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
25 January 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
PUBLICATION AND POSTING OF OFFER
DOCUMENT
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 (the "Switch Announcement Date").
Accordingly, the Court Meeting and the General Meeting in relation
to the Scheme were convened on 22 January 2024 and concluded on the
basis that the Scheme is discontinued as the Acquisition is being
implemented by way of the Takeover Offer.
Any
votes submitted in relation to the Acquisition under the Scheme
will no longer be valid and SMS Shareholders will need to take
action as set out in this announcement and the Offer Document (as
defined below) to accept the Takeover Offer.
Publication of the Offer
Document
Bidco announces that the offer
document containing, amongst other things, 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 on 24 January 2024 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/.
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.
Expected Timetable of Principal Events
The Offer Document contains an
expected timetable of principal events in relation to the Takeover
Offer at page 3, which is also set out in the Appendix to this
announcement.
Action to be taken by SMS
Shareholders to accept the Takeover Offer
The Takeover Offer will remain open
for acceptance until 1.00 p.m. on the Unconditional Date, which is
24 March 2024. The Unconditional Date may be brought forward or
extended in accordance with the Takeover Code as further described
in section 12 of Part I or paragraph 1 of Part C of Part III of the
Offer Document.
The earliest
date on which the Takeover Offer may be declared unconditional is
14 February 2024. If the Takeover Offer is declared unconditional
on this date, SMS
Shareholders who have accepted the offer on or prior to 14 February
2024 will receive payment by 28 February 2024. SMS Shareholders are
therefore encouraged to submit their Forms of Acceptance as soon as
possible.
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
and, in any event, so as to be received no later than 1.00 p.m. on
the Unconditional Date, which is 24 March 2024 (or such other date
set other Bidco as described further in the Offer Document).
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 no
later than 1.00 p.m. on the Unconditional Date, which is 24 March
2024 (or such other date set by Bidco as described further in the
Offer Document). 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.
Recommendation
The SMS Directors, who have been so
advised by RBC and Investec as to the financial terms of the
Acquisition, continue to consider the terms of the Acquisition to
be fair and reasonable. In providing their advice to the SMS
Directors, RBC and Investec have taken into account the commercial
assessments of the SMS Directors. Investec is providing independent
financial advice to the SMS Directors for the purposes of Rule 3 of
the Takeover Code.
The
SMS Directors continue to consider that the terms of the
Acquisition are in the best interests of SMS Shareholders as a
whole. Accordingly, the SMS Directors unanimously recommend that
the SMS Shareholders accept, or procure the acceptance of, the
Takeover Offer as the SMS Directors who hold interests in SMS
Shares have irrevocably undertaken to do in respect of their own
legal and/or beneficial holdings over which they have control,
being in aggregate 141,341 SMS Shares (representing approximately
0.1 per cent. of the existing issued ordinary share capital of SMS)
as at 22 January 2024 (being the Latest Practicable Date in the
Offer Document).
SMS Shareholders should carefully
read the Offer Document in its entirety before making a decision
with respect to the Takeover Offer.
Cancellation of admission to trading on AIM, compulsory
acquisition and re-registration
Assuming the Takeover Offer becomes
or is declared unconditional and that Bidco has, by virtue of
acceptances of the Takeover Offer or otherwise, acquired, or agreed
to acquire, SMS Shares carrying not less than 75 per cent. of the
voting rights then exercisable at a general meeting of SMS
Shareholders, it is intended that the admission to trading of the
SMS Shares on AIM will be cancelled.
If Bidco receives acceptances of the
Takeover Offer in respect of, and/or otherwise acquires or
unconditionally contracts to acquire, 90 per cent. or more of the
SMS Shares by nominal value and voting rights attaching to such
shares to which the Takeover Offer relates and the Takeover Offer
has become or been declared unconditional, Bidco intends to
exercise its rights pursuant to the provisions of Chapter 3 of Part
28 of the Companies Act to acquire compulsorily the remaining SMS
Shares in respect of which the Takeover Offer has not been accepted
on the same terms as the Takeover Offer.
It is also intended that, following
the Takeover Offer becoming or being declared unconditional and
Bidco, by virtue of acceptances of the Takeover Offer or otherwise,
having acquired, or having agreed to acquire, SMS Shares carrying
not less than 75 per cent. of the voting rights then exercisable at
a general meeting of SMS Shareholders, SMS will be re-registered as
a private limited company.
