Management Reports • May 14, 2021
Management Reports
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Limited Liability Company (Naamloze Vennootschap) Zinkstraat 1, 2490 Balen (Belgium) Company number VAT BE 0888.728.945 RPR/RPM Turnhout
Pursuant to articles 3:5 and 3:6 of the Belgian Code of Companies and Associations, we are hereby reporting to you on the operations of Nyrstar NV (the "Company") with respect to the financial year as from 1 January 2020 until 31 December 2020. This report comprises also the corporate governance statement and remuneration report in accordance with article 3:6 §2 and §3 of the Belgian Code of Companies and Associations as attached to this report in annex C and D respectively.
The Company has its registered office at Zinkstraat 1, Balen, Belgium. The Company has been listed on Euronext Brussels since 29 October 2007.
Until 31 July 2019, the Company was the holding company of the Nyrstar Group (consisting of Nyrstar NV and its subsidiaries). In addition, until 31 July 2019 the Company delivered a number of support services to the Nyrstar Group, such as, but not limited to, regional purchasing, IT, environment, innovation and development, continuous improvement and legal support services. Following the completion of the restructuring of the Nyrstar group at 31 July 2019 (described in more detail in section 2 below), the Company intended to continue trading as an investment company, holding 2% of the equity in NN2 NewCo Limited ("NN2") for the benefit of the Company's shareholders.
At 9 December 2019 the Extraordinary General Meeting ("EGM") of the Company was held to deliberate on the continuation of the Company's activities and a proposed capital decrease. The shareholders rejected the continuation of the Company's activities. As such, the 31 December 2020 financial statements of the Company are prepared on a discontinuity basis. As the result of an order of 26 June 2020 of the President of the Antwerp Enterprise Court (Antwerp division), at the request of a group of shareholders, the Company is currently prohibited from holding a general meeting with the dissolution of the Company on the agenda until three months after a final decision on the appointment of a college of experts (see below, under section 8.2) will have obtained res judicata effect.
Under article 3:23 of the Belgian Code of Companies and Associations, a parent company that controls one or more subsidiaries is required to prepare consolidated financial statements, unless such subsidiaries have, in view of the consolidated assets, financial position or results that are only of a negligible significance. Given as at 31 December 2020 Nyrstar NV did not control any significant subsidiary, the Company was not required to prepare consolidated financial statements for the year ended 31 December 2020. In accordance with article 12, §3, final paragraph, of the Royal Decree of 14 November 2007, the Company has prepared the 31 December 2020 standalone statutory financial statements in accordance with Belgian GAAP.
In October 2018, the former Nyrstar group initiated a review of its capital structure (the "Capital Structure Review") in response to the challenging financial and operating conditions being faced by the Nyrstar group. The Capital Structure Review identified a very substantial additional funding requirement that the Nyrstar group was unable to meet without a material reduction of the Nyrstar group's indebtedness. As a consequence, the Capital Structure Review necessitated negotiations between the Nyrstar group's financial creditors that ultimately resulted in the restructuring of the Nyrstar group, which became effective on 31 July 2019 (the "Restructuring"). As a result of the Restructuring, Trafigura Group Pte. Ltd., via its indirect 98% ownership of the new holding company NN2 Newco Limited ("NN2"), became the ultimate parent company of the former (direct and indirect) subsidiaries of the Company (the "Operating Group"), with the remaining 2% stake in NN2 (and thereby the Operating Group) being owned by the Company.
The agreements to which the Company is currently a party are discussed in further detail below.
The lock-up agreement ("Lock-Up Agreement") entered into on 14 April 2019 between, among others, the Company and representatives of its key financial creditor groups, envisaged that the Company, Trafigura Pte Ltd ("Trafigura") and Nyrstar Holdings Limited ("Nyrstar Holdings", a Trafigura special-purpose vehicle incorporated, amongst other things, for the purpose of implementing the Restructuring) would enter into a deed confirming their agreement in respect of (i) certain steps necessary for the implementation of the restructuring as envisaged in the Lock-Up Agreement and (ii) the terms of the ongoing relationship between the Company and the Trafigura group (the "NNV-Trafigura Deed"). The NNV-Trafigura Deed was duly executed on 19 June 2019. Certain key terms of the NNV-Trafigura Deed can be summarised as follows.
Pursuant to the NNV-Trafigura Deed, the Company and Trafigura also agreed that Trafigura shall grant to the Company an option to require a Trafigura entity to purchase the Company's entire interest in NN2. The terms of this option are set out in a separate deed, dated 25 June 2019, between the Company, Trafigura and Nyrstar Holdings (the "Put Option Deed"). Under
the terms of the Put Option Deed, the Company can put all (but not only a part) of its 2% holding in NN2 to Trafigura at a price equal to EUR 20 million (the "Put Option"). . We refer in this respect to the related party disclosures included in the annual accounts for the financial year ended 31 December 2020 in respect of the mandatory prepayment obligations under the Limited Recourse Loan Facility (as defined below) that will apply to the proceeds of the Put Option. The Put Option can be exercised by the Company until 31 July 2022, subject to limited triggers allowing earlier termination of the Put Option before 31 July 2022.
As stated above, prior to the effective date of the Restructuring which was 31 July 2019 (the "Restructuring Effective Date"), the Company was the ultimate parent company of the Nyrstar group, and had previously issued various parent company guarantees (the "PCGs') in respect of the obligations of its subsidiaries, including, but not limited to, two parent company guarantees (the "Trafigura PCGs") granted in respect of the primary financial obligations of the Company's indirect subsidiary at that time, Nyrstar Sales & Marketing AG ("NSM"), to Trafigura, namely under the USD 650 million Trade Finance Framework Agreement ("TFFA") and the USD 250 million Bridge Finance Facility Agreement ("BFFA"). The Trafigura PCGs as well as all other security and / or guarantees provided to Trafigura by the Operating Group in respect of the TFFA and BFFA, were released in full on the Restructuring Effective Date.
Prior to, and as part of the implementation of, the Restructuring, the Company entered into an agreement for the sale and transfer by the Company of substantially all of its assets including 100% of its shareholding in Nyrstar Netherlands (Holdings) BV and also its holdings (direct and indirect) in its subsidiaries, but excluding its shares in NN1, to NN2 (the "NNV-NN2 SPA"). Under the NNV-NN2 SPA, the Company benefits from contractual agreements with NN2 and Trafigura in respect of its release from, or indemnification for, liabilities for existing financial indebtedness and obligations owed to third parties in respect of financial, commercial or other obligations of the then current members of the Operating Group (the "PCGs"), such that those third parties should no longer have recourse to the Company. The release and / or indemnification obligations of NN2 from which the Company benefits can be summarised as follows.
On 23 July 2019, the Company entered into a EUR 13.5 million committed, limited recourse, loan facility (the "Limited Recourse Loan Facility") provided to it by NN2 (as "Lender"). The key terms of the Limited Recourse Loan Facility are described below. The Limited Recourse Loan Facility is made available in two separate tranches: (i) up to EUR 8.5 million to be applied towards the Company's ongoing ordinary course operating activities ("Facility A"); and (ii) up to EUR 5 million intended for the payment of certain costs related to litigation defense ("Facility B"). No security, collateral or guarantees have been granted in respect of the Company's obligations under the Limited Recourse Loan Facility.
As at 31 December 2020, the Company owed EUR 4.6 million (2019: EUR 3.0 million) under Facility A. Facility A can be used by the Company to cover day-to-day operating costs, including, without limitation, reasonable director and employee costs, D&O insurance premium (to the extent not paid prior to the Restructuring Effective Date), audit fees, legal costs (except those relating to litigation or other actual or threatened proceedings against the Company, which should be funded from Facility B (defined below)), listing fees and investor relations costs. The funding under Facility A is provided to the Company based on the quarterly cash flow forecast prepared by the Company and provided to Trafigura as a condition of the funding. The total quantum of funds to be made available under Facility A was agreed based on the Company's forecast operating costs for a five year period following the completion of the Restructuring, taking into account the ongoing operational services provided to the Company by NN2, as agreed in the NNV-NN2 SPA, for a period of three years from the Restructuring Effective Date (or less subject to agreed early termination triggers) (the "Ongoing Services"). The Ongoing Services to be provided by NN2 to the Company include finance, tax, corporate counsel, IT and administration services. The provision of the Ongoing Services to the Company is intended to reduce the Company's operating costs in the period following the Restructuring Effective Date.
As at 31 December 2020, the Company had drawn EUR 0.9 million (2019: EUR Nil) under Facility B. Subject to the restrictions detailed below, Facility B can be applied by the Company towards payment or reimbursement of costs in respect of any litigation, proceeding, action or claims (including tax claims) made, asserted or threatened against the Company, NN1 Newco Limited ("NN1") or any of their current or former directors or officers (each being a "Claim").
Under Facility A, the Company can borrow up to EUR 3.7 million before 31 July 2020 and then up to a further EUR 1.2 million annually until 2024. Funding under Facility B can be drawn based on costs incurred in respect of any Claim (subject to the restrictions detailed below, and on the delivery of an invoice for such costs). Utilisation of each Facility is limited to a maximum of three drawings per financial quarter per Facility (excluding any PIK Loans (defined below)). As at the date of this report, the Company has drawn EUR 4.9 million under Facility A and EUR 1.5 million under Facility B.
The rate of interest on amounts outstanding under the Limited Recourse Loan Facility is the aggregate of EURIBOR plus a margin of 0.5% per annum. It shall be payable within 10 business days of the anniversary of the date on such amount was made available, provided that such interest will be capitalised if it has accrued for a period of one year or more and the Company has given a notice in the form prescribed by the Limited Recourse Loan Facility. Any interest which is capitalised shall be treated as a new loan (a "PIK Loan") under the relevant Facility. Any PIK Loan shall itself accrue interest, and that interest may also be capitalised. No payments of interest have been made by the Company as all payable interest until 31 December 2020 of EUR 15k (2019: Nil) has been capitalised into a new PIK Loan.
The Company must not use any amount borrowed under either Facility A or Facility B for funding (directly or indirectly) any of the costs related to asserting or bringing or assisting in the pursuit of claims (including any counterclaim or defense) against Trafigura, other members of the Trafigura group, NN2 and / or any Replacement Holdco, and / or any other member of the Operating Group), against any of such entities' current or former directors, officers, or advisers, against any creditor in respect of such entities (other than with the consent of NN2, such consent not to be unreasonably withheld or delayed) or in connection
with any challenge to the Restructuring, including in relation to the TFFA and the BFFA or any other document contemplated by the Restructuring implementation deed.
If at any time after 31 July 2020, the amount of the available cash, after allowing for the minimum headroom amount (being EUR 2 million in the period from and including the date of the Limited Recourse Loan Facility to but excluding the date falling one year after the Restructuring Effective Date, and EUR 1 million thereafter, of the Company (less any amount of the proceeds of any Facility B intended to be applied towards costs incurred by the Company to which Facility B Loan relates, but not yet so applied)) exceeds EUR 1.5 million, the Company has to apply, within five business days of the excess cash arising, the relevant excess cash to prepay any amounts outstanding under Facility B. If any excess cash remains after such repayment, the Company shall apply 50% of that remaining excess cash to repay the outstanding amount under Facility A, and shall (to the extent permitted under applicable law and regulation) apply the remaining 50% of that excess cash towards payment of dividends to the Company's shareholders. The above only applies until the later of (i) the date on which the Company ceases to own its 2% equity interest in the Operating Group (such equity interest being as a result of a direct shareholding either in NN2 or in the Replacement Holdco (as defined above) - the "Company Equity Interest", and such date being the "Company Exit Date") and (ii) the receipt of all proceeds (subject to any deductions permitted / required under the terms of the Limited Recourse Loan Facility) from any disposal(s) of the Company Equity Interest which result(s) in the occurrence of the Company Exit Date (the "Disposal Proceeds").
Immediately upon receipt of any Disposal Proceeds, the Company shall procure that these shall be applied first to prepay any amount outstanding under Facility B, and secondly, if (i) any Disposal Proceeds remain after any required prepayment of Facility B, and (ii) the aggregate amount of all amounts outstanding under Facility A exceeds EUR 5 million, to prepay such Facility A amounts to or towards an aggregate amount of EUR 5 million.
The Company shall ensure that, if any distribution is paid to the Company's shareholders on or after the Company Exit Date, an amount equal to that distribution is applied to repay or prepay amount outstanding under Facility A before or simultaneously with such distribution.
The Company has also agreed that, if it receives any amounts from costs awards, damages awards and / or any other recovery from any counterparty to a Claim (such amounts constituting "Claim Proceeds"), then such Claim Proceeds must be used immediately to repay or prepay any amounts outstanding under Facility B.
Additionally, there are customary provisions that require mandatory prepayment of amounts outstanding under either or both Facility A and B in the case of an event of default followed by acceleration by the Lender.
The recourse of NN2 as Lender under the Limited Recourse Loan Facility in respect of repayment thereof or any other obligation of the Company thereunder is limited to the "Company Net Assets", being the assets of the Company (other than assets held or received on trust for a person which is not a member of Nyrstar or its subsidiaries) having satisfied or provided for its liabilities (except for liabilities of the Company under the Limited Recourse Loan Facility and related finance documents which shall be disregarded for this purpose).
Further, to the extent that the Company Net Assets are insufficient to discharge the Company's obligations under the Limited Recourse Loan Facility, such obligations shall be deemed to be limited to the amount of the Company Net Assets, and the Lender shall not be entitled to make a claim and shall have no further recourse against the Company and the Company shall have no liability to pay or otherwise.
However, this limitation on NN2's recourse against the Company shall not apply to the extent that the value of the Company Net Assets is impaired, or NN2 suffers loss as a result of any breach by the Company of any provision of the Limited Recourse Loan Facility (or any related finance document) other than the repeating representations / warranties thereunder or the provisions requiring payment of interest / fees or repayment / prepayment of principal thereunder.
If any Claim arises as a result of which the Company reasonably anticipates that it may make a utilisation under Facility B, the Company must:
The Company must also consult with Trafigura prior to taking any action relating to insolvency or bankruptcy proceedings, including under Book XX of the Belgian Code of Economic Law.
The Company is also obliged to provide NN2 with certain financial information, including quarterly cashflow forecasts (and any revisions thereto required under the terms of the Limited Recourse Loan Facility), half-yearly financial statements and audited annual financial statements, drawn up on a consolidated basis (to the extent the Company has subsidiaries) and in accordance with the accounting principles agreed under the terms of the Limited Recourse Loan Facility.
At the completion of the Restructuring at 31 July 2019, the "Relationship Agreement" between Trafigura Group Pte Ltd and the Company (dated 9 November 2015) was terminated. The Relationship Agreement governed the relationship between the Company (and the broader Nyrstar Group) and Trafigura Group Pte. Ltd. and its affiliated persons between its execution on 9 November 2015 and the completion of the Restructuring on 31 July 2019.
