TIDMALS
RNS Number : 0517P
Altus Strategies PLC
15 June 2022
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM ANY JURISDICTION
WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR
REGULATIONS OF SUCH JURISDICTION
15 JUNE 2022
RECOMMED ALL-SHARE MERGER OF EQUALS
OF
ALTUS STRATEGIES PLC
AND
ELEMENTAL ROYALTIES CORP.
to be implemented by means of a scheme of arrangement
under Part 26 of the Companies Act 2006
The Board of Altus Strategies plc ("Altus" or the "Company")
notes the announcement issued by Elemental Royalties Corp.
("Elemental") at 7 a.m. on 14 June 2022 regarding the recommended
share-for-share offer for Altus by Elemental (the "Rule 2.7
announcement").
The Rule 2.7 Announcement has been reproduced below, in full
without any alteration.
Enquiries
+44 (0) 1235 511
Altus 767
Steven Poulton, Chief Executive
UBS (Financial Adviser to Altus) +44 (0)20 7567 8000
Jason Hutchings
Sandip Dhillon
Frank Geary
SP Angel Corporate Finance LLP (Nominated
Adviser to Altus) +44 (0)20 3470 0470
Richard Morrison
Adam Cowl
SP Angel Corporate Finance LLP (Broker
to Altus)
Grant Barker
Rob Rees +44 (0)20 3470 0471
Shard Capital (Broker to Altus)
Damon Heath
Isabella Pierre +44 (0) 20 7186 9927
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM ANY JURISDICTION
WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR
REGULATIONS OF SUCH JURISDICTION
FOR IMMEDIATE RELEASE
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION
14 June 2022
RECOMMED ALL-SHARE MERGER OF EQUALS
OF
ALTUS STRATEGIES PLC
AND
ELEMENTAL ROYALTIES CORP.
to be implemented by means of a scheme of arrangement
under Part 26 of the Companies Act 2006
Summary
The boards of Elemental Royalties Corp. (ELE.V) ("Elemental")
and Altus Strategies plc (ALTS.V) ("Altus") are pleased to announce
they have reached agreement on the terms and conditions of a
recommended share-for-share merger of equals of Elemental and Altus
with the entire issued and to be issued share capital of Altus
being acquired by Elemental (the "Merger"). It is intended that the
Merger will be implemented by way of a court-sanctioned scheme of
arrangement under Part 26 of the Companies Act 2006.
Under the terms of the Merger, each Altus Shareholder will be
entitled to receive:
0.5940 New Elemental Shares for each Altus Share
This exchange ratio (the "Exchange Ratio") has been agreed
between the boards of Elemental and Altus taking into account the
relative market capitalisations of both companies.
Upon completion of the Merger, Elemental Shareholders will own
approximately 52.9 per cent. and Altus Shareholders will own
approximately 47.1 per cent. of the total issued share capital of
the New Elemental Altus Group (based on the undiluted issued share
capital of Elemental and Altus on the Last Practicable Date).
The boards of Elemental and Altus believe that the Merger has
compelling strategic logic and represents an attractive opportunity
for both companies to create a global gold royalty company .
Background to and reasons for the Merger
Substantial benefits for all Altus and Elemental stakeholders as
a result of the creation of the New Elemental Altus Group
The Elemental Directors and Altus Directors believe that the
creation of the New Elemental Altus Group will deliver substantial
benefits for all stakeholders of both Elemental and Altus,
including:
-- Increased scale and diversification : a combined portfolio of
69 assets across 13 jurisdictions, concentrated in tier-1 mining
jurisdictions, of which 11 are in production, and primarily focused
on gold;
-- Transformed adjusted revenue profile : estimated combined
adjusted 2022 revenue of the New Elemental Altus Group of US$19.6
million with significant near term growth potential from first
expected revenue from Ming, Bonikro and Mercedes in 2022 estimated
to lead to combined adjusted 2023 revenue of the New Elemental
Altus Group of US$24.6 million, combined with opportunities to add
further portfolio revenue and duration*;
* see "Non-IFRS financial measures - (i) Adjusted Revenue"
below. The sources and bases for the calculation of the estimated
combined New Elemental Altus Group adjusted revenue for FY 2022 and
2023 are set out in Appendix 2.
-- Strengthened asset portfolio : centred around 3 cornerstone
royalties, the majority of the New Elemental Altus Group's NAV will
be based on producing assets, providing investors with exposure to
the top line revenue of underlying assets (without direct exposure
to the operating costs / capex of those assets and associated
inflationary risks) while keeping long dated optionality from
existing development pipeline and organic royalty generation
portfolio;
-- Strong shareholder support: recognised strategic investors
have supported the Merger, in La Mancha and Condire having provided
shareholder irrevocable undertakings over 44.6 per cent. of Altus's
issued share capital; and South32 and La Mancha having entered into
voting and support agreements in respect of 25.96 per cent. of
Elemental's issued share capital. Additionally, EuroPacific Asset
Management and Adrian Day Asset Management have provided letters of
intent to vote in favour of the Elemental Shareholder Resolution in
respect of a further 10.42 per cent. of Elemental's issued share
capital;
-- Enhanced capital markets profile : increased scale and
liquidity for enhanced market relevance and financial flexibility
and a lower cost of capital, with wider investor appeal, analyst
coverage and M&A potential coming with a larger market
capitalisation; providing the opportunity for a re-rating of the
shares of the New Elemental Altus Group;
-- Complementary management skills : an experienced management
team with Elemental's proven history of accretive royalty
acquisitions being a natural fit to the disciplined royalty
generation and royalty acquisition track record of Altus;
-- Potential cost synergies : opportunity to deliver cost
efficiency synergies at the corporate level through simplification
of operations and listings; and
-- Canadian tax election : the disposition of Altus Shares on
the Merger by a Canadian resident holder will constitute a taxable
disposition for purposes of the Income Tax Act (Canada) (the "Tax
Act") resulting in the realisation of any accrued gain that the
holder may have in the Altus Shares. Elemental will permit an
'eligible holder' to partially or fully defer a gain that would
otherwise be realised, if any, by making a joint election with
Elemental pursuant to section 85 of the Tax Act (in accordance with
all applicable rules). An 'eligible holder' refers to (i) a person
who is resident in Canada and not exempt from tax under Part I of
the Tax Act or (ii) a 'Canadian partnership' no member of which is
exempt from tax under Part I of the Tax Act.
Fair value for both sets of shareholders
The Exchange Ratio has been agreed between the boards of
Elemental and Altus taking into account the relative market
capitalisations of both companies and offers f air value for both
sets of shareholders consistent with valuations expected in an
all-share merger of equals.
Key Highlights of the Merger
Upon completion of the Merger, it is intended that:
-- An eight (8) member board will be constituted from a
combination of existing directors from both Elemental and Altus
(including four (4) Elemental representatives and four (4) Altus
representatives);
-- Steven Poulton, current CEO of Altus, will be appointed as
Executive Chair and Frederick Bell, current CEO of Elemental, will
be appointed as Chief Executive Officer;
-- Martin Turenne, a current non-executive director of
Elemental, will be appointed as Chair of the Audit Committee and
Robert Milroy, a current non-executive director of Altus, will be
appointed as Chair of the Compensation Committee;
-- After the Merger, Elemental will continue to be listed on
TSX-V and will be headquartered in Vancouver, Canada and have teams
located in Canada, the United Kingdom and Australia; and
-- Elemental's name will be changed to Elemental Altus Royalties
Corp. shortly after Completion.
Altus Recommendation and Irrevocable Undertakings
The Altus Directors, who have been so advised by UBS AG London
Branch ("UBS") as to the financial terms of the Merger, unanimously
consider the terms of the Merger to be fair and reasonable. In
providing its advice to the Altus Directors, UBS has taken into
account the commercial assessments of the Altus Directors. UBS is
providing independent financial advice to the Altus Directors for
the purposes of Rule 3 of the Takeover Code.
Accordingly, the Altus Directors intend to recommend unanimously
that (a) Scheme Shareholders vote in favour of the Scheme at the
Altus Court Meeting; and (b) Altus Shareholders vote in favour of
the Special Resolution to be proposed at the Altus General Meeting,
as the Altus Directors who are interested in Altus Shares have
irrevocably undertaken to do in respect of their own beneficial
holdings (and those of their connected persons) in respect of which
they control the voting rights amounting to 15,550,327 Altus Shares
representing, in aggregate, approximately 13.25 per cent. of the
ordinary share capital of Altus in issue on the Last Practicable
Date.
In addition to the irrevocable undertakings from Altus Directors
described above, Elemental has also received irrevocable
undertakings to vote (or, where applicable, procure voting) in
favour of the Scheme at the Altus Court Meeting and the Special
Resolution to be proposed at the Altus General Meeting (or in the
event that the Merger is implemented by an Offer, to accept or
procure acceptance of such Offer) from:
-- La Mancha Explorers; and
-- Condire Resource Master Partnership, LP,
in respect of 41,158,454 and 11,170,102 Altus Shares,
respectively, representing in aggregate approximately 44.6 per
cent. of the existing issued ordinary share capital of Altus and
44.6 per cent. of the Scheme Shares being eligible to vote at the
Altus Court Meeting, in each case, as at the Last Practicable
Date.
Therefore, Elemental has received irrevocable undertakings in
respect of, in aggregate, 67,878,883 Altus Shares, representing
approximately 57.9 per cent. of the Altus Shares in issue on the
Last Practicable Date.
Further details of the irrevocable undertakings are set out in
paragraph 8 of this Announcement.
Elemental Recommendation, Voting and Support Agreements, Letters
of Intent and Break Payment
The issuance of the New Elemental Shares pursuant to the Merger
requires the Elemental Shareholder Resolution to be approved by a
simple majority of the votes cast by Elemental Shareholders
represented in person or by proxy at the Elemental Special
Meeting.
The Elemental Directors, after an extensive review and thorough
discussion of all facts and issues they considered relevant with
respect to the Merger, unanimously determined that the issuance of
the New Elemental Shares pursuant to the Merger is fair to the
Elemental Shareholders, and authorised Elemental to enter into the
Co-operation Agreement and recommend to Elemental Shareholders that
they vote in favour of the Elemental Shareholder Resolution. In
connection with making this determination, on 13 June 2022 the
Elemental Directors received a fairness opinion from Canaccord
Genuity Corp. to the effect that, as of such date, and subject to
the analyses, factors, assumptions, qualifications and limitations
set forth in such opinion, the Exchange Ratio is fair, from a
financial point of view, to Elemental Shareholders. The full text
of Canaccord Genuity Corp.'s fairness opinion will be included in
the Elemental Information Circular.
The Elemental Directors who are interested in Elemental Shares
and certain shareholders of Elemental have agreed to vote their own
shareholdings in Elemental representing 11,207,575 Elemental
Shares, being approximately 14.32 per cent. of the Elemental Shares
in issue on the Last Practicable Date, in favour of the Elemental
Shareholder Resolution.
In addition to the voting and support agreements with the
Elemental Directors and certain employees of Elemental who are
interested in Elemental Shares, Altus has also entered into voting
and support agreements to vote in favour of the Elemental
Shareholder Resolution at the Elemental Special Meeting with:
-- La Mancha Investments; and
-- South32,
in respect of 7,250,000 and 13,065,100 Elemental Shares,
respectively, representing in aggregate approximately 25.96 per
cent. of the Elemental Shares in issue on the Last Practicable Date
in favour of the Elemental Shareholder Resolution.
EuroPacific Asset Management and Adrian Day Asset Management
have also given non-binding letters of intent to vote (or, where
applicable, procure voting) in favour of the Elemental Shareholder
Resolution at the Elemental Special Meeting in respect of a further
6,296,529 and 1,861,700 Elemental Shares respectively, representing
approximately 10.42 per cent. of the Elemental Shares in issue on
the Last Practicable Date.
Therefore, Altus has received voting undertakings and letters of
intent in respect of, in aggregate, 39,680,904 Elemental Shares,
representing approximately 50.7 per cent. of the Elemental Shares
in issue on the Last Practicable Date.
Further details of the voting and support agreements and letters
of intent are set out in paragraph 8 of this Announcement.
Elemental has agreed to pay to Altus a break payment in the
amount of US$2,000,000 in certain circumstances, as agreed in the
Co-operation Agreement and described further in paragraph 9.3 of
this Announcement.
General
Under the terms of the Merger, Elemental and Altus have agreed
that if, on or after the date of this Announcement and before the
Effective Date, any dividend and/or other distribution and/or other
return of capital is declared, made or paid or becomes payable in
respect of Altus Shares, Elemental reserves the right to reduce the
consideration payable under the terms of the Merger by an amount up
to the amount of such dividend and/or distribution and/or return of
capital, in which case any reference in this Announcement to the
consideration payable under the Merger will be deemed to be a
reference to the consideration as so reduced. Any exercise by
Elemental of its rights referred to in this paragraph shall be the
subject of an announcement and, for the avoidance of doubt, shall
not be regarded as constituting any revision or variation of the
terms of the Merger. In such circumstances, Altus Shareholders
would be entitled to retain any such dividend, distribution or
other return of capital declared, made or paid or which becomes
payable.
Under the Co-operation Agreement, Elemental has agreed that
until the Effective Date, except (i) with Altus's prior written
consent (not to be unreasonably withheld, conditioned or delayed),
(ii) as required by applicable law, or (iii) to the extent the
relevant matter is expressly permitted by or in the Co-operation
Agreement or this Announcement, Elemental shall not and shall
procure that no member of the Elemental Group (provided the actions
are not at the direction of Elemental) shall agree, resolve, commit
or announce any agreement or intention to authorise, declare or pay
any distribution or reduction or return of capital on or with
respect to the Elemental Shares (whether in cash, assets, shares or
other securities).
It is intended that the Merger will be implemented by way of a
court-sanctioned scheme of arrangement under Part 26 of the
Companies Act 2006 (although Elemental reserves the right to effect
the Merger by way of an Offer, subject to the consent of the Panel
and the terms of the Co-operation Agreement). Accordingly, the
terms of the Merger will be put to Scheme Shareholders at the Altus
Court Meeting. In order to become Effective, the Scheme must be
approved at the Altus Court Meeting by a majority in number of
Scheme Shareholders, present and voting to the extent permitted
pursuant to the Takeover Code, applicable law or the Court whose
sanction is required for the Scheme, whether in person or by proxy,
representing 75 per cent. or more in value of the Scheme Shares
held by those Scheme Shareholders. The Altus Shareholders will
further be asked to vote in favour of the Special Resolution to be
proposed at the Altus General Meeting (which is expected to take
place immediately following the Altus Court Meeting) to authorise
the Altus Directors to give effect to the Scheme and deal with
certain ancillary matters, which requires the approval by Altus
Shareholders representing at least 75 per cent. of the votes cast
at the Altus General Meeting (either in person or by proxy). The
Scheme is expected to become Effective in the third quarter of the
calendar year 2022, subject to the satisfaction (or, if applicable)
waiver of the Conditions and further terms set out in Appendix
1.
The Merger is conditional, amongst other things, on:
-- the Scheme becoming unconditional and Effective including,
without limitation, its approval by a majority in number of Scheme
Shareholders present and voting (in person or by proxy)
representing 75 per cent. or more in value of the Scheme Shares
held by those Scheme Shareholders; and
-- the requisite approval of the Elemental Shareholder
Resolution by the Elemental Shareholders at the Elemental Special
Meeting.
The Merger will be on the terms and subject to the Conditions
set out in Appendix 1 and to be set out in the Scheme Document. It
is expected that the Scheme Document, containing further
information about the Merger and notices of the Altus Meetings,
together with the associated forms of proxy, will be posted to
Altus Shareholders within 28 days of this Announcement (or such
later time as Altus, Elemental and the Panel agree). An expected
timetable of key events relating to the Merger, including the dates
of the Altus Meetings, will be provided in the Scheme Document.
It is expected that the Elemental Information Circular,
containing further information about the Merger and notice of the
Elemental Special Meeting, will be mailed to Elemental Shareholders
at or around the same time as the Scheme Document. It is also
expected that the Elemental Special Meeting will be held on the
same day as the Altus Meetings.
Comments
Commenting on the Merger, Steven Poulton, Chief Executive of
Altus, said:
"Combining Altus and Elemental will create a new, strong and
dynamic income-generating champion in the mining royalty sector.
The transaction will bring significant benefits to all current
shareholders and establish a compelling investment proposition to
potential new institutional and other investors. Our enlarged scale
and combined revenues will not only enhance our access to further
high-quality royalties, but will also potentially reduce our cost
of capital going forward. Shareholders of the enlarged group will
also benefit from its differentiated strategy of low-cost and
potential high-return royalty generation. As we succeed, we look
forward to targeting medium-term capital distributions, as well as
participating in further accretive consolidation opportunities in
the royalty sector."
Commenting on the Merger, Frederick Bell , CEO and Director of
Elemental, said:
" We are very pleased to announce a compelling merger with Altus
Strategies that delivers materially increased revenue, scale and
market relevance to both companies. The complementary nature of the
portfolios and management teams alongside fast growing revenue from
a portfolio of predominantly producing royalties will deliver
significant benefits to shareholders. In addition, the combined
company will have a low-cost royalty generation business arm to
complement the continuing acquisition of producing royalties. We
see continuing consolidation in the royalty space as an opportunity
for the enlarged group. We expect to be able to demonstrate the
benefits through this merger of equals with a lower cost of
capital, greater diversification and growing liquidity for
shareholders."
This summary should be read in conjunction with, and is subject
to, the following full Announcement and the Appendices. The Merger
will be subject to the Conditions and other terms set out in
Appendix 1 and to the full terms and conditions which will be set
out in the Scheme Document. The sources and bases of calculation of
certain information contained in this Announcement are set out in
Appendix 2. Details of irrevocable undertakings, voting and support
agreements and letters of intent received or entered into by
Elemental and Altus are set out in Appendix 3. Certain terms used
in this Announcement are defined in Appendix 4.
Joint Analyst and Investor Webcast and Conference Call
An analyst and investor conference call to discuss the Merger
will be held for c. 60 minutes on Tuesday 14 June 2022 at 8.00 a.m.
(Eastern Standard Time) / 1.00 p.m. (British Summer Time) .
To participate in the conference call, use the following dial-in
numbers, or join the webcast using the link below:
Dial-in numbers:
Canada/USA Toll Free: 1-800-319-4610
International Toll: +1-604-638-5340
UK Toll Free: 0808-101-2791
UK Toll: +44-161-250-8208
Callers should dial in 5-10 minutes prior to the scheduled start
time and simply ask to join your call.
Webcast URL:
https://services.choruscall.ca/links/elementalroyalties202206.html
Webcast and Conference Call Queries:
Andy Lloyd / Shannon Hazlett
Longview Communications & Public Affairs
Telephone: +1 416 402 5029 / +1 403 614 0593
Email: alloyd@longviewcomms.ca / shazlett@longviewcomms.ca
Enquiries:
+44 (0) 7554 872
Elemental 794
Frederick Bell, CEO and Director
Canaccord Genuity Limited (Financial Adviser
to Elemental) +44 (0) 20 7523 8000
Raj Khatri (Canaccord Genuity Limited)
James Asensio (Canaccord Genuity Limited)
David Sadowski (Canaccord Genuity Corp.)
Brad Cameron (Canaccord Genuity Corp.)
Longview Communications & Public Affairs
(Financial PR & IR to Elemental)
Andy Lloyd +1 416 402 5029
Shannon Hazlett +1 403 614 0593
Yellow Jersey PR (Financial PR & IR to +44 (0) 7951 402
Altus) 336
Charles Goodwin
Henry Wilkinson
+44 (0) 1235 511
Altus 767
Steven Poulton, Chief Executive
UBS (Financial Adviser to Altus) +44 (0)20 7567 8000
Jason Hutchings
Sandip Dhillon
Frank Geary
SP Angel Corporate Finance LLP (Nominated
Adviser to Altus) +44 (0)20 3470 0470
Richard Morrison
Adam Cowl
SP Angel Corporate Finance LLP (Broker
to Altus)
Grant Barker
Rob Rees +44 (0)20 3470 0471
Shard Capital (Broker to Altus)
Damon Heath
Isabella Pierre +44 (0) 20 7186 9927
Fasken Martineau LLP is retained as legal
adviser to Elemental +44 (0)20 7917 8500
Norton Rose Fulbright LLP is retained as
UK legal adviser to Altus +44 (0)20 7283 6000
Important notices
Canaccord Genuity Limited, which is authorised and regulated by
the FCA in the United Kingdom, and Canaccord Genuity Corp.
(together, "Canaccord Genuity") are acting as financial adviser to
Elemental and for no one else in connection with the Merger and
other matters referred to in this Announcement and will not be
responsible to anyone other than Elemental for providing the
protections afforded to their clients or for providing advice in
relation to the Merger, the contents of this Announcement or any
other matters referred to in this Announcement. Neither Canaccord
Genuity nor any of their subsidiaries, branches or affiliates owes
or accepts any duty, liability or responsibility whatsoever
(whether direct or indirect, whether in contract, in tort, under
statute or otherwise) to any person who is not a client of
Canaccord Genuity in connection with any matter referred to in this
Announcement or otherwise.
UBS AG London Branch ("UBS") is authorised and regulated by the
Financial Market Supervisory Authority in Switzerland. It is
authorised by the Prudential Regulation Authority and subject to
regulation by the Financial Conduct Authority and limited
regulation by the Prudential Regulation Authority in the United
Kingdom and is acting as financial adviser to Altus and for no one
else in connection with the Merger and other matters referred to in
this Announcement and will not be responsible to anyone other than
Altus for providing the protections afforded to its clients or for
providing advice in relation to the Merger, the contents of this
Announcement or any other matters referred to in this Announcement.
Neither UBS nor any of its subsidiaries, branches or affiliates
owes or accepts any duty, liability or responsibility whatsoever
(whether direct or indirect, whether in contract, in tort, under
statute or otherwise) to any person who is not a client of UBS in
connection with any matter referred to in this Announcement or
otherwise.
SP Angel Corporate Finance LLP ("SP Angel") is authorised and
regulated by the FCA in the United Kingdom and is acting as
nominated adviser and broker to Altus and for no one else in
connection with the Merger and other matters referred to in this
Announcement and will not be responsible to anyone other than Altus
for providing the protections afforded to its clients or for
providing advice in relation to the Merger, the contents of this
Announcement or any other matters referred to in this Announcement.
Neither SP Angel nor any of its subsidiaries, branches or
affiliates owes or accepts any duty, liability or responsibility
whatsoever (whether direct or indirect, whether in contract, in
tort, under statute or otherwise) to any person who is not a client
of SP Angel in connection with any matter referred to in this
Announcement or otherwise.
Each of Canaccord Genuity, UBS and SP Angel have given and not
withdrawn their consent to the publication of this Announcement
with the inclusion in it of the references to their respective
names and (where applicable) advice in the form and context in
which they appear.
Further information
This Announcement is for information purposes only and is not
intended to, and does not, constitute or form part of any offer or
inducement to sell or an invitation to purchase, otherwise acquire,
subscribe for, sell or otherwise dispose of, any securities or the
solicitation of an offer to buy any securities, any vote or
approval in any jurisdiction pursuant to the Merger or otherwise,
nor shall there be any sale, issuance or transfer of securities of
Altus in any jurisdiction in contravention of applicable law.
The Merger will be implemented solely pursuant to the terms of
the Scheme Document (or, if the Merger is implemented by way of an
Offer, the Offer Document), which will contain the full terms and
conditions of the Merger, including details of what action is
required from Altus Shareholders in respect of the Merger. Any
decision in respect of, or other response to, the Merger should be
made only on the basis of the information in the Scheme Document
(or, if the Merger is implemented by way of an Offer, the Offer
Document).
Altus and Elemental shall prepare the Scheme Document (or, if
the Merger is implemented by way of an Offer, the Offer Document)
to be distributed to Altus Shareholders. Altus and Elemental urge
Altus Shareholders to read the Scheme Document in its entirety (or,
if the Merger is implemented by way of an Offer, the Offer
Document) when it becomes available because it will contain
important information relating to the Merger (including details of
how to vote in respect of the Scheme) and the New Elemental Shares.
Any vote in respect of resolutions to be proposed at the Altus
Meetings to approve the Merger, the Scheme or related matters, or
other responses in relation to the Merger, should be made only on
the basis of information contained in the Scheme Document.
Elemental will prepare the Elemental Information Circular to be
distributed to Elemental Shareholders, containing details of the
Merger, notice of the Elemental Special Meeting and information on
the New Elemental Shares. Elemental urges Elemental Shareholders to
read the Elemental Information Circular carefully when it becomes
available because it will contain important information in relation
to the Merger and the New Elemental Shares. Any vote in respect of
the Elemental Shareholder Resolution to be proposed at the
Elemental Special Meeting to approve the issuance of New Elemental
Shares under the Merger should be made only on the basis of the
information contained in the Elemental Information Circular.
This Announcement does not constitute a prospectus or prospectus
equivalent document.
