SMS Smart Metering Systems Plc

NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF SUCH JURISDICTION. PLEASE SEE THE IMPORTANT NOTICES AT THE END OF THIS ANNOUNCEMENT. ANY FAILURE TO COMPLY WITH THIS RESTRICTION MAY CONSTITUTE A VIOLATION OF U.S. SECURITIES LAW

FOR IMMEDIATE RELEASE

23 April 2024

RECOMMENDED FINAL CASH OFFER

for

Smart Metering Systems plc ("SMS")

by

Sienna Bidco Limited ("Bidco")

a newly formed company wholly-owned by funds advised by Kohlberg Kravis Roberts & Co. L.P. and its affiliates

NOTICE OF CLOSURE OF THE OFFER

THE OFFER WILL CLOSE FOR ACCEPTANCE

AT 1.00 P.M. (LONDON TIME) ON 7 MAY 2024

Introduction

On 7 December 2023, the boards of directors of SMS and Sienna Bidco Limited ("Bidco"), a newly formed company wholly-owned by funds advised by Kohlberg Kravis Roberts & Co. L.P. and its affiliates, announced that they had reached agreement on the terms and conditions of a recommended cash acquisition by Bidco of the entire issued and to be issued ordinary share capital of SMS (the "Acquisition"), to be effected by means of a Court-sanctioned scheme of arrangement (the "Scheme") under Part 26 of the Companies Act 2006 (the "Companies Act").

On 18 January 2024, Bidco announced that Bidco had determined, with the consent of SMS and the Takeover Panel, to implement the Acquisition by way of a recommended takeover offer (as defined in section 974 of the Companies Act) (a "Takeover Offer") rather than by way of the Scheme. Under the terms of the Takeover Offer, Bidco continues to offer SMS Shareholders 955 pence in cash for each SMS Share (the "Offer").

On 24 January 2024, the full terms and conditions of the Takeover Offer and the procedures for acceptance (the "Offer Document"), together with the related Form of Acceptance, were published and posted to SMS Shareholders (and for information purposes, to holders of options under the SMS Share Plans and persons with information rights). The Offer Document and the Form of Acceptance are available, subject to certain restrictions relating to persons resident in Restricted Jurisdictions, at SMS's website at https://www.sms-plc.com/

On 22 March 2024, Bidco declared the Offer unconditional.

As announced on 25 March 2024, the anticipated date of the cancellation of the admission to trading of SMS Shares on AIM is expected to become effective at 7.00 a.m. (London time) on 25 April 2024.

This announcement should be read in conjunction with the full text of the Offer Document. Capitalised terms used in this announcement shall, unless otherwise defined, have the same meanings as set out in the Offer Document. Unless otherwise stated, all times referred to in this announcement are to London times.

Notice of Offer closing and compulsory acquisition

Bidco announces that the Offer will close for acceptance at 1.00 p.m. (London time) on 7 May 2024.

As announced on 25 March 2024, Bidco has begun the implementation of the compulsory acquisition procedure to acquire the remaining SMS Shares in respect of which the Offer has not been accepted under Chapter 3 of Part 28 of the Companies Act, as contemplated by the Offer Document.

On 28 March 2024, Bidco dispatched formal compulsory acquisition notices pursuant to sections 979 and 980 of the Companies Act (the "Notices"), informing those SMS Shareholders who have not yet accepted the Offer that Bidco will apply the procedure under section 979 of the Companies Act to compulsorily acquire the remaining SMS Shares on the same terms as the Offer upon the expiry of six weeks from the date of the Notices, being 12.00 a.m. (London time) on 10 May 2024 (the "Expiry Date").

SMS Shareholders who have not yet accepted the Offer by the Expiry Date will have their SMS Shares registered in Bidco's name and the consideration to which those SMS Shareholders will be entitled will be held by SMS on trust under section 981(9) of the Companies Act.

Action to be taken

The Offer will remain open for acceptance until 1.00 p.m. (London time) on 7 May 2024. SMS Shareholders who have not yet accepted the Offer are urged to do so as soon as possible but in any event by no later than 1.00 p.m. on 7 May 2024, in accordance with the following procedures:

·     To accept the Takeover Offer in respect of SMS Shares in certificated form (that is, not in CREST), you must complete and return the Form of Acceptance accompanying the Offer Document, along with your share certificate(s) and/or other document(s) of title, to Computershare Investor Services PLC, Corporate Actions Projects, Bristol, BS99 6AH as soon as possible. Further details relating to the procedure for acceptance of the Offer in respect of such certificated SMS Shares is set out in section 12.1 of Part I of the Offer Document and in the Form of Acceptance.