As at 31 December 2020 the Company had contingent liabilities amounting to EUR 12.0 million (2019: EUR 235.2 million) provided or irrevocably promised by the Company for debts and commitments of third parties that are yet to be transferred to the Trafigura Group. For more details refer to the parent company guarantees disclosures in note C 6.14 and C 6.20.
At 31 December 2020, the Company has, in its participating interests, a 2% investment in NN2 at the cost of EUR 15,395,000. At 31 December 2019 the Company had, in its participating interest, also a 100% investment in NN1 valued at USD 1. However, NN1 was struck off and dissolved from the Register of Companies in the United Kingdom during the year ended 31 December 2020. The participating interest in NN2 as at 31 December 2020 of EUR 15,395,000 is carried at the lower of cost and fair value, taking into consideration that the Company has a Put Option (as defined above) that enables it to sell all (but not part only) of its 2% holding in NN2 to Trafigura at a price equal to EUR 20 million in aggregate payable to the Company resulting in no impairment required at 31 December 2020. We refer in this respect to the related party disclosures included in the annual accounts for the financial year ended 31 December 2020 in respect of the mandatory prepayment obligations under the Limited Recourse Loan Facility that will apply to the proceeds of the Put Option. The Put Option can be exercised by the Company until 31 July 2022, subject to limited triggers allowing earlier termination of the Put Option before 31 July 2022.
At 9 December 2019, the Extraordinary Shareholders' Meeting ("EGM") was held to deliberate on the continuation of the Company's activities and a proposed capital decrease. The shareholders rejected the continuation of the Company's activities. The shareholders also rejected the proposed capital reduction, as a result of which it was not carried out.
As explained above, the Board of Directors of the Company convened a new EGM to formally decide on the dissolution of the Company, and if approved, appoint a liquidator. However, as a result of an order of 26 June 2020 of the President of the Antwerp Enterprise Court (Antwerp division), at the request of a group of shareholders, the Company is prohibited from holding a general meeting with the dissolution of the Company on the agenda until three months after a final decision on the appointment of a college of experts (see below, under section 8.2) will have obtained res judicata effect.
These comments are based on the balance sheet and the proposed allocation of results and are therefore subject to the approval of the proposed allocation of results by the shareholders of the Company. The statutory financial statements were prepared in accordance with Belgian accounting laws.
During the last financial year the Company generated a net loss of EUR 11,678k and has a balance sheet total as at 31 December 2020 of EUR 16,999k.
The operational result shows a loss of EUR 11,646k. This result derives from an operating income amounting to EUR 1,110k and the operating charges of EUR 12,756k.
The operating income is related to the refunds of the various legal costs by the Directors and Officers's insurers of the Company.
The operating costs mainly relate to:
The financial result mainly relates to:
The income tax expense amounting to EUR 2k relates to the taxes due in relation to prior year.
The current assets at 31 December 2020 consist of:
The equity as at 31 December 2020 amounted to negative EUR 690k.
The changes in equity for the financial year 2020 relate to the loss of EUR 11,678k.
The liabilities as at 31 December 2020 mainly relate to:
The Board of Directors proposes to allocate the current year loss of EUR 11,678k to the losses carried forward.
For information on the Company's risk management and management of uncertainties and information regarding the use by the Company of financial instruments, please refer to the Corporate Governance Statement of the Company.
As a consequence of the Restructuring and the outcomes of the 9 December 2019 EGM, where the shareholders rejected the continuation of the Company's activities, the 31 December 2020 financial statements of the Company are prepared on a discontinuity basis.
At the date of authorisation of the 31 December 2020 financial statements, the Company has assessed that, taking into account its available cash, cash equivalents, facilities that became available to the Company as committed facilities at the completion of the Restructuring, the ability to exercise the Put Option and its cash flow projections for the next 12 months from the authorisation by the Board of Directors of the 31 December 2020 financial statements, it has sufficient liquidity to meet its present obligations and cover working capital needs. The forecast available liquidity of the Company that includes the drawn amount of EUR 1.2 million at the date of this report (out of EUR 1.2 million) available to the Company for the second year (commencing on 1 August 2020) of Facility A of the Limited Recourse Loan Facility and EUR 1.5 million (out of EUR 5 million) of Facility B of the Limited Recourse Loan Facility which is also drawn down at the date at this report, is dependent on various matters including the possible appointment of a liquidator and his next steps, the existence and extent of the legal claims against the Company which could require funding of these legal proceedings and other matters not currently foreseen as described in section d) of the valuation rules above. As stated above, if the appointment of the liquidator is further delayed or not approved by the shareholders or if the costs are higher than currently expected, and there are no distributions in respect of the Company's holding, the Company may need to secure additional funding. There is a risk that such additional funding may not be available to the Company or may not be available at acceptable conditions. The Company may also consider in such case to exercise the Put Option of its 2% holding in NN2.
There have been no significant events which occurred after the end of the financial year except those included in section 8 below.
As described above, at 9 December 2019, the EGM was held to deliberate on the continuation of the Company's activities and a proposed capital decrease. The shareholders rejected the continuation of the Company's activities. The shareholders also rejected the proposed capital reduction, as a result of which it was not carried out. The Board of Directors of the Company had taken the necessary measures to prepare the necessary reports with its statutory auditor and had convened a new EGM to consider a proposal for liquidation. Such EGM was first scheduled to be held on 25 March 2020 but had to be postponed due to the Covid-19 outbreak and corresponding restrictions that had been introduced in Europe. The Company re-convened such EGM on 30 April 2020 for 2 June 2020 and, if the required attendance quorum would not be met, 30 June 2020.
Certain shareholders initiated summary proceedings before the court of Antwerp to request the court to order that the decision on the dissolution of the Company, following the 9 December 2019 EGM, be postponed (i) until three months after a final report will have been issued by a body of experts whose appointment is requested in separate proceedings before the court, or, alternatively (ii) until three months after a final decision will have been rendered in the aforementioned proceedings regarding the appointment of a body of experts. On 26 June 2020, the court of Antwerp dismissed the minority shareholders' claim for a postponement until three months after a final report will have been issued by a body of experts whose appointment is requested. However, the court did accept their claim for a postponement of the decision on dissolution of the Company until three months after a final decision will have been rendered in the proceedings regarding the appointment of a body of experts. Consequently, the (second) EGM planned for 30 June 2020 with the resolutions regarding the proposal for dissolution of the Company as agenda items was postponed, in compliance with the 26 June 2020 court order.
As a result and considering the legal proceedings referred to above, the Company expects that the liquidation process will take longer than previously expected. The delayed decision on the proposal for dissolution of the Company and the appointment of a liquidator may negatively impact the Company's liquidity position as the Company continues to incur running costs and costs in respect of the legal proceedings above. If the appointment of the liquidator is further delayed beyond what is currently expected or not approved by the shareholders or if the costs are higher than currently expected and there are no distributions in respect of the Company's holding, the Company may need to secure additional funding. There is a risk that such additional funding may not be available to the Company or may not be available at acceptable conditions. The company
may also consider in such case to exercise the put option of its 2% holding in NN2. We refer in this respect to the related party disclosures included in the annual accounts for the financial year ended 31 December 2020 in respect of the mandatory prepayment obligations under the Limited Recourse Loan Facility that will apply to the proceeds of the Put Option.
On 27 April 2020, a group of shareholders summoned the Company in summary proceedings before the President of the Antwerp Enterprise Court (Antwerp division). The claim of the plaintiff shareholders aimed at having a panel of experts appointed in accordance with article 7:160 of the Belgian Companies and Associations Code. This procedure was initiated in court on 5 May 2020. The court hearing took place on 15 September 2020.
On 30 October 2020, the President of the Antwerp Enterprise Court (Antwerp division) issued an order in which she upheld the plaintiff shareholders' claim. The court order includes, but is not limited to, the following elements:
The costs and duration of the investigation depend on various factors that are very difficult to foresee. In view of the broad investigative remit, the Company expects the expert investigation to last several years.
The Company reviewed the court order together with its legal advisors and decided to lodge an appeal with the Antwerp Court of Appeal. The Company has filed the application for appeal on 15 December 2020. The appeal will be heard on 3 June 2021. On 3 March 2021, the original plaintiff shareholders summoned Trafigura PTE Ltd. and Trafigura Group PTE Ltd. to forcefully intervene in this appeal. In particular, they ask that the judgment the Court of Appeal would deliver be declared enforceable against and applicable to Trafigura PTE Ltd. and Trafigura Group PTE Ltd. This demand of the original plaintiff shareholders will also be heard at the hearing of 3 June 2021, together with the aforementioned appeal.
On 4 February 2021, Trafigura PTE Ltd. and Trafigura Group PTE Ltd. filed a third-party application against the aforementioned decision of 30 October 2020. The Company and the original plaintiff shareholders were also involved in these proceedings. In this third-party application, Trafigura PTE Ltd. and Trafigura Group PTE Ltd. request that the President of the Antwerp Enterprise Court (Antwerp division) revoke its decision of 30 October 2020 with immediate effect and terminate the expert investigation, also vis-à-vis the Company and the original plaintiffs. The third-party application was introduced in court on 26 March 2021, and will be dealt with at the hearing of 15 June 2021.
On 9 February 2021, Trafigura PTE Ltd. and Trafigura Group PTE Ltd. subsequently submitted a request for suspension of the 30 October 2020 decision to the Attachment Judge of the Antwerp Court of First Instance (Antwerp Division). The Company and the original plaintiff shareholders were again involved in this procedure. Trafigura PTE Ltd. and Trafigura Group PTE Ltd. specifically request that the execution of the aforementioned decision be immediately suspended until a final judgment is reached in the third-party application proceedings mentioned earlier. The suspension request was introduced in court on 1 April 2021, and will be dealt with at the hearing of 24 June 2021.
On Friday 29 May 2020, a group of shareholders of the Company summoned, amongst others, the Company and its directors before the Antwerp Enterprise Court (Turnhout division). This writ of summons followed a notice of default received on 17 March 2020 by the directors and certain senior managers of the Company.
On Monday 9 November 2020, this group of shareholders issued a corrective writ of summons against (amongst others) the Company and its directors, which amended the writ of summons dated 29 May 2020 on certain points.
The plaintiffs in this procedure are making the following claims:
These proceedings were initiated on 18 November 2020; however, they were sent to the docket at the introductory hearing (at the request of plaintiffs) pending the report of the panel of experts appointed by order of 30 October 2020 of the President of the Antwerp Enterprise Court (Antwerp division) (see above, under 8.2). Consequently, no procedural timetable or hearing date has yet been determined.
The Company and its Board of Directors formally contest the claims in the writ of summons and note that they will firmly defend themselves against the claims raised within the framework of these proceedings.
In addition, the Company learned that the same group of plaintiff shareholders has brought similar liability claims against certain former directors of the Company as well as certain companies of the Trafigura group. Neither the Company nor its current directors are currently party to these proceedings.
The Company learned that criminal complaints have been filed by shareholders. The Company shall cooperate with the judicial investigation.
The Executive Committee of the Belgian Financial Services and Markets Authority ("FSMA") decided in September 2019 to investigate the Company's policy regarding disclosure of information to the market. Initially, this investigation focused on the information disclosed on the commercial relationship of the Company with Trafigura.
In a press release dated 29 May 2020, the FSMA announced that the investigation would be expanded so as to also include information on the expected profit contribution and total costs for the Port Pirie smelter redevelopment in Australia and on the solvency and liquidity position of the Company at the end of 2018.
The Company is continuing to fully cooperate with the FSMA's inquiry.
The Company has no branches.
Until 31 July 2019 the Group undertook research and development through a number of activities at various production sites of the Group. This research and development was primarily concentrated on the production of various high margin noncommodity grade alloy products and by-products in Nyrstar's Metals Processing operations. Following the completion of the Restructuring at 31 July 2019, the Company does not undertake any research or development.
The Company held no Company's shares as at 31 December 2020 and 2019.
| Issued shares | 2020 | 2019 |
|---|---|---|
| Shares outstanding Treasury shares |
109,873,001 - |
109,873,001 - |
| As at 31 Dec | 109,873,001 | 109,873,001 |
| Movement in shares outstanding | 2020 | 2019 |
| As at 1 Jan | 109,873,001 | 109,873,001 |
| Capital increase | - | - |
| Employee shared based payment plan | - | - |
| As at 31 Dec | 109,873,001 | 109,873,001 |
Directors are expected to arrange their personal and business affairs so as to avoid conflicts of interest with the Company. Any director with a conflicting financial interest (as contemplated by article 7:96 of the Belgian Code of Companies and Associations) on any matter before the Board of Directors must bring it to the attention of both the statutory auditor and fellow directors, and take no part in any deliberations or voting related thereto. Section 1.4 of the Corporate Governance Charter sets out the procedure for transactions between Nyrstar and the directors which are not covered by the legal provisions on conflicts of interest.
To the knowledge of the Board of Directors, there are, in the period covered by this report, no potential conflicts of interests between any duties to the Company of the directors and their private interests and/or other duties.
There has therefore not been any non-compliance with article 7:96 of the Belgian Code of Companies and Associations.
To the knowledge of the Board of Directors, there are, in the period covered by this report, no transactions between the Company and any of its related parties as considered by article 7:97 of the Belgian Code of Companies and Associations. There has therefore not been any procedure followed under article 7:97 of the Belgian Code of Companies and Associations.
The elements that need to be provided in accordance with article 34 of the Royal Decree dated 14 November 2007 to the extent that these elements could have consequences in the event of a public takeover bid are discussed in detail in the corporate governance statement as attached to this report as annex B.
The Audit Committee consists of at least three directors. All members of the Audit Committee are non-executive directors. According to the Belgian Code of Companies and Associations, all members of the Audit Committee must be non-executive directors, and at least one member must be independent within the meaning of the Belgian Code on Corporate Governance. The members of the Audit Committee at 31 December 2020 were Anne Fahy (Chairman), Jane Moriarty and Carole Cable. The current composition of the Audit Committee complies with the Belgian Code of Companies and Associations. For the justification of the independence and accounting and audit expertise of the members of the Audit Committee, reference is made to the Corporate Governance Statement of the Company.
The members of the Audit Committee must have a collective competence in the business activities of the Company as well as accounting, auditing and finance. The current Chairman of the Audit Committee is competent in accounting and auditing as evidenced by her previous role as Chief Financial Officer of BP's Aviation Fuels business. According to the Board of Directors, the other members of the Audit Committee also satisfy this requirement, as evidenced by the different senior management and director mandates that they have held in the past and currently hold (see also "—Other mandates" in the Corporate Governance Statement).
The role of the Audit Committee is to:
The Audit Committee regularly reports to the Board of Directors on the exercise of its missions, including when preparing the annual accounts.
In principle, the Audit Committee meets as frequently as necessary for the efficiency of the operation of the Audit Committee, but at least two times a year.
The Board of Directors requests the shareholders of the Company to approve the statutory financial statements attached hereto and to grant discharge to the directors of the Company and to the statutory auditor for the exercise of their mandate during this financial year of the Company.
Free English translation for information purposes only
* * *
Brussels, 13 May 2021.