Such cancellation of admission to
trading on AIM of SMS Shares and re-registration of SMS as a
private limited company would significantly reduce the liquidity
and marketability of any SMS Shares in respect of which the
Takeover Offer has not been accepted at that time and their value
may be affected as a consequence.
Any remaining SMS Shareholders
(unless their SMS Shares are acquired by Bidco pursuant to the
provisions of Chapter 3 of Part 28 of the Companies Act) would
become minority shareholders in a majority controlled private
limited company and may therefore be unable to sell their SMS
Shares. There can be no certainty that SMS would pay any further
dividends or other distributions or that such minority SMS
Shareholders would again be offered an opportunity to sell their
SMS Shares on terms which are equivalent to or no less advantageous
than those under the Takeover Offer.
Other consequences of the Takeover Offer
If Bidco receives acceptances of the
Takeover Offer in respect of, and/or otherwise acquires or
unconditionally contracts to acquire, more than 50 per cent. of the
SMS Shares by nominal value and voting rights attaching to such
shares to which the Takeover Offer relates and the Takeover Offer
has become or been declared unconditional, then Bidco will have
significant control over SMS. Bidco will be in a position to
determine, for example, the composition of the SMS Board and
management team, the overall strategy of the SMS Group, and the
declaration or cessation of any dividends. Bidco could also
increase its aggregate shareholding in SMS without restriction and
may in due course acquire 75 per cent. or more of the voting rights
of SMS. In the meantime, SMS Shares in respect of which the
Takeover Offer has not been accepted at that time are likely to be
affected by reduced trading volume and reduced liquidity as a
consequence.
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.
Enquiries
Morgan Stanley (Joint Financial Adviser to
KKR)
Shirav Patel / Francesco Puletti /
Andrew Foster / George Chalaris / Nagib Ahmad
|
+44 (0) 20
7425 8000
|
Macquarie Capital (Joint Financial Adviser to
KKR)
Adam Hain / Ashish Mehta
|
+44 (0) 20
3037 2000
|
FGS
Global (PR Adviser to KKR)
Faeth Birch / Alastair Elwen /
Sophia Johnston
|
KKR-LON@fgsglobal.com
+44 (0) 20
725 13801
|
Smart Metering Systems plc
Miriam Greenwood, Chairman / Tim
Mortlock, Chief Executive Officer / Gail Blain, Chief Financial
Officer / Dilip Kejriwal, Head of Investor Relations
|
+44 (0)
141 249 3850
|
RBC
Capital Markets (Joint Financial Adviser and Joint Broker to
SMS)
Mark Preston / Evgeni Jordanov /
Matthew Coakes / Sam Jackson
|
+44 (0) 20
7653 4000
|
Investec Bank plc (Joint Financial Adviser and Joint Broker to
SMS)
Chris Baird / Henry Reast / James
Rudd / Shalin Bhamra
|
+44 (0) 20
7597 5970
|
Cavendish Securities plc (Nomad and Joint Broker to
SMS)
Neil McDonald / Peter Lynch / Adam
Rae
|
+44 (0)
131 220 6939
|
Instinctif Partners (Public Relations Adviser to
SMS)
Tim Linacre / Guy
Scarborough
|
sms@instinctif.com
+44 (0)
7949 939 237
+44 (0)
7917 178 920
|
Simpson Thacher & Bartlett LLP
is acting as legal adviser to KKR and Bidco.
Hogan Lovells International LLP is
acting as legal adviser to SMS.
APPENDIX
EXPECTED TIMETABLE OF PRINCIPAL
EVENTS
The following indicative timetable
is based on SMS's and Bidco's current expected dates for the
implementation of the Offer and is subject to change. If any of the
dates and/or times in this expected timetable change, the revised
dates and/or times will be notified to SMS Shareholders by
announcement through the Regulatory Information Service of the
London Stock Exchange, with such announcement being made available
on SMS's website at https://www.sms-plc.com/. Unless otherwise stated, all
times referred to in the timetable set out below are London
times.
Event
|
Time and/or
date(1)
|
Publication and posting of the Offer
Document and the Form of Acceptance
|
24 January
2024
|
Earliest date on which the Offer may
be declared unconditional
|
5:00 p.m.
(London time) on 14 February
2024
|
Earliest date for the settlement of
consideration to SMS Shareholders who accept the Offer on or prior
to 14 February 2024, if the Offer is declared unconditional on 14
February 2024
|
28
February 2024
|
Latest time and date by which the
Offer can be accepted
|
1:00 p.m.
