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Nyrstar NV

AGM Information Oct 9, 2020

3983_rns_2020-10-09_4d0b3956-7518-4b70-84d5-859b58748782.pdf

AGM Information

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LIMITED LIABILITY COMPANY ("NAAMLOZE VENNOOTSCHAP") Registered Office: Zinkstraat 1, 2490 Balen Company number VAT BE 0888.728.945 RPR/RPM Antwerp, division Turnhout

MINUTES OF THE GENERAL SHAREHOLDERS' MEETING HELD ON 24 SEPTEMBER 2020 ___________________________________________________________________________________

___________________________________________________________________________________

On 24 September 2020, the general shareholders' meeting of Nyrstar NV (the "Company") is held at BluePoint, Filip Williotstraat 9, 2600 Antwerp, Belgium.

OPENING OF THE MEETING

The general shareholders' meeting is called to order at 11:09 a.m. by the chairman of the meeting, Mr. Martyn Konig, chairman of the Board of Directors of the Company (the "Chairman"). 36,348,733 shares in total or 33.08% of the outstanding and existing shares are present or represented at the meeting.

The Chairman notes that, in accordance with applicable law, Dutch is the official working language for the meeting. The Chairman invites the persons that are not able to express themselves in Dutch to express themselves in French or English. The Chairman further notes that interventions in one of these three languages will be translated simultaneously in the other two languages, and that headsets are available to the participants to the meeting that wish to use such translations.

A shareholder intervenes and asks why the members of the board of directors of the Company (the "Board of Directors") are present via live video conference and the shareholders have not been given the same opportunity. The Chairman explains that the members of the Board of Directors are not physically present but participate via live video conference and that the Royal Decree No. 4 of 9 April 2020 containing various provisions on co-ownership and company and association law in the scope of the fight against the Covid-19 pandemic has expired. The shareholder replies that the directors should be physically present and their physical absence shows a lack of confidence towards the shareholders.

The Chairman reiterates that, given that all directors of the Company, with the exception of himself who is physically present, are located outside of Belgium and could not be physically present today as a result of the Covid-19 pandemic and the associated restrictions, all members of the Board of Directors that are not physically present at the general shareholders' meeting are participating via the live video conference. Mr. Roman Matej, interim chief financial officer, is also present and participates via the live videoconference.

In addition, Mr. Anthony Simms, head of external and legal affairs, is physically present at the general shareholders' meeting as well as the secretary of the meeting, Mr. Geert Verhoeven, attorney of the Company at Freshfields Bruckhaus Deringer LLP. BDO Bedrijfsrevisoren, the statutory auditor proposed for appointment at this general shareholders' meeting, represented by Mr. Gert Claes, is also physically present (the "Proposed Statutory Auditor"). Finally, it is noted that the Company has asked bailiff Van Noten to establish these statements and facts, as well as the course of this meeting. A shareholder asks why a bailiff has to be present, but the question is subsequently withdrawn.

At 11:15 a.m. a shareholder asks whether Trafigura participates in this general shareholders' meeting and can therefore vote on the proposed item on the agenda. The shareholder also asks to confirm that this is the third consecutive time that Trafigura is present at a general shareholders' meeting. The Chairman confirms that they will check and confirm this.

COMPOSITION OF THE BUREAU

In accordance with the Company's articles of association, the Chairman of the meeting designates Mr. Geert Verhoeven, lawyer for the Company at Freshfields Bruckhaus Deringer LLP, as secretary of the meeting (the "Secretary").

As the voting will take place by means of a system of electronic voting, the meeting agrees that no tellers are appointed.

The Chairman of the meeting and the Secretary together constitute the bureau of the general shareholders' meeting.

DECLARATIONS BY THE CHAIRMAN

The Secretary makes the following declarations with respect to the convening and the composition of the meeting.

Agenda

The meeting was convened with the following agenda and proposed resolution:

1. Appointment of a statutory auditor

Taking into account the advice of the Audit Committee, the Board of Directors recommends that BDO Bedrijfsrevisoren CVBA is appointed as statutory auditor of the Company as a result of the resignation of its previous statutory auditor Deloitte Bedrijfsrevisoren CVBA with immediate effect as of 1 July 2020.

