Energia
Direct Energie : filing of a draft response document in relation to the tender offer targeting the shares of Direct Energie iniated by Total
Pursuant to Title III of Book II and more specifically Articles 233-1 2° and 234-2 of the AMF's General Regulation, Total S.A., a limited liability corporation ( ) with a board of directors and share capital of 6,660,782,345 euros, having its registered office at 2 place Jean Millier, La Défense 6, 92400 Courbevoie, registered with the Nanterre Trade and Companies Register under number 542 051 180 (the " " or " "), makes an irrevocable offer to the shareholders of Direct Énergie, a limited liability corporation ( ) with a board of directors and share capital of 4,560,836.90 euros, having its registered office at 2 bis rue Louis Armand, 75015 Paris, registered with the Paris Trade and Companies Register under number 442 395 448 (the " " or " "), the shares of which are traded on Euronext Paris under ISIN Code FR0004191674 (the " "), to acquire all the Shares that are not held by the Offeror at a price of €42 per share (the " "). The Offer is further described in the draft offer memorandum prepared by Total (the " ") and in section 2.4 of the Draft Response Memorandum.
The Offer, which follows the acquisition by the Offeror of 33,311,459 Shares representing, on the basis of the number of shares issued as of 30 June 2018, approximately 73.04% of the share capital and 71.16% of the theoretical voting rights of the Company, targets:
The Offer does not include the 1,309,712 Share subscription warrants issued as of October 31, 2017 for the exclusive benefit of Lucia Holding SAS (the " "), which are, in accordance with their terms and conditions, non-transferable, nor does it include the Shares that may be issued as a result of the exercise of the Quadran Warrants , no Quadran BSA being exercisable prior to the closing of the Offer (in accordance with the applicable issuance conditions).
The Offer will be conducted in accordance with the simplified procedure set forth in Articles 233-1 . of the AMF's General Regulation. The Offer will be opened for a period of thirty-eight (38) trading days.
2.1. Background of the Offer
The Offer, which follows the crossing of the threshold of 30% and 50% of the Company's share capital and voting rights that occured in the context of the acquisition by the Offeror, on 6 July 2018 of 33,311,459 shares and voting rights of the Company (representing, on the basis of the number of shares issued as of 30 June 2018, approximately 73.04% of the share capital and 71.16% of the theoretical voting rights of the Company) through an off market acquisition of blocks of shares (the " ") from the following shareholders:
(referred to collectively as the " " and individually as a " ")
The Acquisition of the Blocks was completed on 6 July 2018 (the " ") pursuant to the terms of a share purchase agreement concluded on 17 April 2018 between Total and the Sellers and amended on 22 June 2018 (the " ") which provided for the following conditions precedent:
In the context of the Acquisition of the Blocks, the purchase price for the acquisition of the Shares in cash from the Sellers is €42 per Share.
Under the Share Purchase Agreement, the Sellers will also have a resale right ( ) if, before 6 July 2019, Total (or one of its subsidiaries), acting alone or in concert, acquires Shares (on or off-market) at a price per Share of more than €42 (a " "). In the event of a Subsequent Transaction, Total undertook to pay each Selling Shareholder an amount equal to (A) the positive difference between (x) the price per share offered in the Subsequent Transaction and (y) €42, multiplied by (B) the number of Shares transferred to Total by the relevant Selling Shareholder (the " "). However, it should be noted that the acquisition of Shares under the liquidity agreements, described in section 2.7 of the Draft Response Document, will not be considered as a Subsequent Transaction and will not warrant the payment of any Earnout of any kind.
In parallel with the negotiation relating to the Acquisition of the Blocks, Total and Direct Énergie discussed a potential transaction and its terms. Following this period of discussion, a meeting of the board of directors of the Company was held on 17 April 2018 to be informed of the terms of a potential transaction. This board of directors:
The Memorandum of Understanding has been concluded on 17 April 2018 between Total and Direct Énergie and has been amended on 22 June 2018. The Memorandum of Understanding summarizes the terms and conditions of the cooperation between the Offeror and the Company until the completion of the Offer, in particular:
Pursuant to the terms of the Memorandum of Understanding, a board of directors was held on 5 July 2018 in order to:
2.2. Shares held by the Offeror
The Draft Offer Document indicates the Offeror held, directly or indirectly, alone or in concert, no Shares prior to the Completion Date.
As of the date of the Draft Response Document, Total holds, to the Company's knowledge, 33,311,459 shares and voting rights of the Company, representing approximately 73.04% of the share capital and 71.16% of the voting rights of the Company.
2.3. Number and number of securities targeted by the Offer
The Shares are traded on Euronext Paris under ISIN Code FR0004191674 (the " ").
As of 30 June 2018, the total number of Shares was equal to 45,608,369, with 73,202,536 theoretical voting rights pursuant to article 223-11 of the AMF's General Regulation.