On behalf of the Board of Directors,
Martyn Konig Director
___________________________ ___________________________
Anne Fahy Director
Annex A: Statutory financial statements of Nyrstar NV for the year ended 31 December 2020
Annex B: Statement of responsibility of Nyrstar NV for the year ended 31 December 2020
Annex C: Corporate governance statement in accordance with article 3:6 §2 of Belgian Code of Companies and Associations
Annex D: Remuneration Report in accordance with article 3:6 §3 of Belgian Code of Companies and Associations
[Separate document]
The undersigned, Martyn Konig, Chairman of the Board of Directors, and Anne Fahy, Director, declare that, to the best of their knowledge:
Brussels, 13 May 2021
Martyn Konig Anne Fahy Chairman of the Board of Directors Director
Corporate governance statement in accordance with article 3:6 §2 of Belgian Code of Companies and Associations
[Separate document]
[Separate document]
| 40 NAT. Filing date |
N°. 0888728945 |
P. | 1 EUR U. D. |
C-cap 1 | |
|---|---|---|---|---|---|
| ANNUAL ACCOUNTS AND OTHER DOCUMENTS TO BE FILED IN ACCORDANCE WITH THE BELGIAN COMPANIES AND ASSOCIATIONS |
CODE | ||||
| IDENTIFICATION DETAILS (at the filing date) | |||||
| NAME: Nyrstar |
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| Legal form: NV Address: Zinkstraat |
N°. 1 |
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| Postal code: 2490 |
Town: Balen |
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| Country: Belgium |
Register of legal persons - commercial court: | Antwerpen, Division Turnhout | |||
| 1 Website : |
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| Company registration number | 0888728945 | ||||
| DATE | 9/04/2019 | of filing the most recent document mentioning the date of publication of | |||
| the deed of incorporation and of the deed of amendment of the articles of association. | |||||
| ANNUAL ACCOUNTS | IN EURO (2 decimals) | 2 | |||
| approved by the general meeting of | 29/06/2021 | ||||
| regarding the period from | 1/01/2020 | to | 31/12/2020 | ||
| Preceding period from | 1/01/2019 | to | 31/12/2019 | ||
| The amounts for the preceding period | 3 are / are not |
identical to the ones previously published. | |||
| Total number of pages filed: because they serve no useful purpose: |
64 6.18.2, 8, 9, 11, 12, 13, 14, 15 |
Numbers of the sections of the standard model form not filed | 6.1, 6.2.1, 6.2.2, 6.2.3, 6.2.4, 6.2.5, 6.3.1, 6.3.2, 6.3.3, 6.3.4, 6.3.5, 6.3.6, 6.4.2, 6.5.1, 6.5.2, 6.17, | ||
| Signature (name and position) Martyn Konig |
Signature (name and position) Anne Fahy |
||||
| Director | Director | ||||
Optional mention. 1
If necessary, change to currency in which the amounts are expressed. 2
3 Strike out what does not apply.
COMPLETE LIST with surname, first names, profession, place of residence (address, number, postal code and town) and position within the company
Title : President of the board of directors Mandate : 5/11/2019- 27/06/2023 Zinkstraat 1, 2490 Balen, Belgium
Title : Director Mandate : 20/04/2017- 29/06/2021 Zinkstraat 1, 2490 Balen, Belgium
Title : Director Mandate : 29/06/2020- 25/06/2024 Zinkstraat 1, 2490 Balen, Belgium
Title : Director Mandate : 14/03/2019- 27/06/2023 Zinkstraat 1, 2490 Balen, Belgium
Title : Auditor, Membership number : B00023 Mandate : 24/09/2020- 29/06/2023 Vincilaan 9, 1930 Zaventem, Belgium
Represented by :
Claes Gert 1.
Da Vincilaan 9 , box E.6, 1935 Corporate Village, Belgium
, Membership number : A01775
The managing board declares that not a single audit or correction assignment has been given to a person not authorized to do so by law, pursuant to articles 34 and 37 of the law of 22 April 1999 concerning accounting and tax professions.
The annual accounts were / were not * or corrected by an external accountant or by a company auditor who is not the statutory auditor.
If affirmative, should be mentioned hereafter: surname, first names, profession and address of each external accountant or company auditor and their membership number at their Institute, as well as the nature of their assignment:
If the tasks mentioned under A or B are executed by certified accountants or certified bookkeepers - tax experts, the following information can be mentioned hereafter: surname, first names, profession and address of each certified accountant or certified bookkeeper-tax expert and their membership number at the Institute of Accounting professionals and Tax Experts, as well as the nature of their assignment.
| Surname, first names, profession and address | Membership number | Nature of the assignment (A, B, C and/or D) |
|
|---|---|---|---|
* Strike out what does not apply.
** Optional mention.
| Notes | Codes | Period | Preceding period | |
|---|---|---|---|---|
| ASSETS | ||||
FORMATION EXPENSES |
6.1 | 20 | ||
FIXED ASSETS |
21/28 | 50.000,88 | ||
| Intangible fixed assets |
6.2 | 21 | ||
| Tangible fixed assets |
6.3 | 22/27 | ||
| Land and buildings | 22 | |||
| Plant, machinery and equipment | 23 | |||
| Furniture and vehicles | 24 | |||
| Leasing and other similar rights | 25 | |||
| Other tangible fixed assets | 26 | |||
| Assets under construction and advance payments | 27 | |||
Financial fixed assets |
6.4 / 6.5.1 |
28 | 50.000,88 | |
| Affiliated Companies | 6.15 | 280/1 | 0,88 | |
| Participating interests | 280 | 0,88 | ||
| Amounts receivable | 281 | |||
| Other companies linked by participating interests | 6.15 | 282/3 | ||
| Participating interests | 282 | |||
| Amounts receivable | 283 | |||
| Other financial fixed assets | 284/8 | 50.000,00 | ||
| Shares | 284 | |||
| Amounts receivable and cash guarantees | 285/8 | 50.000,00 | ||
| Notes | Codes | Period | Preceding period | ||
|---|---|---|---|---|---|
| CURRENT ASSETS |
29/58 | 16.999.373,83 | 17.148.936,52 | ||
Amounts receivable after more than one year |
29 | ||||
| Trade debtors | 290 | ||||
| Other amounts receivable | 291 | ||||
| Stocks and contracts in progress |
3 | ||||
| Stocks | 30/36 | ||||
| Raw materials and consumables | 30/31 | ||||
| Work in progress | 32 | ||||
| Finished goods | 33 | ||||
| Goods purchased for resale | 34 | ||||
| Immovable property intended for sale | 35 | ||||
| Advance payments | 36 | ||||
| Contracts in progress | 37 | ||||
Amounts receivable within one year |
40/41 | 270.207,81 | 344.345,34 | ||
| Trade debtors | 40 | ||||
| Other amounts receivable | 41 | 270.207,81 | 344.345,34 | ||
| Current investments |
6.5.1 / 6.6 |
50/53 | 15.395.000,00 | 15.395.000,00 | |
| Own shares | 50 | ||||
| Other investments | 51/53 | 15.395.000,00 | 15.395.000,00 | ||
| Cash at bank and in hand |
54/58 | 601.363,36 | 1.274.246,37 | ||
| Accruals and deferred income |
6.6 | 490/1 | 732.802,66 | 135.344,81 | |
TOTAL ASSETS |
20/58 | 16.999.373,83 | 17.198.937,40 |
| C-cap 3.2 | ||||
|---|---|---|---|---|
| Notes | Codes | Period | Preceding period | |
| EQUITY AND LIABILITIES | ||||
| EQUITY |
10/15 | -689.895,01 | 10.987.654,69 | |
Contributions |
6.7.1 | 10/11 | 1.330.530.636,44 | 1.330.530.636,44 |
| Capital | 10 | 114.134.760,97 | 114.134.760,97 | |
| Issued capital 4 |
100 | 114.134.760,97 | 114.134.760,97 | |
| Uncalled capital |
101 | |||
| Beyond capital Share premium account |
11 | 1.216.395.875,47 | 1.216.395.875,47 | |
| Other | 1100/10 1109/19 |
1.216.395.875,47 | 1.216.395.875,47 | |
| 12 | ||||
| Revaluation surpluses |
||||
Reserves |
13 | 16.257.028,06 | 16.257.028,06 | |
| Reserves not available Legal reserve |
130/1 130 |
16.257.028,06 16.257.028,06 |
16.257.028,06 16.257.028,06 |
|
| Reserves not available statutorily | 1311 | |||
| Purchase of own shares | 1312 | |||
| Financial support | 1313 | |||
| 1319 | ||||
| Other | ||||
| Untaxed reserves | 132 133 |
|||
| Available reserves | ||||
| (+)/(-) Accumulated profits (losses) |
14 | -1.347.477.559,51 | -1.335.800.009,81 | |
| Capital subsidies Advance to shareholders on the distribution of net |
15 | |||
| 5 assets |
19 | |||
| PROVISIONS AND DEFERRED TAXES |
16 | 10.870.852,00 | 2.327.785,00 | |
| Provisions for liabilities and charges |
160/5 | 10.870.852,00 | 2.327.785,00 | |
| Pensions and similar obligations | 160 | |||
| Taxes | 161 | |||
| Major repairs and maintenance | 162 | |||
| Environmental obligations | 163 | |||
| Other liabilities and charges | 6.8 | 164/5 | 10.870.852,00 | 2.327.785,00 |
Deferred taxes |
168 |
Amount to be deducted from the issued capital. 4
Amount to be deducted from the other components of equity. 5
| Notes | Codes | Period | Preceding period | |
|---|---|---|---|---|
| AMOUNTS PAYABLE |
17/49 | 6.818.416,84 | 3.883.497,71 | |
| Amounts payable after more than one year |
6.9 | 17 | ||
| Financial debts | 170/4 | |||
| Subordinated loans | 170 | |||
| Unsubordinated debentures | 171 | |||
| Leasing and other similar obligations | 172 | |||
| Credit institutions | 173 | |||
| Other loans | 174 | |||
| Trade debts | 175 | |||
| Suppliers | 1750 | |||
| Bills of exchange payable | 1751 | |||
| Advance payments on contracts in progress | 176 | |||
| Other amounts payable | 178/9 | |||
| Amounts payable within one year | 6.9 | 42/48 | 6.793.247,36 | 3.881.031,95 |
| Current portion of amounts payable after more than one year falling due within one year |
42 | |||
| Financial debts | 43 | 5.527.017,29 | 3.000.000,00 | |
| Credit institutions | 430/8 | |||
| Other loans | 439 | 5.527.017,29 | 3.000.000,00 | |
| Trade debts | 44 | 1.222.172,76 | 756.917,15 | |
| Suppliers | 440/4 | 1.222.172,76 | 756.917,15 | |
| Bills of exchange payable | 441 | |||
| Advance payments on contracts in progress | 46 | |||
| Taxes, remuneration and social security | 6.9 | 45 | 44.057,31 | 40.588,13 |
| Taxes | 450/3 | 14.673,41 | 15.970,53 | |
| Remuneration and social security | 454/9 | 29.383,90 | 24.617,60 | |
| Other amounts payable | 47/48 | 83.526,67 | ||
| 6.9 | 492/3 | 25.169,48 | 2.465,76 | |
Accruals and deferred income |
| Notes | Codes | Period | Preceding period | |
|---|---|---|---|---|
| Operating income |
70/76A | 1.110.492,72 | 3.412.614,97 | |
| Turnover | 6.10 | 70 | 3.412.614,97 | |
| Stocks of finished goods and work and contracts in progress: increase (decrease) (+)/(-) |
71 | |||
| Produced fixed assets | 72 | |||
| Other operating income | 6.10 | 74 | ||
| Non-recurring operating income | 6.12 | 76A | 1.110.492,72 | |
| Operating charges |
60/66A | 12.756.259,03 | 15.415.570,39 | |
| Goods for resale, raw materials and consumables | 60 | |||
| Purchases | 600/8 | |||
| Stocks: decrease (increase) (+)/(-) | 609 | |||
| Services and other goods | 61 | 4.211.918,52 | 11.841.853,21 | |
| Remuneration, social security and pensions (+)/(-) | 6.10 | 62 | 1.245.586,04 | |
| Amortisations of and other amounts written down on formation expenses, intangible and tangible fixed assets |
630 | 346,14 | ||
| Amounts written down on stocks, contracts in progress and trade debtors: additions (write-backs) (+)/(-) |
6.10 | 631/4 | ||
| Provisions for liabilities and charges: appropriations (uses and write-backs) (+)/(-) |
6.10 | 635/8 | 42.167,00 | |
| Other operating charges | 6.10 | 640/8 | 1.273,51 | |
| Operating charges reported as assets under restructuring costs (-) |
649 | |||
| Non-recurring operating charges | 6.12 | 66A | 8.500.900,00 | 2.327.785,00 |
| Operating profit (loss) (+)/(-) |
9901 | -11.645.766,31 | -12.002.955,42 |
| N°. 0888728945 |
C-cap 4 | |||
|---|---|---|---|---|
| Notes | Codes | Period | Preceding period | |
| Financial income |
75/76B | 6.329,40 | 115.352.998,57 | |
| Recurring financial income | 75 | 6.329,40 | 5.412.275,83 | |
| Income from financial fixed assets | 750 | |||
| Income from current assets | 751 | 0,10 | 5.009.161,57 | |
| Other financial income | 6.11 | 752/9 | 6.329,30 | 403.114,26 |
| Non-recurring financial income | 6.12 | 76B | 109.940.722,74 | |
Financial charges |
6.11 | 65/66B | 36.082,52 | 104.782.460,06 |
| Recurring financial charges | 65 | 36.082,52 | 6.154.576,87 | |
| Debt charges | 650 | 21.113,32 | 6.034.170,58 | |
| Amounts written down on current assets other than stocks, contracts in progress and trade debtors: |
||||
| additions (write-backs) (+)/(-) Other financial charges |
651 652/9 |
14.969,20 | 120.406,29 | |
| Non-recurring financial charges | 6.12 | 66B | 98.627.883,19 | |
| (+)/(-) Profit (Loss) for the period before taxes |
9903 | -11.675.519,43 | -1.432.416,91 | |
| Transfer from deferred taxes Transfer to deferred taxes |
780 680 |
|||
| Income taxes on the result(+)/(-) Taxes |
6.13 | 67/77 670/3 |
2.030,27 2.030,27 |
4.396,17 4.396,17 |
| Adjustment of income taxes and write-back of tax provisions |
77 | |||
| (+)/(-) Profit (Loss) of the period |
9904 | -11.677.549,70 | -1.436.813,08 | |
| Transfer from untaxed reserves |
789 | |||
| 689 | ||||
| Transfer to untaxed reserves |
| Codes | Period | Preceding period | |
|---|---|---|---|
| Profit (Loss) to be appropriated (+)/(-) |
9906 | -1.347.477.559,51 | -1.335.800.009,81 |
| Profit (Loss) of the period available for appropriation (+)/(-) | (9905) | -11.677.549,70 | -1.436.813,08 |
| Profit (Loss) of the preceding period brought forward (+)/(-) | 14P | -1.335.800.009,81 | -1.334.363.196,73 |
| Transfers from equity |
791/2 | ||
| from contributions | 791 | ||
| from reserves | 792 | ||
| Appropriations to equity |
691/2 | ||
| to contributions | 691 | ||
| to legal reserve | 6920 | ||
| to other reserves | 6921 | ||
| Profit (loss) to be carried forward (+)/(-) |
(14) | -1.347.477.559,51 | -1.335.800.009,81 |
Shareholders' contribution in respect of losses |
794 | ||
Profit to be distributed |
694/7 | ||
| Compensation for contributions | 694 | ||
| Directors or managers | 695 | ||
| Employees | 696 | ||
| Other beneficiaries | 697 |
| N°. 0888728945 |
C-cap 6.4.1 | ||
|---|---|---|---|
| STATEMENT OF FINANCIAL FIXED ASSETS | |||
| Codes | Period | Preceding period | |
| AFFILIATED COMPANIES - PARTICIPATING INTERESTS AND SHARES |
|||
Acquisition value at the end of the period |
8391P | xxxxxxxxxxxxxxx | 0,88 |
| Movements during the period | |||
| Acquisitions | 8361 | ||
| Sales and disposals | 8371 | 0,88 | |
| Transfers from one heading to another (+)/(-) | 8381 | ||
