Nyrstar provides an update with regards to recent litigation and FSMA investigations
02 June 2020 - 7:30AM
Nyrstar provides an update with regards to recent litigation and
FSMA investigations
Nyrstar provides an update with regards to
recent litigation and FSMA investigations
1 June 2020 at 23.30 CEST
Nyrstar NV (the “Company”) today provides an
update on recent litigation initiated against the Company and its
Board of Directors by certain shareholders of the Company and the
investigation by the FSMA. This includes (i) the emergency appeal
lodged by certain shareholders of the Company with the highest
Belgian administrative court (Conseil d’Etat – Raad van State)
against the Royal Decree no. 4 of 9 April 2020 that was rejected;
(ii) the expanded FSMA investigation of certain information
disclosure by the Company; and (iv) the writ of summons issued on
29 May 2020 against among others the Company and its current
directors by certain shareholders.
- Emergency appeal lodged by certain shareholders of the Company
against the Royal Decree no. 4 of 9 April 2020
On the morning of Saturday 30 May 2020, the
Company’s counsel was made aware that Quanteus group BV, Mr. Kris
Vansanten and Ms. Evelyne Van Wassenhove, shareholders in the
Company, had launched an emergency appeal with the highest Belgian
administrative court (Conseil d’Etat – Raad van State) against the
Royal Decree no. 4 of 9 April 2020 containing various provisions on
co-ownership and company and association law in the context of the
fight against the Covid-19 pandemic (the “Royal Decree no. 4”). The
Royal Decree no. 4 is the basis for organising Nyrstar’s upcoming
shareholders’ meetings of 2 June 2020 and 30 June 2020. The
plaintiffs alleged that the decree infringes property rights of
shareholders by allowing a board of directors to organize the
general meeting of shareholders in accordance with the modalities
provided by the Royal Decree no. 4.
In a judgment issued earlier today, the Conseil
d’Etat – Raad van State has dismissed the emergency appeal. The
court ruled against the plaintiffs on the grounds that they had not
acted with the required diligence and that the harm allegedly
suffered by the plaintiffs is hypothetical.
As previously announced by the Company on 27 May
2020, the Company published on 29 May 2020 the invitation to the
ordinary general meeting of shareholders of 2019 to be held on 30
June 2020. This annual meeting had initially been convened for 16
April 2020, but also had to be postponed in view of the coronavirus
pandemic. 30 June 2020 is the date of the annual meeting of the
Company as included in the Company’s articles of associations. With
respect to the annual general shareholders’ meeting, Nyrstar had
already announced on 27 May 2020, two days before the plaintiff’s
lodged their appeal with the Conseil d’Etat – Raad van State, that
this meeting will be held virtually with applications allowing a
Q&A session by which shareholders have the opportunity to
submit questions via a chatbox, and electronic voting during the
shareholders meeting in accordance with Royal Decree no. 4.
- FSMA’s continued investigation of the Company
The Company notes that a press statement was
issued by the FSMA on 29 May 2020 stating that it was to broaden
its investigation into the Company. As stated in the FSMA’s press
release, the Management Committee of the FSMA decided in September
2019 to commence an investigation of the provision of information
by the Company. The FSMA has noted that this initial investigation
focused on the information provided concerning the commercial
relationship with Trafigura. The broadened investigation announced
by the FSMA on 29 May 2020 will now include the provision of
information about the expected profit contribution from and the
total costs for the Port Pirie smelter in Australia, and of
information about the Company’s solvency and liquidity position at
the end of 2018.
The Company believes that it has at all times
properly disclosed the information required by the relevant
financial regulations and legislation and will continue to fully
cooperate with the investigation.
- Writ of summons issued among others against the
Company and the Board of Directors
The Company advises that on Friday 29 May 2020 a
group of minority shareholders of the Company, including Mr. Kris
Vansanten, issued among others the Company and its directors
with a writ of summons to appear before the Turnhout commercial
court in Antwerp, Belgium. This writ follows a notice of default
that was received by the directors and certain senior managers of
the Company on 17 March 2020. The plaintiffs in this writ of
summons on the merits bring the following liability claims:
- a derivative liability claim on behalf of the Company against
among others the incumbent directors for shortcomings in their
management as well as violations of the Companies Code and the
articles of association of Nyrstar. The plaintiffs demand that the
defendants be ordered jointly and severally to pay the Company
damages provisionally estimated at least at EUR 982 million.
- a direct liability claim against among others the incumbent
directors for errors as a result of which the applicants
(allegedly) suffered individual damages. On this basis, the
plaintiffs claim personal compensation estimated provisionally at
EUR 1.
- A liability claim against the Company to cover any of the
plaintiffs’ expenses that will not be reimbursed by the other
defendants.
The Company and its Board of Directors strongly
refute the claims in the writ of summons and note that they will
strongly defend themselves against such claims in the court
process.
The plaintiffs further request that these
proceedings on the merits be stayed until a judgment has been
rendered on the request of the same plaintiffs for the appointment
of a panel of company law experts. The appointment of a panel of
experts is an item that Mr. Kris Vansanten and other minority
shareholders are in the process of seeking via summary proceedings
against the Company that have been introduced by subpoena on 27
April 2020. The court will hear this case on 15 September 2020. The
Company intends to vigorously contest the appointment of the panel
of experts.
About NyrstarThe Company is incorporated
in Belgium and, following completion of the
recapitalisation/restructuring has a 2% shareholding in the Nyrstar
group. The Company is listed on Euronext Brussels under the symbol
NYR. For further information please visit the Nyrstar website:
www.nyrstar.be.
For further information contact:
Anthony Simms - Head
of External Affairs & Legal
M: +41 79 722 2152 anthony.simms@nyrstar.com
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