Balyo: In Response to the Proposed Tender Offer for Balyo Shares and Warrants Initiated by SVF II Strategic Investments AIV LLC
ARCUEIL, France–(BUSINESS WIRE)–Regulatory News:
Balyo (Paris:BALYO):
This press release does not constitute an offer to purchase securities.
| This press release (the “Press Release“) has been prepared and is being disseminated in accordance with the provisions of Article 231-26 of the General Regulations of the Autorité des marchés financiers (the “AMF“). The draft tender offer, the draft offer document and the draft reply document (the “Draft Reply Document”) remain subject to review by the AMF. |
| IMPORTANT NOTICE Pursuant to Articles 231-19 and 261-1 et seq. of the General Regulation of the AMF, the report of EightAdvisory, acting as independent expert, is included in the Draft Offer Response. |
The Press Release should be read in relation with all other documents published in connection with the Offer. The Draft Offer Document filed with the AMF on 16 August 2023 is available on Balyo’s website (www.balyo.com) and on the AMF’s website (www.amf-france.org) and may be obtained free of charge from Balyo’s registered office at 74 Avenue Vladimir Illitch Lenine, 94110 Arcueil.
In accordance with article 231-28 of the general regulation of the AMF, information relating to the legal, financial and accounting characteristics of Balyo will be filed with the AMF and made available to the public, in the same way, no later than the day before the opening of the tender offer.
A press release will be issued, no later than the day before the opening of the tender offer, to inform the public of the procedures for making these documents available.
1. PRESENTATION OF THE OFFER
Pursuant to Title III of Book II, and in particular articles 231-13 and 232-1 et seq. of the general regulation of the AMF (the “General Regulation of the AMF”), SVF II STRATEGIC INVESTMENTS AIV LLC, a Delaware corporation (United States), having its registered office at Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808, USA, registered under number 6207806 (“SVF AIV” or the “Offeror”) has irrevocably undertaken to offer to the shareholders and to warrants holder of Balyo, a société anonyme with a Board of Directors and a share capital of 2,749,258.96 euros, having its registered office at 74 Avenue Vladimir Illitch Lenine, 94110 Arcueil, France, registered under number 483 563 029 with the Créteil Trade and Companies Register (“Balyo” or the “Company” and together with its direct or indirect subsidiaries, the “Group“), whose shares are listed on compartment C of the Euronext Paris regulated market under ISIN code FR0013258399, mnemonic “BALYO” (the “Shares“), to acquire in cash (i) all their Ordinary Shares (as this term is defined below, subject to the exceptions below) at a price of 0,85 per Ordinary Share (the “Ordinary Share Offer Price“), (ii) all of their ADP (as this term is defined below, subject to the exceptions below) at a price of 0.01 euro per ADP (the “Offer Price per ADP“), and (iii) all of their Warrants (as defined below) at a price of 0.07 euro per Warrant (the ” Warrant Offer Price” together with the Offer Price per Ordinary Share and the Offer Price per ADP, the “Offer Price“), as part of a public tender offer, the terms of which are set out below and described in greater detail in the draft offer document prepared by the Offeror and filed with the AMF (the “Draft Offer Document“) (hereinafter the “Offer”).
The Offer relates to:
– the ordinary shares already issued, with the exception of the Excluded Shares (as defined below), i.e., as of 16 August 2023, a number of 34,141,873 ordinary shares;
– the ordinary shares likely to be issued before the close of the Offer or the Reopened Offer following the exercise of the 830,000 stock-option (bons de souscription de parts de créateur d’entreprise, the “BSPCE“) which have not been renounced by their holders (it being specified that these BSPCE are out of the money as their exercise price is higher than the Offer Price of the Ordinary Shares, and that they will become null and void at the closing of the Offer (in the event of success)) and represent, to the best of the Company’s knowledge, as of the date of Press Release, a maximum of 830,000 Ordinary Shares, i.e. around 2.42% of the share capital and voting rights (together with the ordinary shares already issued by the Company, the “Ordinary Shares”)
– 6,270 preference shares issued by the Company, i.e., as at 16 August 2023, 2,090 ADP T3, 2,090 ADP T4, and 2,090 ADP T5 (the “ADP”)1 ; and
– all the warrants issued by the Company on 22 February 2019 to Amazon, i.e., 11,753,581 warrants as at 16 August 2023 (the “Warrants”);
(together the “Target Securities”).