| Acquisition value at the end of the period |
8391 | ||
| Revaluation surpluses at the end of the period |
8451P | xxxxxxxxxxxxxxx | |
| Movements during the period | |||
| Recorded | 8411 | ||
| Acquisitions from third parties | 8421 | ||
| Cancelled | 8431 | ||
| Transferred from one heading to another (+)/(-) | 8441 | ||
Revaluation surpluses at the end of the period |
8451 | ||
Amounts written down at the end of the period |
8521P | xxxxxxxxxxxxxxx | |
| Movements during the period | |||
| Recorded | 8471 | ||
| Written back | 8481 | ||
| Acquisitions from third parties | 8491 | ||
| Cancelled owing to sales and disposals | 8501 | ||
| Transferred from one heading to another (+)/(-) | 8511 | ||
| Amounts written down at the end of the period |
8521 | ||
| Uncalled amounts at the end of the period | 8551P | xxxxxxxxxxxxxxx | |
| Movements during the period(+)/(-) Uncalled amounts at the end of the period |
8541 8551 |
||
| NET BOOK VALUE AT THE END OF THE PERIOD | (280) | ||
| AFFILIATED COMPANIES - AMOUNTS RECEIVABLE | |||
| NET BOOK VALUE AT THE END OF THE PERIOD | 281P | xxxxxxxxxxxxxxx | |
| Movements during the period Appropriations |
8581 | ||
| Repayments | 8591 | ||
| Amounts written down | 8601 | ||
| Amounts written back | 8611 | ||
| Exchange differences (+)/(-) | 8621 | ||
| Other movements (+)/(-) | 8631 | ||
| NET BOOK VALUE AT THE END OF THE PERIOD |
(281) | ||
| ACCUMULATED AMOUNTS WRITTEN DOWN ON AMOUNTS | |||
| RECEIVABLE AT END OF THE PERIOD | 8651 |
| N°. 0888728945 |
C-cap 6.4.3 | ||
|---|---|---|---|
| Codes | Period | Preceding period | |
| OTHER COMPANIES - PARTICIPATING INTERESTS AND SHARES |
|||
Acquisition value at the end of the period |
8393P | xxxxxxxxxxxxxxx | |
| Movements during the period | |||
| Acquisitions | 8363 | ||
| Sales and disposals | 8373 | ||
| Transfers from one heading to another (+)/(-) | 8383 | ||
Acquisition value at the end of the period |
8393 | ||
| Revaluation surpluses at the end of the period |
8453P | xxxxxxxxxxxxxxx | |
| Movements during the period | |||
| Recorded | 8413 | ||
| Acquisitions from third parties | 8423 | ||
| Cancelled | 8433 | ||
| Transferred from one heading to another (+)/(-) | 8443 | ||
Revaluation surpluses at the end of the period |
8453 | ||
| Amounts written down at the end of the period |
8523P | xxxxxxxxxxxxxxx | |
| Movements during the period | |||
| Recorded | 8473 | ||
| Written back | 8483 | ||
| Acquisitions from third parties | 8493 | ||
| Cancelled owing to sales and disposals | 8503 | ||
| Transferred from one heading to another (+)/(-) | 8513 | ||
| Amounts written down at the end of the period |
8523 | ||
| Uncalled amounts at the end of the period | 8553P | xxxxxxxxxxxxxxx | |
| Movements during the period(+)/(-) | 8543 | ||
| Uncalled amounts at the end of the period | 8553 | ||
| NET BOOK VALUE AT THE END OF THE PERIOD | (284) | ||
| OTHER COMPANIES - AMOUNTS RECEIVABLE | |||
| NET BOOK VALUE AT THE END OF THE PERIOD | 285/8P | xxxxxxxxxxxxxxx | 50.000,00 |
| Movements during the period | |||
| Appropriations | 8583 | ||
| Repayments | 8593 | 50.000,00 | |
| Amounts written down | 8603 | ||
| Amounts written back Exchange differences (+)/(-) |
8613 8623 |
||
| Other movements (+)/(-) | 8633 | ||
| NET BOOK VALUE AT THE END OF THE PERIOD ACCUMULATED AMOUNTS WRITTEN DOWN ON AMOUNTS |
(285/8) | ||
| RECEIVABLE AT END OF THE PERIOD | 8653 | ||
| N°. C-cap 6.6 0888728945 CURRENT INVESTMENTS AND ACCRUALS AND DEFERRED INCOME Codes Period Preceding period |
|---|
| CURRENT INVESTMENTS - OTHER INVESTMENTS |
| Shares and investments other than fixed income investments 51 15.395.000,00 15.395.000,00 |
| Shares – Book value increased with the uncalled amount 8681 15.395.000,00 15.395.000,00 |
| Shares – Uncalled amount 8682 |
| Precious metals and works of art 8683 |
| Fixed-income securities 52 |
| Fixed income securities issued by credit institutions 8684 |
53 Term accounts with credit institutions |
| With a remaining term or notice |
| up to one month 8686 |
| between one month and one year 8687 |
| over one year 8688 |
Allocation of account 490/1 of assets if the amount is significant
Legal costs covered by D&O insurance 576.001,57
Period Insurance fees 135.344,85 External Services - Consultants 256,24 Audit fee 21.200,00
| N°. | 0888728945 | C-cap 6.7.1 | |||
|---|---|---|---|---|---|
| STATEMENT OF CAPITAL AND SHAREHOLDERS' STURCTURE | |||||
| STATEMENT OF CAPITAL | Codes | Period | Preceding period | ||
| Capital | |||||
| Issued capital at the end of the period | 100P | XXXXXXXXXXXXXX | 114.134.760,97 | ||
| Issued capital at the end of the period | (100) | 114.134.760,97 | |||
| Codes | Period | Number of shares | |||
| Modifications during the period | |||||
| Composition of the capital | |||||
| Share types | |||||
| 114.134.761,00 | 109.873.001 | ||||
| Registered shares | 8702 | XXXXXXXXXXXXXX | 7.429.434 | ||
| Shares dematerialized | 8703 | XXXXXXXXXXXXXX | 102.443.567 | ||
| Codes | Uncalled amount | Called up amount, unpaid | ||
|---|---|---|---|---|
| Unpaid capital | ||||
| Uncalled capital | (101) | XXXXXXXXXXXXXX | ||
| Called up capital, unpaid | 8712 | XXXXXXXXXXXXXX | ||
| Shareholders that still need to pay up in full | ||||
| Called up capital, unpaid | 8712 | XXXXXXXXXXXXXX | ||
|---|---|---|---|---|
| Shareholders that still need to pay up in full | ||||
| Codes | Period | |||
| Own shares | ||||
| Held by the company itself | ||||
| Amount of capital held |
8721 | |||
| Number of shares |
8722 | |||
| Held by a subsidiary | ||||
| Amount of capital held |
8731 | |||
| Number of shares |
8732 | |||
| Commitments to issuing shares | ||||
| Owing to the exercise of conversion rights | ||||
| Amount of outstanding convertible loans |
8740 | |||
| Amount of capital to be subscribed |
8741 | |||
| Corresponding maximum number of shares to be issued | 8742 | |||
| Owing to the exercise of subscription rights | ||||
| Number of outstanding subscription rights |
8745 | |||
| Amount of capital to be subscribed |
8746 | |||
| Corresponding maximum number of shares to be issued | 8747 | |||
Authorised capital not issued |
8751 |
| Codes | Period | |
|---|---|---|
| Shares issued, non-representing capital | ||
| Distribution | ||
| Number of shares |
8761 | |
| Number of voting rights attached thereto |
8762 | |
| Allocation by shareholder | ||
| Number of shares held by the company itself |
8771 | |
| Number of shares held by its subsidiaries |
8781 | |
ADDITIONAL NOTES REGARDING CONTRIBUTIONS (INCLUDING CONTRIBUTIONS IN THE FORM OF SERVICES OR KNOW-HOW)
Period
As reflected in the notifications received by the company pursuant to article 7:225 of the Belgian Companies and Associations Code, article 14 fourth paragraph of the law of 2 May 2007 on the publication of major holdings and article 5 of the Royal Decree of 21 August 2008 on further rules for certain multilateral trading facilities.
Period Provision liquidation 10.800.900,00 Provision others 69.952,00
| BREAKDOWN OF AMOUNTS PAYABLE WITH AN ORIGINAL TERM OF MORE THAN | ||
|---|---|---|
| ONE YEAR, ACCORDING TO THEIR RESIDUAL MATURITY Current portion of amounts payable after more than one year falling due within one year |
||
| Financial debts | ||
| Subordinated loans | ||
| Unsubordinated debentures | ||
| Leasing and other similar obligations | ||
| Credit institutions | ||
| Other loans | ||
| Trade debts | ||
| Suppliers | ||
| Bills of exchange payable | ||
| Advance payments on contracts in progress | ||
| Other amounts payable | ||
| Total current portion of amounts payable after more than one year falling due within one year |
(42) | |
| Amounts payable with a remaining term of more than one year, yet less than 5 years | ||
| Financial debts | ||
| Subordinated loans | ||
| Unsubordinated debentures | ||
| Leasing and other similar obligations | ||
| Credit institutions | ||
| Other loans | ||
| Trade debts | ||
| Suppliers | ||
| Bills of exchange payable | ||
| Advance payments on contracts in progress | ||
| Other amounts payable | ||
| Total amounts payable with a remaining term of more than one year, yet less than 5 years |
||
| Amounts payable with a remaining term of more than 5 years | ||
| Financial debts | ||
| Subordinated loans | ||
| Unsubordinated debentures Leasing and other similar obligations Credit institutions Other loans Trade debts Suppliers Bills of exchange payable Advance payments on contracts in progress Other amounts payable Amounts payable with a remaining term of more than 5 years |
| AMOUNTS PAYABLE GUARANTEED (included in accounts 17 and 42/48 of liabilities) |
|
|---|---|
| Amounts payable guaranteed by the Belgian government agencies | |
| Financial debts | |
| Subordinated loans | |
| Unsubordinated debentures | |
| Leasing and other similar obligations | |
| Credit institutions | |
| Other loans | |
| Trade debts | |
| Suppliers | |
| Bills of exchange payable | |
| Advance payments on contracts in progress | |
| Remuneration and social security | |
| Other amounts payable | |
Total of the amounts payable guaranteed by the Belgian government agencies |
|
| Amounts payable guaranteed by real securities given or irrevocably promised by the company on its own assets |
|
| Financial debts | |
| Subordinated loans | |
| Unsubordinated debentures | |
| Leasing and other similar obligations | |
| Credit institutions | |
| Other loans | |
| Trade debts | |
| Suppliers | |
| Bills of exchange payable | |
| Advance payments on contracts in progress | |
| Taxes, remuneration and social security | |
| Taxes | |
| Other amounts payable | |
| Total amounts payable guaranteed by real securities given or irrevocably promised by the company on its own assets |
| TAXES, REMUNERATION AND SOCIAL SECURITY | |
|---|---|
| Taxes (headings 450/3 and 178/9 of liabilities) |
|
| Outstanding tax debts | |
| Accruing taxes payable | |
| Estimated taxes payable | |
| Remuneration and social security (headings 454/9 and 178/9 of liabilities) |
|
| Amounts due to the National Social Security Office | |
| Other amounts payable in respect of remuneration and social security |
Period
| OPERATING RESULTS | |||
|---|---|---|---|
| Codes | Period | Preceding period | |
| OPERATING INCOME | |||
| Net turnover | |||
| Allocation by categories of activity | |||
| Allocation by geographical market | |||
| Other operating income | |||
| Operating subsidies and compensatory amounts received from public authorities |
740 | ||
| OPERATING CHARGES | |||
| Employees for whom the company submitted a DIMONA declaration or who are recorded in the general personnel register |
|||
| Total number at the closing date | 9086 | ||
| Average number of employees calculated in full-time equivalents | 9087 | 9,0 | |
| Number of actual hours worked | 9088 | 7.786 | |
| Personnel costs | |||
| Remuneration and direct social benefits | 620 | 937.087,34 | |
| Employers' contribution for social security | 621 | 193.991,17 | |
| Employers' premiums for extra statutory insurance | 622 | 107.542,25 | |
| Other personnel costs | 623 | 6.965,28 | |
| Retirement and survivors' pensions | 624 | ||
| Codes | Period | Preceding period | |
|---|---|---|---|
| Provisions for pensions and similar obligations | |||
| Appropriations (uses and write-backs) (+)/(-) | 635 | ||
| Depreciations | |||
| On stock and contracts in progress | |||
| Recorded | 9110 | ||
| Written back | 9111 | ||
| On trade debtors | |||
| Recorded | 9112 | ||
| Written back | 9113 | ||
| Provisions for liabilities and charges | |||
| Appropriations | 9115 | 42.167,00 | |
| Uses and write-backs | 9116 | ||
| Other operating charges | |||
| Taxes related to operation | 640 | 404,63 | |
| Other | 641/8 | 868,88 | |
| Hired temporary staff and personnel placed at the company's disposal |
|||
| Total number at the closing date | 9096 | ||
| Average number calculated in full-time equivalents | 9097 | 0,4 | |
| Number of actual hours worked | 9098 | 756 | |
| Costs to the company | 617 | 42.843,00 | |
| N°. 0888728945 |
C-cap 6.11 | ||
|---|---|---|---|
| FINANCIAL RESULTS | |||
| Codes | Period | Preceding period | |
| RECURRING FINANCIAL INCOME | |||
| Other financial income | |||
| Subsidies paid by public authorities, added to the profit and loss account |
|||
| Capital subsidies | 9125 | ||
| Interest subsidies | 9126 | ||
| Allocation of other financial income | |||
| Exchange differences realized | 754 | ||
| Other | |||
| positive foreign exchange differences | 6.329,40 | 29,99 | |
| RECURRING FINANCIAL CHARGES | |||
Depreciation of loan issue expenses |
6501 | ||
Capitalised interests |
6502 | ||
| Depreciations on current assets | |||
| Recorded | 6510 | ||
| Written back | 6511 | ||
| Other financial charges | |||
| Amount of the discount borne by the company, as a result of negotiating amounts receivable |
653 | ||
| Provisions of a financial nature | |||
| Appropriations | 6560 | ||
| Uses and write-backs | 6561 | ||
| Allocation of other financial costs | |||
| Exchange differences realized Results from the conversion of foreign currencies |
654 655 |
||
| Other | |||
| 8.513,10 | 27.894,19 |
| N°. 0888728945 |
C-cap 6.12 | ||
|---|---|---|---|
| INCOME AND CHARGES OF EXCEPTIONAL SIZE OR FREQUENCY | |||
| Codes | Period | Preceding period | |
NON-RECURRING INCOME |
76 | 1.110.492,72 | 109.940.722,74 |
Non-recurring operating income |
(76A) | 1.110.492,72 | |
| Write-back of depreciation and of amounts written off intangible and tangible fixed assets |
760 | ||
| Write-back of provisions for extraordinary operating liabilities and charges |
7620 | ||
| Capital profits on disposal of intangible and tangible fixed assets | 7630 | ||
| Other non-recurring operating income | 764/8 | 1.110.492,72 | |
| Non-recurring financial income |
(76B) | 109.940.722,74 | |
| Write-back of amounts written down financial fixed assets | 761 | ||
| Write-back of provisions for extraordinary financial liabilities and charges |
7621 | ||
| Capital profits on disposal of financial fixed assets | 7631 | ||
| Other non-recurring financial income | 769 | 109.940.722,74 | |