Proposed resolution: The general shareholders' meeting appoints BDO Bedrijfsrevisoren CVBA, with registered seat at Da Vincilaan 9, 1930 Zaventem and with company number 0431.088.289, represented by Mr Gert Claes, Auditor, as statutory auditor of the Company. The mandate of the statutory auditor shall have a term of three years, ending immediately after the general meeting to be held in 2023 which will decide upon the financial statements for the financial year ending on 31 December 2022 or to which the financial statements for the financial year ending on 31 December 2022 will be submitted.

For the period of its mandate, the annual compensation of the statutory auditor will be EUR 120,000 (excluding VAT and other expenses as applicable) for the audit of the statutory financial statements of the Company. In addition, a single start-up fee of EUR 40,000 will be payable to the statutory auditor during the first year of its mandate.

Notices Convening the Meeting

The notice convening this general shareholders' meeting provided for in the Belgian Code of Companies and Associations, has been published in:

  • the Belgian Official Gazette on 25 August 2020;
  • De Standaard on 25 August 2020; and
  • the Company's website on 25 August 2020.

Proof of the publications are submitted to the bureau. The proof will be safeguarded in the files of the Company together with the minutes of this meeting.

The notices convening the general shareholders' meeting have also been sent by letter at least thirty (30) calendar days before the date of the meeting to the holders of registered shares that have been issued by the Company and to the directors of the Company, unless waived.

Proof of the convening notice is being submitted to the bureau. The proof will be kept in the files of the Company together with the minutes of this meeting.

In addition, as from 25 August 2020, the following documentation has been made available to the public and the holders of shares issued by the Company on the Company's website (www.nyrstar.be):

  • the convening notice;
  • an overview of the total number of outstanding shares and voting rights;
  • an attendance form for holders of shares;
  • a proxy form to allow the holders of shares issued by the Company to attend the general shareholders' meeting;
  • a form for voting by mail; and
  • an explanatory note on the items and proposed resolution on the agenda.

The proofs will be kept in the files of the Company together with the minutes of this meeting. The Company has not received any requests, in accordance with the Belgian Code of Companies and Associations, from shareholders who alone or together with other shareholders represent at least 3% of the share capital to put additional items on the agenda of this general shareholders' meeting and/or to table draft resolutions in relation to items that have been or were to be included in the agenda.

Attendance List

The registration date of the general shareholders' meeting was Thursday 10 September 2020 at midnight (12:00 a.m., Central European Summer Time). In accordance with the applicable legislation, only persons holding shares issued by the Company on the aforementioned registration date shall be entitled to participate and, as the case may be, vote at the general shareholders' meeting.

An attendance list has been prepared indicating (i) the identity of the shareholders which participate to the meeting, (ii) the domicile or registered office of such shareholders, (iii) if applicable, the identity of the proxy holders of such shareholders, and (iv) the number of shares with which such shareholders are participating in the voting. The attendance list also indicates the directors who are present at the meeting and whether or not the Proposed Statutory Auditor is present. The attendance list has been signed by the present shareholders, the present directors and the present Proposed Statutory Auditor, or their proxy holders.

In addition, a register has been prepared in which for each shareholder having notified its intention to participate to the general shareholders' meeting, the following information was included: (i) its name and address or registered office, (ii) the number of shares that it held on the registration date, and (iii) a description of the documents which indicate that it held these shares on the registration date.

A separate list has been prepared for the shareholders that have validly submitted their votes by mail in accordance with the Belgian Code of Companies and Associations and the articles of association of the Company, and as set out in the notice convening the general shareholders' meeting.

The attendance list, the register and the list of the shareholders which have voted by mail are submitted to the bureau and are subsequently closed, initialed and signed by the members of the bureau. The attendance list, the register as well as the list of the shareholders voting by mail will be safeguarded in the files of the Company together with the minutes of this meeting.

All holders of shares issued by the Company which are present or represented at the meeting, included in the register and in the aforementioned lists, have complied with the formalities in order to be admitted to the general shareholders' meeting in accordance with the Company's articles of association and the Belgian Companies Code and as set out in the convening notice.