It is specified that the Offer is not aimed at:
– Ordinary Shares held in treasury by the Company, representing 34,894 Ordinary Shares as of 16 August 2023 (the “Treasury Shares“);
– the 180,000 Ordinary Shares, the 900 ADP T3, the 900 ADP T4 and the 900 ADP T5 held by Mr. Pascal Rialland subject to the constraints provided for by article L. 225-197-1. II §4 of the French Commercial Code, pursuant to which (i) Balyo’s Board of Directors imposed to Mr. Pascal Rialland, an obligation to retain a percentage of his shares and (ii) such shares which are subject to retention obligation are covered by a liquidity mechanism, described at section 7.2.3 of the Press Release (the “Unavailable Shares” and together with the Treasury Shares, the “Excluded Shares”); and
– the 830,000 BSPCE issued by the Company, which are non-transferable by virtue of the provisions of article 163bis G of the French General Tax Code.
As of the date of this Draft Offer Document, there are no other equity securities or other financial instruments issued by the Company or rights conferred by the Company that could give access, immediately or in the future, to the Company’s capital or voting rights, subject to the issuance and, if applicable, conversion of the Bonds as described in section of the Draft Response Document.
The Ordinary Shares already issued are listed on compartment C of the Euronext Paris regulated market under ISIN code FR0013258399 (mnemonic “BALYO”). The Preferred Shares and Company Warrants are not listed on any market.
2. CONTEXT AND CHARACTERISTICS OF THE OFFER
2.1 Background and reasons for the Offer
Balyo’s activities consist of research and development (R&D), the design of technologies enabling standard forklifts for horizontal or vertical pallet transport to be automated, and the marketing and sale of these robots and related services. With a strong product offering of lift trucks with both vertical and horizontal transport applications long-standing relationships with its partners (warehouse operators and suppliers) and experience in this sector, the Offeror considers the Balyo Group as being one of the best in this robotics sector.
The Offeror, SVF AIV, is a wholly owned direct subsidiary of the Japanese company SoftBank Group Corp. (hereinafter “SBG“), which was founded in 1981 by Mr. Masayoshi Son. The SoftBank Group invests in breakthrough technology to improve the quality of life for people around the world. The SoftBank Groupe is comprised of SBG (TOKYO: 9984), an investment holding company that includes stakes in AI, smart robotics, IoT, telecommunications, internet services, and clean energy technology providers, the SoftBank Vision Funds and SoftBank Latin America Funds, which are investing more than US$160 billion to help entrepreneurs transform industries and shape new ones.
The Company’s Board of Directors (the “Board of Directors”) met on 13 June 2023 to review the proposed Offer. At this meeting, the Company’s Board of Directors unanimously approved the proposed transaction and authorized the Company to enter into a tender offer agreement with the Offeror (the “TOA”).
In accordance with the provisions of article 261-1, III of the General Regulation of the AMF, the Company’s Board of Directors, at its meeting on 13 June 2023 decided to set up an ad hoc committee, composed the following Directors:
– Ms Corinne Jouanny, independent Director ;
– Bénédicte Huot de Luze, independent Director ; and
– Alexandre Pelletier, Director ;
a majority of independent Directors, whose mission is to (i) make a recommendation to the Company’s Board of Directors on the appointment of the independent expert, (ii) examine the conditions of the Offer and monitor the follow up of independent expert’s work and (iii) prepare the draft reasoned opinion for the Company’s Board of Directors on the proposed Offer in accordance with the provisions of article 261-1, III of the General Regulation of the AMF.
On 13 June 2023, the Company’s Board of Directors, on the recommendation of the ad hoc committee, appointed Eight Advisory, represented by Geoffroy Bizard, as independent expert in connection with the proposed Offer, with the task of preparing a report including a fairness opinion on the financial terms of the Offer, including the squeeze-out, in accordance with the provisions of article 261-1, I, 2°, 4°, 5° and II of the General Regulation of the AMF.