Elemental reserves the right to elect to implement the Merger by
way of an Offer as an alternative to the Scheme (subject to the
Panel's consent). In such event, the Merger will be implemented on
substantially the same terms, so far as applicable, as those which
will apply to the Scheme, subject to appropriate amendments to
reflect, among other things, the change in method of effecting the
Merger (including, without limitation: (i) the inclusion of an
acceptance condition set at such percentage of the Altus Shares to
which such Offer relates as Elemental may, subject to the rules of
the Takeover Code and with the consent of the Panel, decide; and
(ii) those required by, or deemed appropriate by, Elemental under
applicable law). Further, if sufficient acceptances of such Offer
are received and/or sufficient Altus Shares are otherwise acquired,
it is the intention of Elemental to apply the provisions of the
Companies Act 2006 to acquire compulsorily any outstanding Altus
Shares to which such Offer relates.
Technical information
The technical and scientific information contained in this
Announcement in respect of Altus has been reviewed and approved for
release by Steven Poulton, Chief Executive Officer, who is Altus's
Qualified Persons as defined by National Instrument 43-101 -
Standards of Disclosure for Mineral Projects.
The technical and scientific information contained in this
Announcement in respect of Elemental has been reviewed and approved
for release by Richard Evans, FAusIMM, Senior Vice President
Technical, who is Elemental's Qualified Person as defined by
National Instrument 43-101 - Standards of Disclosure for Mineral
Projects.
Overseas Shareholders
The release, publication or distribution of this Announcement in
or into jurisdictions other than Canada, the United States and the
United Kingdom and may be restricted by law and therefore any
persons who are subject to the law of any jurisdiction other than
Canada, the United States and the United Kingdom should inform
themselves about, and observe, any applicable legal or regulatory
requirements. In particular the ability of persons who are not
citizens of and resident in Canada, the United States or the United
Kingdom to vote their Altus Shares with respect to the Scheme at
the Altus Court Meeting, or to appoint another person as proxy to
vote at the Altus Court Meeting on their behalf, may be affected by
the laws of the relevant jurisdictions in which they are located or
of which they are citizens. Any failure to comply with the
applicable restrictions may constitute a violation of the
securities laws of any such jurisdiction.
Relevant clearances have not been, and will not be, obtained
from the securities commission or similar regulatory authority of
any province or territory of Canada. To the fullest extent
permitted by applicable law, the companies and persons involved in
the Merger disclaim any responsibility or liability for the
violation of such restrictions by any person.
This Announcement has been prepared for the purposes of
complying with applicable English law, certain applicable
securities laws in Canada and the United States, the AIM Rules and
the Takeover Code and the information disclosed may not be the same
as that which would have been disclosed if this Announcement had
been prepared in accordance with the laws of jurisdictions outside
of the UK. The Merger will be subject to the laws of England and
Wales and to the applicable requirements of the Takeover Code and
the Panel, as well as applicable securities laws of Canada that
apply to Elemental due to its status as a "reporting issuer" in the
provinces and territories of Canada other than Quebec.
Copies of this Announcement and formal documentation relating to
the Merger will not be and must not be, mailed or otherwise
forwarded, distributed or sent in, into or from any Restricted
Jurisdiction or any jurisdiction where to do so would violate the
laws of that jurisdiction and persons receiving such documents
(including custodians, nominees and trustees) must not mail or
otherwise forward, distribute or send them in or into or from any
Restricted Jurisdiction. Doing so may render invalid any related
purported vote in respect of the Merger. If the Merger is
implemented by way of Offer (unless otherwise permitted by
applicable law or regulation), the Offer may not be made, directly
or indirectly, in or into or by use of the mails or any other means
or instrumentality (including, without limitation, facsimile, email
or other electronic transmission, telex or telephone) of interstate
or foreign commerce of, or any facility of a national, state or
other securities exchange of any Restricted Jurisdiction and the
Offer will not be capable of acceptance by any such use, means,
instrumentality or facilities or from within any Restricted
Jurisdiction.
Further details in relation to Overseas Shareholders will be
contained in the Scheme Document and Altus Shareholders are advised
to read carefully the Scheme Document and related forms of proxy
once these have been mailed.
Notice to US investors in Altus
Altus Shareholders in the United States should note that the
Merger relates to the shares of an English company and is proposed
to be made by means of a scheme of arrangement provided for under,
and governed by, the laws of England and Wales.
Any securities issued by Elemental as a result of this Merger by
means of a scheme of arrangement will be issued in reliance upon
the exemption from the registration requirements of the US
Securities Act of 1933 ("US Securities Act"), pursuant to the
exemption from registration set forth in Section 3(a)(10) thereof,
and also will not be subject to the tender offer rules promulgated
under the US Securities Exchange Act of 1934. Accordingly, the
Scheme will be subject to disclosure requirements and practices
applicable in the UK to schemes of arrangement, which are different
from the disclosure requirements that would be applicable in the US
if the securities were registered under the US Securities Act or if
the transaction were subject to the US tender offer rules. Except
as described below under the heading 'Non-IFRS financial measures',
the financial information included in this announcement and the
Scheme documentation has been or will have been prepared in
accordance with International Financial Reporting Standards
("IFRS") and thus may not be comparable to financial information of
US companies or companies whose financial statements are prepared
in accordance with generally accepted accounting principles in the
US. If Elemental exercises its right to implement the acquisition
of the Altus Shares in accordance with the Co-operation Agreement
by way of an Offer, such offer will be made in compliance with
applicable US laws and regulations, including the registration
requirements of the US Securities Act of 1933 and the tender offer
rules under the US Securities Exchange Act of 1934 and any
applicable exemptions provided thereunder.
Neither the Merger nor this Announcement have been approved or
disapproved by the US Securities and Exchange Commission, any state
securities commission in the United States or any other US
regulatory authority, nor have any such authorities passed upon or
determined the adequacy or accuracy of the information contained in
this Announcement or the merits of the Merger. Any representation
to the contrary is a criminal offence in the United States.
The receipt of consideration by a US holder for the transfer of
its Altus Shares pursuant to the Merger may be a taxable
transaction for US federal income tax purposes and under applicable
US state and local, as well as non-US and other, tax laws. Each
Altus Shareholder is urged to consult their independent
professional adviser immediately regarding the tax consequences of
the Merger applicable to them, including under applicable US
federal, state and local, as well as non-US and other, tax
laws.
It may be difficult for US holders of Altus Shares to enforce
their rights and any claim arising out of the US federal laws or to
enforce against them a judgment of a US court predicated upon the
securities laws of the United Kingdom, since Elemental and Altus
are incorporated in a non-US jurisdiction, and some or all of their
officers and directors may be residents of countries other than the
United States. US holders of Altus Shares may not be able to sue a
non-US company or its officers or directors in a non-US court for
violations of the US securities laws. Further, it may be difficult
to compel a non-US company and its affiliates to subject themselves
to a US court's judgement.
In accordance with normal UK practice, Elemental or its
nominees, or its brokers (acting as agents), may from time to time
make certain purchases of, or arrangements to purchase, Altus
Shares outside of the US, other than pursuant to the Merger, until
the date on which the Merger and/or Scheme becomes effective,
lapses or is otherwise withdrawn. These purchases may occur either
in the open market at prevailing prices or in private transactions
at negotiated prices. Any information about such purchases will be
disclosed as required in the UK, will be reported to a Regulatory
Information Service and will be available on the London Stock
Exchange website at www.londonstockexchange.com .
Additional information for Canadian Altus Shareholders
No securities commission or similar authority of Canada, or any
other jurisdiction has reviewed or in any way passed upon this
document or the merits of the securities described herein, and any
representation to the contrary is an offence.
If Elemental exercises its right to implement the acquisition of
the Altus Shares in accordance with the Co-operation Agreement by
way of an Offer, such Offer will be made in compliance with
applicable Canadian securities laws or pursuant to an exemption
therefrom.
The enforcement by Canadian Altus Shareholders of civil
liabilities under the Canadian securities laws may be affected
adversely by the fact that Altus is incorporated or organized under
the laws of a jurisdiction other than Canada, that some or all of
Elemental's and Altus's officers and directors are and will be
residents of countries other than Canada, that some or all of the
experts named in this Announcement may be residents of countries
other than Canada, and that all or a substantial portion of the
assets of Elemental, Altus and such persons are and will be located
outside Canada. As a result, it may be difficult or impossible for
Canadian Altus Shareholders to effect service of process within
Canada upon Altus, Elemental's and Altus's respective officers or
directors or the experts named herein, or to realize against them,
upon judgments of courts of Canada predicated upon liabilities
under Canadian securities laws. In addition, Canadian Altus
Shareholders should not assume that the courts of England and
Wales: (a) would enforce judgments of Canadian courts obtained in
actions against such persons predicated upon civil liabilities
under Canadian securities laws; or (b) would enforce, in original
actions, liabilities against such persons predicated upon civil
liabilities under the Canadian securities laws.
The distribution of the New Elemental Shares pursuant to the
Merger will constitute a distribution of securities that is exempt
from the prospectus requirements of Canadian securities law. The
New Elemental Shares received pursuant to the Merger will not be
subject to resale restrictions and may be resold through registered
dealers in each of the provinces and territories of Canada provided
that (i) the trade is not a "control distribution" as defined in
Canadian securities law, (ii) no unusual effort is made to prepare
the market or to create a demand for Elemental Shares, (iii) no
extraordinary commission or consideration is paid to a person in
respect of such sale, and (iv) if the selling security holder is an
insider or officer of Elemental, as the case may be, the selling
security holder has no reasonable grounds to believe that
Elemental, as the case may be, is in default of applicable Canadian
securities law.
Canadian Altus Shareholders should be aware that the Merger
described in this Announcement may have tax consequences in Canada
and should consult their own tax advisors to determine the
particular tax consequences to them of the Merger in light of their
particular circumstances, as well as any tax consequences that may
arise under the laws of any other relevant foreign, state, local or
other taxing jurisdiction.
Non-IFRS financial measures
(i) Adjusted Revenue
Adjusted revenue is a non-IFRS financial measure, which is
defined by Altus (and is intended to be defined by the New
Elemental Altus Group following the Effective Date) by including
gross equity income from associated entities holding royalty
interests related to Altus's effective royalty on the Caserones
Mine. Altus's management uses adjusted revenue to evaluate the
underlying operating performance of Altus for the reporting periods
presented, to assist with the planning and forecasting of future
operating results, and to supplement information in its financial
statements. Elemental and Altus's management believe that in
addition to measures prepared in accordance with IFRS such as
revenue, investors may use adjusted revenue to evaluate the results
of the underlying business, particularly since the adjusted revenue
may not typically be included in operating results. Management
believes that adjusted revenue is a useful measures of Altus's
performance because they adjust for items which management believes
reflect Altus's core operating results from period to period.
Adjusted revenue is intended to provide additional information to
investors and should not be considered in isolation or as a
substitute for measures of performance prepared in accordance with
IFRS. It does not have any standardized meaning under IFRS and may
not be comparable to similar measures presented by other
issuers.
(ii) Gold Equivalent Ounces (GEO)
Elemental and Altus's adjusted royalty revenue is converted to
an attributable gold equivalent ounce, or GEO, basis by dividing
the royalty revenue received in a period by the average gold price
for the same respective period. The presentation of this non-IFRS
measure is intended to provide additional information and should
not be considered in isolation or as a substitute for measures of
performance prepared in accordance with IFRS. Other companies may
calculate these non-IFRS measures differently. The production
forecast was derived using information that is available in the
public domain as at the date hereof, which included guidance and
estimates prepared and issued by management of the operators of the
mining operations in which Elemental or Altus holds an interest.
The production forecast is sensitive to the performance and
operating status of the underlying mines. None of the information
has been independently verified by Elemental or Altus and maybe
subject to uncertainty. There can be no assurance that such
information is complete or accurate.
Third Party / Market Data
This Announcement contains statistical data, market research and
industry forecasts that were obtained from government, stock
exchange, analysts' or other industry publications and reports or
based on estimates derived from such publications and reports and
management's knowledge of, and experience in, the markets in which
Elemental and Altus operate. Government and industry publications
and reports generally indicate that they have obtained their
information from sources believed to be reliable, but do not
guarantee the accuracy and completeness of their information.
Often, such information is provided subject to specific terms and
conditions limiting the liability of the provider, disclaiming any
responsibility for such information, and/or limiting a third
party's ability to rely on such information. None of the authors of
such publications and reports has provided any form of
consultation, advice or counsel regarding any aspect of, or is in
any way whatsoever associated with, Elemental or Altus. Further,
certain of these organizations may be advisers to participants in
the mining industry, and they may present information in a manner
that is more favourable to that industry than would be presented by
an independent source. Actual outcomes may vary materially from
those forecast in such reports or publications, and the prospect
for material variation can be expected to increase as the length of
the forecast period increases. While Elemental and Altus believe
this data to be reliable, market and industry data is subject to
variations and cannot be verified due to limits on the availability
and reliability of data inputs, the voluntary nature of the data
gathering process and other limitations and uncertainties inherent
in any market or other survey. Accordingly, the accuracy, currency
and completeness of this information cannot be guaranteed. Neither
Elemental nor Altus has independently verified any of the data from
third party sources referred to in this Announcement or ascertained
the underlying assumptions relied upon by such sources.
Cautionary note regarding forward-looking statements
This Announcement (including information incorporated by
reference in this Announcement), oral statements made regarding the
Merger, and other information published by Elemental and Altus
contain certain statements which are, or may be deemed to be,
"forward-looking statements" and "forward-looking information",
each as defined under applicable securities laws (collectively,
"forward-looking statements"). Forward-looking statements are
prospective in nature and are not based on historical facts, but
rather on current expectations and projections of the management of
Elemental and Altus about future events, and are therefore subject
to risks and uncertainties which could cause actual results to
differ materially from the future results expressed or implied by
the forward-looking statements.
Forward-looking statements often, but not always, use words such
as "anticipate", "target", "expect", "estimate", "intend", "plan",
"goal", "believe", "hope", "aims", "continue", "will", "may",
"should", "would", "could", or other words of similar meaning or
derivatives thereof (including negative and grammatical
variations). These statements are based on assumptions and
assessments made by Elemental and/or Altus in light of their
experience and their perception of historical trends, current
conditions, future developments and other factors they believe
appropriate. By their nature, forward-looking statements involve
risk and uncertainty, because they relate to events and depend on
circumstances that will occur in the future and the factors
described in the context of such forward-looking statements in this
Announcement could cause actual results and developments to differ
materially from those expressed in or implied by such
forward-looking statements and as such are qualified in their
entirety. Among the factors that could cause actual results to
differ materially from those described in the forward-looking
statements are changes in the global, political, economic,
business, competitive, market and regulatory forces, future
exchange and interest rates, changes in tax rates and future
business combinations or dispositions.
The forward-looking statements contained in this Announcement
include statements related to: the Merger including statements with
respect to the implementation thereof; the benefits of the Merger
to the Altus Shareholders and the Elemental Shareholders; the
timing of the Opening Position Disclosures of Elemental and Altus;
the timing of mailing the shareholder materials and the timing of
the Altus General Meeting, the Altus Court Meeting and the
Elemental Special Meeting; the timing for and receipt of all
required regulatory, court, stock exchange and shareholder
approvals and approvals to complete the Merger; the ability of
Elemental and Altus to satisfy other conditions to, and to complete
the Merger; the anticipated timing for completion of the Merger;
the closing of the Merger; the expected effects of the Merger on
Elemental and Altus (including their future prospects, developments
and strategies), the expected timing and scope of the Merger and
other statements other than historical facts; the intention to seek
a delisting of the shares of Altus from the AIM; the TSX-V and the
OTCQX market in the United States; and the intention for Altus to
make an application to certain Canadian securities commissions
after the Effective Date to cease to be a reporting issuer in
Canada. Forward-looking statements may also include statements
relating to the following: (i) future capital expenditures,
revenues, adjusted revenues, earnings, synergies, economic
performance, indebtedness, financial condition, dividend policy,
losses and future prospects; (ii) business and management
strategies and the expansion and growth of Elemental's and Altus's
operations and potential synergies resulting from the Merger; and
(iii) the effects of global economic conditions and governmental
regulation on Elemental's and Altus's businesses.
In respect of forward-looking statements and information
concerning the anticipated completion of the proposed Merger and
the anticipated timing for completion of the proposed Merger,
Elemental and Altus have provided them in reliance on certain
assumptions and believe that they are reasonable at this time,
including the assumptions to the time required to prepare and mail
shareholder meeting materials, the ability of the applicable
parties to receive, in a timely manner, the necessary regulatory,
shareholder, court, stock exchange and relevant authority
approvals, and the ability of the parties to satisfy, in a timely
manner, the other conditions to the closing of the Merger. These
dates may change for a number of reasons, including unforeseen
delays in preparing meeting materials, inability to secure
necessary approvals in the time assumed or the need for additional
time to satisfy the other conditions to the completion of the
Merger. Accordingly, you should not place undue reliance on the
forward-looking statements and information in this Announcement
concerning these times.
Such forward-looking statements involve known and unknown risks,
and uncertainties and other important factors that could
significantly affect expected results and are based on certain key
assumptions. Such risks, uncertainties and factors may cause the
actual results, performance or achievements of Elemental or Altus
to be materially different from any future results, performance or
achievements expressed or implied by the forward-looking
statements. These risks, uncertainties and factors include, without
limitation: risks associated with the Merger and acquisitions
generally; the Co-operation Agreement may be terminated in certain
circumstances; there can be no certainty that all conditions
precedent to the Merger will be satisfied; the parties will incur
costs even if the Merger is not completed and Elemental may have to
pay a break fee to Altus if the Co-operation Agreement is
terminated in certain circumstances; all necessary approvals may
not be obtained; and uncertainty regarding the ability of the
parties to complete and mail the shareholder materials and the
ability to hold the Altus General Meeting, the Altus Court Meeting
and the Elemental Shareholder Meeting within the time frames
indicated. Additional risks, uncertainties and factors include
changes in the global, political, economic, business, competitive,
market and regulatory forces, future exchange and interest rates,
changes in tax rates and future business combinations or disposals.
For a discussion of important factors which could cause actual
results to differ from forward-looking statements in relation to
Elemental or Altus, refer to (i) the Annual Information Form of
Elemental for the year ended 31 December 2021; and (ii) the annual
report and accounts of Altus for the financial year ended 31
December 2021.
No member of the Elemental Group or the Altus Group, nor any of
their respective associates, directors, officers, employees or
advisers, provides any representation, assurance or guarantee that
the occurrence of the events expressed or implied in any
forward-looking statements in this Announcement will actually
occur.
Although it is believed that the expectations reflected in such
forward-looking statements are reasonable, no assurance can be
given that such expectations will prove to have been correct and
you are therefore cautioned not to place any reliance on these
forward-looking statements which speak only as at the date of this
Announcement. It is expected that these expectations will change as
new information is received. Neither Elemental nor Altus assumes
any obligation to update or correct the information contained in
this Announcement (whether as a result of new information, future
events or otherwise), except as required by applicable law.
Investors are cautioned that forward-looking statements are not
guarantees of future performance and accordingly investors are
cautioned not to put undue reliance on forward-looking statements
due to their inherent uncertainty.
Dealing and opening position disclosure requirements
Under Rule 8.3(a) of the Takeover Code, any person who is
interested in one per cent. or more of any class of relevant
securities of an offeree company or of any securities exchange
offeror (being any offeror other than an offeror in respect of
which it has been announced that its offer is, or is likely to be,
solely in cash) must make an Opening Position Disclosure following
the commencement of the offer period and, if later, following the
announcement in which any securities exchange offeror is first
identified.
An Opening Position Disclosure must contain details of the
person's interests and short positions in, and rights to subscribe
for, any relevant securities of each of (i) the offeree company and
(ii) any securities exchange offeror(s). An Opening Position
Disclosure by a person to whom Rule 8.3(a) applies must be made by
no later than 3.30 p.m. (London time) on the 10th Business Day
following the commencement of the offer period and, if appropriate,
by no later than 3.30 p.m. (London time) on the 10th Business Day
following the announcement in which any securities exchange offeror
is first identified. Relevant persons who deal in the relevant
securities of the offeree company or of a securities exchange
offeror prior to the deadline for making an Opening Position
Disclosure must instead make a Dealing Disclosure.
Under Rule 8.3(b) of the Takeover Code, any person who is, or
becomes, interested in one per cent. or more of any class of
relevant securities of the offeree company or of any securities
exchange offeror must make a Dealing Disclosure if the person deals
in any relevant securities of the offeree company or of any
securities exchange offeror. A Dealing Disclosure must contain
details of the dealing concerned and of the person's interests and
short positions in, and rights to subscribe for, any relevant
securities of each of (i) the offeree company and (ii) any
securities exchange offeror, save to the extent that these details
have previously been disclosed under Rule 8. A Dealing Disclosure
by a person to whom Rule 8.3(b) applies must be made by no later
than 3.30 p.m. (London time) on the Business Day following the date
of the relevant dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
interest in relevant securities of an offeree company or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree
company and by any offeror and Dealing Disclosures must also be
made by the offeree company, by any offeror and by any persons
acting in concert with any of them (see Rules 8.1, 8.2 and
8.4).
Details of the offeree and offeror companies in respect of whose
relevant securities Opening Position Disclosures and Dealing
Disclosures must be made can be found in the Disclosure Table on
the Takeover Panel's website at www.thetakeoverpanel.org.uk,
including details of the number of relevant securities in issue,
when the offer period commenced and when any offeror was first
identified. You should contact the Panel's Market Surveillance Unit
on +44 (0)20 7638 0129 if you are in any doubt as to whether you
are required to make an Opening Position Disclosure or a Dealing
Disclosure.
Publication on a website
In accordance with Rule 26.1 of the Takeover Code, a copy of
this Announcement will be made available, subject to certain
restrictions relating to persons resident in Restricted
Jurisdictions, on Altus's website at https://altus-strategies.com/
and Elemental's website at https://www.elementalroyalties.com/ by
no later than 12 noon (London time) on the first Business Day
following the date of this Announcement. For the avoidance of
doubt, neither the contents of these websites nor any website
accessible from hyperlinks is incorporated into or forms part of
this Announcement.
This Announcement will also be available on SEDAR under Altus
and Elemental's respective profiles at www.sedar.com .
No profit forecasts, estimates or quantified benefits
statements
No statement in this Announcement is intended to constitute a
profit forecast, profit estimate or quantified benefits statement
for any period and no statement in this Announcement should be
interpreted to mean that the earnings or future earnings per share
of or dividends or future dividends per share of Elemental or Altus
or the New Elemental Altus Group for the current or future
financial years will necessarily match or exceed the historical
published earnings or earnings per share or dividends per share of
Elemental or Altus or the New Elemental Altus Group.
Requesting hard copy documents
In accordance with Rule 30.3 of the Takeover Code, Altus
Shareholders, persons with information rights and participants in
the Altus Share Plan may request a hard copy of this Announcement
by contacting Altus's registrars, Computershare Investor Services
Plc on +44 (0) 370 702 0003. Calls are charged at the standard
geographic rate and will vary by provider. Calls outside the United
Kingdom will be charged at the applicable international rate.
Computershare Investor Services Plc is open between 9.00 a.m. to
5.30 p.m., Monday to Friday excluding public holidays in England
and Wales; or (ii) by submitting a request in writing to
Computershare Investor Services Plc, The Pavilions, Bridgwater
Road, Bristol, BS13 8AE, United Kingdom. Please note that
Computershare Investor Services Plc cannot provide any financial,
legal or tax advice and calls may be recorded and monitored for
security and training purposes. For persons who receive a copy of
this Announcement in electronic form or via a website notification,
a hard copy of this Announcement will not be sent unless so
requested. Such persons may also request that all future documents,
announcements and information to be sent to them in relation to the
Merger should be in hard copy form.
Electronic communications
Please be aware that addresses, electronic addresses and certain
other information provided by Altus Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from Altus may be provided to Elemental during the
Offer Period as required under Section 4 of Appendix 4 of the
Takeover Code to comply with Rule 2.11(c).
Rounding
Certain figures included in this Announcement have been
subjected to rounding adjustments. Accordingly, figures shown for
the same category presented in different tables may vary slightly
and figures shown as totals in certain tables may not be an
arithmetic aggregation of figures that precede them.
General
If the Merger is effected by way of an Offer, and such an Offer
becomes or is declared unconditional and sufficient acceptances are
received, Elemental intends to exercise its rights to apply the
provisions of Chapter 3 of Part 28 of the Companies Act 2006 so as
to acquire compulsorily the remaining Altus Shares in respect of
which the Offer has not been accepted.
Investors should be aware that Elemental may purchase Altus
Shares otherwise than under any Offer or the Scheme, including
pursuant to privately negotiated purchases.
If you are in any doubt about the contents of this Announcement
or the action you should take, you are recommended to seek your own
independent financial advice immediately from your stockbroker,
bank manager, solicitor or independent financial adviser duly
authorised under FSMA if you are resident in the United Kingdom or,
if not, from another appropriate authorised independent financial
adviser.