The certificates which have been filed with respect to dematerialized shares, the letters submitted with respect to registered shares (as the case may be) and the proxies and votes by mail submitted by the holders of shares will be kept in the files of the Company together with the minutes of this meeting.

Attendance

The Company's share capital amounts to EUR 114,134,760.97, and is represented by 109,873,001 shares, without nominal value, each representing the same fraction of the Company's share capital. Based on the aforementioned attendance list and the verification of the admission to the general shareholders' meeting, it appears that 36,348,733 shares in total or 33.08% of the outstanding and existing shares are present or represented at the meeting.

Voting Rights

In accordance with article 25/1 of the Law on the disclosure of major holdings in issuers whose shares are admitted to trading on a regulated market, and the articles of associations of the Company, no person can participate to a general shareholders' meeting for more voting rights than attached to the shares with respect to which such person has filed with the Company a notification at least 20 days prior to the date of the general shareholders' meeting. The relevant thresholds for a notice are 3%, 5%, 7.5%, 10%, 15%, 20% and any further multiple of 5% of the outstanding voting rights. For all shareholders present or represented or voting by mail, it is established that they can participate with all the shares they have deposited.

Quorum and Voting

According to the Belgian Code of Companies and Associations, there is no quorum requirement for the deliberation and voting on the item referred to in the aforementioned agenda of the general shareholders' meeting.

The proposed resolution under the item included in the aforementioned agenda shall be passed if it is approved by a simple majority of the votes validly cast.

Each share is entitled to one vote.

The Secretary notes that the present meeting is recorded.

Third Parties Admitted to the Meeting

The Chairman notes that the following directors of the Company participate remotely with directly filmed broadcast to the meeting in addition to himself: Mrs. Anne Fahy, Mrs. Carole Cable and Mrs. Jane Moriarty.

Mr. Roman Matej, Interim Chief Financial Officer of the Company also participates remotely to the meeting. Mr. Anthony Simms, head of external and legal affairs, is physically present at the general shareholders' meeting.

The Proposed Statutory Auditor of the Company, BDO Bedrijfsrevisoren, represented by Mr. Gert Claes, is also physically present.

A number of other persons also attend the meeting, such as certain third parties engaged by the Company to provide services in connection with the meeting such as an employee of Lumi and Mixx and external advisors to the Company and the shareholders present. In addition, certain shareholders present have not complied with the admission formalities for this meeting set forth in the Belgian Code of Companies and Associations. In accordance with Belgian company law, these persons cannot participate in the deliberation and voting at this meeting, but the Company requests the general shareholders' meeting, which does not formulate any objections, that these persons will be admitted.

Upon proposal by the Secretary, these persons were then admitted. The aforementioned persons are mentioned on the attendance list for persons who are not shareholders or who are shareholders who have not complied with the admission formalities.

VERIFICATION OF THE CONVENING AND COMPOSITION OF THE MEETING

The aforementioned statements by the Chairman are verified and approved by the members of the general shareholders' meeting. Subsequently, the general shareholders' meeting determines and confirms that it has been validly convened and is validly constituted.

DELIBERATION AND RESOLUTIONS

Upon proposal by the Secretary, the meeting begins with the deliberation on the item on the agenda.

The Secretary summarizes the item on the agenda of the meeting.

Questions

The meeting is then given the opportunity to ask questions with respect to the item on the agenda of the meeting. The Secretary establishes that no shareholder has made use of the possibility provided by article 7:139 of the Belgian Code of Companies and Associations to ask written questions in advance.

At 11:28 a.m. the shareholders then proceed to submit oral questions to the Board of Directors and the Proposed Statutory Auditor. The oral questions and answers are attached to these minutes as Annex 2. A shareholder requests that the notes to his questions be attached to the present minutes. These notes are attached as Annex 3 to the present minutes. The same shareholder asks, inter alia, the Chairman to give a detailed written answer to his questions and to postpone the decision to appoint an auditor until such an explanation is given. In the meantime, the shareholder declares to vote against the appointment of BDO as statutory auditor and reserves the right to request the court to appoint an independent statutory auditor.

The meeting is adjourned at 11:49 a.m. to allow the Board of Directors and the Proposed Statutory Auditor to deliberate and decide on the answers to the oral questions asked by the shareholders so far and which have not been answered immediately.