NON-RECURRING CHARGES |
66 | 8.500.900,00 | 100.955.668,19 |
| Non-recurring operating charges | (66A) | 8.500.900,00 | 2.327.785,00 |
| Non-recurring depreciation of and amounts written off formation expenses, intangible and tangible fixed assets |
660 | ||
| Provisions for extraordinary operating liabilities and charges: appropriations (uses) (+)/(-) |
6620 | 8.500.900,00 | -39.357.213,17 |
| Capital losses on disposal of intangible and tangible fixed assets | 6630 | ||
| Other non-recurring operating charges | 664/7 | 41.684.998,17 | |
| Non-recurring operating charges carried to assets as restructuring costs (-) |
6690 | ||
| Non-recurring financial charges |
(66B) | 98.627.883,19 | |
| Amounts written off financial fixed assets | 661 | ||
| Provisions for extraordinary financial liabilities and charges - appropriations (uses) (+)/(-) |
6621 | ||
| Capital losses on disposal of financial fixed assets | 6631 | ||
| Other non-recurring financial charges | 668 | 98.627.883,19 | |
| Non-recurring financial charges carried to assets as restructuring costs (-) |
6691 |
| Codes | Period | |
|---|---|---|
| INCOME TAXES | ||
| Income taxes on the result of the period |
9134 | 2.030,27 |
| Income taxes paid and withholding taxes due or paid | 9135 | |
| Excess of income tax prepayments and withholding taxes paid recorded under assets | 9136 | |
| Estimated additional taxes | 9137 | 2.030,27 |
| Income taxes on the result of prior periods |
9138 | |
| Additional income taxes due or paid | 9139 | |
| Additional income taxes estimated or provided for | 9140 | |
| Major reasons for the differences between pre-tax profit, as it results from the annual accounts, and estimated taxable profit |
| 9139 | |
|---|---|
| 9140 | |
| Period | |
| Period | |
| 325.130.612,85 | |
| 9142 | 220.088.353,59 |
| 105.042.259,26 | |
| 9144 | |
| Codes 9141 |
| Codes | Period | Preceding period | ||
|---|---|---|---|---|
| VALUE-ADDED TAXES AND TAXES BORNE BY THIRD PARTIES | ||||
| Value-added taxes charged | ||||
| To the company (deductible) | 9145 | 761.783,03 | 3.402.963,59 | |
| By the company | 9146 | 251.456,07 | 12.326,27 | |
| Amounts withheld on behalf of third party by way of | ||||
| Payroll withholding taxes | 9147 | 539.324,30 | ||
| Withholding taxes on investment income | 9148 | |||
| N°. 0888728945 |
C-cap 6.14 | |
|---|---|---|
| RIGHTS AND COMMITMENTS NOT REFLECTED IN THE BALANCE SHEET | ||
| Codes | Period | |
| PERSONAL GUARANTEES PROVIDED OR IRREVOCABLY PROMISED BY THE COMPANY AS SECURITY FOR DEBTS AND COMMITMENTS OF THIRD PARTIES |
9149 | 11.977.990,12 |
| Of which | ||
| Bills of exchange in circulation endorsed by the company | 9150 | |
| Bills of exchange in circulation drawn or guaranteed by the company | 9151 | |
| Maximum amount for which other debts or commitments of third parties are guaranteed by the company |
9153 | |
| REAL GUARANTEES | ||
| Real guarantees provided or irrevocably promised by the company on its own assets as security of debts and commitments of the company Mortgages |
||
| Book value of the immovable properties mortgaged | 91611 | |
| Amount of registration | 91621 | |
| For irrevocable mortgage mandates, the amount for which the agent can take registration |
91631 | |
| Pledging of goodwill | ||
| Maximum amount up to which the debt is secured and which is the subject of registration |
91711 | |
| For irrevocable mandates to pledge goodwill, the amount for which the agent can take the inscription |
91721 | |
| Pledging of other assets or irrevocable mandates to pledge other assets | ||
| Book value of the immovable properties mortgaged | 91811 | |
| Maximum amount up to which the debt is secured | 91821 | |
| Guarantees provided or irrevocably promised on future assets | ||
| Amount of assets in question | 91911 | |
| Maximum amount up to which the debt is secured | 91921 | |
| Vendor's privilege | ||
| Book value of sold goods | 92011 | |
| Amount of the unpaid price | 92021 |
| Codes | Period | |
|---|---|---|
| Real guarantees provided or irrevocably promised by the company on its own assets as security of debts and commitments of third parties |
||
| Mortgages | ||
| Book value of the immovable properties mortgaged | 91612 | |
| Amount of registration | 91622 | |
| For irrevocable mortgage mandates, the amount for which the agent can take registration |
91632 | |
| Pledging of goodwill | ||
| Maximum amount up to which the debt is secured and which is the subject of registration | 91712 | |
| For irrevocable mandates to pledge goodwill, the amount for which the agent can take the inscription |
91722 | |
| Pledging of other assets or irrevocable mandates to pledge other assets | ||
| Book value of the immovable properties mortgaged | 91812 | |
| Maximum amount up to which the debt is secured | 91822 | |
| Guarantees provided or irrevocably promised on future assets | ||
| Amount of assets in question | 91912 | |
| Maximum amount up to which the debt is secured | 91922 | |
| Vendor's privilege | ||
| Book value of sold goods | 92012 | |
| Amount of the unpaid price | 92022 | |
| Codes | Period | ||
|---|---|---|---|
| GOODS AND VALUES, NOT REFLECTED IN THE BALANCE SHEET, HELD BY THIRD PARTIES IN THEIR OWN NAME BUT FOR THE BENEFIT AND AT THE RISK OF THE COMPANY |
|||
| SUBSTANTIAL COMMITMENTS TO ACQUIRE FIXED ASSETS | |||
| SUBSTANTIAL COMMITMENTS TO DISPOSE OF FIXED ASSETS | |||
| FORWARD TRANSACTIONS | |||
| Goods purchased (to be received) |
9213 | ||
| Goods sold (to be delivered) |
9214 | ||
| Currencies purchased (to be received) |
9215 | ||
| Currencies sold (to be delivered) |
9216 | ||
Period COMMITMENTS RELATING TO TECHNICAL GUARANTEES IN RESPECT OF SALES OR SERVICES
| N°. | 0888728945 | C-cap 6.14 | ||
|---|---|---|---|---|
| Period | ||||
| AMOUNT, NATURE AND FORM CONCERNING LITIGATION AND OTHER IMPORTANT COMMITMENTS | ||||
| MEMBERS | SETTLEMENT REGARDING THE COMPLEMENTARY RETIREMENT OR SURVIVORS' PENSION FOR PERSONNEL AND BOARD |
Brief description
Measures taken to cover the related charges
| Code | Period | ||
|---|---|---|---|
| PENSIONS FUNDED BY THE COMPANY ITSELF | |||
| Estimated amount of the commitments resulting from past services |
9220 | ||
| Methods of estimation | |||
| Period | |||
| NATURE AND FINANCIAL IMPACT OF SIGNIFICANT EVENTS AFTER THE CLOSING DATE not reflected in the balance sheet or income statement |
Explained in VOL 6.20
| N°. | 0888728945 | C-cap 6.14 | |
|---|---|---|---|
| Period | |||
| SALE OR PURCHASE | COMMITMENTS TO PURCHASE OR SALE AVAILABLE TO THE COMPANY AS ISSUER OF OPTIONS FOR | ||
| Put option the company holds over the investment of the remaining 2% of NN2 with the strike price of EUR 20.0 million that the Company can exercise between 1 February 2020 and 31 July 2022. |
20.000.000,00 | ||
| Period | |||
| REFLECTED IN THE BALANCE SHEET | NATURE, COMMERCIAL OBJECTIVE AND FINANCIAL CONSEQUENCES OF TRANSACTIONS NOT If the risks and benefits resulting from such transactions are of any meaning and if publishing such risks and benefits is necessary to appreciate the financial situation of the company |
||
| We refer to the put option as described above and in C 6.20. | |||
| Period | |||
| cannot be calculated) | OTHER RIGHTS AND COMMITMENTS NOT REFLECTED IN THE BALANCE SHEET (including those that | ||
| 2019 the Company was a guarantor under the & Marketing AG by Trafigura. Both guarantees have been released on completion of the Restructuring at 31 July 2019. |
Until 31 July 2019 the Company was the holding company of the Nyrstar Group. In addition, until 31 July USD 650 million Trade Finance Framework Agreements ("TFFA) and under the USD 250 million Bridge Finance Facility Agreement "("BFFA") both provided to the Company's subsidiary at that time, Nyrstar Sales |
11.977.990,12 | |
| Operating Group (or indemnified by NN2 is indemnified. (see 2.3 in C6.20) |
Additionally, Nyrstar NV has been released of liabilities for existing financial indebtedness and obligations owed under parent company guarantees of commercial or other obligations of the current members of the to the extent such guarantee liabilities are not released). The disclosed amount represents the Parent Company guarantees to third parties that have not yet been released per 31.12.2020 for which the company |
||
| Codes | Period | Preceding period | |
|---|---|---|---|
| AFFILIATED COMPANIES | |||
| Financial fixed assets |
(280/1) | 0,88 | |
| Participating interests | (280) | 0,88 | |
| Subordinated amounts receivable | 9271 | ||
| Other amounts receivable | 9281 | ||
| Amounts receivable | 9291 | ||
| Over one year | 9301 | ||
| Within one year | 9311 | ||
| Current investments |
9321 | ||
| Shares | 9331 | ||
| Amounts receivable | 9341 | ||
Amounts payable |
9351 | ||
| Over one year | 9361 | ||
| Within one year | 9371 | ||
| Personal and real guarantees | |||
| Provided or irrevocably promised by the company as security for debts or commitments of affiliated companies |
9381 | ||
| Provided or irrevocably promised by affiliated companies as security for debts or commitments of the company |
9391 | ||
Other significant financial commitments |
9401 | ||
| Financial results | |||
| Income from financial fixed assets | 9421 | ||
| Income from current assets |
9431 | 5.009.157,77 | |
| Other financial income |
9441 | 27.894,19 | |
| Debt charges |
9461 | 748.986,64 | |
| Other financial charges |
9471 | 29,99 | |
| Disposal of fixed assets | |||
| Capital profits realised |
9481 | ||
| Capital losses realised |
9491 |
| Codes | Period | Preceding period | |
|---|---|---|---|
| ASSOCIATED COMPANIES | |||
Financial fixed assets |
9253 | ||
| Participating interests | 9263 | ||
| Subordinated amounts receivable | 9273 | ||
| Other amounts receivable | 9283 | ||
| Amounts receivable | 9293 | ||
| Over one year | 9303 | ||
| Within one year | 9313 | ||
Amounts payable |
9353 | ||
| Over one year | 9363 | ||
| Within one year | 9373 | ||
| Personal and real guarantees | |||
| Provided or irrevocably promised by the company as security for debts or commitments of affiliated companies |
9383 | ||
| Provided or irrevocably promised by affiliated companies as security for debts or commitments of the company |
9393 | ||
| Other significant financial commitments |
9403 | ||
| COMPANIES LINKED BY PARTICIPATING INTERESTS | |||
| Financial fixed assets |
9252 | ||
| Participating interests | 9262 | ||
| Subordinated amounts receivable | 9272 | ||
| Other amounts receivable | 9282 | ||
| Amounts receivable | 9292 | ||
| Over one year | 9302 | ||
| Within one year | 9312 | ||
| Amounts payable | 9352 | ||
| Over one year | 9362 | ||
| Within one year | 9372 | ||
TRANSACTIONS WITH AFFILIATED PARTIES BEYOND NORMAL MARKET CONDITIONS
Mention of these transactions if they are significant, including the amount of the transactions, the nature of the link, and all information about the transactions that should be necessary to get a better understanding of the financial situation of the company
The relationship with Trafigura is disclosed further in C 6.20.
| Codes | Period | ||
|---|---|---|---|
| DIRECTORS AND MANAGERS, INDIVIDUALS OR LEGAL PERSONS WHO CONTROL THE COMPANY DIRECTLY OR INDIRECTLY WITHOUT BEING ASSOCIATED THEREWITH, OR OTHER COMPANIES CONTROLLED DIRECTLY OR INDIRECTLY BY THESE PERSONS |
|||
Amounts receivable from these persons |
9500 | ||
| Principal conditions regarding amounts receivable, rate of interest, duration, any amounts repaid, cancelled or written off |
|||
Guarantees provided in their favour |
9501 | ||
| Other significant commitments undertaken in their favour | 9502 | 69.952,00 | |
| Amount of direct and indirect remunerations and pensions, reflected in the income statement, as long as this disclosure does not concern exclusively or mainly, the situation of a single identifiable person |
|||
| To directors and managers | 9503 | 440.000,00 | |
| To former directors and former managers | 9504 | ||
| Codes | Period | ||
|---|---|---|---|
| THE AUDITOR(S) AND THE PERSONS WHOM HE (THEY) IS (ARE) COLLABORATING WITH |
|||
| Auditors' fees |
9505 | 160.000,00 | |
| Fees for exceptional services or special assignments executed within the company by the auditor |
|||
| Other audit assignments |
95061 | ||
| Tax consultancy assignments |
95062 | ||
| Other assignments beyondthe audit |
95063 | ||
| Fees for exceptional services or special assignments executed within the company by people the auditor(s) is (are collaborating with |
|||
| Other audit assignments |
95081 | ||
| Tax consultancy assignments |
95082 | ||
| Other assignments beyondthe audit |
95083 | ||
Mentions related to article 3:64, § 2 and § 4 of the Belgian Companies and Associations Code
The company has prepared and published consolidated annual accounts and a consolidated annual report*
The company has not prepared consolidated annual accounts and a consolidated annual report, because of an exemption for the following reason(s)*
The company and its subsidiaries exceed, on a consolidated basis, not more than one of the criteria mentioned in article 1:26 of the Belgian Companies and Associations Code*
The company only has subsidiaries that, considering the evaluation of the consolidated capital, the consolidated financial position or the consolidated result, individually or together, are of negligible interestError! Bookmark not defined. (article 3:23 of the Belgian Companies and Associations Code)
The company itself is a subsidiary of a parent company that prepares and publishes consolidated annual accounts, in which the annual accounts are integrated by consolidation*
Name, full address of the registered office and, if it concerns companies under Belgian law, the company registration number of the parent company(ies) and the indication if this (these) parent company(ies) prepares (prepare) and publishes (publish) consolidated annual accounts, in which the annual accounts are included by means of consolidation**:
If the parent company(ies) is (are) (a) company(ies) governed by foreign law, the location where the abovementioned annual accounts are available**:
* Strike out what does not apply.