Rule 2.9 of the Takeover Code
For the purposes of Rule 2.9 of the Takeover Code:
(i) Altus confirms that, as at 13 June 2022 (being the Last
Practicable Date), it had in issue 117,321,678 ordinary shares of 5
pence each, each ordinary share carrying one vote. Accordingly, the
total number of voting rights in Altus is 117,321,678. The ISIN for
the Altus Shares is GB00BJ9TYB96 (CUSIP: G03676122). Altus's
ordinary shares are traded on AIM and on TSX-V.
(ii) Elemental confirms that, as at 13 June 2022 (being the Last
Practicable Date), it had in issue 78,266,221 common shares of no
par value. The ISIN for the Elemental Shares is CA28619L1076.
TSX Venture Disclaimer
Neither TSX Venture Exchange nor its Regulation Services
Provider (as that term is defined in policies of the TSX Venture
Exchange) accepts responsibility for the adequacy or accuracy of
this release.
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM ANY JURISDICTION
WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR
REGULATIONS OF SUCH JURISDICTION
FOR IMMEDIATE RELEASE
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION
14 June 2022
RECOMMED ALL-SHARE MERGER OF EQUALS
OF
ALTUS PLC
AND
ELEMENTAL ROYALTIES CORP.
to be effected by means of a scheme of arrangement
under Part 26 of the Companies Act 2006
1. Introduction
The boards of Elemental Royalties Corp. ("Elemental") and Altus
plc ("Altus") are pleased to announce that they have reached
agreement on the terms and conditions of a recommended
share-for-share merger of Elemental and Altus with the entire
issued and to be issued share capital of Altus being acquired by
Elemental (the "Merger") to create a global gold royalty company
.
2. The Merger
Under the terms of the Merger, which will be subject to the
Conditions and further terms set out in Appendix 1 to this
Announcement and the full terms and conditions to be set out in the
Scheme Document, each Altus Shareholder will be entitled to
receive:
0.5940 New Elemental Shares for each Altus Share
This exchange ratio (the "Exchange Ratio") has been agreed
between the boards of Elemental and Altus taking into account the
relative market capitalisations of both companies.
Upon completion of the Merger, Elemental Shareholders will own
approximately 52.9 per cent. and Altus Shareholders will own
approximately 47.1 per cent. of the total issued share capital of
the New Elemental Altus Group (based on the undiluted issued share
capital of Elemental and Altus on the Last Practicable Date).
The Altus Shares will be acquired pursuant to the Merger fully
paid and free from all liens, charges, equities, encumbrances,
rights of pre-emption and any other interest of any nature
whatsoever and together with all rights attaching thereto,
including without limitation voting rights and the rights to
receive and retain in full all dividends and distributions (if any)
announced, declared, made or paid with a record date on or after
the Scheme Record Time.
If, on or after the date of this Announcement and before the
Effective Date, any dividend and/or other distribution and/or other
return of capital is declared, made or paid or becomes payable in
respect of Altus Shares, Elemental reserves the right to reduce the
consideration payable under the terms of the Merger by an amount up
to the amount of such dividend and/or distribution and/or return of
capital, in which case any reference in this Announcement to the
consideration payable under the Merger will be deemed to be a
reference to the consideration as so reduced. Any exercise by
Elemental of its rights referred to in this paragraph shall be the
subject of an announcement and, for the avoidance of doubt, shall
not be regarded as constituting any revision or variation of the
terms of the Merger. In such circumstances, Altus Shareholders
would be entitled to retain any such dividend, distribution or
other return of capital declared, made or paid or which becomes
payable.
Under the Co-operation Agreement, Elemental has agreed that
until the Effective Date, except (i) with Altus's prior written
consent (not to be unreasonably withheld, conditioned or delayed),
(ii) as required by applicable law, or (iii) to the extent the
relevant matter is expressly permitted by or in the Co-operation
Agreement or this Announcement, Elemental shall not and shall
procure that no member of the Elemental Group (provided the actions
are not at the direction of Elemental) shall agree, resolve, commit
or announce any agreement or intention to authorise, declare or pay
any distribution or reduction or return of capital on or with
respect to the Elemental Shares (whether in cash, assets, shares or
other securities).
It is intended that the Merger will be implemented by way of a
Scheme (although Elemental reserves the right to effect the Merger
by way of an Offer, subject to the consent of the Panel). The
Conditions to the Merger are set out in full in Appendix 1 to this
Announcement.
3. Background to and reasons for the Merger
Substantial benefits for all Altus and Elemental stakeholders as
a result of the creation of the New Elemental Altus Group
The Elemental Directors and Altus Directors believe that the
creation of the New Elemental Altus Group will deliver substantial
benefits for all stakeholders of both Elemental and Altus,
including:
-- Increased scale and diversification : a combined portfolio of
69 assets across 13 jurisdictions, concentrated in tier-1 mining
jurisdictions, of which 11 are in production, and primarily focused
on gold;
-- Transformed adjusted revenue profile : estimated combined
adjusted 2022 revenue of the New Elemental Altus Group of US$19.6
million with significant near term growth potential from first
expected revenue from Ming, Bonikro and Mercedes in 2022 estimated
to lead to combined adjusted 2023 revenue of the New Elemental
Altus Group of US$24.6 million, combined with opportunities to add
further portfolio revenue and duration*;
* see "Non-IFRS financial measures - (i) Adjusted Revenue"
below. The sources and bases for the calculation of the estimated
combined New Elemental Altus Group adjusted revenue for FY 2022 and
2023 are set out in Appendix 2.
-- Strengthened asset portfolio : centred around 3 cornerstone
royalties, the majority of the New Elemental Altus Group's NAV will
be based on producing assets, providing investors with exposure to
the top line revenue of underlying assets (without direct exposure
to the costs / capex of those assets and associated inflationary
risks) while keeping long dated optionality from existing
development pipeline and organic royalty generation portfolio;
-- Strong shareholder support: recognised strategic investors
have supported the Merger, in La Mancha and Condire having provided
shareholder irrevocable undertakings over 44.6 per cent. of Altus's
issued share capital; and South32 and La Mancha having entered into
voting and support agreements in respect of 25.96 per cent. of
Elemental's issued share capital. Additionally, EuroPacific Asset
Management and Adrian Day Asset Management have provided letters of
intent to vote in favour of the Elemental Shareholder Resolution in
respect of a further 10.42 per cent. of Elemental's issued share
capital;
-- Enhanced capital markets profile : increased scale and
liquidity for enhanced market relevance and financial flexibility
and a lower cost of capital, with wider investor appeal, analyst
coverage and M&A potential coming with a larger market
capitalisation; providing the opportunity for a re-rating of the
shares of the New Elemental Altus Group;
-- Complementary management skills : an experienced management
team with Elemental's proven history of accretive royalty
acquisitions being a natural fit to the disciplined royalty
generation and royalty acquisition track record of Altus;
-- Potential cost synergies : opportunity to deliver cost
efficiency synergies at the corporate level through simplification
of operations and listings; and
-- Canadian tax election : the disposition of Altus Shares on
the Merger by a Canadian resident holder will constitute a taxable
disposition for purposes of the Income Tax Act (Canada) (the "Tax
Act") resulting in the realisation of any accrued gain that the
holder may have in the Altus Shares. Elemental will permit an
'eligible holder' to partially or fully defer a gain that would
otherwise be realised, if any, by making a joint election with
Elemental pursuant to section 85 of the Tax Act (in accordance with
all applicable rules). An 'eligible holder' refers to (i) a person
who is resident in Canada and not exempt from tax under Part I of
the Tax Act or (ii) a 'Canadian partnership' no member of which is
exempt from tax under Part I of the Tax Act.
Fair value for both sets of shareholders
The Exchange Ratio has been agreed between the boards of
Elemental and Altus taking into account the relative market
capitalisations of both companies and offers f air value for both
sets of shareholders consistent with valuations expected in an
all-share merger of equals.
4. Recommendation
The Altus Directors, who have been so advised by UBS as to the
financial terms of the Merger, unanimously consider the terms of
the Merger to be fair and reasonable. In providing its advice to
the Altus Directors, UBS has taken into account the commercial
assessments of the Altus Directors. UBS is providing independent
financial advice to the Altus Directors for the purposes of Rule 3
of the Takeover Code.
Accordingly, the Altus Directors intend to recommend unanimously
that (a) Scheme Shareholders vote in favour of the Scheme at the
Altus Court Meeting; and (b) Altus Shareholders vote in favour of
the Special Resolution to be proposed at the Altus General Meeting,
as the Altus Directors who are interested in Altus Shares have
irrevocably undertaken to do in respect of their own beneficial
holdings (and those of their connected persons) in respect of which
they control the voting rights amounting to 15,550,327 Altus Shares
representing, in aggregate, approximately 13.25 per cent. of the
ordinary share capital of Altus and approximately 13.25 per cent.
of the Scheme Shares being eligible to vote at the Altus Court
Meeting, in each case, in issue on the Last Practicable Date.
The Elemental Directors, after an extensive review and thorough
discussion of all facts and issues they considered relevant with
respect to the Merger, unanimously determined that the issuance of
the New Elemental Shares pursuant to the Merger is fair to the
Elemental Shareholders, and authorised Elemental to enter into the
Co-operation Agreement and recommend to Elemental Shareholders that
they vote in favour of the Elemental Shareholder Resolution. In
connection with making this determination, on 13 June 2022 the
Elemental Directors received an opinion from Canaccord Genuity
Corp. to the effect that, as of such date, and subject to the
analyses, factors, assumptions, qualifications and limitations set
forth in such opinion, the Exchange Ratio is fair, from a financial
point of view, to Elemental Shareholders. The full text of
Canaccord Genuity Corp.'s fairness opinion will be included in the
Elemental Information Circular.
The Elemental Directors who are interested in Elemental Shares
have agreed to vote their own Elemental Shares (representing
approximately 14.32 per cent. of the Elemental Shares in issue on
the Last Practicable Date) in favour of the Elemental Shareholder
Resolution.
5. Background to and reasons for the Altus Directors' recommendation
The Altus Directors believe that the Merger would offer
compelling strategic and operational benefits to all stakeholders.
In reaching this conclusion, the Altus Directors considered the
following in particular:
-- the Merger provides Altus Shareholders with the opportunity
to participate in a diversified and scalable junior royalty company
which:
-- is well positioned as a platform for further consolidation in the royalty sector;
-- has increased scale and liquidity for enhanced financial
flexibility and a lower cost of capital;
-- has wider investor appeal and analyst coverage coming with a
larger market capitalisation; and providing the opportunity for a
re-rating of the shares of the New Elemental Altus Group;
-- will have a combined portfolio of 69 assets across 13
jurisdictions, concentrated in tier-1 mining jurisdictions, of
which 11 are in production, and primarily focused on gold. This
will provide a stronger long-term outlook whilst reducing the
overall risk from any one operation or jurisdiction; and
-- will bring together two respected and highly experienced
management teams with a shared vision for the New Elemental Altus
Group;
-- the Altus Directors believe that the terms of the Merger
represent fair value for Altus Shareholders; and
-- the impact of the Merger on all of Altus's stakeholders,
including, in particular, its shareholders, counterparties and
Altus's employees given their importance to Altus's future
strategy. In that regard, the Altus Directors welcome the
statements made by Elemental with regard to its future intentions,
as set out in paragraph 11 below.
As such, the Altus Directors intend to recommend unanimously
that Altus Shareholders vote in favour of the Scheme at the Altus
Court Meeting and the Special Resolution to be proposed at the
Altus General Meeting.
6. Information relating to Elemental
Elemental is a TSX-V listed precious metals royalty company
focused on acquiring royalties and streams over producing, or near
producing, assets from established operators and counterparties.
Elemental's royalty portfolio was constructed over several years by
taking a disciplined, highly selective and rigorous approach to
acquisitions, targeting royalties without caps or buybacks, on
assets with exceptional potential for resource growth, owned by
industry-leading operators. Elemental's vision is to build a
world-class gold royalty company that offer investors superior
exposure to gold with reduced risk, a high growth profile, and
generates exceptional returns for shareholders.
Elemental's common shares are listed on the TSX-V under the
symbol "ELE" and trade on the OTCQX under the symbol "ELEMF".
Elemental Royalties Limited, a British Virgin Islands company
("ERL BVI"), was incorporated under the BVI Business Companies Act
2004 on 15 July 2016. Pursuant to a reverse takeover, Fengro
Industries Corp. ("Fengro") acquired all of the issued and
outstanding common shares of ERL BVI on 27 July 2020. Immediately
prior to the completion of the reverse takeover of Fengro by ERL
BVI, Fengro consolidated its common shares on the basis of one (1)
common share for every 209 common shares outstanding. On 27 July
2020, Fengro changed its name to "Elemental Royalties Corp." in
connection with the completion of the reverse takeover pursuant to
which it acquired ERL BVI and on 30 July 2020 Elemental's shares
commenced trading on the TSX-V under the trading symbol "ELE".
Fengro, the predecessor to Elemental, was incorporated on 11
March 2004 under the name "Ordorado Resources Corp." It then
changed its name to "Eagle Star Petroleum Corp." on 13 June 2006,
to "Eagle Star Minerals Corp." on 6 July 2010, to "DuSolo
Fertilizers Inc." on 28 February 2014 and to "Fengro Industries
Corp." on 18 December 2017. On 19 July 2016, Fengro was continued
from the federal jurisdiction of Canada into British Columbia
pursuant to the Business Corporations Act (British Columbia).
The head and registered office of Elemental is located at
880-580 Hornby Street Vancouver, British Columbia, V6C 3B6,
Canada.
Gold Royalty - Hostile Bid
In December 2021, Gold Royalty announced its intention to make
an all-share hostile bid (the "Hostile Bid") for of Elemental. This
was formally launched in January 2022. Elemental's board believes
that the Hostile Bid represented a material discount to Elemental
shareholders, rather than the premium announced by Gold Royalty,
and Elemental announced that it continued to review alternative
strategic options involving counterparties other than Gold
Royalty.
On 12 May 2022, Elemental confirmed that the Hostile Bid was not
successful. Having failed to meet the statutory minimum tender
condition of more than 50% of the Elemental shares outstanding
(excluding those shares beneficially owned, or over which control
or direction is exercised by, Gold Royalty or by any persons acting
jointly or in concert with Gold Royalty), Gold Royalty allowed the
Hostile Bid to expire.
7. Information relating to Altus
Altus was incorporated on 28 April 2017 as Altus Resources plc
in England and Wales with Registered Number 10746796 under the
Companies Act 2006 and changed its name to Altus Strategies plc on
6 June 2017 with the acquisition of Altus Strategies Ltd which was
founded in 2007.
Altus is an income generating mining royalty company, with a
diversified portfolio of production, pre-production and discovery
stage assets. The Company's differentiated approach of generating
royalties on its own discoveries in Africa and acquiring royalties
globally through financings and acquisitions with third parties has
attracted key institutional investor backing. Altus has established
a global portfolio comprising 33 royalty interests and 26 project
interests across nine countries and nine metals. Altus's royalty
generation activities are currently focused on Egypt, Ethiopia,
Morocco and Cameroon. Altus has 46 employees globally. The Company
engages constructively with all stakeholders, working diligently to
minimise its environmental impact and to promote positive economic
and social outcomes in the communities where it operates. Altus is
based in the United Kingdom and is dual-listed in the UK (AIM:ALS)
and in Canada (TSXV:ALTS). Its shares also trade on the OTCQX in
the United States (OTCQX:ALTUF).
8. Irrevocable undertakings and Voting and Support agreements and letters of intent
Altus irrevocable undertakings
In total, including the irrevocable undertakings from the Altus
Directors described below, Elemental has procured irrevocable
undertakings to vote (or, where applicable, procure voting) in
favour of the Scheme at the Altus Court Meeting and the Special
Resolution to be proposed at the Altus General Meeting (or in the
event that the Merger is implemented by an Offer, to accept or
procure acceptance of such Offer) in respect of, in aggregate,
67,878,883 Altus Shares, representing approximately 57.9 per cent.
of the existing issued ordinary share capital of Altus and 57.9 per
cent. of the Scheme Shares being eligible to vote at the Altus
Court Meeting, in each case, as at the Last Practicable Date.
The Altus Directors have irrevocably undertaken to vote (or,
where applicable, procure voting) in favour of the Scheme at the
Altus Court Meeting and the Special Resolution to be proposed at
the Altus General Meeting (or in the event that the Merger is
implemented by an Offer, to accept or procure acceptance of such
Offer) in respect of their own beneficial holdings totalling
15,550,327 Altus Shares in aggregate, representing approximately
13.25 per cent. of the existing issued ordinary share capital of
Altus and 13.25 per cent. of the Scheme Shares being eligible to
vote at the Altus Court Meeting, in each case, as at the Last
Practicable Date.
In addition to the irrevocable undertakings from Altus Directors
described above, Elemental has also received irrevocable
undertakings to vote (or, where applicable, procure voting) in
favour of the Scheme at the Altus Court Meeting and the Special
Resolution to be proposed at the Altus General Meeting (or in the
event that the Merger is implemented by an Offer, to accept or
procure acceptance of such Offer) from:
-- La Mancha Explorers; and
-- Condire,
in respect of 41,158,454 and 11,170,102 Altus Shares,
respectively, representing in aggregate approximately 44.6 per
cent. of the existing issued ordinary share capital of Altus and
44.6 per cent. of the Scheme Shares being eligible to vote at the
Altus Court Meeting, in each case, as at the Last Practicable
Date.
La Mancha Holding, Elemental and Altus have further agreed that
on the date the Scheme or Offer (as the case may be) becomes
effective, the La Mancha Strategic Investment Agreement shall
terminate and have no further effect.
These irrevocable undertakings cease to be binding, inter alia,
on the earlier of the Long Stop Date and the date on which the
Merger (whether implemented by way of a Scheme or an Offer) is
withdrawn or lapses in accordance with its terms, save where such
lapse or withdrawal is as a result of Elemental exercising its
right to implement the Merger by way of an Offer rather than by way
of a Scheme or vice versa in accordance with the Takeover Code.
Elemental Voting and Support Agreements and letters of
intent
The Elemental Directors and certain employees of Elemental who
are interested in Elemental Shares have entered into voting and
support agreements with Altus to vote in favour of the Elemental
Shareholder Resolution at the Elemental Special Meeting in respect
of 11,207,575 Elemental Shares, representing approximately 14.32
per cent. of the 78,266,221 currently in issue.
These voting and support agreements will cease to be binding,
inter alia, on the earlier of the Long Stop Date and the date on
which the Co-operation Agreement is terminated in accordance with
its terms.
In addition to the voting and support agreements with Elemental
Directors and employees described above, Altus has also entered
into voting and support agreements to vote (or, where applicable,
procure voting) in favour of the Elemental Shareholder Resolution
at the Elemental Special Meeting from:
-- La Mancha Investments; and
-- South32,
in respect of 7,250,000 and 13,065,100 Elemental Shares,
respectively, representing in aggregate approximately 25.96 per
cent. of the existing issued ordinary share capital of Elemental,
as at the Last Practicable Date.
South32 and Elemental have further agreed: (i) that the South32
Investor Rights Agreement will terminate upon the Merger becoming
effective in accordance with applicable laws as South32 will own
less than 10 per cent. of the New Elemental following completion of
the Merger (being the shareholding threshold under which South32's
rights are expressed to fall away under the South32 Investor Rights
Agreement); and (ii) that South32 has waived its rights with
respect to a top-up issuance of Elemental Shares in the event of a
merger, in each case pursuant to a waiver and termination agreement
between South32 and Elemental of even date with this
Announcement.
These voting and support agreements will cease to be binding,
inter alia, on the earlier of the Long Stop Date and the date on
which the Co-operation Agreement is terminated in accordance with
its terms.
EuroPacific Asset Management and Adrian Day Asset Management
have also given non-binding letters of intent to vote (or, where
applicable, procure voting) in favour of the Elemental Shareholder
Resolution at the Elemental Special Meeting in respect of a further
6,296,529 and 1,861,700 Elemental Shares respectively, representing
approximately 10.42 per cent. of the Elemental Shares in issue on
the Last Practicable Date.
Therefore, Altus has received voting undertakings and letters of
intent in respect of, in aggregate, 39,680,904 Elemental Shares,
representing approximately 50.7 per cent. of the Elemental Shares
in issue on the Last Practicable Date.
Further details of these irrevocable undertakings, voting and
support agreements and letters of intent (including the
circumstances in which they cease to be binding) are set out in
Appendix 3 to this announcement.
9. Offer-related Arrangements
9.1 Confidentiality Agreement
Elemental and Altus have entered into a confidentiality
agreement dated 20 January 2022 (the "Confidentiality Agreement")
(as amended by the Exclusivity Agreement), pursuant to which each
of Elemental and Altus has undertaken, amongst other things:
(i) to keep strictly confidential information relating to the
disclosing party and the proposed Merger and not to disclose it to
third parties (other than certain permitted parties) unless
required by law, regulation, rule, order, or other similar
requirement of any applicable governmental or regulatory
authority;
(ii) to use the confidential information only for the purpose of
evaluating, negotiating and consummating the Merger; and
(iii) for a period of two (2) years from the date of the
Confidentiality Agreement, not to directly or indirectly contact,
solicit or hire any officer, director, employee or consultant of
the other party or any of its respective subsidiaries, except
pursuant to a general solicitation which is not directed
specifically to any such persons and is made in the ordinary course
of business consistent with past practices.
The Confidentiality Agreement also contains undertakings from
Altus that for a period of 24 months from the date of the
Confidentiality Agreement, Altus shall not, without the written
consent of Elemental, acquire or offer to acquire any interest in
securities of Elemental.
9.2 Exclusivity Agreement
Elemental and Altus have entered into an exclusivity agreement
dated 9 May 2022 (the "Exclusivity Agreement"), pursuant to which
Elemental (not being a company subject to the Takeover Code) has
undertaken, amongst other things, not to: (a) solicit, initiate or
take any action to facilitate any inquiries or the making of any
proposal from a person or group of persons other than Altus or its
affiliates that would constitute, or would reasonably be expected
to lead to, an alternative transaction to the Merger (an
"Alternative Transaction"); (b) enter into or participate in any
discussions or negotiations with any person or group of persons
(other than Altus and its affiliates) regarding an Alternative
Transaction; (c) make available any information relating to
Elemental, its assets or businesses, or afford access to the
assets, business, properties, books or records of Elemental to any
person or group of persons other than Altus and its
representatives, in all cases for the purpose of assisting with or
facilitating an Alternative Transaction; or (d) voluntarily enter
into an Alternative Transaction or any agreement, arrangement or
understanding, including, without limitation, any letter of intent,
term sheet or other similar document, relating to an Alternative
Transaction, subject in each case to certain permitted actions in
relation to the Hostile Offer or any other unsolicited bidder for
Elemental or any action required pursuant to applicable law.
These exclusivity obligations remained in force until 8 June
2022.
The Exclusivity Agreement also contains undertakings from
Elemental that for a period of 24 months from the date of the
Confidentiality Agreement, Elemental shall not, without the written
consent of Altus, acquire or offer to acquire any interest in
securities of Altus which substantially mirror the corresponding
undertakings from Altus to Elemental in the Confidentiality
Agreement.
9.3 Co-operation Agreement
Elemental and Altus have entered into an arm's-length
Co-operation Agreement dated 14 June 2022, pursuant to which they
have, amongst other things, each agreed to: (i) cooperate in
relation to obtaining any consents, clearances, permissions,
waivers and/or approvals as may be necessary, and the making of all
filings as may be necessary, from or under the law, regulations or
practices applied by any applicable regulatory authority in
connection with the Merger; and (ii) cooperate in preparing and
implementing appropriate proposals in relation to (a) the Altus
Share Plan and certain other bonus and employment related matters
and (b) the Altus Warrants.
In addition, Elemental has agreed to certain provisions if the
Scheme should switch to an Offer. The Co-operation Agreement will
terminate in certain circumstances, including if the Merger is
withdrawn, terminated or lapses, a competing offer completes,
becomes effective or is declared unconditional, or if prior to the
Long Stop Date any regulatory Condition has been invoked by
Elemental, if the Altus Directors withdraw their recommendation of
the Merger or if the Scheme does not become effective in accordance
with its terms by the Long Stop Date or otherwise as agreed between
Elemental and Altus.