The meeting resumes at 12:11 p.m. In answer to the questions asked orally at the meeting by holders of shares issued by the Company with respect to the item on the agenda of the meeting, additional explanations are given by the Board of Directors, the Chairman of the meeting and the Proposed Statutory Auditor. Firstly, the Chairman confirms that the meeting will be continued and that the shareholders will be asked to vote on the appointment of the Proposed Statutory Auditor after completion of the Q&A session.

The Chairman closes the Q&A session at approximately 12:29 p.m.

Deliberation and Resolutions

Subsequently, upon proposal of the Chairman, the meeting proceeds with the deliberation and voting with respect to the item on the agenda.

Consequently, the Secretary states that a vote will be taken on the item on the agenda.

1. Appointment of a statutory auditor

Taking into account the advice of the Audit Committee, the Board of Directors recommends that BDO Bedrijfsrevisoren CVBA is appointed as statutory auditor of the Company as a result of the resignation of its previous statutory auditor Deloitte Bedrijfsrevisoren CVBA with immediate effect as of 1 July 2020.

After deliberation, the following resolution is passed:

The general shareholders' meeting appoints BDO Bedrijfsrevisoren CVBA, with registered seat at Da Vincilaan 9, 1930 Zaventem and with company number 0431.088.289, represented by Mr Gert Claes, Auditor, as statutory auditor of the Company. The mandate of the statutory auditor shall have a term of three years, ending immediately after the general meeting to be held in 2023 which will decide upon the financial statements for the financial year ending on 31 December 2022 or to which the financial statements for the financial year ending on 31 December 2022 will be submitted.

For the period of its mandate, the annual compensation of the statutory auditor will be EUR 120,000 (excluding VAT and other expenses as applicable) for the audit of the statutory financial statements of the Company. In addition, a single start-up fee of EUR 40,000 will be payable to the statutory auditor during the first year of its mandate.

A shareholder asks to repeat the remuneration of the Proposed Statutory Auditor, which the Secretary does.

This resolution is passed as follows:

  • (i) votes approving: 26,838,163 (73.84%)
  • (ii) votes disapproving: 9,510,570 (26.16%)
  • (iii) abstentions: 0 (0%)

36,348,733 valid votes have been registered for 36,348,733 shares, which represents 33.08% of the share capital.

* * *

As no further agenda items need to be dealt with and no one asks to take the floor, the Secretary closes the meeting around 12:40 pm.

These minutes are signed in three original copies by the Chairman of the meeting and the Secretary.

Signed by:

/signed/ Mr. Martyn Konig Chairman

/signed/ Mr. Geert Verhoeven Secretary

Annex 1

The documentation set out below has been submitted to the bureau of the general shareholders' meeting, and has been initialed and/or signed by the members of the bureau (where applicable), and will be safeguarded in the files of the Company together with a copy of the minutes of the meeting.

  • (A) Proof of the publication of the convening notice in a nation-wide newspaper and the Belgian Official Gazette
  • (B) Attendance list
  • (C) Register
  • (D) List of shareholders voting by mail
  • (E) Compliance with the formalities by the participants to the meeting
  • Voting by mail
  • Certificates that have been filed with respect to dematerialized shares
  • Letters that have been filed with respect to registered shares
  • Proxies
  • (F) An explanatory note on the item and proposed resolution on the agenda

Annex 2

Questions and answers submitted to the general shareholders' meeting held on 24 September 2020