On 13 June 2023, the Offeror entered into agreements with FPCI FSN PME – Ambition Numérique represented by Bpifrance Investissement,, Hyster-Yale UK Limited, SSUG PIPE Fund SCSp, SICAVRAIF, Linde Material Handling, GmbH, and Thomas Duval, and on 14 June 2023 with Invus Public Equities, L.P., each of which is a shareholder of the Company, pursuant to which each such shareholder undertakes to tender the Targeted Securities held by it to the Offer pursuant to the terms and conditions of such agreement. On 13 June 2023, the Offeror also entered into an agreement pursuant to which Financière Arbevel, a shareholder of the Company, undertook to tender any Targeted Securities held by it at the opening of the Offer to the Offer and pursuant to the terms and conditions of such agreement.
On 14 June 2023, the Company and the Offeror entered into the TOA, under the terms of which the Offeror undertook to tender the Offer to the Company, and the Company undertook to cooperate with the Offeror in connection with the Offer. The main terms of the TOA are described in section of the Draft Response Document.
On 14 June 2023, the Company and the Offeror announced, by way of a joint press release, (i) the execution of the TOA, (ii) SBG’s intention to file a tender offer through a 100%-owned subsidiary to acquire the Target Securities, (iii) the provision of the Intermediary Financing (as such term is defined below) described in section 7.3 of the Draft Response Document, (iv) the signature of the agreement with the shareholders as described in section 7.2.1 of the Draft Response Document, and (v) the fact that the Company entered into an agreement with its senior lenders on 13 June 2023 concerning the extension of the existing senior financing agreement.
If the conditions are met, the Offeror also intends to implement a squeeze-out procedure, pursuant to articles L. 433-4, II of the French Monetary and Financial Code and 237-1 to 237-10 of the General Regulation of the AMF, with a view to obtaining the transfer of the Target Securities not tendered to the Offer in consideration for an indemnity equal to the Offer Price.
On 15 June 2023, the Company initiated the information-consultation procedure with its works council (the “Comité Social et Economique” (the “CSE”)), which met for the first time on 16 June 2023. On 21 June 2023, the CSE held its first hearing with SBG, followed by a second exchange of views on 5 July 2023, in accordance with article 2312-42, paragraph 3 of the French Labor Code. On 5 July 2023, the CSE issued a favorable opinion on the Offer.
2.2 Reminder of the terms of the Offer
2.2.1 Main terms of the Offer
The Offer is voluntary and will be carried out in accordance with the normal procedure pursuant to articles 232-1 et seq. of the General Regulation of the AMF.
In accordance with the provisions of article 232-4 of the General Regulation of the AMF, unless the Offer is not successful, it will be automatically reopened within ten (10) trading days of the publication of the definitive result of the Offer, on terms identical to those of the Offer (the “Reopened Offer”).
Pursuant to articles L. 433-4 II of the French Monetary and Financial Code and 232-4 and 237-1 et seq. of the General Regulation of the AMF, the Offeror has indicated that it intends to ask the AMF to implement, within ten (10) trading days of the publication of the result of the Offer or, as the case may be, within three (3) months of the closing of the Reopened Offer, of a , a squeeze-out procedure for Balyo’s Ordinary Shares, Warrant and Preferred Shares not tendered to the Offer and insofar as the thresholds provided for in Article 237-1 et seq. of the General Regulation of the AMF have been reached.
The Offer is subject to the acceptance threshold referred to in article 231-9, I of the General Regulation of the AMF, as described in section 2.3.1 of the Draft Response Document.
The Offer also includes a waiver threshold, in accordance with article 231-9, II of the General Regulation of the AMF, as specified in section 2.3.2. of the Draft Response Document.
The Offer is presented by Alantra Capital Markets (the “Presenting Institution“), which guarantees the content and irrevocable nature of the commitments made by the Offeror in connection with the Offer in accordance with the provisions of article 231-13 of the General Regulation of the AMF.
2.2.2 Terms of the Offer
The Draft Offer Document and the Draft Response Document were filed with the AMF on 16 August 2023. A notice of filing was published by the AMF on its website (www.amf-france.org) on 16 August 2023. The Draft Offer Document and the Draft Response Document are available on Balyo’s website (www.balyo.com) and of the AMF (www.amf-france.org) and are available to the public free of charge at Balyo’s registered office, 74 Avenue Vladimir Illitch Lenine, 94110 Arcueil.
The Draft Offer Document filed by the Offeror contains details of the terms of the Offer, the conditions to which it is subject and the contemplated timetable for the Offer.