** Where the annual accounts of the company are consolidated at different levels, the information should be given, on the one hand at the highest and on the other at the lowest level of companies of which the company is a subsidiary and for which consolidated accounts are prepared and published. 34/64
Valuation rules Nyrstar NV (hereafter "the Company")
The valuation rules are drafted in accordance with the statements of the Royal Decree dd. 29 April 2019 to the execution of the Belgian Code of Companies and Associations relating to valuation rules. As a consequence of the Restructuring (as defined below) and the outcomes of the 9 December 2019 Extraordinary Shareholders meeting ("EGM"), where the shareholders rejected the continuation of the Company's activities, the 31 December 2020 financial statements of the Company are prepared on a discontinuity basis. For further information on the outcomes of the Restructuring, please refer to "Related party disclosures".
Valuation rules applied to the Company's balance sheet prepared on a discontinuity basis include:
Participations are accounted for at the lower of realisation values and historical purchase cost.
Current assets, which include input VAT on ongoing expenses for which the company either received or expects to receive refund from the relevant authorities, and current liabilities are recognised at their realisation values. At 31 December 2020 the realization values equal nominal values. Current assets and liabilities denominated in foreign currencies are valued at the closing rates on the end of the financial year. The negative (unrealized) exchange rate differences are accounted for in the income statement. Based on the principles of prudence, the positive, unrealized exchange rate differences at balance sheet date are accounted for as deferred income on the balance sheet.
A provision is recognized to reflect liabilities and charges, resulting from a past event for which the nature is clearly defined, is considered probable or certain at balance sheet date, but for which the amount is uncertain. Provisions resulting from prior accounting years are regularly reviewed and are reversed if they are no longer required or the risks and charges are realized.
The income statement reflects all revenue realized and expenses incurred during the accounting period on an accrual basis, regardless the date on which these expenses and income are paid or collected.
Adjustments recorded with respect to the valuation and the classification of certain balance sheet items as a result of the Company applying the discontinuity basis for the preparation of the 31 December 2020 financial statements:
a) The formation expenses were fully depreciated as required by Article 3:6 of the Royal Decree d.d. 29 April 2019 to the execution of the Belgian Code of Companies and Associations in the 2018 financial statements.
b) Explanation on determination of expected probable realization value in accordance with Article 3:6 of the Royal Decree d.d. 29 April 2019 to the execution of the Belgian Code of Companies and Associations.
At 31 December 2020, the Company has, in its current investments, a 2% investment in NN2 NewCo Limited ("NN2") at the cost of EUR 15,395,000 representing cost of this investment for the Company through the issuance by NN2 of a 2% equity in NN2 to the Company with the remaining 98% equity stake issued to Trafigura New Holdco. The investment in NN2 as at 31 December 2020 of EUR 15,395,000 is carried at the lower of cost and expected probable realisation value, taking into consideration that the Company has a Put Option (as defined below) enabling it to sell all (but not part only) of its 2% holding in NN2 to Trafigura at a price equal to EUR 20 million in aggregate payable to the Company resulting in no impairment required at 31 December 2020. This Put Option can be exercised by the Company until 31 July 2022, subject to limited triggers allowing earlier termination of the Put Option before 31 July 2022. NN1 NewCo Limited ("NN1"), in which the Company had a 100% participating interests valued at USD 1, was struck off and dissolved from the struck off and dissolved from the Register of Companies in the United Kingdom during the year ended 31 December 2020.
c) The decision of the 9 December 2019 EGM not to continue the Company's activities resulted in the requirement for the Company to recognize a provision for discontinuation representing the estimated costs that the Company expects to incur before the completion of the liquidation. At 31 December 2020 the Company recognised a provision for discontinuation of EUR 10.8 million (2019: EUR 2.3 million) representing the estimated costs that the Company expects to incur before the completion of a liquidation process that would be finalised before the end of 2027 (2019: before the end of 2020).
Following legal and regulatory actions have been considered when determining the amount of the provision as at 31 December 2020.
The EGM of 9 December 2019 and the order of the President of the Antwerp Enterprise Court of 26 June 2020
As described above, at 9 December 2019, the EGM was held to deliberate on the continuation of the Company's activities and a proposed capital decrease. The shareholders rejected the continuation of the Company's activities. The shareholders also rejected the proposed capital reduction, as a result of which it was not carried out. The Board of Directors of the Company had taken the necessary measures to prepare the necessary reports with its statutory auditor and had convened a new EGM to formally consider a proposal for liquidation. Such EGM was first scheduled to be held on 25 March 2020 but had to be postponed due to the Covid-19 outbreak and corresponding restrictions that had been introduced in Europe. The Company re-convened such EGM on 30 April 2020 for 2 June 2020 and, if the required attendance quorum would not be met, 30 June 2020.
Certain shareholders initiated summary proceedings before the court of Antwerp to request the court to order that the decision on the dissolution of the Company, following the 9 December 2019 EGM, be postponed (i) until three months after a final report will have been issued by a body of experts whose appointment is requested in separate proceedings before the court, or, alternatively (ii) until three months after a final decision will have been rendered in the aforementioned proceedings regarding the appointment of a body of experts. On 26 June 2020, the court of Antwerp dismissed the minority shareholders' claim for a postponement until three months after a final report will have been issued by a body of experts whose appointment is requested. However, the court did accept their claim for a
postponement of the decision on dissolution of the Company until three months after a final decision will have been rendered in the proceedings regarding the appointment of a body of experts. Consequently, the (second) EGM planned for 30 June 2020 with the resolutions regarding the proposal for dissolution of the Company as agenda items was postponed, in compliance with the 26 June 2020 court order.
As a result and considering the legal proceedings referred to above, the Company expects that the liquidation process will take longer than previously expected. The delayed decision on the proposal for dissolution of the Company and the appointment of a liquidator may negatively impact the Company's liquidity position as the Company continues to incur running costs and costs in respect of the legal proceedings above. If the appointment of the liquidator is further delayed beyond what is currently expected or not approved by the shareholders or if the costs are higher than currently expected and there are no distributions in respect of the Company's holding, the Company may need to secure additional funding. There is a risk that such additional funding may not be available to the Company or may not be available at acceptable conditions. The company may also consider in such case to exercise the put option of its 2% holding in NN2. We refer in this respect to the related party disclosures included in the annual accounts for the financial year ended 31 December 2020 in respect of the mandatory prepayment obligations under the Limited Recourse Loan Facility that will apply to the proceeds of the Put Option.
Summary proceedings relating to the appointment of a panel of Experts
On 27 April 2020, a group of shareholders summoned the Company in summary proceedings before the President of the Antwerp Enterprise Court (Antwerp division). The claim of the plaintiff shareholders aimed at having a panel of experts appointed in accordance with article 7:160 of the Belgian Companies and Associations Code. This procedure was initiated in court on 5 May 2020. The court hearing took place on 15 September 2020.
On 30 October 2020, the President of the Antwerp Enterprise Court (Antwerp division) issued an order in which she upheld the plaintiff shareholders' claim. The court order includes, but is not limited to, the following elements:
*A panel of three experts is appointed to examine:
i.whether the transactions between the former Nyrstar group and the Trafigura group on and after 9 November 2015 were concluded in accordance with the "at arm's length" principle and at normal commercial conditions and, if not, to assess the direct and indirect damage suffered by the Company as a result of violations of this principle;
ii.whether the conditions for the transfer of all rights under the agreements between Talvivaara Mining Company group and the Company, from the Company to Terrafame, Winttal Oy Ltd. and subsequently to Terrafame Mining, were market-conform and, if not, to assess the direct and indirect damage suffered by Nyrstar as a result of that transfer; and
iii.what caused the liquidity crisis, as well as whether it was necessary to conclude the binding term sheet, the TFFA and the Lock-up agreement, as well as to advise whether the terms and conditions of the aforementioned agreements were market-conform and, if not, to assess the damage suffered by Nyrstar by entering into those agreements.
*The Company must deposit an advance of EUR 121,000 with the Registry to cover the costs of the panel of experts.
The costs and duration of the investigation depend on various factors that are very difficult to foresee. In view of the broad investigative remit, the Company expects the expert investigation to last several years.
The Company reviewed the court order together with its legal advisors and decided to lodge an appeal with the Antwerp Court of Appeal. The Company has filed the application for appeal on 15 December 2020. The appeal will be heard on 3 June 2021. On 3 March 2021, the original plaintiff shareholders summoned Trafigura PTE Ltd. and Trafigura group PTE Ltd. to forcefully intervene in this appeal. In particular, they ask that the judgment the Court of Appeal would deliver be declared enforceable against and applicable to Trafigura PTE Ltd. and Trafigura group PTE Ltd. This demand of the original plaintiff shareholders will also be heard at the hearing of 3 June 2021, together with the aforementioned appeal.
On 4 February 2021, Trafigura PTE Ltd. and Trafigura group PTE Ltd. filed a third-party application against the aforementioned decision of 30 October 2020. The Company and the original plaintiff shareholders were also involved in these proceedings. In this third-party application, Trafigura PTE Ltd. and Trafigura group PTE Ltd. request that the President of the Antwerp Enterprise Court (Antwerp division) revoke its decision of 30 October 2020 with immediate effect and terminate the expert investigation, also vis-à-vis the Company and the original plaintiffs. The third-party application was introduced in court on 26 March 2021, as will be dealt with at the hearing of 15 June 2021.
On 9 February 2021, Trafigura PTE Ltd. and Trafigura group PTE Ltd. subsequently submitted a request for suspension of the 30 October 2020 decision to the Attachment Judge of the Antwerp Court of First Instance (Antwerp Division). The Company and the original plaintiff shareholders were again involved in this procedure. Trafigura PTE Ltd. and Trafigura group PTE Ltd. specifically request that the execution of the aforementioned decision be immediately suspended until a final judgment is reached in the third-party application proceedings mentioned earlier. The suspension request was introduced in court on 1 April 2021, and will be dealt with at the hearing of 24 June 2021.
Proceedings on the merits against (among others) the Company and its directors
On Friday 29 May 2020, a group of shareholders of the Company summoned, amongst others, the Company and its directors before the Antwerp Enterprise Court (Turnhout division). This writ of summons followed a notice of default received on 17 March 2020 by the directors and certain senior managers of the Company.
On Monday 9 November 2020, this group of shareholders issued a corrective writ of summons against (amongst others) the Company and its directors, which amended the writ of summons dated 29 May 2020 on certain points.
The plaintiffs in this procedure are making the following claims:
i.a minority claim on account of the Company against (amongst others) the current directors of the Company for alleged shortcomings in their management and breaches of the Belgian Companies Code and the Company's articles of association. This minority claim is a derivative claim, meaning that the proceeds will be paid to the Company (not the plaintiff shareholders). In particular, the plaintiffs request that the defendants are jointly and severally ordered to pay damages to the Company. The damages are estimated in the
(corrective) writ of summons at a minimum of EUR 1.2 billion;
ii.a direct liability claim against, among others, the current directors of the Company for errors which (allegedly) caused individual damages to the plaintiffs. On this basis, the plaintiffs claim personal damages provisionally estimated at EUR 1; iii.a claim against the Company to reimburse any costs incurred by the plaintiffs which are not reimbursed by the other defendants.
These proceedings were initiated on 18 November 2020; however, they were sent to the docket at the introductory hearing (at the request
of plaintiffs) pending the report of the panel of experts appointed by order of 30 October 2020 of the President of the Antwerp Enterprise Court (Antwerp division) (see above). Consequently, no procedural timetable or hearing date has yet been determined.
The Company and its Board of Directors formally contest the claims in the writ of summons and note that they will firmly defend themselves against the claims raised within the framework of these proceedings.
In addition, the Company learned that the same group of plaintiff shareholders has brought similar liability claims against certain former directors of the Company as well as certain companies of the Trafigura group. Neither the Company nor its current directors are currently party to these proceedings.
The Company learned that criminal complaints have been filed by shareholders. The Company shall cooperate with the judicial investigation.
The Executive Committee of the Belgian Financial Services and Markets Authority ("FSMA") decided in September 2019 to investigate the Company's policy regarding disclosure of information to the market. Initially, this investigation focused on the information disclosed on the commercial relationship of the Company with Trafigura.
In a press release dated 29 May 2020, the FSMA announced that the investigation would be expanded so as to also include information on the expected profit contribution and total costs for the Port Pirie smelter redevelopment in Australia and on the solvency and liquidity position of the Company at the end of 2018.
The Company is continuing to fully cooperate with the FSMA's inquiry.
In estimating the provision for discontinuation of EUR 10.8 million recognised at 31 December 2020, the Company assumes the liquidation process to complete approximately by the end of 2027, i.e. within approximately six years after the release of the 31 December 2020 financial statements. This timing is based upon the estimate that, taking into account the legal proceedings referred to above (on the basis of a reasonable expectation as to the timing of Belgian court proceedings), the liquidation process may take six years to complete. The amount of the provision is based on the estimated operating costs to be incurred before and during the liquidation process. These costs include costs of the liquidator, legal, accounting and audit costs, listing fees and other operating costs. The Company has also included the calculation of the provision for estimated costs of the panel of experts appointed by the Antwerp Enterprise Court (which decision the Company has appealed). The estimated amount of the provision assumes a stable run-rate of the cost of the liquidator and other costs to be incurred by the Company over the period until the completion of the liquidation process.
The estimated amount of the provision excludes any costs that the Company may incur in relation to the defense of the legal proceedings referred to above, as the majority of these costs will - or are assumed to - be covered by the Company's Directors & Officers ("D&O") insurance. The D&O insurer has refused coverage of the costs of the court appointed experts (as referred above) and, based on the current court order that the Company appealed, need to be covered by the Company. The actual costs will depend on the length of these legal proceedings, the level of involvement of the Company and any other elements which the Company can currently not yet foresee.