# Questions Answers
A. QUESTIONS TO THE BOARD OF DIRECTORS
1. Does Trafigura participate in this meeting and is it
registered with its shares? Is it true that this is the
third
consecutive
time
that
Trafigura
has
participated in a general shareholders' meeting?
(Chairman:) We can confirm that Trafigura is
participating in the present meeting and is registered
with its shares. In addition, it is indeed the third
consecutive time that Trafigura participates in a
general shareholders' meeting.
2. Is it true, Mr Chairman, that you have a power of
attorney to vote for Citi Bank and Deutsche Bank
and, if so, do you find it acceptable that you have
powers of attorney from companies that were
financiers of Nyrstar and had an interest in the
restructuring of Nyrstar?
(Chairman:) We can confirm that we have a power
of attorney to vote for Citi Bank and Deutsche Bank.
3. Can the Board of Directors confirm that it, and
more specifically the Audit Committee, has
carried out the necessary work to investigate and
confirm the legal and apparent independence of
BDO?
(Chairman:) We confirm that the audit committee
has carefully examined BDO and its independence,
and on that basis recommended BDO to the Board
of Directors to act as statutory auditor for the
Company.
4. In view of the limited assets of Nyrstar and the
resulting limited accounting work, how can you
account for the annual remuneration to BDO of
EUR 120,000 (excl. VAT) and a one-off start-up
fee of EUR 40,000? This seems completely
beyond the scope of reality? How do you justify
the amount of the start-up fee if the statutory
auditor only has to turn on his laptop?
(Chairman:) The start-up fee compensates much
more than just "turning on a laptop". For instance,
the statutory auditor must thoroughly familiarise
itself with the file in order to be able to take up its
mandate.
BDO confirms this and emphasises the complexity
of the file and the balance sheet. Moreover, Nyrstar
is a listed company, whose balance sheet does not
only consist of assets and liabilities, but also
contains many contingent liabilities. It should also
be taken into account that BDO is supervised by the
Belgian Audit Oversight College.
A shareholder notes that the shareholders have been
ripped off by the previous resigning auditor. That
auditor had to defend the shareholders but it did not
do so. In each case, the auditor merely referred to its
report. The shareholder states that he can provide an
auditor for 1/10th of the price as proposed by the
Board of Directors.
B. QUESTIONS TO THE PROPOSED STATUTORY AUDITOR AND THE BOARD OF DIRECTORS
5. Can BDO confirm that it has both the necessary
legal and apparent independence to carry out its
mandate in the manner prescribed by law?
(BDO:) We confirm that within BDO we have very
strict procedures to assess our independence before
accepting a mandate. We have therefore gone
through these procedures thoroughly, questioned our
entire network and decided that we can act in
complete independence.

(Questions and answers formulated in English were freely translated into Dutch.)