Elemental shall pay to Altus a break fee payment in the amount
of US$2,000,000 (exclusive of VAT (if any)) if, following this
Announcement, any of the following events occur:
(i) the Co-operation Agreement is terminated because of an
Elemental Board Adverse Recommendation Change or because Elemental
has breached its obligations relating to Competing Proposals for
Elemental in any material respect, which breach is ongoing
following the date that is two calendar days following Altus's
delivery of written notice to Elemental of such breach or such
breach is otherwise not curable; provided, however, that no break
payment shall be payable in the event that, prior to such
termination (A) any person acting in concert with Altus or at
Altus's direction or with Altus's agreement made, solicited,
initiated or otherwise entered into an agreement, commitment or
understanding regarding a Competing Proposal for Elemental (without
any regard to the last paragraph of that definition) or (B) a Altus
Board Adverse Recommendation Change has occurred; or
(ii) (A) a Competing Proposal for Elemental is made to or in
respect of Elemental or any person has publicly announced an
intention (whether or not conditional) to make a Competing Proposal
for Elemental prior to the termination of the Co-operation
Agreement; (B) the Co-operation Agreement is terminated because the
approval of the Elemental Shareholder Resolution is not obtained at
the Elemental Special Meeting or at any adjournment or postponement
thereof or in certain circumstances where Elemental adjourns or
postpones the Elemental Special Meeting for more than 15 days or
fails to publish the Elemental Information Circular as required
pursuant to Elemental's obligations under the Co-operation
Agreement (if such breach is ongoing following the date that is two
calendar days following Altus's delivery of written notice to
Elemental of such breach or is otherwise not curable) or the
Elemental Information Circular does not contain the Elemental
Recommendation; (C) no Altus Board Adverse Recommendation Change
has occurred prior to such termination; and (D) within 6 months of
the termination of the Co-operation Agreement Elemental enters into
a definitive agreement for a Competing Proposal for Elemental or
the board of Elemental (or any committee thereof) adopts, approves,
recommends or declares advisable any Competing Proposal for
Elemental, and in either case such Competing Proposal for Elemental
is consummated within 12 months of the termination of the
Co-Operation Agreement.
For purposes of the foregoing, the term Competing Proposal for
Elemental has the meaning set forth in Appendix 4, except that
references to "20% or more" are deemed to be references to "50% or
more".
Only one break fee payment can be made and such payment would be
Altus's sole and exclusive remedy in respect of the event giving
rise to such payment.
Elemental has also agreed to a non-solicit undertaking pursuant
to which Elemental shall not directly or indirectly solicit any
Competing Proposal for Elemental or, subject to certain exceptions,
furnish any information on any person seeking to make a Competing
Proposal for Elemental.
10. Disclosure of Interests in Altus
As at the close of business on 13 June 2022 (being the Last
Practicable Date), Frederick Bell, a director of Elemental, had a
beneficial interest in 7,955 Altus Shares, representing
approximately 0.01 per cent. of Altus's issued share capital as of
such date.
Save as disclosed in this Announcement and except for the
irrevocable commitments referred to in paragraph 8 above, as at
close of business on 13 June 2022 (being the Last Practicable Date)
neither Elemental, nor any of its directors, nor, so far as
Elemental is aware, any person acting in concert (within the
meaning of the Takeover Code) with Elemental has:
(i) any interest in, or right to subscribe for, any relevant securities of Altus;
(ii) any short positions in respect of relevant securities of
Altus (whether conditional or absolute and whether in the money or
otherwise), including any short position under a derivative, any
agreement to sell or any delivery obligation or right to require
another person to purchase or take delivery;
(iii) any dealing arrangement of the kind referred to in Note 11
on the definition of acting in concert in the Takeover Code in
relation to Altus Shares or in relation to any securities
convertible or exchangeable into Altus Shares; nor
(iv) borrowed or lent any relevant securities of
Altus(including, for these purposes, any financial collateral
arrangements of the kind referred to in Note 4 on Rule 4.6 of the
Takeover Code) save for any borrowed shares which have been either
on-lent or resold.
'Interests in securities' for these purposes arise, in summary,
when a person has long economic exposure, whether absolute or
conditional, to changes in the price of securities (and a person
who only has a short position in securities is not treated as
interested in those securities). In particular, a person will be
treated as having an 'interest' by virtue of the ownership, voting
rights or control of securities, or by virtue of any agreement to
purchase, option in respect of, or derivative referenced to
securities.
11. Strategic plans with regard to the business, directors,
management, employees, pensions and locations of the Altus
Group
11.1 Strategic plans with regard to the business
Following completion of the Merger, the key strategic priorities
for the New Elemental Altus Group are expected to be focussed
on:
-- Acquisitions : Using its experienced team to pursue accretive
acquisitions of royalty/streaming assets, with a focus on gold;
-- Consolidation : The combined company will assess the royalty
market for further consolidation opportunities;
-- Royalty Generation : A board approved budget will be
allocated to royalty generation ventures with a strict approach of
divestment prior to capital intensive development costs;
-- Market Relevance : Enhanced market relevance profile,
targeting greater research coverage and liquidity;
-- Balance Sheet : Existing debt facilities to be reviewed and optimised;
-- Capital Management : Whilst neither Elemental nor Altus
currently operates a dividend policy, the New Elemental Altus Group
intends to consider capital distributions to shareholders in the
medium term; and
-- Transaction Pipeline : Leveraging increased access to
acquisition pipeline and immediate deal-flow and improved ability
to transact on larger high quality deals.
11.2 Strategic plans and directors, management and employees
Following completion of the Merger, the board of directors and
executive management team of Elemental will be an eight (8) member
board constituted from a combination of existing directors and
shareholder representatives from both Elemental and Altus,
including the two executive directors and comprising:
-- four (4) Elemental representatives, including the Chief Executive Officer; and
-- four (4) Altus representatives, including the Executive Chair.
The Executive management team of the New Elemental Altus Group
shall consist of current management from Elemental and Altus,
reflecting the strengths and complementary expertise of both teams.
More specifically, following completion of the Merger, Frederick
Bell, current CEO of Elemental, will become Chief Executive Officer
of the New Elemental Altus Group, and Steven Poulton, current CEO
of Altus will become Executive Chair of the New Elemental Altus
Group. Details of their service contracts with the New Elemental
Altus Group, which will become effective upon completion of the
Merger, will be set out in the Scheme Document. No retention award
or bonus will be granted to Frederick Bell and Steven Poulton in
connection with the Merger.
The Elemental Directors believe that Elemental and Altus both
currently have low corporate G&A costs and that the 12 months
following completion of the Merger will see significant levels of
activity in the New Elemental Altus Group, providing opportunities
to use the additional headcount added to Elemental by the Merger to
deliver on the strategy of the New Elemental Altus Group.
Accordingly, Elemental does not intend to make any material change
in the balance of skills and functions of the employees of the
Altus Group, and does not intend to make any material reduction in
workforce. As in every merger of equals, the Merger may give rise
to some duplication of roles at a corporate level (particularly in
administrative functions). Wherever possible, this will be
addressed by redeployment of the relevant persons currently
employed as part of the Elemental Group and/or Altus Group. It is
expected that any such duplication and any redeployment
opportunities will be identified by the new executive management
team of the New Elemental Altus Group within the 12 months
following completion of the Merger.
Details of the non-executive director appointment letters of the
Altus non-executive directors joining the board of directors of the
New Elemental Altus Group, which will become effective upon
completion of the Merger, will be set out in the Scheme Document.
These are expected to be on substantially the same terms as the
non-executive director appointment letters of the existing
Elemental non-executive directors. In respect to the Altus Share
Plan (and in accordance with its terms), the Altus Board and
Elemental intend that outstanding awards, including awards to
senior management of Altus, shall be rolled over into a new award
over New Elemental Shares on equivalent terms as the Altus Share
Plan. The number of New Elemental Shares subject to the Replacement
Award shall be calculated by reference to the Exchange Ratio.
Elemental looks forward to joining with the staff of Altus in
the combined team with a view to driving growth through the
development of the combined royalty and generative portfolio under
the New Elemental Altus Group. Following Completion of the Merger,
it is intended that the board of the New Elemental Altus Group will
review the way in which Altus and Elemental management and
employees are remunerated and incentivised, with a view to
achieving an appropriate alignment of incentives for management and
employee performance in the New Elemental Altus Group going
forward.
Except as described above, Elemental does not intend to make any
material change in the conditions of employment of the employees
and management of the Altus Group.
11.3 Existing rights and pensions
Elemental confirms that, following the Scheme becoming
Effective, the existing contractual and statutory rights of all
Altus management and employees will be honoured and will be fully
safeguarded in accordance with applicable law.
Altus and certain of its subsidiaries make contributions to
various defined contribution pension schemes on behalf of a number
of qualifying employees and Elemental intends that these
arrangements would remain in place. Elemental does not intend to
make any material changes to the current employer pension
contribution arrangements.
Altus does not operate or contribute to any defined benefit
pension schemes in respect of its employees.
11.4 Headquarters, locations, fixed assets and research and development
Following completion of the Merger, Elemental's head office and
certain key functions will continue to be located in Vancouver,
Canada. New Elemental Altus Group does not intend to close either
Altus's existing office in Didcot or Elemental's existing office in
London (both in England). Certain senior personnel of the New
Elemental Altus Group will continue to be located in Australia.
The New Elemental Altus Group does not intend to make any
changes with respect to the deployment of Altus's fixed asset
base.
Given the nature of its business, Altus's research and
development function principally comprises its geologist and
exploration teams and the New Elemental Altus Group does not intend
to make any changes to it.
11.5 Trading facilities
Altus Shares are currently admitted to trading on AIM. It is
intended that a request will be made to the London Stock Exchange
to cancel trading in Altus Shares and to de-list Altus from AIM,
following which Altus would be re-registered as a private limited
company, to take effect on or shortly after the Effective Date.
As further described in paragraph 15 below, it is also expected
that Altus will make an application to certain Canadian securities
commissions after the Effective Date to cease to be a reporting
issuer in Canada.
11.6 Development costs and dividend policy
As noted above, following completion of the Merger:
(i) the New Elemental Altus Group intends to allocate a board
approved annual budget to royalty generation ventures with a strict
approach of divestment prior to capital intensive development
costs; and
(ii) whilst neither Elemental nor Altus currently operates a
dividend policy, the New Elemental Altus Group intends to consider
capital distributions to shareholders in the medium term.
None of the statements in this paragraph 11 are "post-offer
undertakings" for the purposes of Rule 19.5 of the Takeover
Code.
12. Altus Share Plan and Altus Warrants
Participants in the Altus Share Plan and holders of Altus
Warrants will be contacted regarding the effect of the Merger on
their rights under the Altus Share Plan and Altus Warrants.
In respect to the Altus Share Plan (and in accordance with its
terms), the Altus Board and Elemental have agreed that the proposal
to participants holding outstanding awards shall be that such
awards are rolled over into a new award over New Elemental Shares
on equivalent terms as the Altus Share Plan (the "Replacement
Award"). The number of New Elemental Shares subject to the
Replacement Award shall be calculated by reference to the Exchange
Ratio.
The board of directors of the New Elemental Altus Group shall
consider granting awards under the Elemental Share Plan to holders
of the Replacement Awards following completion of the Merger.
In respect of the Altus Warrants, (i) where it is expressly
contemplated in accordance with their terms, the Altus Board and
Elemental have agreed that the proposal to participants holding
outstanding warrants shall be that such Altus Warrants are
automatically rolled over into new warrants over New Elemental
Shares on equivalent terms as the relevant Altus Warrants; and (ii)
where it is not expressly contemplated in accordance with their
terms, the Altus Board and Elemental have agreed that an amendment
shall be requested to the terms of such Altus Warrants so that the
relevant Altus Warrants are automatically rolled over into new
warrants over New Elemental Shares on equivalent terms as the
relevant Altus Warrants, in each case the "Replacement Warrants".
The number of New Elemental Shares and the subscription price of
the New Elemental Shares subject to the Replacement Warrants shall
be calculated by reference to the Exchange Ratio.
Full details of the effect of the Merger on (i) participants'
rights under the Altus Share Plan and (ii) the rights of holders of
Altus Warrants will be communicated to participants and warrant
holders in separate letters when the Scheme Document is
published.
13. Opening Position Disclosures
Elemental
In connection with the Merger, Elemental will make a public
Opening Position Disclosure setting out details of its interests or
short positions in, or rights to subscribe for, any relevant
securities of Altus or Elemental as a securities exchange offeror
by no later than 12 noon on 28 June 2022.
Elemental's Opening Position Disclosure will include details of
any interests or short positions in, or rights to subscribe for,
any relevant securities of Altus or Elemental held by all persons
acting in concert with Elemental, including Frederick Bell as a
director of Elemental.
Altus
In connection with the Merger, Altus will make a public Opening
Position Disclosure setting out details of its interests or short
positions in, or rights to subscribe for, any relevant securities
of Altus or Elemental as a securities exchange offeror by no later
than 12 noon on 28 June 2022.
Altus's Opening Position Disclosure will include details of any
interests or short positions in, or rights to subscribe for, any
relevant securities of Altus or Elemental held by all persons
acting in concert with Altus.
14. The Scheme and the Elemental Shareholder Resolution
It is intended that the Merger will be implemented by way of a
court-sanctioned scheme of arrangement under Part 26 of the
Companies Act 2006 between Altus and Scheme Shareholders (although
Elemental reserves the right to effect the Merger by way of an
Offer, subject to the consent of the Panel and the terms of the
Co-operation Agreement).
If it becomes Effective, the Scheme shall provide for Elemental
to acquire the entire issued and to be issued share capital of
Altus. This is to be achieved by the transfer of the Scheme Shares
held by Scheme Shareholders to Elemental, in consideration for
which the Scheme Shareholders will receive the New Elemental Shares
on the basis set out in paragraph 2 of this Announcement.
In order to become Effective, the Scheme must be approved at the
Altus Court Meeting by a majority in number of the Scheme
Shareholders, present and voting to the extent permitted pursuant
to the Takeover Code, applicable law or the Court whose sanction is
required for the Scheme, whether in person or by proxy,
representing 75 per cent. or more in value of the Scheme Shares
held by those Scheme Shareholders. The Scheme also requires the
passing of the Special Resolution at the Altus General Meeting,
which requires the approval by Altus Shareholders representing at
least 75 per cent. of the votes cast at the Altus General Meeting
(either in person or by proxy). The Altus General Meeting is
expected to be held immediately after the Altus Court Meeting.
Following the Altus Meetings, the Scheme must be sanctioned by the
Court following a hearing with regard to the procedural and
substantive fairness of the Scheme to the Scheme Shareholders.
Finally, a copy of the Scheme Court Order must be delivered to the
Registrar of Companies for registration, upon which the Scheme will
become Effective.
The Scheme will also be subject to the Conditions and further
terms set out in Appendix 1 to this Announcement and to the full
terms and conditions to be set out in the Scheme Document. As set
out in Appendix 1, the Merger is conditional, amongst other things
on:
-- the Scheme becoming unconditional and Effective including,
without limitation, its approval by a majority in number of Scheme
Shareholders present and voting (in person or by proxy)
representing 75 per cent. or more in value of the Scheme Shares
held by those Scheme Shareholders; and
-- the requisite approval of the Elemental Shareholder
Resolution by the Elemental Shareholders at the Elemental Special
Meeting.
The Scheme Document will include full details of the Scheme,
together with the notices convening the Altus Court Meeting and the
Altus General Meeting. The Scheme Document will also contain the
expected timetable for the Merger, and will specify the necessary
actions to be taken by Altus Shareholders. Subject to restrictions
in respect of Restricted Jurisdictions, the Scheme Document will be
sent to Altus Shareholders and, for information only, to persons
with information rights and holders of options and/or awards
granted under the Altus Share Plan and Altus Warrants, as soon as
reasonably practicable, and in any event (save with the consent of
the Panel), within 28 days of this Announcement.
The issuance of the New Elemental Shares requires the Elemental
Shareholder Resolution to be approved by a simple majority of the
votes cast by Elemental Shareholders represented in person or by
proxy at the Elemental Special Meeting. The board of Elemental
intends to unanimously recommend to Elemental Shareholders to vote
in favour of the Elemental Shareholder Resolution. It is expected
that the Elemental Information Circular, containing further
information about the Merger and notice of the Elemental Special
Meeting, will be mailed to Elemental Shareholders at or around the
same time as the Scheme Document.
The Scheme is expected to become Effective during the third
quarter of the calendar year 2022, subject to the satisfaction or
(where applicable) waiver of the Conditions. If the Scheme does not
become Effective on or before the Long Stop Date, it will lapse and
the Merger will not proceed (unless Elemental and Altus otherwise
agree and the Panel otherwise consents).
If any Condition in paragraph 2 of Appendix 1 to this
Announcement is not capable of being satisfied by the date
specified therein, Elemental shall make an announcement through a
Regulatory Information Service as soon as practicable and, in any
event, by not later than 7.00 a.m. (London time) on the Business
Day following the date so specified, stating whether Elemental has
invoked that Condition, (where applicable) waived that Condition
or, with the agreement of Altus, specified a new date by which that
Condition must be satisfied.
Upon the Scheme becoming Effective: (i) it will be binding on
all Altus Shareholders, irrespective of whether or not they
attended or voted at the Altus Meetings (and if they attended and
voted, whether or not they voted in favour); and (ii) share
certificates in respect of Altus Shares will cease to be valid and
entitlements to Altus Shares held within the CREST system will be
cancelled. The consideration for the Merger (pursuant to the
Exchange Ratio) will be dispatched to Scheme Shareholders no later
than 14 days after the Effective Date in accordance with the
requirements of the Takeover Code.
Any Altus Shares issued before the Scheme Record Time will be
subject to the terms of the Scheme. The Special Resolution to be
proposed at the Altus General Meeting will, amongst other matters,
provide for an amendment to Altus's articles of association in
order to incorporate provisions requiring any Altus Shares issued
after the Scheme Record Time (other than to Elemental and/or its
nominees) to be automatically transferred to Elemental (and, where
applicable, for consideration to be paid to the original recipient
of the Altus Shares so issued) on the same terms as the Merger
(other than terms as to timings and formalities). The provisions of
Altus's articles of association (as amended) will avoid any person
(other than Elemental and their nominees) holding Altus Shares on
and after the Effective Date.
Elemental reserves the right to elect to implement the Merger by
way of an Offer as an alternative to the Scheme (subject to the
Panel's consent). In such event, the Merger will be implemented on
substantially the same terms, so far as applicable, as those which
would apply to the Scheme, subject to appropriate amendments to
reflect, among other things, the change in method of effecting the
Merger (including, without limitation: (i) the inclusion of an
acceptance condition set at 90 per cent.; and (ii) those required
by, or deemed appropriate by, Elemental under applicable law).
Further, if sufficient acceptances of such Offer are received
and/or sufficient Altus Shares are otherwise acquired, it is the
intention of Elemental to apply the provisions of the Companies Act
2006 to acquire compulsorily any outstanding Altus Shares to which
such Offer relates.
The Scheme will be governed by English law and will be subject
to the jurisdiction of the Court. The Scheme will be subject to the
applicable requirements of the Takeover Code, the Panel, the London
Stock Exchange, the TSX-V, the FCA, the AIM Rules, applicable
Canadian and US securities laws and the Registrar of Companies.
15. Cancellation of trading and re-registration
Altus Shares are currently admitted to trading on AIM. It is
intended that dealings in Altus Shares should be suspended shortly
prior to the Effective Date, at a time to be set out in the Scheme
Document. It is further intended that an application will be made
to the London Stock Exchange to cancel trading in Altus Shares on
AIM, and the Company will be re-registered as a private limited
company, to take effect on or shortly after the Effective Date. A
resolution to approve the re-registration will be proposed at the
Altus General Meeting.
Share certificates in respect of Altus Shares will cease to be
valid and should be destroyed on the first Business Day following
the Effective Date. Entitlements to Altus Shares held within the
CREST system will be cancelled on the first Business Day following
the Effective Date.
On or about the Effective Date, the Altus Shares are expected to
be delisted from the TSX-V.
Upon the delisting and cancellation of admission to trading of
Altus Shares on AIM, the Altus Shares will no longer trade in the
OTCQX market in the United States.
16. Fractional entitlements
Fractions of New Elemental Shares will not be issued to Altus
Shareholders. Instead, Altus Shareholders who otherwise would have
received a fraction of a New Elemental Share will instead receive
an amount in cash rounded to the nearest cent, based on the amount
obtained by multiplying such fraction by the average closing price
of Elemental Shares on the TSX-V on each of the five consecutive
trading days ending on the trading day that is two trading days
prior to the Effective Date, except that individual entitlements of
less than GBP5.00 will not be paid but will be retained for the
benefit of the New Elemental Altus Group.
17. Consents
Each of Canaccord Genuity, UBS and SP Angel has given and not
withdrawn its consent to the publication of this Announcement with
the inclusion herein of the references to its name in the form and
context in which such references appear.
18. Overseas Shareholders
The availability of the Merger to Altus Shareholders who are not
resident in Canada, the United States or the UK may be affected by
the laws and/or regulations of their relevant jurisdiction.
Therefore, any persons who are subject to the laws and/or
regulations of any jurisdiction other than Canada, the United
States or the UK should inform themselves about and observe any
applicable legal or regulatory requirements in their jurisdiction.
Further details in relation to Overseas Shareholders will be set
out in the Scheme Document. If you are in any doubt you should
consult your professional adviser in the relevant jurisdiction
without delay.
19. Documents available for inspection
Copies of the following documents will by no later than 12 noon
on the first Business Day following the date of this Announcement
be published on Elemental's website at
https://www.elementalroyalties.com/ and Altus's website at
https:/altus-strategies.com/ until the end of the offer:
-- this Announcement;
-- the Confidentiality Agreement;
-- the Exclusivity Agreement;
-- the Co-operation Agreement;
-- the irrevocable undertakings, voting and support agreements
and letters of intent listed in Appendix 3 to this Announcement;
and
-- the consent letters from each of the advisers referred to in paragraph 17 above.
The contents of the websites referred to in this Announcement
are not incorporated into and do not form part of this
Announcement.
20. General
The Merger will be made on the terms and subject to the
Conditions set out in Appendix 1 to this Announcement, and to the
full terms and conditions to be set out in the Scheme Document.
The formal Scheme Document will be sent to Altus Shareholders
within 28 days of this Announcement (or on such later date as may
be agreed between Elemental and Altus with the consent of the
Panel). An expected timetable of key events relating to the Merger,
including the dates of the Altus Meetings, will be provided in the
Scheme Document.
It is expected that the Elemental Information Circular,
containing further information about the Merger and notice of the
Elemental Special Meeting, will be mailed to Elemental Shareholders
at or around the same time as the Scheme Document. It is also
expected that the Elemental Special Meeting will be held on the
same day as the Altus Meetings.
The sources and bases of calculation of certain information
contained in this Announcement are set out in Appendix 2 to this
Announcement. Details of irrevocable undertakings, voting and
support agreements and letters of intent received or entered into
by Elemental and Altus are set out in Appendix 3 to this
Announcement. Certain terms used in this Announcement are defined
in Appendix 4 to this Announcement.
Enquiries:
+44 (0) 7554 872
Elemental 794
Frederick Bell, CEO and Director
Canaccord Genuity Limited (Financial Adviser
to Elemental) +44 (0) 20 7523 8000
Raj Khatri (Canaccord Genuity Limited)
James Asensio (Canaccord Genuity Limited)
David Sadowski (Canaccord Genuity Corp.)
Brad Cameron (Canaccord Genuity Corp.)
Longview Communications & Public Affairs
(Financial PR & IR to Elemental)
Andy Lloyd +1 416 402 5029
Shannon Hazlett +1 403 614 0593
Yellow Jersey PR (Financial PR & IR to
Altus) +44 (0) 20 3004 9512
Charles Goodwin
Henry Wilkinson
+44 (0) 1235 511
Altus 767
Steven Poulton, Chief Executive
UBS (Financial Adviser to Altus) +44 (0)20 7567 8000
Jason Hutchings
Sandip Dhillon
Frank Geary
SP Angel Corporate Finance LLP (Nominated
Adviser to Altus) +44 (0)20 3470 0470
Richard Morrison
Adam Cowl
SP Angel Corporate Finance LLP (Broker
to Altus)
Grant Barker
Rob Rees +44 (0)20 3470 0471
Shard Capital (Broker to Altus)
Damon Heath
Isabella Pierre +44 (0) 20 7186 9927
Fasken Martineau LLP is retained as legal
adviser to Elemental +44 (0)20 7917 8500
Norton Rose Fulbright LLP is retained as
UK legal adviser to Altus +44 (0)20 7283 6000
Important notices relating
Canaccord Genuity Limited, which is authorised and regulated by
the FCA in the United Kingdom, and Canaccord Genuity Corp.
(together, "Canaccord Genuity") are acting as financial adviser to
Elemental and for no one else in connection with the Merger and
other matters referred to in this Announcement and will not be
responsible to anyone other than Elemental for providing the
protections afforded to their clients or for providing advice in
relation to the Merger, the contents of this Announcement or any
other matters referred to in this Announcement. Neither Canaccord
Genuity nor any of their subsidiaries, branches or affiliates owes
or accepts any duty, liability or responsibility whatsoever
(whether direct or indirect, whether in contract, in tort, under
statute or otherwise) to any person who is not a client of
Canaccord Genuity in connection with any matter referred to in this
Announcement or otherwise.