Should the liquidation process take longer than six years, the estimated costs to be incurred by the Company before the completion of the liquidation would be higher. Assuming the liquidation is completed by the end of 2029, the Company estimates the costs incurred during the liquidation process would increase to EUR 12.5 million. These additional costs in excess of the provision of EUR 10.8 million recognised at 31 December 2020 would further decrease the equity of the Company subsequent to 31 December 2020. If there are any additional costs or if the costs related to the legal proceedings noted above would not be covered by the Company's D&O insurance, neither of which is currently expected, it may require the Company to obtain additional funding beyond the proceeds from the exercise of the EUR 20 million Put Option (if exercised) minus the repayment of the outstanding amount drawn on the Limited Recourse Loan Facility (to be paid from the Put Option proceeds). In case the Company is unable to obtain such additional funding, the liquidation may not be a solvent liquidation.
The Company has recognised the ongoing operating costs that it incurred during the year ended 31 December 2020 as Services and other goods (Code 61). During the year ended 31 December 2020 the Company has utilised the provision for discontinuation of EUR 3,152,829, primarily to offset the ongoing operating costs. The utilisation of the provision is recognised in Non-recurring operating charges (Code 66A) net of the additions to the provision for discontinuation of EUR 11,653,729.
d) As at 31 December 2020 the Company had contingent liabilities amounting to EUR 12 million (2019: 235.2 million) provided or irrevocably promised by the Company for debts and commitments of third parties that are yet to be transferred to the Trafigura group. For more details refer to section 1.3. Release from parent company guarantees in favor of third parties in the "Related party disclosures".
The Company has assessed the potential impact of the COVID-19 outbreak on the recognition and measurement of the Company's assets and liabilities as at 31 December 2020. The Company's main asset is the 2% investment in the NN2. The Company has noted the press releases issued by Trafigura and the Nyrstar operating group, but has currently not received any indications of a significant impact of the Covid-19 outbreak on the Trafigura group which may impact the value of the Company's 2% investment in NN2 Newco Limited. In any event, the Company has a Put Option enabling it to sell its share in NN2 to Trafigura at a fixed price of EUR 20 million. The Company also uses the Limited Recourse Loan Facility with NN2 to fund its activities. The Company has currently not received any indications that NN2 or Trafigura would not be able to honor its obligations towards the Company. In the Company's view there are no additional potential significant impacts of the COVID-19 outbreak on the measurement of the Company's assets and liabilities at 31 December 2020.
At 9 December 2019 the EGM of the Company was held to deliberate on the continuation of the Company's activities and a proposed capital decrease. The shareholders rejected the continuation of the Company's activities. As the result of an order of 26 June 2020 of the President of the Antwerp Enterprise Court (Antwerp division), at the request of a group of shareholders, the Company is currently prohibited from holding a general meeting with the dissolution of the Company on the agenda until three months after a final decision on the appointment of a college of experts will have obtained res judicata effect. As such, these 31 December 2020 financial statements of the Company have been prepared on a discontinuity basis.
Under article 3:23 of the Belgian Code of Companies and Associations, a parent company that controls one or more subsidiaries is required to prepare consolidated financial statements, unless such subsidiaries have, in view of the consolidated assets, financial position or results that are only of a negligible significance. Given as at 31 December 2020 the Company did not control any significant subsidiary, the Company was not required to prepare consolidated financial statements for the year ended 31 December 2020. In accordance with article 12, §3, final paragraph, of the Royal Decree of 14 November 2007, the Company has prepared the 31 December 2020 standalone statutory financial statements in accordance with Belgian GAAP.
At the date of authorisation of the 31 December 2020 financial statements, the Company has assessed that, taking into account its available cash, cash equivalents, facilities that became available to the Company as committed facilities at the completion of the restructuring of the Company and its subsidiaries ("group" until 31 July 2019) ("Restructuring") at 31 July 2019, the ability to exercise the Put Option and its cash flow projections for the next 12 months from the authorisation by the Board of Directors of the 31 December 2020 financial statements, it has sufficient liquidity to meet its present obligations and cover working capital needs. The forecast available liquidity of the Company that includes the drawn amount of EUR 1.2 million at the date of this report (out of EUR 1.2 million) available to the Company for the second year (commencing on 1 August 2020) of Facility A of the Limited Recourse Loan Facility and EUR 1.5 million (out of EUR 5 million) of Facility B of the Limited Recourse Loan Facility which is also drawn down at the date at this report, is dependent on various matters including the possible appointment of a liquidator and his next steps, the existence and extent of the legal claims against the Company which could require funding of these legal proceedings and other matters not currently foreseen as described in section d) of the valuation rules above. As stated above, if the appointment of the liquidator is further delayed or not approved by the shareholders or if the costs are higher than currently expected, and there are no distributions in respect of the Company's holding, the Company may need to secure additional funding. There is a risk that such additional funding may not be available to the Company or may not be available at acceptable conditions. The Company may also consider in such case to exercise the Put Option of its 2% holding in NN2.
Between 1 August 2020 and 31 July 2021 the Company can draw up to EUR 1.2 million under the Limited Recourse Loan Facility for the Company's ongoing ordinary course operating activities. The Company can also draw on the separate EUR 5 million tranche of the Limited Recourse Loan Facility intended for the payment of certain costs related to litigation defense, unless covered by the D&O insurance, if required as explained in 1.4 of the Related party disclosures. Should the abovementioned funding options not provide the Company with sufficient funds when they are required, the Company can exercise its Put Option that enables the Company to sell its 2% investment in the Operating Group for EUR 20 million, repay the outstanding amount drawn on the Limited Recourse Loan Facility from the proceeds of the Put Option (refer to the Related party disclosures hereafter for further details) and generate sufficient funding for the Company.
In October 2018 the former Nyrstar group initiated a review of its capital structure (the "Capital Structure Review") in response to the challenging financial and operating conditions being faced by the Nyrstar group. The Capital Structure Review identified a very substantial additional funding requirement that the Nyrstar group was unable to meet without a material reduction of the Nyrstar group's indebtedness. As a consequence, the Capital Structure Review necessitated negotiations between the Nyrstar group's financial creditors that ultimately resulted in the restructuring of the Nyrstar group, which become effective on 31 July 2019 (the "Restructuring"). As a result of the Restructuring, Trafigura group Pte. Ltd., via its indirect 98% ownership of the new holding company NN2 become the ultimate parent company of the former (direct and indirect) subsidiaries of the Company (the "Operating Group") with the remaining 2% stake in NN2 (and thereby the Operating Group) being owned by the Company.
The agreements to which the Company is currently a party are discussed in further detail below.
The lock-up agreement ("Lock Up Agreement") entered into on 14 April 2019 between, among others, the Company and representatives of its key financial creditor groups, envisaged that the Company, Trafigura Pte Ltd ("Trafigura") and Nyrstar Holdings Limited ("Nyrstar Holdings"), a Trafigura special-purpose vehicle incorporated, amongst other things, for the purpose of implementing the Restructuring) would enter into a deed confirming their agreement in respect of (i) certain steps necessary for the implementation of the restructuring as envisaged in the Lock Up Agreement and (ii) the terms of the ongoing relationship between the Company and the Trafigura group (the "NNV-Trafigura Deed"). The NNV-Trafigura Deed was duly executed on 19 June 2019. Certain key terms of the NNV-Trafigura Deed can be summarised as follows.
Distribution policy: under the NNV-Trafigura Deed, Trafigura and Nyrstar Holdings have assumed obligations which are intended to ensure, as far as possible, that any profits realised by the Operating Group are distributed to the shareholders of NN2 (including the Company as 2% minority shareholder). To this end, Nyrstar Holdings has agreed to procure that: (i) the board of NN2 will meet at least on an annual basis to assess whether NN2 has any profits lawfully available for distribution (and if so, NN2 will make such distribution in accordance with applicable law); and (ii) NN2 and the other members of the Operating Group will not, under the terms of any financing or other agreement to which they are or shall be party (other than financing or other agreements entered into on arm's length terms with third parties), be subject to any limitations on making dividends or other distributions to their respective shareholders.
Drag / tag rights: under the terms of the NNV-Trafigura Deed, if Nyrstar Holdings or any Trafigura entity or entities which hold(s) the 98% stake in NN2 (being the "Majority Shareholder(s)") proposes at any time a transfer of any right or interest to a third party purchaser (on arms' length terms, for cash or non-cash consideration) that would result in a member of the Trafigura group holding 50% or less of the shares in NN2, then the Majority Shareholder(s) proposing the transfer will have the right to oblige the Company to transfer (a "drag right"),
and the Company will have an equivalent right to participate in such transfer (a "tag right"), its entire 2% equity stake in NN2 on the same terms and for the same consideration per share as for the Majority Shareholder(s).
NN2 change of control: the NNV-Trafigura Deed obliges Trafigura and Nyrstar Holdings to procure that the Trafigura group shall only implement any intragroup reorganisation which would result in at least 75% of the net assets (by value) of the Operating Group no longer being held by NN2 but being held by another member of the Trafigura group (the "Replacement HoldCo"), if (i) it is bona fide and undertaken in good faith, (ii) the financial position of Replacement Holdco is substantially the same as that of NN2 immediately prior to such intragroup reorganisation, (iii) arrangements are put in place such that shareholders of the Replacement Holdco (including the Company) have substantially equivalent rights and obligations with respect to Replacement Holdco as they did with respect to NN2, and (iv) the Company has an equity interest in the Replacement Holdco equivalent to its equity interest in NN2 immediately prior to the intragroup reorganisation, with substantially the same rights and protections. If such conditions are met, then the Company shall take all steps and provide such reasonable assistance as is necessary to effectuate the intragroup reorganisation, and shall cooperate in good-faith. Any costs reasonably incurred by the Company in doing so (including reasonable advisor fees), shall be borne by Trafigura.
Pursuant to the NNV-Trafigura Deed, the Company and Trafigura also agreed that Trafigura shall grant to the Company an option to require a Trafigura entity to purchase the Company's entire interest in NN2. The terms of this option are set out in a separate deed, dated 25 June 2019, between the Company, Trafigura and Nyrstar Holdings (the "Put Option Deed"). Under the terms of the Put Option Deed, the Company can put all (but not only a part) of its 2% holding in NN2 to Trafigura at a price equal to EUR 20 million (the "Put Option"). Refer in this respect to the related party disclosures in respect of the mandatory prepayment obligations under the Limited Recourse Loan Facility that will apply to the proceeds of the Put Option. The Put Option can be exercised by the Company until 31 July 2022, subject to limited triggers allowing earlier termination of the Put Option before 31 July 2022.
As stated above, prior to the effective date of the Restructuring which was 31 July 2019 (the "Restructuring Effective Date"), the Company was the ultimate parent company of the Nyrstar group, and had previously issued various parent company guarantees (the "PCGs") in respect of the obligations of its subsidiaries, including, but not limited to, two parent company guarantees (the "Trafigura PCGs") granted in respect of the primary financial obligations of the Company's indirect subsidiary at that time, Nyrstar Sales & Marketing AG ("NSM"), to Trafigura, namely under the USD 650 million Trade Finance Framework Agreement ("TFFA") and the USD 250 million Bridge Finance Facility Agreement ("BFFA"). The Trafigura PCGs as well as all other security and / or guarantees provided to Trafigura by the Operating Group in respect of the TFFA and BFFA, were released in full on the Restructuring Effective Date.
1.4. The Company's release from parent company guarantees in favour of third-parties and the Company's rights to indemnification by NN2 under the NNV-NN2 SPA
Prior to, and as part of the implementation of, the Restructuring, the Company entered into an agreement for the sale and transfer by the Company of substantially all of its assets including 100% of its shareholding in Nyrstar Netherlands (Holdings) BV and also its holdings (direct and indirect) in its subsidiaries, but excluding its shares in NN1, to NN2 (the "NNV-NN2 SPA"). Under the NNV-NN2 SPA, the Company benefits from contractual agreements with NN2 and Trafigura in respect of its release from, or indemnification for, liabilities for existing financial indebtedness and obligations owed to third parties in respect of financial, commercial or other obligations of the then current members of the Operating Group (the "PCGs"), such that those third parties should no longer have recourse to the Company. The release and / or indemnification obligations of NN2 from which the Company benefits can be summarised as follows.
-Release of PCGs and general indemnity: The NNV-NN2 SPA includes a commitment by NN2 to use reasonable endeavors to procure the release of obligations owed by the Company under third-party PCGs. This obligation is combined with an obligation on NN2 to indemnify the Company, to the extent such PCGs are not released, for any and all liabilities in relation to such PCGs in respect of the failure by the applicable member of the Operating Group to comply fully with its principal obligations.
-Indemnity for specified historic liabilities: Further, the NNV-NN2 SPA also contains an obligation on NN2 to indemnify the Company, to the extent not covered by the release and/or indemnification of PCGs mentioned above, in respect of certain specified liabilities, including certain liabilities arising in relation to certain historic disposals by the former Nyrstar group and/or from certain historic mine closures, which are specified in a schedule to the NNV-NN2 SPA.
-Limitation on recourse to the Company of former subsidiaries: To limit and release further any financial obligations on the Company, the NNV-NN2 SPA obliges NN2 to procure that, and the NNV-Trafigura Deed obliges Trafigura to procure that no former subsidiaries of the Company will make any demands for payment from the Company except (i) under the Limited Recourse Loan Facility (as defined below), (ii) as otherwise agreed following the completion of the restructuring; or (iii) to the extent that the Company has sufficient funds available (excluding any dividends or sale proceeds in respect of the Company's direct 2% shareholding in NN2).
1.5. Financial transactions with Trafigura entities - the Limited Recourse Loan Facility
On 23 July 2019, the Company entered into a EUR 13.5 million committed, limited recourse, loan facility (the "Limited Recourse Loan Facility") provided to it by NN2 (as "Lender"). The key terms of the Limited Recourse Loan Facility are described below. The Limited Recourse Loan Facility is made available in two separate tranches: (i) up to EUR 8.5 million to be applied towards the Company's ongoing ordinary course operating activities ("Facility A"); and (ii) up to EUR 5 million intended for the payment of certain costs related to litigation defense ("Facility B"). No security, collateral or guarantees have been granted in respect of the Company's obligations under the Limited Recourse Loan Facility.
As at 31 December 2020, the Company owed EUR 4.6 million (2019: EUR 3.0 million) under Facility A. Facility A can be used by the Company to cover day-to-day operating costs, including, without limitation, reasonable director and employee costs, D&O insurance premium (to the extent not paid prior to the Restructuring Effective Date), audit fees, legal costs (except those relating to litigation or other actual or threatened proceedings against the Company, which should be funded from Facility B (defined below)), listing fees and investor relations costs. The funding under Facility A is provided to the Company based on the quarterly cash flow forecast prepared by the Company and provided to Trafigura as a condition of the funding. The total quantum of funds to be made available under Facility A was agreed based on the Company's forecast operating costs for a five year period following the completion of the Restructuring, taking into account the ongoing operational services provided to the Company by NN2, as agreed in the NNV-NN2 SPA, for a period of three years
from the Restructuring Effective Date (or less subject to agreed early termination triggers) (the "Ongoing Services"). The Ongoing Services to be provided by NN2 to the Company include finance, tax, corporate counsel, IT and administration services. The provision of the Ongoing Services to the Company is intended to reduce the Company's operating costs in the period following the Restructuring Effective Date.