# Questions Answers
6. I hear that BDO will audit Nyrstar's balance sheet
as it is today and look at contingent liabilities. As
part of your work on the annual accounts, will
you only look at the year 2020, or will you also
look at 2019? Will you carry out a critical
independent review of the entire restructuring and
answer the many questions? If so, we will be
happy to watch.
(BDO:) The answer to these questions is no. We
have been appointed as from the financial year 2020.
We
will,
however,
look
at
the
outstanding
commitments from the past which have not yet been
settled and which still need to be explained in the
annual accounts for the financial year 2020.
7. I have heard that both BDO and Ms. Anne Fahy,
the Audit Committee and the Board of Directors
confirm that you have carried out the necessary
investigations
into
the
independence
of
the
proposed statutory auditor.
Ms. Anne Fahy confirms that the audit committee
organised the process for the selection of BDO and
recommended the appointment of BDO to the Board
of Directors, in view of their expertise, as required.
BDO
reiterates
that
it
conducted
a
thorough
I wish to share the following observations with
the present meeting:
(i)
On the website of BDO Russia we find the
following
information:
"On
behalf
of
independence review before accepting the mandate.
The
Belgian
legislation
is
very
strict
on
independence, and we are strictly supervised by the
FSMA and the sector. Moreover, we always follow
our own internal, rigorous procedures. We would
Trafigura Eurasia LLC, E.V. Suslova, the
Head of financial and operational control
expresses her gratitude to the BDO team
members for their professional contribution
to the activities associated with the VAT
refund,
and
namely
for
all
necessary
materials prepared for the external tax audit
related to our tax refund and for objections
towards resolutions of Tax Authorities made
by BDO partners and for their help provided
during our meetings with the Tax Authorities
representatives. E.V. Suslova: "We would like
to extend our special thanks for all those
Employees, who participated in this process.
During our cooperation the BDO team has
shown their high level of professionalism and
demonstrated
their
great
professional
motivation, which is required for strong
partnership. Thanks again, hope we will have
an
opportunity
for
further
fruitful
cooperation."
also like to point out the legal restrictions on certain
services, such as prohibited non-audit services,
which apply, inter alia, to parent companies and
subsidiaries of the company subject to control, and
which we strictly adhere to. We can confirm that
Trafigura was identified in our independence audit
and that BDO performs
certain activities
for
subsidiaries of Trafigura abroad (not in Belgium).
We have made an expert assessment and concluded
that our independence is not affected. We further
point out that all BDO entities are members of an
international
network
and
these
entities
are
financially fully independent from each other. We
therefore conclude that we can act in complete
independence, we have followed and will follow the
legal rules and we do not see any relevant conflict of
interest that would prevent us from carrying out our
mandate independently, even in view of other work
that the members of our network would have carried
out for Trafigura.
(ii) BDO Italia has been appointed as Statutory
Auditor of Alpherg, a company in which
Trafigura
is
one
of
the
two
reference
shareholders.
At the request of the Chairman, Ms. Anne Fahy
explains that the audit committee has set up and has
gone through a competitive process that has led to
the proposal to the Board of Directors to appoint
BDO
as
statutory
auditor,
confirming
BDO's
independence. A shareholder asks the additional
In view of these findings, can BDO reaffirm that
it has both the legal and apparent independence to
exercise its mandate in the manner prescribed by
law?
question whether Nyrstar has identified potential
conflicts of interest, if so, which ones, and how such
potential conflicts were addressed. The shareholder
adds that if this question cannot be answered, that is
fine, but wonders why a general shareholders'
Mrs. Anne Fahy, can you elaborate on how the
selection of BDO was carried out? Is there a
report of the audit committee confirming the
independence of BDO, and can this be attached to
the minutes?
meeting is then being organised. The Chairman
replies that there is always a debate during these
general shareholders' meetings. The Chairman also
asks Ms. Anne Fahy to provide, where possible,
more detailed information on the Statutory Auditor's
selection procedure. Ms. Anne Fahy explains that a
# Questions Answers
Furthermore, can BDO elaborate a little more on
these findings, which are, after all, fairly serious?
Which services are involved here? Can you
confirm that this has not led to excessive tax
advantages for Trafigura at the expense of third
parties?
shortlist was drawn up and the candidate statutory
auditors
were
screened
in
line
with
the
recommended practices in this regard (taking into
account conflicts of interest).
In reply to the additional questions of a shareholder
Furthermore, what fees has BDO received for
these services and how does this compare to the
fees that BDO will receive in the context of its
mandate for Nyrstar?
In addition, can you provide an overview of all
the links between BDO and Trafigura, and can
these be split between audit services and other
related services?
In view of the above and the ongoing liability
claim
of
the
minority
shareholders
against
Trafigura, to what extent do you, as the new
as to which other candidates were on the shortlist,
which selection criteria were used and how many
candidates submitted a proposal, Ms. Anne Fahy
states that this is confidential information and it is
not appropriate to go into the Company's operations
in such detail. The Chairman also confirms that the
minutes of the audit committee will not be attached
to
the
minutes
of
the
present
meeting.
The
shareholder asks that it be noted in the minutes that
Ms. Anne Fahy does not consider it appropriate to
give
such
information.
The
shareholder
then
questions Ms. Anne Fahy's position given that this
is a general meeting on the appointment of a
statutory auditor.
auditor, consider yourself able to carry out your
mandate in complete independence (both in fact
and in perception) and to contribute to full
transparency and the defence of the interests of all
shareholders (not only those of Trafigura)?
If your task is limited to the current scope of
Nyrstar's activities, then the fee you are asking
for is excessive and requires a much more
detailed explanation. If you include last year in a
To the additional question from a shareholder as to
whether Nyrstar was aware of the link between
Trafigura and BDO in Russia and Italy, Ms. Fahy
answers that it was not the position of the Board of
Directors to make this concrete assessment though
to ask the necessary questions and they relied on
BDO's independence analysis and the guarantees
given by BDO in this respect. The Chairman
confirms this.
critical review and you put yourself at the service
also of the minority shareholders, this becomes a
different story. We would like a detailed written
answer to the questions raised and propose to
postpone the appointment of the auditor pending
sufficiently clear explanations. In the meantime,
we will vote against the appointment of BDO as
statutory auditor and we and reserve our right to
request the court to appoint an independent
statutory auditor.
To the additional question from a shareholder to Ms.
Anne Fahy whether she stands by her opinion on
BDO's independence despite the aforementioned
findings, Ms. Fahy answers in the affirmative. The
shareholder asks to confirm that Nyrstar therefore
decided on the independence of BDO as statutory
auditor without being aware of the fact that it also
had relations with subsidiaries of Trafigura. The
Chairman confirms that Nyrstar has relied on BDO
to confirm its independence in this matter - which
applies to the Belgian company. A shareholder asks
to confirm whether Ms. Anne Fahy, knowing what
was discussed during the present meeting, would
give the same opinion on the independence of BDO,
knowing that there are very strong links between
BDO Russia (where certain promises were made
regarding professional cooperation in the future) and
BDO Italy, and maybe even other companies. Ms.
Anne Fahy states that she feels comfortable with
that.
The shareholder asks to confirm whether her legal
advisers have advised her on her professional duties
as chairman of the audit committee with regard to
the confirmation of the legal independence of the
statutory auditor? More specifically, with regard to
legal and apparent independence? Mrs. Anne Fahy
# Questions Answers
states that she does not acknowledge the difference
between legal and apparent independence in this
matter, which the shareholder asks to be noted. The
Chairman asks the shareholder to ask the question
again as an extra nuance had been added. The
shareholder states that, in the current context where,
as
minority
shareholders,
they
are
attacking
Trafigura and the Board of Directors for, inter alia,
misleading information and false assertions about
independence, the last thing they need is a statutory
auditor who has no apparent independence for the
work it does. On the contrary, they need someone
with integrity and trustworthiness - not just for him,
but for all shareholders, for all stakeholders, for
everyone. There is a small nuance between legal and
apparent independence.
The Chairman also asks BDO to confirm that it
considers
itself
to
be
legally
and
apparently
independent, which BDO confirms. BDO goes on to
say that, as indicated earlier, it has examined its
independence at all levels and concluded that it can
act both legally and apparently independently for
this
mandate.
BDO
explains
that
"apparent
independence"
is
something
that
is
not
comprehensively set out in the law. However, the
fact that the members of the BDO network work for
Trafigura in other countries does not affect its
apparent
independence.
Ms.
Anne
Fahy
then
confirms, at the request of the shareholder, that, also
after this discussion, she would still give a positive
advice on the appointment of BDO, knowing that
this would require an assessment of the legal and
apparent independence of BDO to act for Nyrstar
and all shareholders.