UBS AG London Branch ("UBS") is authorised and regulated by the
Financial Market Supervisory Authority in Switzerland. It is
authorised by the Prudential Regulation Authority and subject to
regulation by the Financial Conduct Authority and limited
regulation by the Prudential Regulation Authority in the United
Kingdom and is acting as financial adviser to Altus and for no one
else in connection with the Merger and other matters referred to in
this Announcement and will not be responsible to anyone other than
Altus for providing the protections afforded to its clients or for
providing advice in relation to the Merger, the contents of this
Announcement or any other matters referred to in this Announcement.
Neither UBS nor any of its subsidiaries, branches or affiliates
owes or accepts any duty, liability or responsibility whatsoever
(whether direct or indirect, whether in contract, in tort, under
statute or otherwise) to any person who is not a client of UBS in
connection with any matter referred to in this Announcement or
otherwise.
SP Angel Corporate Finance LLP ("SP Angel") is authorised and
regulated by the FCA in the United Kingdom and is acting as
nominated adviser and broker to Altus and for no one else in
connection with the Merger and other matters referred to in this
Announcement and will not be responsible to anyone other than Altus
for providing the protections afforded to its clients or for
providing advice in relation to the Merger, the contents of this
Announcement or any other matters referred to in this Announcement.
Neither SP Angel nor any of its subsidiaries, branches or
affiliates owes or accepts any duty, liability or responsibility
whatsoever (whether direct or indirect, whether in contract, in
tort, under statute or otherwise) to any person who is not a client
of SP Angel in connection with any matter referred to in this
Announcement or otherwise.
Each of Canaccord Genuity, UBS and SP Angel have given and not
withdrawn their consent to the publication of this Announcement
with the inclusion in it of the references to their respective
names and (where applicable) advice in the form and context in
which they appear.
Further information
This Announcement is for information purposes only and is not
intended to, and does not, constitute or form part of any offer or
inducement to sell or an invitation to purchase, otherwise acquire,
subscribe for, sell or otherwise dispose of, any securities or the
solicitation of an offer to buy any securities, any vote or
approval in any jurisdiction pursuant to the Merger or otherwise,
nor shall there be any sale, issuance or transfer of securities of
Altus in any jurisdiction in contravention of applicable law.
The Merger will be implemented solely pursuant to the terms of
the Scheme Document (or, if the Merger is implemented by way of an
Offer, the Offer Document), which will contain the full terms and
conditions of the Merger, including details of what action is
required from Altus Shareholders in respect of the Merger. Any
decision in respect of, or other response to, the Merger should be
made only on the basis of the information in the Scheme Document
(or, if the Merger is implemented by way of an Offer, the Offer
Document).
Altus and Elemental shall prepare the Scheme Document (or, if
the Merger is implemented by way of an Offer, the Offer Document)
to be distributed to Altus Shareholders. Altus and Elemental urge
Altus Shareholders to read the Scheme Document in its entirety (or,
if the Merger is implemented by way of an Offer, the Offer
Document) when it becomes available because it will contain
important information relating to the Merger (including details of
how to vote in respect of the Scheme) and the New Elemental Shares.
Any vote in respect of resolutions to be proposed at the Altus
Meetings to approve the Merger, the Scheme or related matters, or
other responses in relation to the Merger, should be made only on
the basis of information contained in the Scheme Document.
Elemental will prepare the Elemental Information Circular to be
distributed to Elemental Shareholders, containing details of the
Merger, notice of the Elemental Special Meeting and information on
the New Elemental Shares. Elemental urges Elemental Shareholders to
read the Elemental Information Circular carefully when it becomes
available because it will contain important information in relation
to the Merger and the New Elemental Shares. Any vote in respect of
the Elemental Shareholder Resolution to be proposed at the
Elemental Special Meeting to approve the issuance of New Elemental
Shares under the Merger should be made only on the basis of the
information contained in the Elemental Information Circular.
This Announcement does not constitute a prospectus or prospectus
equivalent document.
Elemental reserves the right to elect to implement the Merger by
way of an Offer as an alternative to the Scheme (subject to the
Panel's consent). In such event, the Merger will be implemented on
substantially the same terms, so far as applicable, as those which
will apply to the Scheme, subject to appropriate amendments to
reflect, among other things, the change in method of effecting the
Merger (including, without limitation: (i) the inclusion of an
acceptance condition set at such percentage of the Altus Shares to
which such Offer relates as Elemental may, subject to the rules of
the Takeover Code and with the consent of the Panel, decide; and
(ii) those required by, or deemed appropriate by, Elemental under
applicable law). Further, if sufficient acceptances of such Offer
are received and/or sufficient Altus Shares are otherwise acquired,
it is the intention of Elemental to apply the provisions of the
Companies Act 2006 to acquire compulsorily any outstanding Altus
Shares to which such Offer relates.
Technical information
The technical and scientific information contained in this
Announcement in respect of Altus has been reviewed and approved for
release by Steven Poulton, Chief Executive Officer, who is Altus's
Qualified Persons as defined by National Instrument 43-101 -
Standards of Disclosure for Mineral Projects.
The technical and scientific information contained in this
Announcement in respect of Elemental has been reviewed and approved
for release by Richard Evans, FAusIMM, Senior Vice President
Technical, who is Elemental's Qualified Person as defined by
National Instrument 43-101 - Standards of Disclosure for Mineral
Projects.
Overseas Shareholders
The release, publication or distribution of this Announcement in
or into jurisdictions other than Canada, the United States and the
United Kingdom and may be restricted by law and therefore any
persons who are subject to the law of any jurisdiction other than
Canada, the United States and the United Kingdom should inform
themselves about, and observe, any applicable legal or regulatory
requirements. In particular the ability of persons who are not
citizens of and resident in Canada, the United States or the United
Kingdom to vote their Altus Shares with respect to the Scheme at
the Altus Court Meeting, or to appoint another person as proxy to
vote at the Altus Court Meeting on their behalf, may be affected by
the laws of the relevant jurisdictions in which they are located or
of which they are citizens. Any failure to comply with the
applicable restrictions may constitute a violation of the
securities laws of any such jurisdiction.
Relevant clearances have not been, and will not be, obtained
from the securities commission or similar regulatory authority of
any province or territory of Canada. To the fullest extent
permitted by applicable law, the companies and persons involved in
the Merger disclaim any responsibility or liability for the
violation of such restrictions by any person.
This Announcement has been prepared for the purposes of
complying with applicable English law, certain applicable
securities laws in Canada and the United States, the AIM Rules and
the Takeover Code and the information disclosed may not be the same
as that which would have been disclosed if this Announcement had
been prepared in accordance with the laws of jurisdictions outside
of the UK. The Merger will be subject to the laws of England and
Wales and to the applicable requirements of the Takeover Code and
the Panel, as well as applicable securities laws of Canada that
apply to Elemental due to its status as a "reporting issuer" in the
provinces and territories of Canada other than Quebec.
Copies of this Announcement and formal documentation relating to
the Merger will not be and must not be, mailed or otherwise
forwarded, distributed or sent in, into or from any Restricted
Jurisdiction or any jurisdiction where to do so would violate the
laws of that jurisdiction and persons receiving such documents
(including custodians, nominees and trustees) must not mail or
otherwise forward, distribute or send them in or into or from any
Restricted Jurisdiction. Doing so may render invalid any related
purported vote in respect of the Merger. If the Merger is
implemented by way of Offer (unless otherwise permitted by
applicable law or regulation), the Offer may not be made, directly
or indirectly, in or into or by use of the mails or any other means
or instrumentality (including, without limitation, facsimile, email
or other electronic transmission, telex or telephone) of interstate
or foreign commerce of, or any facility of a national, state or
other securities exchange of any Restricted Jurisdiction and the
Offer will not be capable of acceptance by any such use, means,
instrumentality or facilities or from within any Restricted
Jurisdiction.
Further details in relation to Overseas Shareholders will be
contained in the Scheme Document and Altus Shareholders are advised
to read carefully the Scheme Document and related forms of proxy
once these have been mailed.
Notice to US investors in Altus
Altus Shareholders in the United States should note that the
Merger relates to the shares of an English company and is proposed
to be made by means of a scheme of arrangement provided for under,
and governed by, the laws of England and Wales.
Any securities issued by Elemental as a result of this Merger by
means of a scheme of arrangement will be issued in reliance upon
the exemption from the registration requirements of the US
Securities Act of 1933 ("US Securities Act"), pursuant to the
exemption from registration set forth in Section 3(a)(10) thereof,
and also will not be subject to the tender offer rules promulgated
under the US Securities Exchange Act of 1934. Accordingly, the
Scheme will be subject to disclosure requirements and practices
applicable in the UK to schemes of arrangement, which are different
from the disclosure requirements that would be applicable in the US
if the securities were registered under the US Securities Act or if
the transaction were subject to the US tender offer rules. Except
as described below under the heading 'Non-IFRS financial measures',
the financial information included in this announcement and the
Scheme documentation has been or will have been prepared in
accordance with International Financial Reporting Standards
("IFRS") and thus may not be comparable to financial information of
US companies or companies whose financial statements are prepared
in accordance with generally accepted accounting principles in the
US. If Elemental exercises its right to implement the acquisition
of the Altus Shares in accordance with the Co-operation Agreement
by way of an Offer, such offer will be made in compliance with
applicable US laws and regulations, including the registration
requirements of the US Securities Act of 1933 and the tender offer
rules under the US Securities Exchange Act of 1934 and any
applicable exemptions provided thereunder.
Neither the Merger nor this Announcement have been approved or
disapproved by the US Securities and Exchange Commission, any state
securities commission in the United States or any other US
regulatory authority, nor have any such authorities passed upon or
determined the adequacy or accuracy of the information contained in
this Announcement or the merits of the Merger. Any representation
to the contrary is a criminal offence in the United States.
The receipt of consideration by a US holder for the transfer of
its Altus Shares pursuant to the Merger may be a taxable
transaction for US federal income tax purposes and under applicable
US state and local, as well as non-US and other, tax laws. Each
Altus Shareholder is urged to consult their independent
professional adviser immediately regarding the tax consequences of
the Merger applicable to them, including under applicable US
federal, state and local, as well as non-US and other, tax
laws.
It may be difficult for US holders of Altus Shares to enforce
their rights and any claim arising out of the US federal laws or to
enforce against them a judgment of a US court predicated upon the
securities laws of the United Kingdom, since Elemental and Altus
are incorporated in a non-US jurisdiction, and some or all of their
officers and directors may be residents of countries other than the
United States. US holders of Altus Shares may not be able to sue a
non-US company or its officers or directors in a non-US court for
violations of the US securities laws. Further, it may be difficult
to compel a non-US company and its affiliates to subject themselves
to a US court's judgement.
In accordance with normal UK practice, Elemental or its
nominees, or its brokers (acting as agents), may from time to time
make certain purchases of, or arrangements to purchase, Altus
Shares outside of the US, other than pursuant to the Merger, until
the date on which the Merger and/or Scheme becomes effective,
lapses or is otherwise withdrawn. These purchases may occur either
in the open market at prevailing prices or in private transactions
at negotiated prices. Any information about such purchases will be
disclosed as required in the UK, will be reported to a Regulatory
Information Service and will be available on the London Stock
Exchange website at www.londonstockexchange.com .
Additional information for Canadian Altus Shareholders
No securities commission or similar authority of Canada, or any
other jurisdiction has reviewed or in any way passed upon this
document or the merits of the securities described herein, and any
representation to the contrary is an offence.
If Elemental exercises its right to implement the acquisition of
the Altus Shares in accordance with the Co-operation Agreement by
way of an Offer, such Offer will be made in compliance with
applicable Canadian securities laws or pursuant to an exemption
therefrom.
The enforcement by Canadian Altus Shareholders of civil
liabilities under the Canadian securities laws may be affected
adversely by the fact that Altus is incorporated or organized under
the laws of a jurisdiction other than Canada, that some or all of
Elemental's and Altus's officers and directors are and will be
residents of countries other than Canada, that some or all of the
experts named in this Announcement may be residents of countries
other than Canada, and that all or a substantial portion of the
assets of Elemental, Altus and such persons are and will be located
outside Canada. As a result, it may be difficult or impossible for
Canadian Altus Shareholders to effect service of process within
Canada upon Altus, Elemental's and Altus's respective officers or
directors or the experts named herein, or to realize against them,
upon judgments of courts of Canada predicated upon liabilities
under Canadian securities laws. In addition, Canadian Altus
Shareholders should not assume that the courts of England and
Wales: (a) would enforce judgments of Canadian courts obtained in
actions against such persons predicated upon civil liabilities
under Canadian securities laws; or (b) would enforce, in original
actions, liabilities against such persons predicated upon civil
liabilities under the Canadian securities laws.
The distribution of the New Elemental Shares pursuant to the
Merger will constitute a distribution of securities that is exempt
from the prospectus requirements of Canadian securities law. The
New Elemental Shares received pursuant to the Merger will not be
subject to resale restrictions and may be resold through registered
dealers in each of the provinces and territories of Canada provided
that (i) the trade is not a "control distribution" as defined in
Canadian securities law, (ii) no unusual effort is made to prepare
the market or to create a demand for Elemental Shares, (iii) no
extraordinary commission or consideration is paid to a person in
respect of such sale, and (iv) if the selling security holder is an
insider or officer of Elemental, as the case may be, the selling
security holder has no reasonable grounds to believe that
Elemental, as the case may be, is in default of applicable Canadian
securities law.
Canadian Altus Shareholders should be aware that the Merger
described in this Announcement may have tax consequences in Canada
and should consult their own tax advisors to determine the
particular tax consequences to them of the Merger in light of their
particular circumstances, as well as any tax consequences that may
arise under the laws of any other relevant foreign, state, local or
other taxing jurisdiction.
Non-IFRS financial measures
(i) Adjusted Revenue
Adjusted revenue is a non-IFRS financial measure, which is
defined by Altus (and is intended to be defined by the New
Elemental Altus Group following the Effective Date) by including
gross equity income from associated entities holding royalty
interests related to Altus's effective royalty on the Caserones
Mine. Altus's management uses adjusted revenue to evaluate the
underlying operating performance of Altus for the reporting periods
presented, to assist with the planning and forecasting of future
operating results, and to supplement information in its financial
statements. Elemental and Altus's management believe that in
addition to measures prepared in accordance with IFRS such as
revenue, investors may use adjusted revenue to evaluate the results
of the underlying business, particularly since the adjusted revenue
may not typically be included in operating results. Management
believes that adjusted revenue is a useful measures of Altus's
performance because they adjust for items which management believes
reflect Altus's core operating results from period to period.
Adjusted revenue is intended to provide additional information to
investors and should not be considered in isolation or as a
substitute for measures of performance prepared in accordance with
IFRS. It does not have any standardized meaning under IFRS and may
not be comparable to similar measures presented by other
issuers.
(ii) Gold Equivalent Ounces (GEO)
Elemental and Altus's adjusted royalty revenue is converted to
an attributable gold equivalent ounce, or GEO, basis by dividing
the royalty revenue received in a period by the average gold price
for the same respective period. The presentation of this non-IFRS
measure is intended to provide additional information and should
not be considered in isolation or as a substitute for measures of
performance prepared in accordance with IFRS. Other companies may
calculate these non-IFRS measures differently. The production
forecast was derived using information that is available in the
public domain as at the date hereof, which included guidance and
estimates prepared and issued by management of the operators of the
mining operations in which Elemental or Altus holds an interest.
The production forecast is sensitive to the performance and
operating status of the underlying mines. None of the information
has been independently verified by Elemental or Altus and maybe
subject to uncertainty. There can be no assurance that such
information is complete or accurate.
Third Party / Market Data
This Announcement contains statistical data, market research and
industry forecasts that were obtained from government, stock
exchange, analysts' or other industry publications and reports or
based on estimates derived from such publications and reports and
management's knowledge of, and experience in, the markets in which
Elemental and Altus operate. Government and industry publications
and reports generally indicate that they have obtained their
information from sources believed to be reliable, but do not
guarantee the accuracy and completeness of their information.
Often, such information is provided subject to specific terms and
conditions limiting the liability of the provider, disclaiming any
responsibility for such information, and/or limiting a third
party's ability to rely on such information. None of the authors of
such publications and reports has provided any form of
consultation, advice or counsel regarding any aspect of, or is in
any way whatsoever associated with, Elemental or Altus. Further,
certain of these organizations may be advisers to participants in
the mining industry, and they may present information in a manner
that is more favourable to that industry than would be presented by
an independent source. Actual outcomes may vary materially from
those forecast in such reports or publications, and the prospect
for material variation can be expected to increase as the length of
the forecast period increases. While Elemental and Altus believe
this data to be reliable, market and industry data is subject to
variations and cannot be verified due to limits on the availability
and reliability of data inputs, the voluntary nature of the data
gathering process and other limitations and uncertainties inherent
in any market or other survey. Accordingly, the accuracy, currency
and completeness of this information cannot be guaranteed. Neither
Elemental nor Altus has independently verified any of the data from
third party sources referred to in this Announcement or ascertained
the underlying assumptions relied upon by such sources.
Cautionary note regarding forward-looking statements
This Announcement (including information incorporated by
reference in this Announcement), oral statements made regarding the
Merger, and other information published by Elemental and Altus
contain certain statements which are, or may be deemed to be,
"forward-looking statements" and "forward-looking information",
each as defined under applicable securities laws (collectively,
"forward-looking statements"). Forward-looking statements are
prospective in nature and are not based on historical facts, but
rather on current expectations and projections of the management of
Elemental and Altus about future events, and are therefore subject
to risks and uncertainties which could cause actual results to
differ materially from the future results expressed or implied by
the forward-looking statements.
Forward-looking statements often, but not always, use words such
as "anticipate", "target", "expect", "estimate", "intend", "plan",
"goal", "believe", "hope", "aims", "continue", "will", "may",
"should", "would", "could", or other words of similar meaning or
derivatives thereof (including negative and grammatical
variations). These statements are based on assumptions and
assessments made by Elemental and/or Altus in light of their
experience and their perception of historical trends, current
conditions, future developments and other factors they believe
appropriate. By their nature, forward-looking statements involve
risk and uncertainty, because they relate to events and depend on
circumstances that will occur in the future and the factors
described in the context of such forward-looking statements in this
Announcement could cause actual results and developments to differ
materially from those expressed in or implied by such
forward-looking statements and as such are qualified in their
entirety. Among the factors that could cause actual results to
differ materially from those described in the forward-looking
statements are changes in the global, political, economic,
business, competitive, market and regulatory forces, future
exchange and interest rates, changes in tax rates and future
business combinations or dispositions.
The forward-looking statements contained in this Announcement
include statements related to: the Merger including statements with
respect to the implementation thereof; the benefits of the Merger
to the Altus Shareholders and the Elemental Shareholders; the
timing of the Opening Position Disclosures of Elemental and Altus;
the timing of mailing the shareholder materials and the timing of
the Altus General Meeting, the Altus Court Meeting and the
Elemental Special Meeting; the timing for and receipt of all
required regulatory, court, stock exchange and shareholder
approvals and approvals to complete the Merger; the ability of
Elemental and Altus to satisfy other conditions to, and to complete
the Merger; the anticipated timing for completion of the Merger;
the closing of the Merger; the expected effects of the Merger on
Elemental and Altus (including their future prospects, developments
and strategies), the expected timing and scope of the Merger and
other statements other than historical facts; the intention to seek
a delisting of the shares of Altus from the AIM; the TSX-V and the
OTCQX market in the United States; and the intention for Altus to
make an application to certain Canadian securities commissions
after the Effective Date to cease to be a reporting issuer in
Canada. Forward-looking statements may also include statements
relating to the following: (i) future capital expenditures,
revenues, adjusted revenues, earnings, synergies, economic
performance, indebtedness, financial condition, dividend policy,
losses and future prospects; (ii) business and management
strategies and the expansion and growth of Elemental's and Altus's
operations and potential synergies resulting from the Merger; and
(iii) the effects of global economic conditions and governmental
regulation on Elemental's and Altus's businesses.
In respect of forward-looking statements and information
concerning the anticipated completion of the proposed Merger and
the anticipated timing for completion of the proposed Merger,
Elemental and Altus have provided them in reliance on certain
assumptions and believe that they are reasonable at this time,
including the assumptions to the time required to prepare and mail
shareholder meeting materials, the ability of the applicable
parties to receive, in a timely manner, the necessary regulatory,
shareholder, court, stock exchange and relevant authority
approvals, and the ability of the parties to satisfy, in a timely
manner, the other conditions to the closing of the Merger. These
dates may change for a number of reasons, including unforeseen
delays in preparing meeting materials, inability to secure
necessary approvals in the time assumed or the need for additional
time to satisfy the other conditions to the completion of the
Merger. Accordingly, you should not place undue reliance on the
forward-looking statements and information in this Announcement
concerning these times.
Such forward-looking statements involve known and unknown risks,
and uncertainties and other important factors that could
significantly affect expected results and are based on certain key
assumptions. Such risks, uncertainties and factors may cause the
actual results, performance or achievements of Elemental or Altus
to be materially different from any future results, performance or
achievements expressed or implied by the forward-looking
statements. These risks, uncertainties and factors include, without
limitation: risks associated with the Merger and acquisitions
generally; the Co-operation Agreement may be terminated in certain
circumstances; there can be no certainty that all conditions
precedent to the Merger will be satisfied; the parties will incur
costs even if the Merger is not completed and Elemental may have to
pay a break fee to Altus if the Co-operation Agreement is
terminated in certain circumstances; all necessary approvals may
not be obtained; and uncertainty regarding the ability of the
parties to complete and mail the shareholder materials and the
ability to hold the Altus General Meeting, the Altus Court Meeting
and the Elemental Shareholder Meeting within the time frames
indicated. Additional risks, uncertainties and factors include
changes in the global, political, economic, business, competitive,
market and regulatory forces, future exchange and interest rates,
changes in tax rates and future business combinations or disposals.
For a discussion of important factors which could cause actual
results to differ from forward-looking statements in relation to
Elemental or Altus, refer to (i) the Annual Information Form of
Elemental for the year ended 31 December 2021; and (ii) the annual
report and accounts of Altus for the financial year ended 31
December 2021.
No member of the Elemental Group or the Altus Group, nor any of
their respective associates, directors, officers, employees or
advisers, provides any representation, assurance or guarantee that
the occurrence of the events expressed or implied in any
forward-looking statements in this Announcement will actually
occur.
Although it is believed that the expectations reflected in such
forward-looking statements are reasonable, no assurance can be
given that such expectations will prove to have been correct and
you are therefore cautioned not to place any reliance on these
forward-looking statements which speak only as at the date of this
Announcement. It is expected that these expectations will change as
new information is received. Neither Elemental nor Altus assumes
any obligation to update or correct the information contained in
this Announcement (whether as a result of new information, future
events or otherwise), except as required by applicable law.
Investors are cautioned that forward-looking statements are not
guarantees of future performance and accordingly investors are
cautioned not to put undue reliance on forward-looking statements
due to their inherent uncertainty.
Dealing and opening position disclosure requirements
Under Rule 8.3(a) of the Takeover Code, any person who is
interested in one per cent. or more of any class of relevant
securities of an offeree company or of any securities exchange
offeror (being any offeror other than an offeror in respect of
which it has been announced that its offer is, or is likely to be,
solely in cash) must make an Opening Position Disclosure following
the commencement of the offer period and, if later, following the
announcement in which any securities exchange offeror is first
identified.
An Opening Position Disclosure must contain details of the
person's interests and short positions in, and rights to subscribe
for, any relevant securities of each of (i) the offeree company and
(ii) any securities exchange offeror(s). An Opening Position
Disclosure by a person to whom Rule 8.3(a) applies must be made by
no later than 3.30 p.m. (London time) on the 10th Business Day
following the commencement of the offer period and, if appropriate,
by no later than 3.30 p.m. (London time) on the 10th Business Day
following the announcement in which any securities exchange offeror
is first identified. Relevant persons who deal in the relevant
securities of the offeree company or of a securities exchange
offeror prior to the deadline for making an Opening Position
Disclosure must instead make a Dealing Disclosure.
Under Rule 8.3(b) of the Takeover Code, any person who is, or
becomes, interested in one per cent. or more of any class of
relevant securities of the offeree company or of any securities
exchange offeror must make a Dealing Disclosure if the person deals
in any relevant securities of the offeree company or of any
securities exchange offeror. A Dealing Disclosure must contain
details of the dealing concerned and of the person's interests and
short positions in, and rights to subscribe for, any relevant
securities of each of (i) the offeree company and (ii) any
securities exchange offeror, save to the extent that these details
have previously been disclosed under Rule 8. A Dealing Disclosure
by a person to whom Rule 8.3(b) applies must be made by no later
than 3.30 p.m. (London time) on the Business Day following the date
of the relevant dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
interest in relevant securities of an offeree company or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree
company and by any offeror and Dealing Disclosures must also be
made by the offeree company, by any offeror and by any persons
acting in concert with any of them (see Rules 8.1, 8.2 and
8.4).