·     Acceptances in respect of SMS Shares in uncertificated form (that is, in CREST) should be made electronically through CREST so that the TTE instruction settles as soon as possible. Further details relating to the procedure for acceptance of the Offer in respect of such uncertificated SMS Shares are set out in section 12.2 of Part I of the Offer Document. If you are a CREST sponsored member, you should refer to your CREST sponsor as only your CREST sponsor will be able to send the necessary TTE instruction to Euroclear.

Full details on how to accept the Offer are set out in section 12 of Part 1 of the Offer Document.

Settlement

Settlement of the consideration to which any SMS Shareholder is entitled under the Offer will be effected in respect of further acceptances received while the Offer remains open, complete in all respects, within 14 calendar days of such receipt, save for those SMS Shareholders who acquire their SMS Shares on or after the Offer being declared unconditional, pursuant to options or awards granted under the SMS Share Plans, or who hold their SMS Shares through the SMS SIP trust. Those SMS Shareholders should refer to the provisions at section 13.3 of Part I of the Offer Document.

SMS Shareholders should note that if they accept the Offer while the Offer remains open (i.e. by 1.00 p.m. (London time) on 7 May 2024), they will receive the consideration in respect of their SMS Shares within 14 calendar days of receipt of such acceptance. However, for any SMS Shares which Bidco compulsorily acquires, those SMS Shareholders who have not accepted the Offer will not receive their consideration until after the completion of the compulsory acquisition procedure on the Expiry Date.

Questions

If SMS Shareholders have any questions about this announcement or the Offer Document, or are in any doubt as to how to complete the Form of Acceptance, please contact the Shareholder Helpline operated by Computershare, the receiving agent in respect of the Takeover Offer, on +44 (0)370 707 4087. Please use the country code if calling from outside the UK. Lines are open between 8:30 a.m. and 5:30 p.m. Monday to Friday (except public holidays in England and Wales). Calls from outside the UK will be charged at the applicable international rate. Different charges may apply to calls from mobile telephones. Please note that calls may be monitored or recorded and Computershare cannot provide advice on the merits of the Takeover Offer or the Acquisition or give any financial, legal or tax advice. Additional Forms of Acceptance are available from the Receiving Agent upon request.

Enquiries

Simpson Thacher & Bartlett LLP is acting as legal adviser to KKR and Bidco.

Important Notices

Morgan Stanley & Co. International plc ("Morgan Stanley") which is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority in the UK is acting as financial adviser exclusively for KKR and no one else in connection with the matters set out in this announcement. In connection with such matters, Morgan Stanley, its affiliates and their respective directors, officers, employees and agents will not regard any other person as their client, nor will they be responsible to any other person for providing the protections afforded to their clients or for providing advice in connection with the contents of this announcement or any other matter referred to herein.

Macquarie Capital (Europe) Limited ("Macquarie Capital") which is regulated by the Financial Conduct Authority in the UK is acting as financial adviser exclusively for KKR and no one else in connection with the matters set out in this announcement. In connection with such matters, Macquarie Capital, its affiliates and their respective directors, officers, employees and agents will not regard any other person as their client, nor will they be responsible to any other person for providing the protections afforded to their clients or for providing advice in connection with the contents of this announcement or any other matter referred to herein. Macquarie Capital (Europe) Limited is not an authorised deposit-taking institution for the purposes of the Banking Act 1959 (Commonwealth of Australia), and its obligations do not represent deposits or other liabilities of Macquarie Bank Limited ABN 46 008 583 542.  Any investments are subject to investment risk including possible delays in repayment and loss of income and principal invested.  Macquarie Bank Limited does not guarantee or otherwise provide assurance in respect of the obligations of Macquarie Capital (Europe) Limited.

Further Information

This announcement is for information purposes only and does not constitute or form any part of an offer to sell or subscribe for or an invitation to purchase or subscribe for any securities or the solicitation of an offer to buy any securities, pursuant to the Acquisition or otherwise. The Acquisition shall be made solely by means of the Offer Document which, together with the Form of Acceptance, shall contain the full terms and Conditions of the Acquisition, including details of how to accept the Takeover Offer. SMS Shareholders are strongly advised to read the formal documentation in relation to the Takeover Offer once it has been dispatched. Each SMS Shareholder is urged to consult its independent professional adviser immediately regarding the tax consequences to it (or its beneficial owners) of the Acquisition.

The statements contained in this announcement are made as at the date of this announcement, unless some other time is specified in relation to them, and publication of this announcement shall not give rise to any implication that there has been no change in the facts set forth in this announcement since such date.

This announcement has been prepared for the purpose of complying with English and Scots law 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 England and Scotland.

This announcement does not constitute a prospectus or prospectus equivalent document.