Annex 3

Questions from RSQ Investors regarding the appointment of a new statutory auditor for Nyrstar NV

[see next page]

Vragen met betrekking tot de aanstelling van een nieuwe commissaris voor Nyrstar NV.

  • Kan BDO bevestigen over zowel de benodigde wettelijke als schijnbare onafhankelijkheid te beschikken om haar mandaat te kunnen uitvoeren op de door de wet voorgeschreven wijze?
  • Kan de Raad van Bestuur eveneens bevestigen dat zij, en meer bepaald het Audit Comite, hiertoe de nodige werkzaamheden heeft verricht om deze wettelijke en schijnbare onafhankelijkheid te onderzoeken?
  • © Ik zou graag met deze vergadering twee vaststellingen delen:
  • o Op de website van BDO in Rusland (www.BDOms.ru) vinden we volgende toelichting: "On behalfof Trafigura Eurasia LLC, E.V. Suslova, the Head of financial and operational controlexpresses her gratitude to the BDO team members for their professional contribution to the activities associated with the VAT refund, and namelyfor all necessary materials preparedfor the external tax audit related to our tax refund andfor objections towards resolutions of Tax Authorities made by BDO partners andfor their help provided during our meetings with the Tax Authorities representatives. E.V. Suslova: "We would like to extend our special thanks for all those Employees, who participated in this process. During our cooperation the BDO team has shown their high level ofprofessionalism and demonstrated their great professional motivation, which is requiredfor strong partnership. Thanks again, hope we will have an opportunityforfurtherfruitful cooperation",
  • o BDO Italia is aangesteld als Commissaris van Alpherg, een bedrijf waarvan Trafigura een van de twee referentie aandeelhouders is https://www.alpherg.eu/en/about/