As at 31 December 2020, the Company had drawn EUR 0.9 million (2019: EUR Nil) under Facility B. Subject to the restrictions detailed below, Facility B can be applied by the Company towards payment or reimbursement of costs in respect of any litigation, proceeding, action or claims (including tax claims) made, asserted or threatened against the Company, NN1 or any of their current or former directors or officers (each being a "Claim").
Under Facility A, the Company can borrow up to EUR 3.7 million before 31 July 2020 and then up to a further EUR 1.2 million annually until 2024. Funding under Facility B can be drawn based on costs incurred in respect of any litigation, proceeding, action or claims (subject to the restrictions detailed below, and on the delivery of an invoice for such costs). Utilisation of each Facility is limited to a maximum of three drawings per financial quarter per Facility (excluding any PIK Loans (defined below)). As at the date of this report, the Company has drawn EUR 4.9 million under Facility A and EUR 1.5 million under Facility B.
The rate of interest on amounts outstanding under the Limited Recourse Loan Facility is the aggregate of EURIBOR plus a margin of 0.5% per annum. It shall be payable within 10 business days of the anniversary of the date on such amount was made available, provided that such interest will be capitalised if it has accrued for a period of one year or more and the Company has given a notice in the form prescribed by the Limited Recourse Loan Facility. Any interest which is capitalised shall be treated as a new loan (a "PIK Loan") under the relevant Facility. Any PIK Loan shall itself accrue interest, and that interest may also be capitalised. No payments of interest have been made by the Company as all payable interest until 31 December 2020 of EUR 15k (2019: Nil) has been capitalised into a new PIK Loan.
The Company must not use any amount borrowed under either Facility A or Facility B for funding (directly or indirectly) any of the costs related to asserting or bringing or assisting in the pursuit of claims (including any counterclaim or defense) against Trafigura, other members of the Trafigura group, NN2 and / or any Replacement Holdco, and / or any other member of the Operating Group), against any of such entities' current or former directors, officers, or advisers, against any creditor in respect of such entities (other than with the consent of NN2, such consent not to be unreasonably withheld or delayed) or in connection with any challenge to the Restructuring, including in relation to the TFFA and the BFFA or any other document contemplated by the Restructuring Implementation Deed.
If at any time after 31 July 2020, the amount of the available cash, after allowing for the minimum headroom amount of EUR 2 million in the period from and including the date of the Limited Recourse Loan Facility to but excluding the date falling oneyear after the Restructuring Effective Date, and EUR 1 million thereafter, of the Company (less any amount of the proceeds of any Facility B intended to be applied towards costs incurred by the Company to which Facility B Loan relates, but not yet so applied) exceeds EUR 1.5 million, the Company has to apply, within five business days of the excess cash arising, the relevant excess cash to prepay any amounts outstanding under Facility B. If any excess cash remains after such repayment, the Company shall apply 50% of that remaining excess cash to repay the outstanding amount under Facility A, and shall (to the extent permitted under applicable law and regulation) apply the remaining 50% of that excess cash towards payment of dividends to the Company's shareholders. The above only applies until the later of (i) the date on which the Company ceases to own its 2% equity interest in the Restructured Operating Group (such equity interest being as a result of a direct shareholding either in NN2 or in the Replacement Holdco (as defined above) - the "Company Equity Interest", and such date being the "Company Exit Date") and (ii) the receipt of all proceeds (subject to any deductions permitted / required under the terms of the Limited Recourse Loan Facility) from any disposal(s) of the Company Equity Interest which result(s) in the occurrence of the Company Exit Date (the "Disposal Proceeds").
Immediately upon receipt of any Disposal Proceeds, the Company shall procure that these shall be applied first to prepay any amount outstanding under Facility B, and secondly, if (i) any Disposal Proceeds remain after any required prepayment of Facility B, and (ii) the aggregate amount of all amounts outstanding under Facility A exceeds EUR 5 million, to prepay such Facility A amounts to or towards an aggregate amount of EUR 5 million.
The Company shall ensure that, if any distribution is paid to the Company's shareholders on or after the Company Exit Date, an amount equal to that distribution is applied to repay or prepay amount outstanding under Facility A before or simultaneously with such distribution.
The Company has also agreed that, if it receives any amounts from costs awards, damages awards and / or any other recovery from any counterparty to a Claim (as defined above) (such amounts constituting "Claim Proceeds"), then such Claim Proceeds must be used immediately to repay or prepay any amounts outstanding under Facility B.
Additionally, there are customary provisions that require mandatory prepayment of amounts outstanding under either or both Facility A and B in the case of an event of default followed by acceleration by the Lender.
The recourse of NN2 as Lender under the Limited Recourse Loan Facility in respect of repayment thereof or any other obligation of the Company thereunder is limited to the "Company Net Assets", being the assets of the Company (other than assets held or received on trust for a person which is not a member of the Company or its subsidiaries) having satisfied or provided for its liabilities (except for liabilities of the Company under the Limited Recourse Loan Facility and related finance documents which shall be disregarded for this purpose).
Further, to the extent that the Company Net Assets are insufficient to discharge the Company's obligations under the Limited Recourse Loan Facility, such obligations shall be deemed to be limited to the amount of the Company Net Assets, and the Lender shall not be entitled to make a claim and shall have no further recourse against the Company and the Company shall have no liability to pay or otherwise.
However, this limitation on NN2's recourse against the Company shall not apply to the extent that the value of the Company Net Assets is impaired, or NN2 suffers loss as a result of any breach by the Company of any provision of the Limited Recourse Loan Facility (or any related finance document) other than the repeating representations / warranties thereunder or the provisions requiring payment of interest /
fees or repayment / prepayment of principal thereunder.
1.5.6. Information, consultation and litigation strategy undertakings
If any Claim arises as a result of which the Company reasonably anticipates that it may make a utilisation under Facility B, the Company must:
-promptly notify NN2 and Trafigura of the Claim;
-subject to compliance with applicable law or confidentiality obligations to third parties, make available to NN2 and Trafigura all information in its possession and control as reasonably requested by NN2 or Trafigura in connection with assessing, contesting, disputing, defending, appealing or compromising the Claim, provided that NN2 and Trafigura shall maintain confidentiality and/or privilege with regard to such information;
-keep NN2 and Trafigura informed of the progress / developments in respect of the Claim, and promptly provide any correspondence or other information received in connection with the Claim;
-consult and take into account the views of NN2 and Trafigura as to the applicable legal advisors that will represent the Company, NN1, or the applicable directors or officers. NNV shall also procure that such legal advisors provide fee estimates as requested by NN2 or Trafigura;
-consult with and take into account the views of NN2 and Trafigura in relation to the conduct of the defence / negotiations / settlements in respect of the Claim; and
-whilst any amount is outstanding under Facility B in relation to a civil Claim, not make any admission of Liability, agreement, settlement or compromise in relation to that Claim without the prior written approval of Trafigura.
The Company must also consult with Trafigura prior to taking any action relating to insolvency or bankruptcy proceedings, including under Book XX of the Belgian Code of Economic Law.
The Company is also obliged to provide NN2 with certain financial information, including quarterly cashflow forecasts (and any revisions thereto required under the terms of the Limited Recourse Loan Facility), half-yearly financial statements and audited annual financial statements, drawn up on a consolidated basis (to the extent the Company has subsidiaries) and in accordance with the accounting principles agreed under the terms of the Limited Recourse Loan Facility.
At the completion of the Restructuring at 31 July 2019, the "Relationship Agreement" between Trafigura Group Pte Ltd and the Company (dated 9 November 2015) was terminated. The Relationship Agreement governed the relationship between the Company (and the broader Nyrstar group) and Trafigura Group Pte. Ltd. and its affiliated persons between its execution on 9 November 2015 and the completion of the Restructuring on 31 July 2019.
1.5.8 Other transactions with Trafigura
The Company has not entered into any commercial or other transactions with Trafigura except for the financial and legal services of EUR 0.7 million provided to the Company by NSM in the year ended 31 December 2020.
OTHER RIGHTS AND CONTINGENT LIABILITIES NOT REFLECTED IN THE BALANCE SHEET (including those which cannot be quantified)
Until 31 July 2019 the Company was the holding company of the Nyrstar group (consisting of the Company and its subsidiaries). At 31 July 2019, when the Restructuring of the Nyrstar group was finalised (refer to the 31 December 2019 financial statements for the details), the Company was released of liabilities for existing financial indebtedness and obligations owed under parent company guarantees of commercial or other obligations of the current members of the Operating Group (all former subsidiaries of the Nyrstar group excluding NN1) (or indemnified by NN2 to the extent such guarantee liabilities are not released). The disclosed amount of EUR 12 million represents the Parent Company guarantees to third parties that have not yet been released per 31 December 2020 for which the company is indemnified. (see "Related party disclosures").
In addition to the legal and regulatory claims and proceedings dislcosed above, the Company is subject to risks related to tax matters as the possible tax audits of certain fiscal years are not yet complete. Although the Company cannot estimate the risk related to these possible tax audits as remote, it currently does not consider it probable that the outcome of these possible tax audits will have significant impact on the financial position of the Company.
The Company has concluded that no additional provision is required at this time in relation to pending or potential tax reviews and that it is currently unable to quantify the potential risks, but it continues to monitor and assess the situation.
| N°. 0888728945 SOCIAL BALANCE SHEET Numbers of the joint industrial committees competent for the company: |
C-cap 10 | |||
|---|---|---|---|---|
| STATEMENT OF THE PERSONS EMPLOYED | ||||
| EMPLOYEES FOR WHOM THE COMPANY SUBMITTED A DIMONA DECLARATION OR WHO ARE RECORDED IN THE | ||||
| GENERAL PERSONNEL REGISTER | ||||
| During the period | Codes | Total | 1. Men | 2. Women |
| Average number of employees | ||||
| Full-time |
1001 | |||
| Part-time |
1002 | |||
| Total in full-time equivalents (FTE) |
1003 | |||
| Number of actual hours worked | ||||
| Full-time |
1011 | |||
| Part-time |
1012 | |||
| Total |
1013 | |||
| Personnel costs | ||||
| Full-time |
1021 | |||
| Part-time |
1022 | |||
| Total |
1023 | |||
| Benefits in addition to wages |
1033 | |||
| During the preceding period | Codes | P. Total | 1P. Men | 2P. Women |
| Average number of employees in FTE |
1003 | 9,0 | 5,0 | 4,0 |
| Number of actual hours worked |
1013 | 7.786 | 4.412 | 3.374 |
| Personnel costs |
1023 | 1.245.586,04 | 705.821,42 | 539.764,62 |
Benefits in addition to wages |
1033 |
| During the preceding period | Codes | ||
|---|---|---|---|
| Average number of employees in FTE Number of actual hours worked Personnel costs Benefits in addition to wages |
1003 1013 1023 1033 |
9,0 |
| N°. 0888728945 |
C-cap 10 | |||
|---|---|---|---|---|
| EMPLOYEES FOR WHOM THE COMPANY SUBMITTED A DIMONA DECLARATION OR WHO ARE RECORDED IN THE GENERAL PERSONNEL REGISTER (continuation) |
||||
| At the closing date of the period | Codes | 1. Full-time | 2. Part-time | 3. Total in full-time equivalents |
| Number of employees |
105 | |||
| By nature of the employment contract | ||||
| Contract for an indefinite period | 110 | |||
| Contract for a definite period | 111 | |||
| Contract for the execution of a specifically assigned work | 112 | |||
| Replacement contract | 113 | |||
| According to gender and study level | ||||
| Men | 120 | |||
| primary education | 1200 | |||
| secondary education | 1201 | |||
| higher non-university education | 1202 | |||
| university education | 1203 | |||
| Women | 121 | |||
| primary education | 1210 | |||
| secondary education | 1211 | |||
| higher non-university education | 1212 | |||
| university education | 1213 | |||
| By professional category | 130 | |||
| Management staff | ||||
| Salaried employees | 134 | |||
| Hourly employees | 132 |
| Codes | staff | 2. Hired temporary staff and personnel placed at the company's disposal |
|---|---|---|
| 150 | ||
| 151 | ||
| 152 | ||
| 1. Hired temporary |
| N°. 0888728945 |
C-cap 10 | |||
|---|---|---|---|---|
| LIST OF PERSONNEL MOVEMENTS DURING THE PERIOD | ||||
| ENTRIES | Codes | 1. Full-time | 2. Part-time | 3. Total in full-time equivalents |
| Number of employees for whom the company submitted a DIMONA declaration or who have been recorded in the general personnel register during the period |
205 | |||
| By nature of the employment contract | ||||
| Contract for an indefinite period | 210 | |||
| Contract for a definite period | 211 | |||
| Contract for the execution of a specifically assigned work | 212 | |||
| Replacement contract | 213 | |||
| DEPARTURES | Codes | 1. Full-time | 2. Part-time | 3. Total in full-time equivalents |
| Number of employees whose contract-termination date has been included in the DIMONA declaration or in the general personnel register during the period |
305 |
| Replacement contract | 213 | ||
|---|---|---|---|
| equivalents | |||
| Number of employees whose contract-termination date has been included in the DIMONA declaration or in the general personnel register during the period |
305 | ||
| By nature of the employment contract | |||
| Contract for an indefinite period | 310 | ||
| Contract for a definite period | 311 | ||
| Contract for the execution of a specifically assigned work . | 312 | ||
| Replacement contract | 313 | ||
| By reason of termination of contract | |||
| Retirement | 340 | ||
| Unemployment with extra allowance from enterprise | 341 | ||
| Dismissal | 342 | ||
| Other reason | 343 | ||
| Of which: the number of persons who continue to render services to the company at least half-time on |
|||
| a self-employment basis | 350 |
| C-cap 10 | |||
|---|---|---|---|
| Codes | Men | Codes | Women |
| Number of employees involved 5801 |
5811 | ||
| Number of actual training hours 5802 |
5812 | ||
| Net costs for the company 5803 |
5813 | ||
| 58031 | 58131 | ||
| 58032 | 58132 | ||
| 58033 | 58133 | ||
| Total of initiatives of less formal or informal professional training at the | |||
| Number of employees involved 5821 |
5831 | ||
| Number of actual training hours 5822 |
5832 | ||
| Net costs for the company 5823 |
5833 | ||
| Number of employees involved 5841 |
5851 | ||
| Number of actual training hours 5842 |
5852 | ||
| INFORMATION ON TRAINING PROVIDED TO EMPLOYEES DURING THE PERIOD of which gross costs directly linked to training |
of which contributions paid and payments to collective funds of which grants and other financial advantages received (to deduct) |
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