or their permanent representatives) of Nyrstar in office at the time of the facts.

Nyrstar confirms that, on 30 September 2022, the FSMA’s Management Committee notified it of the grievances, provided it with the auditor’s final investigation report and consequently referred the case to the Sanctions Committee.

Meanwhile, the FSMA’s Management Committee also referred the case against the directors of Nyrstar who were in office at the time of the facts, to the Sanctions Committee. The Sanctions Committee then merged that case with the case against Nyrstar, and accordingly determined a calendar.

III. Criminal investigations

Nyrstar is aware of the following judicial investigations with three different investigative judges. 

In 2019, a judicial investigation was initiated in Brussels after several individuals had filed a civil party complaint. In a decision dated 1 October 2024, the council chamber of the French-speaking court of first instance in Brussels decided to dismiss the Company from prosecution in this investigation. An appeal has been filed against this decision.

The Company cooperates fully and faithfully with these investigations. It will not comment any further on their content or status.

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Several other proceedings between Nyrstar and a group of shareholders (with a partially changing composition) have already led to a final judgment. Nyrstar has already communicated about these proceedings in press releases and other publications (see press release of 2 May 2024).

For convenience, below is a brief overview of these procedures.

1. On 21 June 2019, two shareholders seized the President of the Dutch-speaking Brussels Commercial Court by means of a unilateral petition. The President then ordered Nyrstar by an order dated 24 June 2019 to submit, among others, a large number of documents to the Annual General Meeting of 25 June 2019. At Nyrstar’s request, that order was subsequently largely reformed by a second order dated 28 August 2019, and the counterclaims of the group of shareholders concerned were dismissed. See also press release.
2. On 8 November 2019, a group of shareholders initiated summary proceedings against Nyrstar before the President of the Antwerp Commercial Court, Antwerp Division, claiming, among others, (i) the suspension of the resolutions of Nyrstar’s Annual and Extraordinary General Meetings held on 5 November 2019 and 9 December 2019, (ii) the appointment of a provisional administrator to convene a new Extraordinary General Meeting of shareholders, and (iii) the imposition of certain measures on Nyrstar, including the prohibition to take out certain loans. This claim was rejected in its entirety by the decision of the President of the Antwerp Commercial Court, Antwerp Division, of 7 January 2020. See also press release.
3. On 29 May 2020, a group of shareholders requested the suspension on the grounds of extreme urgency of Royal Decree No. 4 of 9 April 2020, based on which Nyrstar had convened its Annual and Extraordinary General Meetings for 2 and 30 June 2020. Nyrstar had intervened in these proceedings. The Council of State rejected this request in a judgment dated 1 June 2020. See also press release.
4. A decision of 26 June 2020 by the President of the Antwerp Commercial Court, Antwerp division, prohibited Nyrstar, again at the request of a group of shareholders, from holding an Extraordinary General Meeting with its dissolution as an agenda item until three months after a final decision on the company law expert investigation. See also press release
5. By a court order dated 30 October 2020, the President of the Antwerp Commercial Court, Antwerp Division, at the request of a group of shareholders of the Company, appointed a panel of experts to examine, among other things, certain transactions between the former Nyrstar group and the Trafigura group. On 9 November 2021, the President annulled that court order after third-party opposition by Trafigura PTE Ltd. And Trafigura Group PTE Ltd., revoking the appointment of the panel of experts and halting the expert investigation. On 17 November 2022, the Antwerp court of appeal confirmed that an expert investigation was not warranted. The court ruled that there were no indications that Nyrstar’s interests were seriously threatened. The Supreme Court has rejected the appeal to the Supreme Court by judgment of 2 May 2024. See also press release.
6. On 3 January 2023, a group of shareholders again summoned Nyrstar in summary proceedings before the Antwerp Commercial Court, Antwerp division. They requested, among others, (i) an injunction prohibiting Nyrstar from convening an Extraordinary General Meeting to decide on the dissolution, (ii) the appointment of a provisional administrator or an ad hoc trustee, and (iii) an order that Nyrstar join and lodge, at the very least as a precautionary measure, various claims of the plaintiff shareholders against the Trafigura Companies and/or affiliated persons in the proceedings on the merits (see above). By decision of 12 May 2023, the President of the Antwerp Commercial Court, Antwerp division, dismissed the claims. The group of shareholders has not taken any further steps in these proceedings. See also press release.

Last updated on 24 October 2024