Dit noopt ons tot volgende extra vragen:

  • o In het licht van deze vaststellingen herhaal ik nogmaals de vraag: Kan BDO bevestigen over zowel de benodigde wettelijke als schijnbare onafhankelijkheid te beschikken om haar mandaat te kunnen uitvoeren op de door de wet voorgeschreven wijze?
  • o Kan u toelichten hoe de selectie van de nieuwe commissaris verlopen is? Is er een verslag van het auditcomite beschikbaar waarin de onafhankelijkheid van BDO bevestigd wordt, en zo ja, kan u een copij van dit verslag toevoegen aan de notulen, inclusief een beschrijving van de gevolgde procedure en uitgevoerde controlewerkzaamheden?
  • o Kan BDO toelichting geven over de bovenstaande geciteerde vaststellingen? Zo ondermeer:
  • Over welke diensten gaat het hier? Kan BDO bevestigen dat hun interventie niet rechtstreeks of onrechtstreeks geleid heeft tot buitensporige belastingvoordelen gei'nd door Trafigura ten koste van derden?

  • Welke fees heeft BDO hiervoor ontvangen en hoe verhouden deze zich tot de fees die BDO zal ontvangen in het kader van haar mandaat voor Nyrstar?

  • Kan u een overzicht geven van alle banden tussen BDO en Trafigura? Welke overige activiteiten voert BDO uit voor Trafigura en met haar gelieerde partijen, rechtstreeks of onrechtstreeks? Kunnen deze opgesplitst worden tussen audit prestaties en gelieerde andere prestaties?
  • In het licht van bovenstaande en de lopende aansprakelijkheidsvordering van de minderheidsaandeelhouders jegens Trafigura: in hoeverre acht de voorgestelde nieuwe revisor zich in staat om zijn mandaat in alle onafhankelijkheid (feitelijk en in perceptie) uit te voeren, zoals alle aandeelhouders gerechtigd zijn te mogen verwachten) en mee te ijveren voor volledige transparantie en de verdediging van de belangen van alle aandeelhouders, en niet enkel die van Trafigura?
  • Kan BDO de kostprijs voor de te leveren prestaties (40 kEUR opstartfee en 120 kEUR jaarlijkse kost) toelichten? Kan BDO dit kaderen in het licht van de omvang van het huidige Nyrstar NV en de beperkte activiteiten? (ter herinnering: activa zijn beperkt tot een 2% belang in Nyrstar en een minderheidsvordering, er is geen personeel en er zijn geen andere activiteiten buiten de afhandeling van de herstructurering, die al eind vorig jaar voltooid werd).

Wij vragen een omstandig, schriftelijk bevestigd antwoord bij de gestelde vragen, en stellen voor om de beslissing uit te stellen totdat er volledige klaarheid wordt gegeven. In afwachting van voldoening gevende antwoorden op onze vragen zullen wij tegen de benoeming van BDO stemmen, en houden wij ons het recht voor om de rechtbank te vragen een onafhankelijke Commissaris aan te willen stellen.

Ik vraag aan de Secretaris om deze vragen en toelichtingen toe te willen voegen aan de notulen van deze Vergadering, tesamen met de schriftelijke antwoorden.

Met vriendelijke groeten

Kris Vansanten en Evelyne van Wassenhove vestors

RSQ Investors is a division of Quanteus Group BVBA Park Lane, Culliganlaan 2C, B-1831 Diegem-www.quanteus.eu-www.rsqinvestors.com

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RISK MANAGEMENT

Alpherg is constantly exposed to a series of risks such as volatile market and currency prices, counterpartyrisk and operational ones too. All of these risks are managed by a team whichreports to t he Chief Risk Officer.

FIRM OF AUDITORS

I he audit of the financial statements and consolidated financial statements of the Company, as woH os pci auditing,was conferred to the auditing firm BDO Italia S.p.A. (appointment until 31.3,2022)

RSQ Investors is a division of Quanteus Group BVBA Park Lane, Culliganlaan 2C, B-1831 Diegem-www.quanteus.eu-www.rsqinvestors.com

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