The Company filed the Draft Response Document with the AMF on 16 August 2023. The AMF has published a notice of filing relating to the Draft Response Document on its website (www.amf-france.org) on 16 August 2023. The Draft Response Document, as filed with the AMF, was made available to the public free of charge at the Company’s registered office, and was posted on the AMF’s website (www.amf-france.org) and the Company’s website (www.balyo.com).
In accordance with the provisions of article 231-26 of the General Regulation of the AMF, a press release setting out the main elements of the Draft Response Document and specifying the terms and conditions for making the Draft Response Document available was published on the Company’s website (www.balyo.com) on 16 August 2023.
The Draft Offer Document and the Draft Response Document remain subject to review by the AMF, which may declare the Offer compliant after ensuring that it complies with the applicable legal and regulatory provisions.
This decision of compliance will entail approval by the AMF of the Draft Response Document drawn up by the Company.
In accordance with the provisions of articles 231-27 and 231-28 of the General Regulation of the AMF, the Draft Response Document approved by the AMF and the document containing the “Other Information” (“Autres Informations“) relating to the Company’s legal, financial and accounting characteristics will be made available to the public free of charge, no later than the day before the opening of the Offer, at the Company’s registered office. These documents will also be posted on the AMF website (www.amf-france.org) and on the Company’s website (www.balyo.com).
A press release specifying how these documents will be made available will be issued no later than the day before the opening of the Offer, in accordance with the provisions of articles 231-27 and 231-28 of the General Regulation of the AMF.
Prior to the opening of the Offer, the AMF will publish a notice of the opening and the timetable of the Offer, and Euronext Paris will publish a notice setting out the content of the Offer and the terms and conditions of its completion.
2.3 Terms of the Offer
2.3.1. Acceptance Threshold
In accordance with the provisions of article 231-9, I of the General Regulation of the AMF, the Offer will lapse if, at its closing date, the Offeror does not hold, directly or indirectly, a number of Shares representing a fraction of the Company’s share capital or voting rights in excess of 50% (this threshold is hereinafter referred to as the “Acceptance Threshold“).
This threshold is determined in accordance with the provisions set out in article 234-1 of the General Regulation of the AMF.
It will not be known until the AMF publishes the final results of the Offer, which will take place after the close of the Offer.
If the Acceptance Threshold is not reached, the Offer will lapse and the Target Securities tendered to the Offer will be returned to their owners after publication of the notice of result informing of the lapse of the Offer, without any interest, indemnity or other payment of any nature whatsoever being due to such owners.
2.3.2. Waiver Threshold
In addition to the Acceptance Threshold, pursuant to the provisions of article 231-9, II of the General Regulation of the AMF, the Offer will lapse if, at the closing date of the Offer, the Offeror does not hold, alone or in concert, directly or indirectly, a number of shares representing a fraction of the share capital and theoretical voting rights of the Company in excess of 66.67% on a diluted basis and on a fully diluted basis (the “Waiver Threshold”).
On a non-diluted basis, the Waiver Threshold will be calculated as follows:
- in the numerator, will be included (i) all the Ordinary Shares and Preferred Shares held by the Offeror alone or in concert, directly or indirectly, on the date of the closing of the Offer, pursuant to acquisitions on the market as well as all the Ordinary Shares assimilated to those of the Offeror in accordance with Article L. 233-9 of the French Commercial Code including the 34,894 Treasury Shares and the 180,000 Ordinary Shares and the 900 ADP T3, 900 ADP T4, 900 ADP T5 held by Mr. Pascal Rialland, subject to the liquidity agreement and (ii) all the Ordinary Shares and Preferred Shares of the Company validly tendered in the Offer as at the date of the closing of the Offer; and
- in the denominator, all the existing Ordinary Shares and Preferred Shares issued by the Company making up the share capital on the date of the closing of the Offer.