Details of the offeree and offeror companies in respect of whose
relevant securities Opening Position Disclosures and Dealing
Disclosures must be made can be found in the Disclosure Table on
the Takeover Panel's website at www.thetakeoverpanel.org.uk,
including details of the number of relevant securities in issue,
when the offer period commenced and when any offeror was first
identified. You should contact the Panel's Market Surveillance Unit
on +44 (0)20 7638 0129 if you are in any doubt as to whether you
are required to make an Opening Position Disclosure or a Dealing
Disclosure.
Publication on a website
In accordance with Rule 26.1 of the Takeover Code, a copy of
this Announcement will be made available, subject to certain
restrictions relating to persons resident in Restricted
Jurisdictions, on Altus's website at https://altus-strategies.com/
and Elemental's website at https://www.elementalroyalties.com/ by
no later than 12 noon (London time) on the first Business Day
following the date of this Announcement. For the avoidance of
doubt, neither the contents of these websites nor any website
accessible from hyperlinks is incorporated into or forms part of
this Announcement.
This Announcement will also be available on SEDAR under Altus
and Elemental's respective profiles at www.sedar.com .
No profit forecasts, estimates or quantified benefits
statements
No statement in this Announcement is intended to constitute a
profit forecast, profit estimate or quantified benefits statement
for any period and no statement in this Announcement should be
interpreted to mean that the earnings or future earnings per share
of or dividends or future dividends per share of Elemental or Altus
or the New Elemental Altus Group for the current or future
financial years will necessarily match or exceed the historical
published earnings or earnings per share or dividends per share of
Elemental or Altus or the New Elemental Altus Group.
Requesting hard copy documents
In accordance with Rule 30.3 of the Takeover Code, Altus
Shareholders, persons with information rights and participants in
the Altus Share Plan may request a hard copy of this Announcement
by contacting Altus's registrars, Computershare Investor Services
Plc on +44 (0) 370 702 0003. Calls are charged at the standard
geographic rate and will vary by provider. Calls outside the United
Kingdom will be charged at the applicable international rate.
Computershare Investor Services Plc is open between 9.00 a.m. to
5.30 p.m., Monday to Friday excluding public holidays in England
and Wales; or (ii) by submitting a request in writing to
Computershare Investor Services Plc, The Pavilions, Bridgwater
Road, Bristol, BS13 8AE, United Kingdom. Please note that
Computershare Investor Services Plc cannot provide any financial,
legal or tax advice and calls may be recorded and monitored for
security and training purposes. For persons who receive a copy of
this Announcement in electronic form or via a website notification,
a hard copy of this Announcement will not be sent unless so
requested. Such persons may also request that all future documents,
announcements and information to be sent to them in relation to the
Merger should be in hard copy form.
Electronic communications
Please be aware that addresses, electronic addresses and certain
other information provided by Altus Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from Altus may be provided to Elemental during the
Offer Period as required under Section 4 of Appendix 4 of the
Takeover Code to comply with Rule 2.11(c).
Rounding
Certain figures included in this Announcement have been
subjected to rounding adjustments. Accordingly, figures shown for
the same category presented in different tables may vary slightly
and figures shown as totals in certain tables may not be an
arithmetic aggregation of figures that precede them.
General
If the Merger is effected by way of an Offer, and such an Offer
becomes or is declared unconditional and sufficient acceptances are
received, Elemental intends to exercise its rights to apply the
provisions of Chapter 3 of Part 28 of the Companies Act 2006 so as
to acquire compulsorily the remaining Altus Shares in respect of
which the Offer has not been accepted.
Investors should be aware that Elemental may purchase Altus
Shares otherwise than under any Offer or the Scheme, including
pursuant to privately negotiated purchases.
If you are in any doubt about the contents of this Announcement
or the action you should take, you are recommended to seek your own
independent financial advice immediately from your stockbroker,
bank manager, solicitor or independent financial adviser duly
authorised under FSMA if you are resident in the United Kingdom or,
if not, from another appropriate authorised independent financial
adviser.
Rule 2.9 of the Takeover Code
For the purposes of Rule 2.9 of the Takeover Code:
(i) Altus confirms that, as at 13 June 2022 (being the Last
Practicable Date), it had in issue 117,321,678 ordinary shares of 5
pence each, each ordinary share carrying one vote. Accordingly, the
total number of voting rights in Altus is 117,321,678. The ISIN for
the Altus Shares is GB00BJ9TYB96 (CUSIP: G03676122). Altus's
ordinary shares are traded on AIM and on TSX-V.
(ii) Elemental confirms that, as at 13 June 2022 (being the Last
Practicable Date), it had in issue 78,266,221 common shares of no
par value. The ISIN for the Elemental Shares is CA28619L1076.
TSX Venture Disclaimer
Neither TSX Venture Exchange nor its Regulation Services
Provider (as that term is defined in policies of the TSX Venture
Exchange) accepts responsibility for the adequacy or accuracy of
this release.
APPIX 1
CONDITIONS TO AND CERTAIN FURTHER TERMS OF THE MERGER
Part A: Conditions to the Scheme and Merger
Long Stop Date
1. The Merger is conditional upon the Scheme becoming
unconditional and becoming Effective, subject to the provisions of
the Takeover Code, by no later than 11.59 p.m. on the Long Stop
Date or such later date (if any) as Elemental and Altus may, with
the consent of the Panel, agree and (if required) the Court may
approve, or the Panel may require.
Scheme approval
2. The Scheme will be conditional upon:
(a) (i) its approval by a majority in number representing not
less than 75 per cent. in value of the Scheme Shareholders who are
on the register of members of Altus (or the relevant class or
classes thereof, if applicable) at the Scheme Voting Record Time,
present and voting (and entitled to vote), either in person or by
proxy, at the Altus Court Meeting and at any separate class meeting
which may be required by the Court or at any adjournment of any
such meeting, (ii) such Altus Court Meeting and any separate class
meeting which may be required by the Court being held on or before
the 22(nd) day after the expected date of the Altus Court Meeting
to be set out in the Scheme Document in due course (or such later
date as may, with the consent of the Panel, be agreed between
Elemental and Altus (and that the Court may approve if so
required));
(b) (i) the Special Resolution being duly passed at the Altus
General Meeting (or any adjournment thereof) and (ii) such Altus
General Meeting being held on or before the 22(nd) day after the
expected date of the Altus General Meeting to be set out in the
Scheme Document in due course (or such later date as may, with the
consent of the Panel, be agreed between Elemental and Altus (and
that the Court may approve if so required));
(c) the sanction of the Scheme by the Court with or without
modification (but subject to any such modification being acceptable
to Elemental and Altus) on or before the 22(nd) day after the
expected date of the Scheme Court Hearing to be set out in the
Scheme Document in due course (or such later date as may, with the
consent of the Panel, be agreed between Elemental and Altus (and
that the Court may approve if so required)); and
(d) the delivery of a copy of the Scheme Court Order to the
Registrar of Companies for registration.
Other Conditions
3. In addition, Elemental and Altus have agreed that the Merger
will be conditional upon the following Conditions and, accordingly,
the necessary actions to make the Scheme Effective will not be
taken unless such Conditions (as amended if appropriate) have been
satisfied or, where relevant, waived:
Elemental Shareholder approval
(a) The Elemental Shareholder Resolution being duly passed by a
simple majority of the votes cast by Elemental Shareholders
represented in person or by proxy at the Elemental Special Meeting
and such Elemental Shareholder Resolution remaining valid;
New Elemental Share listing
(b) confirmation having been received by Elemental of the
conditional acceptance of the TSX-V in respect of the Merger,
including the issuance of the New Elemental Shares pursuant
thereto, subject to satisfaction of customary conditions of the
TSX-V;
Competition law and regulatory approvals
(c) if the Secretary of State issues a call-in notice under the
UK National Security and Investment Act 2021 ("NS&I Act") in
relation to the Merger ("Call-In Notice"): (i) Elemental receiving
a final notification that no further action in relation to the
Call-In Notice is to be taken under the NS&I Act; or (ii) the
Secretary of State making a final order in relation to the Merger
under the NS&I Act which permits the Merger to be completed
subject to the provisions of such final order (and, to the extent
relevant, all conditions, provisions or obligations contained in
such final order necessary for completion of the Merger having been
satisfied or complied with);
Certain matters arising as a result of any arrangement,
agreement, etc.
(d) except as Disclosed, there being no provision of any
agreement, arrangement, licence, lease, franchise, permit or other
instrument to which any member of the Wider Altus Group or the
Wider Elemental Group is a party or by or to which any such member
or any of its assets may be bound, entitled or subject or any event
or circumstance, which in consequence of the Scheme, the Merger or
the proposed acquisition by any member of the Wider Elemental Group
of any shares or other securities in Altus or because of a change
in the control or management of any member of the Wider Altus Group
or the Wider Elemental Group or otherwise, would or might
reasonably be expected to result in, to an extent which is material
in the context of the Wider Altus Group or the Wider Elemental
Group as a whole or in the context of the Merger:
(i) any monies borrowed by or any other indebtedness (actual or
contingent) of, or grant available to any such member of the Wider
Altus Group or the Wider Elemental Group, being or becoming
repayable or capable of being declared repayable immediately or
prior to its or their stated maturity date or repayment date or the
ability of any such member to borrow monies or incur any
indebtedness being withdrawn or inhibited or being capable of
becoming or being withdrawn or inhibited;
(ii) any such agreement, arrangement, licence, lease, franchise,
permit or other instrument or the rights, liabilities, obligations
or interests of any such member of the Wider Altus Group or the
Wider Elemental Group thereunder being terminated or adversely
modified or adversely affected or any obligation or liability
arising or any adverse action being taken or arising
thereunder;
(iii) the creation or enforcement of any mortgage, charge,
encumbrance or other security interest over the whole or any part
of the business, property or assets of any member of the Wider
Altus Group or the Wider Elemental Group or any such mortgage,
charge, encumbrance or other security interest (whenever created,
arising or having arisen) becoming enforceable;
(iv) the rights, liabilities, obligations or interests of any
member of the Wider Altus Group or the Wider Elemental Group under
any such arrangement, agreement, licence, permit, lease or
instrument or the interests or business of any such member with any
other person or body or firm or company (or any arrangement or
agreement relating to any such interests or business) being
terminated, adversely modified or adversely affected;
(v) the value of any member of the Wider Altus Group or the
Wider Elemental Group or its financial or trading position, being
prejudiced or adversely affected;
(vi) any assets or interests of any member of the Wider Altus
Group or the Wider Elemental Group being or failing to be disposed
of or charged or any right arising under which any such asset or
interest could be required to be disposed of or charged or could
cease to be available to any member of the Wider Altus Group or the
Wider Elemental Group otherwise than in the ordinary course of
business;
(vii) any member of the Wider Altus Group or the Wider Elemental
Group ceasing to be able to carry on business under any name under
which it presently does so; or
(viii) the creation or acceleration of any liability, actual or
contingent, by any member of the Wider Altus Group or the Wider
Elemental Group (including any material tax liability), excluding
trade creditors and other liabilities incurred in the ordinary
course of business,
and, save as Disclosed, no event having occurred which, under
any provision of any such agreement, arrangement, licence, permit,
lease, franchise or other instrument to which any member of the
Wider Altus Group or the Wider Elemental Group is a party or by or
to which any such member or any of its assets may be bound,
entitled or subject, would or would reasonably be expected to
result in any of the events or circumstances as are referred to in
Conditions 3(d)(i) to (viii);
Other Third Party clearances
(e) except as Disclosed, and other than in relation to the
approval referred to in Condition 3(c) above, no government or
governmental, quasi-governmental, supranational, statutory,
regulatory, environmental or investigative body, court, trade
agency, association, institution, self-regulatory authority, or any
other body or person whatsoever in any jurisdiction (each a "Third
Party" and together the "Third Parties") having given notice of a
decision to take, institute, implement or threaten in writing any
action, proceeding, suit, investigation, enquiry or reference (and
not having withdrawn that notice), or having required any action to
be taken or otherwise having done anything, or having enacted, made
or proposed any statute, regulation, decision, order or change to
published practice (and in each case, not having withdrawn the
same) and there not continuing to be any outstanding statute,
regulation, decision or order which would or might reasonably be
expected to:
(i) require, prevent or delay the divestiture, or alter the
terms envisaged for any such divestiture by any member of the Wider
Elemental Group or any member of the Wider Altus Group of all or
any portion of their respective businesses, assets or property or
impose any limitation on the ability of any of them to conduct
their respective businesses (or any part thereof) or to own,
control or manage any of their respective assets or properties (or
any part thereof) which, in any such case, is material in the
context of the Wider Altus Group or the Wider Elemental Group, in
each case taken as a whole;
(ii) require, prevent or delay the divestiture by any member of
the Wider Elemental Group of any shares or other securities (or the
equivalent) in any member of the Wider Altus Group or the Wider
Elemental Group;
(iii) impose any material limitation on, or result in a material
delay in, the ability of any member of the Wider Elemental Group
directly or indirectly to acquire or to hold or to exercise
effectively all or any rights of ownership in respect of shares or
loans or securities convertible into shares or any other securities
(or the equivalent) in any member of the Wider Altus Group or to
exercise management control over any such member;
(iv) otherwise adversely affect the business, assets, value,
profits, operational performance, prospects, financial or trading
position of any member of the Wider Elemental Group or of any
member of the Wider Altus Group in a manner which is adverse to and
material in the context of the Wider Elemental Group or the Wider
Altus Group, in each case taken as a whole;
(v) make the Scheme, the Merger, its implementation or the
acquisition or proposed acquisition by Elemental or any member of
the Wider Elemental Group of any shares or other securities in, or
control or management of Altus void, illegal, and/or unenforceable
under the laws of any jurisdiction, or otherwise, directly or
indirectly, restrain, restrict, prohibit, delay or otherwise
interfere with the same, or impose additional conditions or
obligations with respect thereto, or otherwise challenge, impede,
interfere or require material amendment of the Scheme or the
Merger;
(vi) other than pursuant to the Merger, require any member of
the Wider Elemental Group or the Wider Altus Group to offer to
acquire any shares or other securities (or the equivalent) or
interest in any member of the Wider Altus Group or the Wider
Elemental Group owned by any third party;
(vii) impose any limitation on the ability of any member of the
Wider Altus Group to conduct, integrate or co-ordinate all or any
part of its business with all or any part of the businesses of any
other members of the Wider Altus Group or the Wider Elemental Group
which is adverse to and material in the context of the Wider
Elemental Group or the Wider Offer Group, in each case taken as a
whole; or
(viii) result in any member of the Wider Altus Group or Wider
Elemental Group ceasing to be able to carry on business under any
name under which it presently does so,
and all applicable waiting and other time periods (including any
extensions thereof) during which any such Third Party could decide
to take, institute, implement or threaten in writing any such
action, proceeding, suit, investigation, enquiry or reference or
take any other step under the laws of any jurisdiction in respect
of the Scheme, the Merger or the acquisition or proposed
acquisition of any Altus Shares or otherwise intervene having
expired, lapsed or been terminated;
(f) other than in relation to the approval referred to in
Condition 3(c) above, all notifications, filings or applications
necessary in any relevant jurisdiction in connection with the
Merger having been made and all statutory or regulatory obligations
in any jurisdiction having been complied with in connection with
the Scheme, the Merger, its implementation or the acquisition by
any member of the Wider Elemental Group of any shares or other
securities in, or control or management of, Altus and all
authorisations, orders, recognitions, grants, consents, licences,
confirmations, clearances, permissions and approvals having been
obtained in terms and in a form reasonably satisfactory to
Elemental from all appropriate Third Parties or persons with whom
any member of the Wider Altus Group or the Wider Elemental Group
has entered into contractual arrangements and all such
authorisations, orders, recognitions, grants, consents, licences,
confirmations, clearances, permissions and approvals together with
all authorisations orders, recognitions, grants, licences,
confirmations, clearances, permissions and approvals necessary to
carry on the business of any member of the Wider Altus Group or the
Wider Elemental Group remaining in full force and effect and all
filings necessary for such purpose have been made and there being
no notice of any intention to revoke or not to renew any of the
same at the time at which the Offer becomes otherwise
unconditional
and all necessary statutory or regulatory obligations in any
jurisdiction having been complied with;
Certain events occurring since 31 December 2021
(g) except as Disclosed, no member of the Wider Altus Group or
the Wider Elemental Group having, since 31 December 2021:
(i) issued or agreed to issue or authorised or proposed the
issue of, additional shares of any class, or securities or
securities convertible into, or exchangeable for, or rights,
warrants or options to subscribe for or acquire, any such shares or
securities or convertible securities or transferred, sold or agreed
to transfer or sell or authorise or propose the transfer or sale of
shares out of treasury (except, where relevant, intra-Altus Group
or intra-Elemental Group or for Altus Shares or Elemental Shares
issued pursuant to the exercise of options or vesting of awards in
the ordinary course under the Altus Share Plan or the Elemental
Share Plan (as the case may be));
(ii) recommended, declared, paid or made or resolved to
recommend, declare, pay or make any bonus, dividend or other
distribution (whether payable in cash or otherwise) other than
dividends (or other distributions whether payable in cash or
otherwise) lawfully paid or made intra-Altus Group or
intra-Elemental Group;
(iii) save for intra-Altus Group or intra-Elemental Group
transactions, implemented, effected, authorised, proposed or
announced its intention to implement, effect, authorise or propose
any merger, demerger, reconstruction, amalgamation, sub-division,
scheme, commitment or acquisitions or disposal of assets or shares
or loan capital (or the equivalent thereof) in any undertaking or
undertakings in any such case to an extent which is or might
reasonably be expected to be material in the context of the Wider
Altus Group or the Wider Elemental Group (each taken as a
whole);
(iv) save for intra-Altus Group or intra-Elemental Group
transactions, disposed of, or transferred, mortgaged or charged, or
created any security interest over any asset or any right, title or
interest in any asset (including shares and trade investments) or
authorised, proposed or announced any intention to do so in a
manner which is or might reasonably be expected to be material in
the context of the Wider Altus Group or the Wider Elemental Group
(each taken as a whole);
(v) save for intra-Altus Group or intra-Elemental Group
transactions entered into the ordinary course of business, entered
into, implemented or authorised the entry into, any joint venture,
asset or profit sharing arrangement, partnership or merger of
business or corporate entities, in each case, to an extent which is
material in the context of the Wider Altus Group or the Wider
Elemental Group (each taken as whole);
(vi) made any alteration to its memorandum or articles of
association or other incorporation documents (other than in
connection with the Scheme);
(vii) save for intra-Altus Group or intra-Elemental Group
transactions, made, authorised, proposed or announced an intention
to propose any change in its loan capital;
(viii) save for intra-Altus Group or intra-Elemental Group
transactions in the ordinary course, issued, authorised or proposed
or announced an intention to authorise or propose the issue of any
debentures, or any material change in or to the terms of any
debentures or become subject to any contingent liability or
incurred or increased any indebtedness which is or might reasonably
be expected to be material in the context of the Wider Altus Group
or the Wider Elemental Group (each taken as a whole);
(ix) purchased, redeemed or repaid or announced any proposal to
purchase, redeem or repay any of its own shares or other securities
or reduced or, save in respect of the matters mentioned in
sub-paragraph (i) above, made any other change to any part of its
share capital;
(x) entered into or varied or authorised, proposed or announced
its intention to enter into or vary any contract, arrangement,
agreement, transaction or commitment (whether in respect of capital
expenditure or otherwise) which is of a long term, onerous or
unusual nature or magnitude or which is or might reasonably be
expected to be restrictive on the businesses of any member of the
Wider Altus Group or the Wider Elemental Group or which involves or
could involve an obligation of such a nature or magnitude or which
is other than in the ordinary course of business and which is
material in the context of the Wider Altus Group or the Wider
Elemental Group (each taken as a whole);
(xi) entered into or materially varied the terms of, or made any
offer (which remains open for acceptance) to enter into or
materially vary the terms of any contract, service agreement,
commitment or arrangement with any director or, except for salary
increases or bonuses in the ordinary course for any senior
executive of Altus or Elemental, other than as agreed by the Panel
and Elemental or Altus (as the case may be);
(xii) (other than in respect of a member of the Wider Altus
Group or the Wider Elemental Group which is dormant and was solvent
at the relevant time) taken any corporate action or had any legal
proceedings started or threatened against it in relation to its
winding-up (voluntary or otherwise), dissolution or reorganisation
or for the appointment of a receiver, administrative receiver,
administrator, trustee or similar officer of all or any of its
assets or revenues or any analogous or equivalent steps or
proceedings in any jurisdiction or appointed any analogous person
in any jurisdiction or had any such person appointed, and in each
such case, to the extent which is material in the context of the
Wider Altus Group or the Wider Elemental Group (each taken as a
whole);
(xiii) been unable, or admitted in writing that it is unable, to
pay its debts when they fall due or commenced negotiations with one
or more of its creditors with a view to rescheduling or
restructuring any of its indebtedness, or having stopped or
suspended (or threatened to stop or suspend) payment of its debts
generally or ceased or threatened to cease carrying on all or a
substantial part of its business;
(xiv) entered into any contract, transaction or arrangement
which would be restrictive on the business of any member of the
Wider Altus Group or the Wider Elemental Group other than to a
nature and extent which is normal in the context of the business
concerned and in each such case which is material or would
reasonably likely be material in the context of the Wider Altus
Group or the Wider Elemental Group (each taken as a whole);
(xv) terminated or varied the terms of any agreement or
arrangement between any member of the Wider Altus Group or the
Wider Elemental Group and any other person in a manner which would
or might reasonably be expected to be materially adverse to the
Wider Altus Group or the Wider Elemental Group (each taken as a
whole);
(xvi) waived, compromised or settled any material claim or
regulatory proceeding (whether actual or threatened) by or against
any member of the Wider Altus Group or the Wider Elemental Group
otherwise than in the ordinary course of business;
(xvii) made, proposed or agreed or consented to or procured any
change to, or the custodian or trustee of any scheme having made a
change to (to an extent which would or might reasonably be expected
to be materially adverse to the Wider Altus Group or the Wider
Elemental Group (each taken as a whole)):
(1) the terms of the trust deeds constituting the pension
scheme(s) established by any member of the Wider Altus Group or the
Wider Elemental Group for its directors, employees, former
employees or their dependents;
(2) the contributions payable to any such scheme(s) or to the
benefits which accrue or to the pensions which are payable
thereunder;
(3) the basis on which qualification for, or accrual or
entitlement to, such benefits or pensions are calculated or
determined; or
(4) the basis upon which the liabilities (including pensions) of
such pension schemes are funded, valued or made;
(xviii) proposed, agreed to provide or modified the terms of any
share option scheme, incentive scheme, retention scheme or other
benefit (including compensation) relating to the employment or
termination of employment of any person employed by the Wider Altus
Group or the Wider Elemental Group other than in accordance with
the terms of the Merger or, if required by the Takeover Code, as
agreed by the Panel and/or Elemental or Altus (as the case may be);
or
(xix) other than with the consent of Elemental, having taken (or
agreed or proposed to take) any action which requires, or would
require, the consent of the Panel or the approval of Altus
Shareholders in general meeting in accordance with, or as
contemplated by, Rule 21.1 of the Takeover Code,
and, for the purposes of paragraphs (i) to (v) (inclusive),
(vii) and (viii) of this Condition, the term "Altus Group" shall
mean Altus and its wholly-owned subsidiaries and the term
"Elemental Group" shall mean Elemental and its wholly-owned
subsidiaries;
No material adverse change, litigation, regulatory enquiry or
similar
(h) except as Disclosed, since 31 December 2021, in each case to
an extent which is or might reasonably be expected to be material
in the context of the Wider Altus Group or the Wider Elemental
Group (each taken as a whole):
(i) no adverse change or deterioration having occurred, and no
circumstance having arisen which would or might reasonably be
expected to result in any adverse change or deterioration, in the
business, assets, financial or trading position or profits or
prospects of any member of the Wider Altus Group or the Wider
Elemental Group;
(ii) no litigation, arbitration proceedings, prosecution or
other legal proceedings to which any member of the Wider Altus
Group or the Wider Elemental Group is or may become a party
(whether as a plaintiff, defendant or otherwise) and no
investigation or other regulatory proceedings by any Third Party
against or in respect of any member of the Wider Altus Group or the
Wider Elemental Group having been instituted, announced or
threatened by or against or remaining outstanding in respect of any
member of the Wider Altus Group or the Wider Elemental Group;
(iii) no enquiry, review or investigation by (or complaint or
reference to) any Third Party or other investigative body having
been threatened, announced, instituted or remaining outstanding by,
against or in respect of any member of the Wider Altus Group or the
Wider Elemental Group;
(iv) no contingent or other liability having arisen or become
apparent or increased which affects, or which would be reasonably
likely to affect, adversely the business, assets, financial or
trading position or profits or prospects of any member of the Wider
Altus Group or the Wider Elemental Group;
(v) no steps having been taken, and no omissions having been
made, which are reasonably likely to result in the withdrawal,
cancellation, termination or modification of any licence held by
any member of the Wider Altus Group or the Wider Elemental Group
which is necessary for the proper carrying on of its business;
and
(vi) no member of the Wider Altus Group or the Wider Elemental
Group having conducted its business in material breach of any
applicable laws and regulations;
No discovery of certain matters regarding information,
liabilities and environmental issues
(i) except as Disclosed, Elemental and Altus not having
discovered, in each case to an extent which is or might reasonably
be expected to be material in the context of the Wider Altus Group
or the Wider Elemental Group (respectively) (each taken as a
whole):
(i) that any financial, business or other information concerning
the Wider Altus Group or the Wider Elemental Group as contained in
the information publicly disclosed at any time by or on behalf of
any member of the Wider Altus Group or the Wider Elemental Group
(respectively) is misleading, contains a misrepresentation of fact
or omits to state a fact necessary to make that information not
misleading and which was not subsequently corrected before the date
of this Announcement by disclosure either publicly or otherwise to
Elemental or Altus (as the case may be) or (in each case) its
professional advisers;
(ii) that any member of the Wider Altus Group or the Wider
Elemental Group (respectively) is subject to any liability
(contingent or otherwise) which is not Disclosed;
(iii) that any past or present member of the Wider Altus Group or the Wider Elemental Group (respectively) has failed to comply in any material respect with any applicable legislation, regulations or other requirements of any jurisdiction or any Authorisations which applies to such member relating to the use, treatment, storage, carriage, disposal, discharge, spillage, release, leak or emission of any waste or hazardous substance or any substance likely to impair the environment (including property) or harm human health or otherwise relating to environmental matters or the health and safety of humans, which non-compliance would be likely to give rise to any liability including any penalty for non-compliance (whether actual or contingent) on the part of any member of the Wider Altus Group or the Wider Elemental Group (respectively);
(iv) that there is any obligation or liability (whether actual
or contingent) or requirement to make good, remediate, repair,
reinstate or clean up any property, asset or any controlled waters
currently or previously owned, occupied, operated or made use of or
controlled by any past or present member of the Wider Altus Group
or the Wider Elemental Group (respectively) (or on their respective
behalf); or
(v) any information which affects the import of any information
disclosed at any time by or on behalf of any member of the Wider
Altus Group or the Wider Elemental Group;
Anti-corruption, sanctions, criminal property, IT
(j) no past or present member, director, officer, employee or
agent of the Wider Altus Group or the Wider Elemental Group or any
person that performs or has performed services (or otherwise acts
or has acted) for or on behalf of any such company being or at any
time having been engaged in any activity, practice or conduct which
would constitute an offence under the Bribery Act 2010, the US
Foreign Corrupt Practices Act of 1977, the Corruption of Foreign
Public Officials Act (Canada) or any other anti-corruption
legislation applicable to the Wider Altus Group or the Wider
Elemental Group;
(k) no asset nor any member of the Wider Altus Group or the
Wider Elemental Group constituting criminal property as defined by
section 340(3) of the Proceeds of Crime Act 2002 (but disregarding
paragraph (e) of that definition);
(l) no past or present member, director, officer, employee or
agent of the Wider Altus Group or the Wider Elemental Group or any
person that performs or has performed services for or on behalf of
any such member, director, officer or employee being or at any time
having been engaged in any activity or business with, made any
investments in, made any funds or assets available to or received
any funds or assets from:
(i) any government, entity or individual in respect of which US
or European Union persons, or persons operating in those
territories, are prohibited from engaging in activities or doing
business, or from receiving or making available funds or economic
resources, by US or European Union laws or regulations, including
the economic sanctions administered by the United States Office of
Foreign Assets Control, or HM Treasury & Customs; or
(ii) any government, entity or individual targeted or covered by
any of the economic sanctions administered or imposed by the United
Nations, the US (including, without limitation, the United States
Office of Foreign Assets Control), the United Kingdom, Canada, the
European Union (or any of its respective member states) or any
other governments or supranational body or authority in any
jurisdiction, save that this shall not apply if and to the extent
that it is or would be unenforceable by reason of breach of any
applicable Blocking Law, in each case to an extent which is
material in the context of the Wider Altus Group or the Wider
Elemental Group taken as a whole;
(m) no member of the Wider Altus Group or the Wider Elemental
Group being or at any time having been engaged in a transaction
which would cause any member of the New Elemental Altus Group to be
in breach of any applicable law or regulation on completion of the
Merger, including the economic sanctions administered by the United
States Office of Foreign Assets Control or HM Treasury &
Customs or any government, entity or individual targeted by any of
the economic sanctions of the United Nations, United States, the
United Kingdom or the European Union or any of its member states or
any other governments or supranational body or authority in any
jurisdiction, save that this shall not apply if and to the extent
that it is or would be unenforceable by reason of breach of any
applicable Blocking Law; and
(n) no disruption having occurred in the operation of the Wider
Altus Group or the Wider Elemental Group as a result of issues
relating to information technology or any failure of, or material
disruption to, such information technology (including, without
limitation, any information security breach or unauthorised access
of, or unauthorised acts in relation to, any such information
technology), in each case which is material in the context of the
Wider Altus Group or the Wider Elemental Group.