(London time) on 24 March
2024(2)
|
Latest time and date by which the
Offer may be declared and become unconditional(3)
|
5:00 p.m.
(London time) on 24 March
2024(4)
|
Latest date for the settlement of
consideration to SMS Shareholders who accept the Offer prior to the
Offer becoming or being declared unconditional
|
No later
than 14 calendar days after the Offer becoming or being declared
unconditional(5)
|
____________
(1) Participants in the
SMS Share Plans will be contacted separately regarding the effect
of the Offer on their rights under these schemes and, where
applicable, provided with further details concerning the proposals
being made to them in accordance with Rule 15 of the Takeover Code,
and dates and times relevant to them.
(2) Subject to the terms
of the Co-operation Agreement, Bidco reserves the right (but shall
not be obliged, other than as may be required by the Takeover Code)
at any time or from time to time to bring forward the Offer before,
or extend the Offer after, such time.
(3) The Offer shall lapse
unless all of the Conditions have been fulfilled (or, where
permitted, waived) by midnight on the earlier of the Unconditional
Date and the Long-Stop Date (subject to the rules of the Takeover
Code and, where applicable, the consent of the Panel).
(4) If the Offer becomes
or is declared unconditional and Bidco receives acceptances of the
Offer in respect of, and/or otherwise acquires, 90% or more in
nominal value of the SMS Shares to which the Offer relates, Bidco
intends to exercise its rights pursuant to the statutory
squeeze-out provisions of sections 974 to 991 of the Companies Act
to acquire compulsorily, on the same terms as the Offer, the
remaining SMS Shares to which the Offer relates in respect of which
the Offer has not at such time been accepted. If the Offer becomes
or is declared unconditional, Bidco will keep the Offer open for
acceptances for at least 14 days following the date on which the
Offer becomes or is declared unconditional.
(5) Notwithstanding the
reference to 14 calendar days to effect settlement of consideration
to SMS Shareholders, in the case of SMS Shares resulting from the
exercise or vesting of options or awards under the SMS Share Plans
or held through the SMS SIP trust, Bidco shall: (i) pay the amount
due in respect of such SMS Shares to, as applicable, SMS or any of
its subsidiaries or subsidiary undertakings, the trustee of the SMS
SIP trust or otherwise by such method as may be agreed with SMS,
and (ii) procure that payments are made to the relevant SMS
Shareholders as soon as practicable following the Effective Date,
where applicable, through the relevant payroll (subject to the
deduction of any exercise price (if relevant), income tax and
employee's national
insurance contributions or such equivalents in any applicable
jurisdiction).
Important Notices
RBC Europe Limited (trading as RBC
Capital Markets), which is authorised by the Prudential Regulation
Authority and regulated by the Financial Conduct Authority and the
Prudential Regulation Authority in the United Kingdom, is acting
for SMS and no one else in connection with the matters referred to
in this announcement and will not be responsible to anyone other
than SMS for providing the protections afforded to clients of RBC
Capital Markets, or for providing advice in connection with matters
referred to in this announcement.
Investec, which is authorised by the
Prudential Regulation Authority (the "PRA") and regulated by the Financial
Conduct Authority and PRA in the United Kingdom, is acting
exclusively as financial adviser to SMS and for no one else in
connection with the Takeover Offer and will not be responsible to
any person other than SMS for providing the protections afforded to
clients of Investec, nor for providing advice in relation to the
Takeover Offer, the content of this announcement or any matter
referred to in this announcement. Neither Investec 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 Investec in connection with this
announcement, any statement contained herein or
otherwise.
Cavendish Securities, which is
authorised and regulated in the United Kingdom by the Financial
Conduct Authority, is acting exclusively for SMS and no one else in
connection with the subject matter of this announcement and will
not be responsible to anyone other than SMS for providing the
protections afforded to clients of Cavendish Securities or for
providing advice in relation to the subject matter of this
announcement, the contents of this announcement and any other
matters referred to in this announcement.
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.
Disclosure Requirements of the Takeover Code
Under Rule 8.3(a) of the Takeover
Code, any person who is interested in 1 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 1 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 Panel's website at
http://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. If you are in
any doubt as to whether you are required to make an Opening
Position Disclosure or a Dealing Disclosure, you should contact the
Panel's Market Surveillance Unit on +44 (0)20 7638 0129.
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 0370 707 4087 or by submitting a request
in writing to Registrar at Computershare Investor Service PLC, The
Pavilions, Bridgwater Road, Bristol BS99 6ZZ. 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.