Overseas Shareholders

The release, publication or distribution of this announcement in or into certain jurisdictions other than the United Kingdom may be restricted by law. Persons who are not resident in the United Kingdom should inform themselves of, and observe, any applicable requirements.

The availability of the Takeover Offer to SMS Shareholders who are not resident in and citizens of the UK may be affected by the laws of the relevant jurisdictions in which they are located or of which they are citizens and therefore persons who are not resident in the UK should inform themselves of, and observe, any applicable legal or regulatory requirements of their jurisdictions. Any failure to comply with such requirements may constitute a violation of the securities laws of any such jurisdiction. To the fullest extent permitted by applicable law, the companies and persons involved in the Offer disclaim any responsibility or liability for the violation of such restrictions by any person.

Unless otherwise determined by Bidco or required by the Takeover Code, and permitted by applicable law and regulation, the Takeover Offer may not be made directly or indirectly, in or into, or by the use of mails or any means or 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 and the Offer may not be capable of acceptance by any such use, means, instrumentality or facilities. Copies of this announcement and any formal documentation relating to the Takeover Offer are not being, and must not be, directly or indirectly, mailed or otherwise forwarded, distributed or sent in or into or from any Restricted Jurisdiction and persons receiving such documents (including, without limitation, agents, 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 acceptance of the Takeover Offer.

This announcement does not constitute an offer or invitation to purchase or subscribe for any securities or a solicitation of an offer to buy any securities pursuant to this announcement or otherwise in any jurisdiction in which such offer or solicitation is unlawful.

The Acquisition shall be subject to the applicable requirements of the Takeover Code, the Panel, the London Stock Exchange, the Financial Conduct Authority and the AIM Rules. Further details in relation to Overseas Shareholders will be contained in the Offer Document.

Additional Information for US Investors

The Takeover Offer relates to the shares of a Scottish company and is being made by means of a contractual takeover offer under the Takeover Code and under English and Scots law. The Offer is being made in the United States pursuant to all applicable laws and regulations, including, to the extent applicable, to holders of SMS Shares resident in the United States ("US SMS Shareholders") pursuant to Section 14(e) and Regulation 14E under the US Exchange Act as a "Tier II" tender offer, and otherwise in accordance with the requirements of the Takeover Code. Accordingly, the Takeover Offer is subject to the disclosure and other procedural requirements, including with respect to withdrawal rights, offer timetable, settlement procedures and timing of payments that are different from those applicable under US domestic tender offer procedures and law. The Takeover Offer is being made in the United States by Bidco and no one else. The Takeover Offer will be made to US SMS Shareholders on the same terms and conditions as those made to all other SMS Shareholders to whom an offer is made. Any information documents, including the Offer Document, will be disseminated to US SMS Shareholders on a basis comparable to the method that such documents are provided to the other SMS Shareholders to whom an offer is made.

Certain financial information included in this announcement and the Offer Document has been or will have been prepared in accordance with generally accepted accounting standards applicable in the United Kingdom 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.

To the extent permitted by the Takeover Code and applicable law, in accordance with normal UK practice and pursuant to Rule 14e-5(b) of the US Exchange Act, Bidco, certain affiliated companies and their nominees or brokers (acting as agents) may make certain purchases of, or arrangements to purchase, shares in SMS outside of the US, outside the Takeover Offer, during the Offer Period and the period in which the Takeover Offer remains open for acceptance. Also, to the extent permitted by the Takeover Code and applicable law, in accordance with normal UK practice and pursuant to Rule 14e-5(b) of the US Exchange Act, each of Morgan Stanley, Macquarie Capital, Cavendish, Investec and RBC will continue to act as a connected exempt principal trader in SMS Shares on the London Stock Exchange. If such purchases or arrangements to purchase were to be made they would be made outside the U.S. and would comply with applicable law. Any such purchases by Bidco or its affiliates will not be made at prices higher than the price of the Takeover Offer provided in this announcement unless the price of the Takeover Offer is increased accordingly. 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, www.londonstockexchange.com/.

Neither the U.S. Securities and Exchange Commission (the "SEC") nor any securities supervisory authority of any state or other jurisdiction in the United States has approved or disapproved the Takeover Offer or reviewed it for its fairness, nor have the contents of the Offer Document or any other documentation relating to the Takeover Offer been reviewed for accuracy, completeness or fairness by the SEC or any securities supervisory authority in the United States. Any representation to the contrary is a criminal offence in the United States.

It may be difficult for US SMS Shareholders to enforce their rights and claims arising out of the US federal securities laws in connection with the Takeover Offer, since Bidco and SMS are located in countries other than the US, and some or all of their officers and directors may be residents of countries other than the US.