Part B: Waiver and invocation of the Conditions
1. The Scheme will not become Effective, and will lapse, unless
the Conditions have been fulfilled or (to the extent capable of
waiver) waived or, where appropriate, have been determined to be or
remain satisfied by no later than the Long Stop Date.
2. Subject to the requirements of the Panel in accordance with
the Takeover Code, Elemental reserves the right to waive:
(a) any of the deadlines set out in Condition 2 in Part A of
this Appendix 1 for the timing of the Altus Court Meeting, the
Altus General Meeting and the Scheme Court Hearing. If any such
deadline is not met, Elemental will make an announcement by 8.00
a.m. on the Business Day following such deadline confirming whether
it has invoked or waived the relevant Condition or agreed with
Altus to extend the deadline in relation to the relevant Condition.
In all other respects, Condition 2 in Part A of this Appendix 1
cannot be waived; and
(b) in whole or in part (so far as they relate to Altus, the
Wider Altus Group or any part thereof), all or any of Conditions
3(c) to (n) (inclusive) in Part A of this Appendix 1.
3. Subject to the requirements of the Panel in accordance with
the Takeover Code, Altus reserves the right to waive in whole or in
part (so far as they relate to Elemental, the Wider Elemental Group
or any part thereof), all or any of Conditions 3(d) to (n)
(inclusive) in Part A of this Appendix 1. This right shall cease to
have any effect if an Altus Board Adverse Recommendation Change
occurs, in which case Altus shall no longer have the right to waive
any of Conditions 3(d) to (n) (inclusive) in Part A of this
Appendix 1, whether in whole or in part and, instead, Elemental
shall have the right in its sole discretion to waive any of such
Conditions in whole or in part including (without limitation) if
they relate to Elemental, the Wider Elemental Group or any part
thereof.
4. Save as set out above in respect of paragraphs 2 and 3, the
Conditions set out in Part A of this Appendix 1 cannot be
waived.
5. Neither Elemental nor Altus shall be under any obligation to
waive (if capable of waiver), to determine to be or remain
satisfied or to treat as satisfied or fulfilled any of the
Conditions capable of waiver (insofar as they apply to each of
them) by a date earlier than the latest date specified above for
the fulfilment or waiver thereof, notwithstanding that the other
Conditions may at such earlier date have been waived or fulfilled
and that there are at such earlier date no circumstances indicating
that any of such Conditions may not be capable of fulfilment.
6. If Elemental is required by the Panel to make an offer for
Altus Shares under the provisions of Rule 9 of the Takeover Code,
Elemental may make such alterations to the Conditions as are
necessary to comply with the provisions of that Rule.
7. Under Rule 13.5(a) of the Takeover Code, Elemental may only
invoke a Condition so as to cause the Merger not to proceed, to
lapse or to be withdrawn with the consent of the Panel. The Panel
will normally only give its consent if the circumstances which give
rise to the right to invoke the Condition are of material
significance to Elemental in the context of the Merger. Conditions
1, 2, and 3(a), (b) and (c) above and, if applicable, any
acceptance condition if the Merger is implemented by means of an
Offer, are not subject to this provision of the Takeover Code.
8. Altus may not invoke a Condition so as to cause the Merger
not to proceed, to lapse or be withdrawn under Rule 13.6 of the
Takeover Code:
(a) unless the circumstances which give rise to the right to
invoke the Condition are of material significance to Altus
Shareholders in the context of the Merger. Conditions 1, 2 and
3(a), (b) and (c) are not subject to this provision of the Takeover
Code; or
(b) following an Altus Board Adverse Recommendation Change.
9. Each of the Conditions shall be regarded as a separate
Condition and shall not be limited by reference to any other
Condition.
Part C: Implementation by way of Takeover Offer
Elemental reserves the right to elect to implement the Merger by
way of an Offer as an alternative to the Scheme (subject to the
Panel's consent). In such event, the Offer will be implemented on
substantially the same terms, so far as applicable, as those which
would apply to the Scheme, subject to appropriate amendments to
reflect, among other things, the change in the method of effecting
the Merger (including, without limitation: (i) the inclusion of an
acceptance condition set at such percentage of the Altus Shares to
which such Offer relates as Elemental may, subject to the rules of
the Takeover Code and with the consent of the Panel, decide; and
(ii) those required by, or deemed appropriate by, Elemental under
applicable law). Further, if sufficient acceptances of such Offer
are received and/or sufficient Altus Shares are otherwise acquired,
it is the intention of Elemental to apply the provisions of the
Companies Act 2006 to acquire compulsorily any outstanding Altus
Shares to which such offer relates.
Part D: Certain further terms of the Merger
1. The Altus Shares acquired under the Merger will be acquired
fully paid and free from all liens, equities, charges,
encumbrances, options, rights of pre-emption and any other third
party rights and interests of any nature and together with all
rights now or hereafter attaching or accruing to them, including,
without limitation, voting rights and the right to receive and
retain in full all dividends and other distributions (if any)
announced, declared, made or paid, or any other return of capital
(whether by reduction of share capital or share premium account or
otherwise) made, in each case by reference to a record date falling
on or after the Effective Date.
2. If, on or after the date of this Announcement but prior to
the Effective Date, any dividend and/or other form of capital
return or distribution is announced, declared, made or paid or
becomes payable in respect of Altus Shares, Elemental reserves the
right to reduce the consideration payable under the terms of the
Merger by an amount up to the amount of such dividend and/or
distribution and/or return of capital, in which case any reference
in this Announcement to the consideration payable under the terms
of the Merger will be deemed to be a reference to the consideration
as so reduced. Any exercise by Elemental of its rights referred to
in this paragraph shall be the subject of an announcement and, for
the avoidance of doubt, shall not be regarded as constituting any
revision or variation of the terms of the Scheme. In such
circumstances, Altus Shareholders would be entitled to retain any
such dividend, distribution or other return of capital declared,
made or paid which becomes payable. If and to the extent that any
such dividend, distribution or other return of capital is
announced, declared, made or paid or becomes payable and is either:
(i) transferred pursuant to the Merger on a basis which entitles
Elemental to receive the dividend, distribution or other return of
capital and to retain it; or (ii) cancelled before payment, the
consideration payable under the terms of the Merger shall not be
subject to change in accordance with this paragraph 2 . Any
exercise by Elemental of its rights referred to in this paragraph 2
shall not be regarded as constituting any revision or variation of
the Merger.
3. The availability of the Merger to persons not resident in the
United Kingdom may be affected by the laws of the relevant
jurisdictions. Persons who are not resident in the United Kingdom
should inform themselves about and observe any applicable
requirements.
4. The Merger is not being made, directly or indirectly, in,
into or from, or by use of the mails of, or by any means of
instrumentality (including, but not limited to, facsimile, e-mail
or other electronic transmission, telex or telephone) of interstate
or foreign commerce of, or of any facility of a national, state or
other securities exchange of, any Restricted Jurisdiction.
5. This Announcement and any rights or liabilities arising
hereunder, the Merger and the Scheme, and any proxies will be
governed by English law and be subject to the jurisdiction of the
Court and to the Conditions and further terms set out in this
Appendix 1 to be set out in the Scheme Document. The Merger will be
governed by the laws of England and Wales and be subject to the
jurisdiction of the English courts and to the Conditions set out
above. The Scheme will be subject to the applicable requirements of
the Takeover Code, the Panel, the London Stock Exchange, the TSX-V,
the FCA, the AIM Rules, applicable Canadian and US securities laws
and the Registrar of Companies.
APPIX 2
SOURCES AND BASES OF INFORMATION
In this Announcement:
1. unless otherwise stated, historical financial information relating to:
(a) the Altus Group has been extracted or derived without any
adjustment (except for conversion into USD at the rates specified
in paragraph 9 below) from the 2021 Altus Annual Report and the Q1
2022 Altus Interim Report; and
(b) the Elemental Group has been extracted or derived without
any adjustment from (i) the 2021 Elemental Annual Report and (ii)
the Consolidated Financial Statements and Management Discussion and
Analysis (MD&A) of Elemental for the three months ended 31
March 2022;
2. as at the close of business on 13 June 2022 (being the Last
Practicable Date), Altus had 117,321,678 Altus Shares in issue,
9,100,000 options pursuant to the Altus Share Plan and 5,541,388
Altus Warrants. The ISIN for the Altus Shares is GB00BJ9TYB96;
3. as at the close of business on 13 June 2022 (being the Last
Practicable Date), Elemental had in issue 78,266,221 common shares
of no par value and 3,795,109 PSUs and options (of which 2,555,109
PSUs are in-the-money) pursuant to the Elemental Share Plan. The
ISIN for the Elemental Shares is CA28619L1076;
4. The common shares of the New Elemental Altus Group has been
calculated by the sum of 78,266,221 Elemental current common shares
in issue and 69,689,077 Elemental common shares issued under the
terms of the Merger. Altus options and warrants as per paragraph 2
above and Elemental PSUs and options as per paragraph 3 above are
not included in this calculation.
5. The percentage of the common shares of the New Elemental
Altus Group that will be owned by Altus shareholders is calculated
by dividing the number of New Elemental Altus Group shares to be
issued under the terms of the Merger (as referred to in paragraph 4
above) by the common shares of the New Elemental Altus Group and
multiplying the resulting calculation by 100 to produce a
percentage;
6. Unless otherwise stated, all prices and closing prices for
Altus Shares are closing middle market quotations derived from the
London Stock Exchange Daily Official List (SEDOL);
7. For the purposes of the combined New Elemental Altus Group
adjusted revenue for FY 2022 and 2023, the calculations are based
on the following assumptions:
(a) Research analyst consensus estimates number of Gold
Equivalent Ounces ("GEO") to be produced in Elemental's portfolio
of 6,450 and 7,578 respectively for FY 2022 and 2023 multiplied by
analyst consensus gold price of US$1,870 per ounce and US$1,804 per
ounce respectively for FY 2022 and 2023 (as set out in the table
below); plus sub-paragraph (b) below;
2022 2023
------------------------ ------ ------
Canaccord 17-Mar-22 6,402 7,562
Haywood 20-May-22 6,335 7,750
Laurentian 18-Mar-22 6,614 7,423
Average (mean) 6,450 7,578
Max 6,614 7,750
Min 6,335 7,423
The estimates are not endorsed by Elemental and they have not
been reviewed or reported on.
(b) Altus's revenue estimates are based on internal models for
the 4 producing assets Caserones, Bonikro, SKO, and Ballarat:
(i) Caserones royalty revenue estimates are based on mine
revenue: 2022 Copper production guidance provided by the operator,
which is kept flat for 2023 due to lack of data, is multiplied with
broker consensus price forecasts for Copper for 2022 and 2023 of
US$9,753/t and US$8,954/t, respectively to derive mine revenue.
Mine revenue has net smelter deductions of 7% applied (based on
historical averages) which include smelting, refining, freight and
other costs resulting in the NSR revenue. The NSR revenue is
multiplied by the attributable royalty rate of 0.418% to arrive at
revenue attributable to Altus.
(ii) Bonikro royalty revenue estimates are based on mine
revenue: 2022 & 2023 Gold production guidance provided by the
operator, multiplied with broker consensus price forecasts for Gold
for 2022 and 2023 of US$1,870/oz and US$1,804/oz, respectively to
derive mine revenue. Mine revenue has net smelter deductions of
5.7% applied (based on modelled averages) resulting in the NSR
revenue. The NSR revenue is multiplied by the attributable royalty
rate of 4.5% and then multiplied by Altus's 50% ownership of the
royalty to arrive at revenue attributable to Altus.
(iii) SKO royalty 2022 & 2023 revenue estimates based on 3
year historical Gold production levels of 50koz multiplied with a
fixed royalty rate of A$10/oz of Gold produced. The royalty revenue
is multiplied by the attributable ownership of 50% to arrive at
revenue attributable to Altus.
(iv) Ballarat royalty 2022 & 2023 revenue estimates based on
fixed monthly payment of A$300k until an accrued balance of A$1.2M
is repaid in 2022, and then royalty reverts to revenue estimates
based on historical average Gold production of 50koz per annum.
After the accrued balance is repaid in 2022, 2022 Gold production
over the remainder of the year is 13koz (calculated pro rata based
on annualised gold production of 50koz) and multiplied with broker
consensus price forecast for Gold for 2022 of US$1,870/oz to derive
mine revenue. 2023 Gold production of 50koz (based on historical
averages) is multiplied with broker consensus price forecasts for
Gold for 2023 of US$1,804/oz to derive mine revenue. Mine revenue
has net smelter deductions of 2.8% applied (based on historical
averages) resulting in the NSR revenue. The NSR revenue is
multiplied by the attributable royalty rate of 2.5% and then
multiplied by Altus's 50% ownership of the royalty to arrive at
revenue attributable to Altus.
(c) Commodity price estimates are based on broker consensus
estimates as per the following table:
Copper (US$/t) Gold (US$/oz)
2022 2023 2022 2023
---------------------------- -------- ------- ------- -------
Barclays 26-Apr-22 9,281 7,231 1,838 1,588
BMO 25-Apr-22 9,237 7,738 1,896 1,750
BAML 29-Apr-22 10,450 9,502 1,918 2,100
Canaccord 18-Apr-22 10,053 9,370 1,830 1,848
CIBC 04-Apr-22 9,634 8,267 1,863 1,750
Citi 04-Apr-22 10,500 9,500 1,805 1,675
Credit Suisse 13-Apr-22 8,380 7,280 1,850 1,600
Deutsche
Bank 22-Apr-22 10,124 9,000 1,857 1,838
HSBC 19-Apr-22 9,766 8,818 1,850 1,900
Haywood 12-Apr-22 9,149 9,149 1,820 1,750
JP Morgan 29-Apr-22 10,251 10,163 1,931 1,988
Jefferies 15-Apr-22 9,921 11,155 2,000 1,800
Morgan Stanley 29-Apr-22 9,700 8,642 1,888 1,675
National
Bank 17-Apr-22 10,362 10,362 1,921 1,935
RBC 12-Apr-22 9,370 8,267 1,696 1,650
UBS 30-Apr-22 9,869 8,818 1,958 2,017
Average (mean) 9,753 8,954 1,870 1,804
Max 10,500 11,155 2,000 2,100
Min 8,380 7,231 1,696 1,588
The estimates are not endorsed by Altus and they have not been
reviewed or reported on.
8. Where any financial metrics have been presented on a combined
or aggregated basis, such metrics do not include any pro-forma
adjustments.
9. Altus balance sheet financial information has been translated
to USD as at the latest published balance sheet date 31 March 2022
(1.317 USD / GBP) while share price and other data has been
translated at spot (13 June 2022: 1.213)
No statement in this Announcement is intended to constitute a
profit forecast, profit estimate or quantified benefits statement
for any period and no statement in this Announcement should be
interpreted to mean that the earnings or future earnings per share
of or dividends or future dividends per share of Elemental or Altus
or the New Elemental Altus Group for the current or future
financial years will necessarily match or exceed the historical
published earnings or earnings per share or dividends per share of
Elemental or Altus or the New Elemental Altus Group.
APPIX 3
DETAILS OF IRREVOCABLE UNDERTAKINGS, VOTING AND SUPPORT
AGREEMENTS AND LETTERS OF INTENT
1. Altus Directors
The following Altus Directors have given irrevocable
undertakings to vote (or, where applicable, procure voting) in
favour of the Scheme at the Altus Court Meeting and the Special
Resolution to be proposed at the Altus General Meeting (or in the
event that the Merger is implemented by an Offer, to accept or
procure acceptance of such Offer) in respect of their own
beneficial holdings (or those Altus Shares over which they have
control) of Altus Shares:
Name Total Number of Percentage of existing issued share Percentage of existing Altus Shares
Altus Shares capital* eligible to vote at Altus Court
Meeting**
David Netherway 2,478,758 2.11% 2.11%
Steven Poulton 6,600,000 5.63% 5.63%
Matthew Grainger 2,127,589 1.81% 1.81%
Robert Milroy 600,000 0.51% 0.51%
Michael Winn 3,743,980 3.19% 3.19%
* based on the number of Altus Shares in issue on 13 June 2022
(being the Last Practicable Date).
(** subject to any exclusions that may be required by any
applicable regulator.)
The irrevocable undertakings given by the Altus Directors
require those shareholders to vote in favour of the Scheme at the
Altus Court Meeting.
The irrevocable undertakings provided by each of the named Altus
Directors and referred to above shall cease to be binding on the
earlier of the following occurrences:
(i) the Panel consents to Elemental not proceeding with the
Merger and Elemental does not proceed with the Merger;
(ii) the Merger is implemented by way of an Offer, and the Offer
Document is not posted to the Altus Shareholders within the period
permitted under the Takeover Code or as otherwise agreed with the
Panel;
(iii) the Merger is implemented by way of the Scheme, and the
Scheme Document is not posted to the Altus Shareholders within the
permitted period under the Takeover Code or as otherwise agreed
with the Panel;
(iv) the Scheme does not become effective by the Long Stop Date
other than in circumstances where Elemental has, prior to such
date, elected to proceed by way of an Offer and announced the same
in accordance with the requirements of the Takeover Code, and such
Offer has not lapsed or been withdrawn); or
(v) any event occurs or becomes known to Elemental before
despatch of the Offer Document or Scheme Document (as the case may
be) as a result of which the Panel requires or agrees with
Elemental that Elemental need not proceed with the Merger.
2. Altus Shareholders (other than the Altus Directors)
Each of the named Altus Shareholders below, acting in their
respective capacity as discretionary investment manager or
sub-adviser for and on behalf of certain funds and accounts managed
by them, has given irrevocable undertakings to vote (or, where
applicable, procure voting) in favour of the Scheme at the Altus
Court Meeting and the Special Resolution to be proposed at the
Altus General Meeting (or in the event that the Merger is
implemented by an Offer, to accept or procure acceptance of such
Offer) in respect of Altus Shares held by funds and accounted
managed by it:
Name Total Number of Percentage of existing issued Percentage of existing Altus Shares eligible
Altus Shares share capital* to vote at Altus Court Meeting**
La Mancha Explorers 41,158,454 35.08% 35.08%
Condire 11,170,102 9.52% 9.52%
* based on the number of Altus Shares in issue on 13 June 2022
(being the Last Practicable Date).
(** subject to any exclusions that may be required by any
applicable regulator.)
The obligations contained in the irrevocable undertakings
provided by each of the named Altus Shareholders above lapse and
cease to have effect if:
(i) the Panel consents to Elemental not proceeding with the
Merger and Elemental does not proceed with the Merger;
(ii) the Merger is implemented by way of an Offer, and the Offer
Document is not posted to the Altus Shareholders within the period
permitted under the Takeover Code or as otherwise agreed with the
Panel;
(iii) the Merger is implemented by way of the Scheme, and the
Scheme Document is not posted to the Altus Shareholders within 28
days of this Announcement (or such longer period permitted under
the Takeover Code or as otherwise agreed with the Panel);
(iv) provided that the relevant Altus Shareholder has complied
and remain in compliance with the provisions of its irrevocable
undertaking, the Merger is implemented by way of the Scheme and any
resolution of shareholders of Altus required to implement the
Scheme is not approved by the requisite majority of Altus
Shareholders at the Altus Meetings;
(v) the Scheme does not become effective by the Long Stop Date
(other than in circumstances where Elemental has, on or prior to
such date, elected to proceed by way of an Offer and announced the
same in accordance with the requirements of the Takeover Code, and
such Offer has not lapsed or been withdrawn);
(vi) the Offer, if any, has not become or been declared
unconditional by the later of (1) the Longstop Date and (2) such
later date to which the relevant Altus Shareholder has provided its
prior written consent;
(vii) provided that the relevant Altus Shareholder has complied
and remain in compliance with the provisions of its irrevocable
undertaking, any competing offer for the entire issued and to be
issued share capital of Altus becomes or is declared unconditional
or, if proceeding by way of scheme of arrangement, becomes
effective, in accordance with the Takeover Code and applicable
laws;
(viii) provided that the relevant Altus Shareholder has complied
and remain in compliance with the provisions of its irrevocable
undertaking, the Co-operation Agreement is terminated by Elemental
in accordance with its terms;
(ix) the Exchange Ratio is reduced other than as contemplated in
this Announcement or the Co-operation Agreement, or the
consideration under the Offer is changed as to form, in either case
without the prior written consent of the relevant Altus
Shareholder;
(x) the Longstop Date is extended without the prior written
consent of the relevant Altus Shareholder;
(xi) the terms of the Co-operation Agreement are otherwise
modified or waived in a manner that is materially adverse to the
relevant Altus Shareholder in its capacity as a shareholder of
Altus, without the prior written consent of the relevant Altus
Shareholder (such consent not to be unreasonably withheld and the
relevant Altus Shareholder shall act in good faith); or
(xii) any event occurs or becomes known to Elemental before
despatch of the Offer Document or Scheme Document (as the case may
be) as a result of which the Panel requires or agrees with
Elemental that Elemental need not proceed with the Merger and
Elemental determines not to proceed with the Merger.