On a fully diluted basis, the Waiver Threshold will be calculated as follows:
- in the numerator, will be included (i) the Ordinary Shares and Preferred Shares held by the Offeror alone or in concert, directly or indirectly, on the date of the closing of the Offer, pursuant to acquisitions on the market as well as all the Ordinary Shares assimilated to those of the Offeror in accordance with Article L. 233-9 of the French Commercial Code including the 34,894 Treasury Shares and the 180,000 Ordinary Shares, and the 900 ADP T3, 900 ADP T4, 900 ADP T5 held by Mr. Pascal Rialland subject to the liquidity agreement (ii) all the Ordinary Shares and Preferred Shares of the Company validly tendered in the Offer as at the date of the closing of the Offer and (iv) all the Ordinary Shares of the Company likely to be issued by exercise of the Company Warrants validly tendered in the Offer as at the date of the closing of the Offer – excluding any shares which may be subscribed or held by the Offeror pursuant to the conversion of the Bonds;
- in the denominator, (i) all the existing Ordinary Shares and Preferred Shares issued by the Company making up the capital on the date of the closing of the Offer, (ii) all the Ordinary Shares of the Company likely to be issued by exercise of the Company Warrants on the date of the closing of the Offer and (iii) all the Ordinary Shares likely to be issued by the Company on the date of the closing of the Offer (excluding all Ordinary Shares likely to be subscribed or held by the Offeror pursuant to the conversion of the Bonds).
The reaching of the Waiver Threshold will not be known before the publication by the AMF of the final result of the Offer, which will take place at the end of the Offer.
In accordance with article 231-9, II of the General Regulation of the AMF, if the Waiver Threshold (calculated as indicated above) is not reached, and unless the Offeror has decided to waive the Waiver Threshold in accordance with the conditions set out in the following paragraphs, the Securities of the Company tendered in the Offer (excluding shares acquired on the market) will be returned to their owners without any interest, indemnity or other payment of any kind being due to the said owners.
However, the Offeror reserves the right to waive the Waiver Threshold until the date of publication by the AMF of the result of the Offer.
In addition, the Offeror also reserves the right to remove or lower the Waiver Threshold by filing an improved offer at the latest five (5) trading days before the closing of the Offer, in accordance with the provisions of articles 232-6 and 232-7 of the General Regulation of the AMF.
2.3.3. Regulatory authorizations
The Offer is not subject to any regulatory authorization, it being specified that prior to Press Release, the Offer gave rise to a decision by the Ministry of the Economy, Finance and Industrial and Digital Sovereignty, in accordance with Article L.151-3 of the French Monetary and Financial Code relating to foreign investments made in France, dated 1 August 2023, pursuant to which the Offer was considered outside the scope of the provisions of Article L.151-3 of the Monetary and Financial Code.
2.4 Offer restrictions abroad
The section 2.4 of the Draft Offer Document sets out the restrictions applicable to the Offer abroad.
3. REASONED OPINION OF THE BOARD OF DIRECTORS
3.1 Composition of the Board of Directors
As of the date of this Presse Release, the Company’s Board of Directors is composed as follows:
- Pascal Rialland, Chairman and Chief Executive Officer;
- Ms Bénédicte Huot de Luze, Director ;
- Ms Corinne Jouanny, Director ;
- Mr Christophe Lautray, representing Linde Material Handling, Director;
- Mr Alexandre Pelletier, representing BPI France investissement, Director.
3.2. Prior decisions of the Board of Directors
The Company’s Board of Directors met on 13 June 2023 to review the proposed Offer. At this meeting, the Company’s Board of Directors unanimously approved the proposed transaction and authorized the signature of a tender offer agreement between the Company and the Offeror.
In accordance with the provisions of article 261-1 III of the General Regulation of the AMF, best governance practices and AMF recommendation no. 2006-15, the Board of Directors, at its meeting on 13 June 2023, decided to set up an ad hoc committee to monitor the independent expert’s mission, comprising three members, including two independent members, namely:
- Ms Corinne Jouanny, independent member of the ad hoc Committee;
- Bénédicte Huot de Luze, independent member of the ad hoc Committee; and
- Alexandre Pelletier, representing BPI France Investissement.
In addition, at its meeting on 13 June 2023, on the recommendation of the ad hoc committee, the Company’s Board of Directors appointed Eight Advisory, represented by Mr Geoffroy Bizard, as an independent expert in accordance with the provisions of articles 231-19 and 261-1 I, 2° of the General Regulation of the AMF, with the task of preparing a report including a fairness opinion on the financial terms of the Offer.
The ad hoc committee was tasked with supervising the work of the independent expert, making recommendations to the Company’s Board of Directors concerning the Offer, and preparing the draft reasoned opinion for the Company’s Board of Directors on the proposed Offer, in accordance with the provisions of article 261-1, III of the General Regulation of the AMF.
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