US SMS Shareholders may not be able to sue a non-US company or its officers or directors in a non-US court for violations of 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 jurisdiction and judgement.

The receipt of cash pursuant to the Takeover Offer by a US SMS Shareholder as consideration for the transfer of its SMS Shares pursuant to the Takeover Offer will likely be a taxable transaction for United States federal income tax purposes and under applicable United States state and local, as well as foreign and other, tax laws. Each U.S. SMS Shareholder is strongly advised to consult an appropriately qualified independent professional legal, tax and financial adviser immediately in connection with making a decision regarding this transaction, including with respect to the tax consequences of the Takeover Offer applicable to them, including under applicable U.S. state and local, as well as overseas and other, tax laws.

Forward Looking Statements

This announcement (including information incorporated by reference in this announcement), oral statements made regarding the Acquisition, and other information published by KKR, Bidco or SMS may contain statements about Bidco and SMS that are or may be deemed to be forward looking statements. All statements other than statements of historical facts included in this announcement may be forward looking statements. Without limitation, any statements preceded or followed by or that include the words "targets", "plans", "believes", "expects", "aims", "intends", "will", "may", "shall", "should", "anticipates", "estimates", "projects", "is subject to", "budget", "scheduled", "forecast" or words or terms of similar substance or the negative thereof, are forward looking statements. Forward looking statements include statements relating to the following: (i) future capital expenditures, expenses, 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 Bidco's or SMS's operations and potential synergies resulting from the Acquisition; and (iii) the effects of government regulation on Bidco's or SMS's business.

Such 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 Bidco and SMS about future events, and are therefore subject to risks and uncertainties that could significantly affect expected results and are based on certain key assumptions. Many factors could cause actual results to differ materially from those projected or implied in any forward looking statements, including: increased competition, the loss of or damage to one or more key customer relationships, changes to customer ordering patterns, delays in obtaining customer approvals for engineering or price level changes, the failure of one or more key suppliers, the outcome of business or industry restructuring, the outcome of any litigation, changes in economic conditions, currency fluctuations, changes in interest and tax rates, changes in raw material or energy market prices, changes in laws, regulations or regulatory policies, developments in legal or public policy doctrines, technological developments, the failure to retain key management, or the timing and success of future acquisition opportunities or major investment projects. Other unknown or unpredictable factors could cause actual results to differ materially from those in the forward looking statements. Such forward looking statements should therefore be construed in the light of such factors. Neither Bidco nor SMS, nor any of their respective associates or directors, officers 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. Due to such uncertainties and risks, readers are cautioned not to place undue reliance on such forward looking statements, which speak only as of the date hereof. All subsequent oral or written forward looking statements attributable to any member of the Bidco Group or the SMS Group, or any of their respective associates, directors, officers, employees or advisers, are expressly qualified in their entirety by the cautionary statement above.

Bidco and SMS expressly disclaim any obligation to update any forward looking or other statements contained herein, except as required by applicable law or by the rules of any competent regulatory authority, whether as a result of new information, future events or otherwise.

Electronic Communications

Please be aware that addresses, electronic addresses and certain information provided by SMS Shareholders, persons with information rights and other relevant persons for the receipt of communications from SMS may be provided to Bidco during the Offer Period as required under Section 4 of Appendix 4 of the Takeover Code to comply with Rule 2.11(c) of the Takeover Code.

Publication on Website and Availability of Hard Copies

A copy of this announcement and the documents required to be published by Rule 26 of the Takeover Code shall be made available subject to certain restrictions relating to persons resident in Restricted Jurisdictions on SMS's website at www.sms-plc.com by no later than 12 noon (London time) on the Business Day following the date of this announcement. For the avoidance of doubt, neither the contents of this website nor the content of any other website accessible from hyperlinks on such website is incorporated into, or forms part of, this announcement.

In accordance with Rule 30.3 of the Takeover Code, SMS Shareholders, persons with information rights and participants in the SMS Share Plans may request a hard copy of this announcement by contacting Computershare Investor Services PLC during business hours on +44 (0)370 707 4087 or by submitting a request in writing to Registrar at Computershare Investor Service PLC, The Pavilions, Bridgwater Road, Bristol, BS99 6ZY. In accordance with Rule 30.3 of the Takeover Code, a person so entitled may also request that all future documents, announcements and information in relation to the Acquisition should be sent to them in hard copy form. If you have received this announcement in electronic form or via a website notification, hard copies of this announcement and any document or information incorporated by reference into this document will not be provided unless such a request is made.

General

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, accountant or independent financial adviser duly authorised under FSMA if you are resident in the United Kingdom or, if not, from another appropriately authorised independent financial adviser.