3. Elemental Directors and Employees
The following Elemental Directors and employees have entered
into voting and support agreements to vote in favour of the
Elemental Shareholder Resolution at the Elemental Special Meeting
in relation to the following Elemental Shares:
Name Total Number of Percentage of existing issued share Percentage of existing Elemental
Elemental Shares capital* Shares eligible to vote at Elemental
Special Meeting**
Frederick Bell 2,258,340 2.89% 2.89%
David Baker 97,881 0.13% 0.13%
Greg Owen 55,374 0.07% 0.07%
Richard Evans 3,040,484 3.88% 3.88%
Martin Turenne 86,956 0.11% 0.11%
Peter Williams 3,026,540 3.87% 3.87%
John Robins 2,642,000 3.38% 3.38%
Matt Anderson Nil Nil Nil
* based on the number of Elemental Shares in issue on 13 June
2022 (being the Last Practicable Date).
(** subject to any exclusions that may be required by any
applicable regulator.)
These voting and support agreements shall terminate:
(i) if the Co-operation Agreement is terminated in accordance
with its terms;
(ii) on the Effective Date; or
(iii) if the Effective Date has not occurred by the Long Stop
Date.
4. Elemental Shareholders (other than the Elemental Directors and employees)
Each of the named Elemental Shareholders below, acting in their
respective capacity as discretionary investment manager or
sub-adviser for and on behalf of certain funds and accounts managed
by them, has entered into voting and support agreements to vote in
favour of the Elemental Shareholder Resolution at the Elemental
Special Meeting in relation to the following Elemental Shares:
Name Total Number of Percentage of existing issued Percentage of existing Elemental Shares
Elemental Shares share capital* eligible to vote at Elemental Special
Meeting**
South32 13,065,100 16.69% 16.69%
La Mancha Investments 7,250,000 9.26% 9.26%
* based on the number of Elemental Shares in issue on 13 June
2022 (being the Last Practicable Date).
(**subject to any exclusions that may be required by any
applicable regulator.)
These voting and support agreements shall terminate:
(i) if the Co-operation Agreement is terminated in accordance
with its terms;
(ii) upon notice being delivered to Altus if, without the prior
written consent of the relevant Elemental Shareholder, there is any
change in the Exchange Ratio, or change in the form of such share
exchange, as set out in the Co-operation Agreement;
(iii) (in the case of La Mancha Investments) the Long Stop Date
of the Merger is extended without the prior written consent of the
Shareholder;
(iv) (in the case of La Mancha Investments) the terms of the
Co-operation Agreement are otherwise modified or waived in a manner
that is materially adverse to La Mancha Investments in its capacity
as a shareholder of Elemental, without the prior written consent of
La Mancha Investments (such consent not to be unreasonably withheld
and La Mancha Investments shall act in good faith);
(v) on the Effective Date; or
(vi) if the Effective Date has not occurred by the Long Stop
Date.
5. Elemental Shareholder Letters of Intent
The following Elemental Shareholders have given non-binding
letters of intent to vote (or, where applicable, procure voting) in
favour of the Elemental Shareholder Resolution at the Elemental
Special Meeting:
Name Total Number of Percentage of existing issued Percentage of existing Elemental
Elemental Shares share capital* Shares eligible to vote at
Elemental Special Meeting**
EuroPacific Asset Management 6,296,529 8.05% 8.05%
Adrian Day Asset Management 1,861,700 2.38% 2.38%
* based on the number of Elemental Shares in issue on 13 June
2022 (being the Last Practicable Date).
(**subject to any exclusions that may be required by any
applicable regulator.)
APPIX 4
DEFINITIONS
"2021 Altus Annual Report" the annual report and audited accounts of Altus and Management
Discussion and Analysis (MD&A)
for the year ended 31 December 2021;
"2021 Elemental Annual Report" the Consolidated Financial Statements and Management Discussion and
Analysis (MD&A) and Annual
Information Form of Elemental for the year ended 31 December 2021;
"AIM" the market of that name operated by the London Stock Exchange;
"AIM Rules" the AIM Rules for Companies published by the London Stock Exchange
from time to time;
"Altus " Altus plc, a public company incorporated in England and Wales with
registered number 10746796;
"Altus Board Adverse Recommendation Change" means:
(a) if Altus makes an announcement that: (i) the Altus Directors no
longer intend to make
the Altus Board Recommendation or intend to modify or qualify such
recommendation in any adverse
way; (ii) except as contemplated in this Agreement, it will not
convene the Altus Court Meeting
or the Altus General Meeting; or (iii) except as contemplated in
this Agreement, it intends
not to post the Scheme Document or (if different) the document
convening the Altus General
Meeting;
(b) if Altus makes an announcement that it will delay the convening
of, or will adjourn, the
Court Meeting, the Altus General Meeting or the Altus Court Hearing
for more than 15 calendar
days, in each case without the consent of Elemental, or fails to
register the Court Order
with Companies House by the earlier of (i) the expected Effective
Date as set out in the Scheme
Document or any subsequent announcement in relation to the
timetable of the Merger published
with the agreement of the parties and (ii) 2 Business Days after
its grant;
(c) the Altus Board Recommendation is not included by Altus in the
Merger Document(s); or
(d) the Altus Board withdrawing (or modifying in any manner adverse
to the Merger) the Altus
Board Recommendation or the Altus Directors in any way withdrawing,
adversely modifying or
adversely qualifying the Altus Board Recommendation;
"Altus Board Recommendation" means an unqualified and unanimous (save for any directors required
by Law to recuse themselves
from such recommendation) recommendation from the Altus Directors
to Altus Shareholders in
respect of the Merger: (i) to vote in favour of the Altus
Resolutions; or (ii) if Elemental
elects to implement the Merger by means of an Offer in accordance
with the terms of the Co-operation
Agreement, to accept the Offer;
"Altus Court Meeting" the meeting or meetings of the Scheme Shareholders (or any class or
classes thereof) to be
convened by order of the Court pursuant to section 896 of the
Companies Act 2006 (notice of
which will be set out in the Scheme Document) for the purpose of
considering and, if thought
fit, approving the Scheme (with or without amendment) and any
adjournment, postponement or
reconvention thereof;
"Altus Directors" the directors of Altus as at the date of this Announcement or,
where the context so requires,
the directors of Altus from time to time;
"Altus General Meeting" the general meeting of Altus Shareholders (including any
adjournment thereof) to be convened
in connection with the Scheme for the purpose of considering and,
if thought fit, approving,
inter alia, the Special Resolution;
"Altus Group" Altus and its subsidiary undertakings and, where the context
permits, each of them;
"Altus Meetings" the Altus Court Meeting and the Altus General Meeting and, where
the context permits, each
of them;
"Altus Shareholders" the holders of Altus Shares;
"Altus Shares" the existing unconditionally allotted or issued fully paid ordinary
shares of 5 pence each
in the capital of Altus and any further such ordinary shares which
are unconditionally allotted
or issued before the Scheme becomes Effective;
"Altus Share Plan" the Altus plc 2019 Share Options Scheme;
"Altus Warrants" the 5,541,388 warrants to subscribe for Altus Shares granted
pursuant to the warrant certificates
executed by Altus on (i) 18 April 2018; and (ii) 24 March 2021;
"Announcement" this Announcement made pursuant to Rule 2.7 of the Takeover Code;
"Authorisations" regulatory authorisations, orders, recognitions, grants, consents,
clearances, confirmations,
certificates, licences, permissions or approvals;
"Blocking Law" (i) any provision of Council Regulation (EC) No 2271/1996 of 22
November 1996 (or any law
or regulation implementing such Regulation in any member state of
the European Union or the
United Kingdom); or (ii) any similar blocking or anti-boycott law;
"Business Day" a day other than a Saturday, Sunday or public holiday in England or
Vancouver, Canada;
"Canaccord Genuity" Canaccord Genuity Limited and Canaccord Genuity Corp., together
acting as financial adviser
to Elemental;
"Canadian Altus Shareholders" Altus Shareholders in Canada, resident in Canada or with a
registered address in Canada, and
any custodian, nominee or trustee holding Altus Shares for persons
in Canada or with a registered
address in Canada;
"CEO" Chief Executive Officer;
"Co-operation Agreement" has the meaning given to it in paragraph 9.3 of this Announcement;
"Companies Act 2006" the UK Companies Act 2006 (as amended from time to time);
"Competing Proposal for Elemental" means a proposal, offer or expression of interest, whether or not
in writing for:
(a) any merger, amalgamation, arrangement, consolidation, other
business combination or similar
transaction or series of transactions involving Elemental or any of
its affiliates which,
if consummated, would result in a third party or group acquiring
20% or more of the consolidated
assets of Elemental and its affiliates, or 20% or more of the
consolidated revenue of Elemental
and its affiliates (in each case, determined based upon the most
recent publicly available
consolidated financial statements of Elemental);
(b) any transaction as part of which Elemental would issue shares
representing 20% or more
of its issued and outstanding share capital;
(c) any acquisition or disposal by Elemental or any of its
affiliates or assets representing
20% or more of the consolidated total assets of the Elemental Group
or which contribute 20%
or more of the consolidated revenue of Elemental and its affiliates
(in each case, determined
based upon the most recent publicly available consolidated
financial statements of Elemental);
(d) any direct or indirect take-over bid, tender offer, exchange
offer, treasury issuance
or other transaction, through one or more transactions, that, if
consummated, would result
in a third party or group beneficially owning 20% or more of any
class of voting or equity
securities (and/or securities convertible into, or exchangeable or
exercisable for, voting
or equity securities) of Elemental or any of its affiliates; or
(e) any other transaction whatsoever (except for a transaction
falling within paragraphs (a)
to (d)(inclusive) above) involving Elemental or any of its
affiliates, the consummation of
which would, or would be reasonably likely to, prevent or frustrate
the consummation of the
Merger,
in each case which is not effected by the Target (or a person
acting in concert with the Target),
at the Target's discretion or with the Target's agreement in
writing;
"Condire" Condire Resource Master Partnership, LP;
"Conditions" the conditions to the implementation of the Merger, as set out in
Appendix 1 to this Announcement
and to be set out in the Scheme Document;
"Confidentiality Agreement" has the meaning given to it in paragraph 9.1 of this Announcement;
"Court" the High Court of Justice in England and Wales;
"CREST" the system for the paperless settlement of trades in securities and
the holding of uncertificated
securities operated by Euroclear in accordance with the Crest
Regulations;
"CREST Regulations" the Uncertificated Securities Regulations 2001 (SI 2001 No. 2001/
3755) as transposed into
UK law by EUWA and as further amended by secondary legislation made
under EUWA from time to
time;
"Dealing Disclosure" has the same meaning as in Rule 8 of the Takeover Code;
"Disclosed" (1) in relation to Altus:
the information fairly disclosed by or on behalf of Altus prior to
the date of this Announcement:
(i) in the 2021 Altus Annual Report;
(ii) in this Announcement;
(iii) in any other public announcement made by, or on behalf of,
Altus in accordance with
the Market Abuse Regulation, the AIM Rules or the Disclosure
Guidance and Transparency Rules;
(iv) in writing by or on behalf of Altus to Elemental (or its
respective officers, employees,
agents or advisers in their capacity as such); or
(v) in the virtual data room operated by or on behalf of Altus in
respect of the Merger; and
(2) in relation to Elemental:
the information fairly disclosed by or on behalf of Elemental
prior to the date of this Announcement:
(i) in the 2021 Elemental Annual Report;
(ii) in the Consolidated Financial Statements and Management
Discussion and Analysis (MD&A)
of Elemental for the three months ended 31 March 2022;
(iii) in this Announcement;
(iv) in any other public announcement made by, or on behalf of,
Elemental in accordance with
Canadian securities laws or on SEDAR;
(v) in writing by or on behalf of Elemental to Altus (or its
respective officers, employees,
agents or advisers in their capacity as such); or
(vi) in the virtual data room operated by or on behalf of
Elemental in respect of the Merger;
"Disclosure Guidance and Transparency Rules" the disclosure guidance and transparency rules made by the FCA and
forming part of the FCA's
handbook of rules and guidance, as amended from time to time;
"Effective" in the context of the Merger: (i) if the Merger is implemented by
way of the Scheme, the Scheme
having become effective pursuant to its terms; or (ii) if the
Merger is implemented by way
of the Offer, the Offer having been declared or having become
unconditional in accordance
with the requirements of the Takeover Code;
"Effective Date" the date on which the Scheme becomes Effective;
"Elemental" Elemental Royalties Corp., a corporation continued from the federal
jurisdiction of Canada
into British Columbia pursuant to the Business Corporations Act
(British Columbia) with its
head and registered office located at 880-580 Hornby Street
Vancouver, British Columbia, V6C
3B6, Canada;
"Elemental Board Adverse Recommendation Change" means the Elemental Directors:
(a) withdrawing (or modifying in any manner adverse to the Merger)
the Elemental Recommendation;
or
(b) failing to include the Elemental Recommendation in this
Announcement or the Elemental
Information Circular;
"Elemental Directors" the directors of Elemental at the date of this Announcement or,
where the context so requires,
the directors of Elemental from time to time;
"Elemental Group" Elemental and its subsidiary undertakings and, where the context
permits, each of them;
"Elemental Information Circular" any circular (including all schedules, appendices and exhibits
thereto) to be sent by Elemental
to Elemental Shareholders in connection with the Elemental Special
Meeting, including any
amendments or supplements thereto;
"Elemental Recommendation" means an unqualified and unanimous recommendation by the Elemental
Directors to the Elemental
Shareholders to vote in favour of the Elemental Shareholder
Resolution;
"Elemental Shareholders" the holders of Elemental Shares;
"Elemental Shareholder Resolution" the resolution of the Elemental Shareholders approving, by simple
majority of the Elemental
Shares voted in person or by proxy at the Elemental Special
Meeting, the issuance of the New
Elemental Shares in accordance with the requirements of the TSX-V,
including the issuance
of New Elemental Shares to La Mancha Explorers, which will result
in La Mancha Explorers becoming
a new "Control Person" of Elemental within the meaning of TSX-V
policies;
"Elemental Shares" the issued and outstanding fully paid common shares of no par value
in the capital of Elemental
and any further such common shares which are issued before the
Scheme becomes Effective;
"Elemental Share Plan" The Elemental 2020 Incentive Compensation Plan;
"Elemental Special Meeting" the special meeting, including any adjournments or postponements
thereof, of the Elemental
Shareholders to be held to consider and, if thought advisable,
approve the Elemental Shareholder
Resolution and any other business which may properly come before
the meeting;
"Euroclear" Euroclear UK & Ireland Limited (a company incorporated in England
and Wales with registered
number 02878738, being the operator of CREST);
"Excluded Shares" any Altus Shares held by Altus in treasury; or beneficially owned
by Elemental or any subsidiary
undertaking of Elemental; in each case, immediately prior to the
Scheme Record Time;
"Exclusivity Agreement " has the meaning given to it in paragraph 9.2 of this Announcement;
"EUWA" The European Union (Withdrawal) Act 2018;
"FCA" the UK Financial Conduct Authority;
"FSMA" the Financial Services and Markets Act 2000 (as amended from time
to time);
"Gold Royalty" Gold Royalty Corp.;
"ISIN" International Securities Identification Number;
"La Mancha" together, La Mancha Investments and La Mancha Explorers;
"La Mancha Explorers" LMH Explorers S.Ã r.l.;
"La Mancha Holding" La Mancha Holding S.Ã r.l.;
"La Mancha Investments" La Mancha Investments S.Ã r.l.;
"La Mancha Strategic Investment Agreement" the strategic investment agreement between (i) La Mancha Holding
and (ii) Altus dated 4 December
2019 creating (among other thing) board appointment rights in
respect of Altus in favour of
La Mancha Holding;
"Last Practicable Date" 13 June 2022, being the last practicable date prior to publication
of this Announcement;
"London Stock Exchange" London Stock Exchange plc;
"Long Stop Date" 30 September 2022 or such later date as may be agreed in writing by
Elemental and Altus (with
the Panel's consent and as the Court may approve (if such
approval(s) is or are required));
"Market Abuse Regulation" the UK version of the Market Abuse Regulation (EU) No 596/2014,
which came into effect on
1 January 2021 when the EU Market Abuse Regulation (EU) No 596/2014
was incorporated into
UK domestic law by EUWA, with certain modifications;
"Merger" the proposed acquisition of the entire issued and to be issued
share capital of Altus by Elemental
(but excluding any Altus Shares held by Altus as treasury shares)
to be effected by the Scheme
as described in this Announcement (or by the Offer under certain
circumstances described in
this Announcement);
"Merger Document" means (i) if the Scheme is (or is to be) implemented, the Scheme
Document; or (ii) if the
Offer is (or is to be) implemented, the Offer Document;
"New Elemental Altus Group" the enlarged group following the Merger comprising the Elemental
Group and the Altus Group;
"New Elemental Shares" the new Elemental Shares to be issued to Altus Shareholders in
consideration for their Altus
Shares pursuant to the Merger;
"Offer" if, subject to the consent of the Panel, the Merger is implemented
by way of a takeover offer
as defined in Chapter 3 of Part 28 of the Companies Act 2006, the
offer to be made by or on
behalf of Elemental to acquire the entire issued and to be issued
ordinary share capital of
Altus, other than Altus Shares owned or controlled by the Elemental
Group or its subsidiary
undertakings and, where the context admits, any subsequent
revision, variation, extension
or renewal of such offer;
"Offer Document" should the Merger be implemented by means of the Offer, the
document to be published by or
on behalf of Elemental in connection with the Offer, containing,
inter alia, the terms and
conditions of the Offer;
"Offer Period" the Offer Period (as defined by the Takeover Code) relating to
Altus commencing on the date
of this Announcement and ending on the earlier of the date on which
the Scheme becomes Effective
and/or the date on which the Scheme lapses or is withdrawn (or such
other date as the Panel
may decide);
"Opening Position Disclosure" has the same meaning as in Rule 8 of the Takeover Code;
"Overseas Shareholders" Altus Shareholders who are resident in, ordinarily resident in, or
citizens of, jurisdictions
outside the United Kingdom;
"Panel" the Panel on Takeovers and Mergers;
"Registrar of Companies" the Registrar of Companies in England and Wales;
"Regulatory Information Service" has the same meaning as in the AIM Rules;
"Replacement Award" has the meaning given to it in paragraph 12 of this Announcement;
"Replacement Warrants" has the meaning given to it in paragraph 12 of this Announcement;
"Restricted Jurisdiction" any jurisdiction (excluding Canada, the United Kingdom and the
United States) where local
laws or regulations may result in a significant risk of civil,
regulatory or criminal exposure
if information concerning the Merger is sent or made available to
Altus Shareholders in that
jurisdiction;
"Scheme" the proposed scheme of arrangement under Part 26 of the Companies
Act 2006 between Altus and
Scheme Shareholders to implement the Merger, with or subject to any
modification, addition
or condition approved or imposed by the Court and agreed to by
Altus and Elemental;
"Scheme Court Hearing" the hearing of the Court to sanction the Scheme pursuant to section
899 of the Companies Act
2006 and any adjournment, postponement or reconvening thereof;
"Scheme Court Order" the order of the Court sanctioning the Scheme under section 899 of
the Companies Act 2006;
"Scheme Document" the document to be dispatched to Altus Shareholders and persons
with information rights setting
out, among other things, the details of the Merger, an explanatory
statement in accordance
with section 897 of the Companies Act 2006, the full terms and
conditions of the Scheme and
containing the notices convening the Altus Court Meeting and the
Altus General Meeting;
"Scheme Record Time" the time and date specified as such in the Scheme Document,
expected to be 6.00 p.m. on the
Business Day immediately prior to the Effective Date, or such other
time as Altus and Elemental
may agree;
"Scheme Shareholder" a holder of Scheme Shares;
"Scheme Shares" (i) the Altus Shares in issue at the date of the Scheme Document;
(ii) any Altus Shares issued after the date of the Scheme Document
and prior to the Scheme
Voting Record Time; and
(iii) any Altus Shares issued at or after the Scheme Voting Record
Time and prior to the Scheme
Record Time in respect of which the original or any subsequent
holder thereof is bound by
the Scheme, or shall by such time have agreed in writing to be
bound by the Scheme,
other than, in each case, Excluded Shares;
"Scheme Voting Record Time" the date and time specified in the Scheme Document by reference to
which entitlement to vote
at the Altus Court Meeting will be determined, expected to be 6.00
p.m. (London time) on the
day which is two days before the Altus Court Meeting or, if the
Altus Court Meeting is adjourned,
6.00 p.m. (London time) on the day which is two days before the
date of such adjourned Altus
Court Meeting;
"SEDAR" the System for Electronic Document Analysis and Retrieval, an
electronic filing system for
Canadian listed companies;
"Significant Interest" in relation to an undertaking, a direct or indirect interest of 20
per cent. or more of the
total voting rights conferred by the equity share capital of such
undertaking;
"South32" South32 Royalty Investments Pty. Ltd.;
"South32 Investor Rights Agreement" the investor rights agreement between (i) Elemental and (ii)
South32 dated 8 February 2021;
"SP Angel" SP Angel Corporate Finance LLP, nominated adviser and broker to
Altus;
"Special Resolution" the special resolution to be proposed at the Altus General Meeting
for the purposes of (a)
authorising the Altus Directors to take such action as they
consider necessary to implement
the Scheme; and (b) making the amendments to Altus's articles of
association outlined in paragraph
14 of this Announcement and which must be passed by Altus
Shareholders (to the extent permitted
to vote pursuant to the Takeover Code, applicable law or the Court
whose sanction is required
for the Scheme) representing 75 per cent. or more of the votes cast
(either in person or by
proxy) at the Altus General Meeting;
"Takeover Code" the City Code on Takeovers and Mergers of the UK issued by the
Panel, as amended from time
to time;
"TSX-V" TSX Venture Exchange;
"UBS" UBS AG London Branch, financial adviser to Altus;
"UK" or "United Kingdom" the United Kingdom of Great Britain and Northern Ireland;
"US Exchange Act" US Securities Exchange Act of 1934 (as amended), and the rules and
regulations promulgated
thereunder;
"US" or "United States" the United States of America, its territories and possessions, any
state of the United States
of America and the District of Columbia;
"Wider Altus Group" Altus and its subsidiaries, subsidiary undertakings, associated
undertakings and any other
body corporate, partnership, joint venture or person in which Altus
and/or such subsidiaries
or undertakings (aggregating their interests) have a Significant
Interest (excluding, for
the avoidance of doubt, La Mancha and all of its associated
undertakings which are not members
of the Altus Group.
"Wider Elemental Group" Elemental and its subsidiaries, subsidiary undertakings, associated
undertakings and any other
body corporate, partnership, joint venture or person in which
Elemental and/or such subsidiaries
or undertakings (aggregating their interests) have a Significant
Interest; and
For the purposes of this Announcement:
-- "subsidiary", "subsidiary undertaking" and "undertaking" have
the respective meanings given by the Companies Act 2006 and
"associated undertaking" has the meaning given by paragraph 19 of
Schedule 6 to the Large and Medium-sized Companies and Groups
(Accounts and Reports) Regulations 2008 (other than paragraph
19(1)(b) of Schedule 6 to those Regulations which shall be excluded
for this purpose);
-- all references to a statutory provision or law or to any
order or regulation shall be construed as a reference to that
provision, law, order or regulation as extended, modified, replaced
or re-enacted from time to time and all statutory instruments,
regulations and orders from time to time made thereunder or validly
deriving therefrom;
-- all references to time are to London time unless otherwise stated;
-- all references to "A$", "AUD", "Australian Dollars" or "
Australian cent" are to the lawful currency of the Commonwealth of
Australia;
-- all references to "C$", "CAD", "Canadian Dollars" or
"Canadian cent" are to the lawful currency of Canada;
-- all references to "GBP" and "pence" are to the lawful currency of the United Kingdom;
-- all references to "US$", "USD", "US Dollars" or "US cent" are
to the lawful currency of the US; and
-- references to the singular include the plural and vice versa.
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END
OUPGPUAGQUPPGMA
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