The Offer, which follows the acquisition by the Offeror of 33,311,459 Shares, targets:
The Offer does not include the 1,309,712 Share subscription warrants issued as of October 31, 2017 for the exclusive benefit of Lucia Holding SAS (the " "), which are, in accordance with their terms and conditions, non-transferable, nor does it include the Shares that may be issued as a result of the exercise of the Quadran Warrants , no Quadran BSA being exercisable prior to the closing of the Offer (in accordance with the applicable issuance conditions).
Except for the Shares, the Option and the Quadran Warrants, there are no other shares or securities issued by the Company or right that may grant access, immediately or in the future, to the capital or voting rights of the Company.
2.4. Terms of the Offer
In accordance with the provisions of Articles 233-1 et seq. of the AMF's General Regulation, Total irrevocably undertakes to offer to the Company's shareholder the right to tender their Shares in the Offer in exchange for an amount in cash of 42 euros per Share.
Any distribution of a dividend, interim dividend, reserve, issue premium or any other distribution (in cash or in kind) decided by the Company whose ex-dividend date would take place, or any capital decrease carried out, prior to the closing of the Offer (with the exception of the 2018 dividend approved by the Company's general shareholders' meeting of 29 May 2018, detached on 1 June 2018 and paid on 5 June 2018) will result in a reduction, on a euro per euro basis, of the price per share proposed in connection with the Offer.
In the event of a Subsequent Transaction resulting in the payment of an Earnout to the Selling Shareholders pursuant to the Acquisition Agreement (see Section 1.1.2.2), the Offeror undertakes, under the conditions described below, to pay the relevant Earnout to each shareholder that tendered its Shares in the Offer according to the Centralized Procedure (as described and defined in section 2.6 of the Draft Offer Document).
Shareholders tendering their Shares under the Non-Centralized Procedure (as described and defined in section 2.6 of the Draft Offer Document) will not be eligible for the potential payment of the Earnout.
This Earnout will also be paid, as the case may be, to shareholders whose Shares were transferred to Total under the squeeze-out procedure implemented in accordance with Section 1.2.7.1 of the Draft Offer Document.
The Offer will not be subject to a validity threshold pursuant to which a minimum number of Shares shall be tendered in order for the Offer to be treated as valid.
The Offeror indicated in the Draft Offer Document that, in accordance with Article L. 433-4 III of the French Monetary and Financial Code and Articles 237-14 to 237-19 AMF's General Regulation, in the event that the shares held by the minority shareholders of Direct Énergie (with the exception of the treasury Shares held by the Company and/or the Non-Transferable Shares that are subject to the liquidity mechanisms described in section 2.7 of the Draft Response Document) do not represent more than 5% (or any other percentage that may apply after the date of the Draft Offer Document) of the share capital or voting rights of Direct Énergie, following the Offer or within three months following its closing, Total intends to conduct a squeeze-out to acquire the Shares not tendered in the Offer (with the exception of the treasury Shares held by the Company and/or the Non-Transferable Shares that are subject to the liquidity mechanisms described in Section 2.5 of the Draft Offer Document) in exchange for compensation in the amount of €42 per Share, which corresponds to the Offer price.
The Offeror also reserves the right, in the event that it should later come to hold, directly or indirectly, at least 95% (or any other percentage that may become applicable after the date of the Draft Offer Document) of Direct Énergie's voting rights and that no squeeze-out shall have been conducted as described above, to file a buyout offer with the AMF, followed, if the conditions are met, by a squeeze-out of the Shares that are not yet, directly or indirectly, held by Total (other than the treasury Shares held by the Company and/or the Non-Transferable Shares that are subject to liquidity mechanisms described in Section 2.7 of the Draft Response Document), in accordance with Articles 236-3 and 237-1 of the AMF's General Regulation.
The Draft Offer Document indicates that if the Offeror does not conduct a squeeze-out, Total reserves the right to ask Euronext Paris to delist the Shares from Euronext Paris.
In accordance with the terms of article 231-19 of the AMF General Regulations, the members of the Supervisory Board of the Company met on 5 July 2018, further to notice given by the chairman, in order to consider the draft Offer.
All the members of the Supervisory Board were present, whether physically or by video conference. Mr. Xavier Caïtucoli, as chairman of the board of directors, chaired the discussions and the vote concerning the opinion of the board of directors.
The board of directors' resolution containing its reasoned opinion is fully reproduced below:
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IV. Report of the Independent Expert
In accordance with articles 261-1 I, 1° and 4° of the AMF's General Regulation, Ledouble, represented by Mr. Olivier Cretté, has been appointed as an independent expert in charge of drafting the report on the financial terms of the Offer during a meeting of the board of directors of the Company held on 17 April 2018.
The main conclusions of the Independent Expert are the following:
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V. Terms of provision of Company's information
The Draft Response Document established by Direct Energie is available on the Internet websites of Direct Energie (www.direct-energie.com) and the AMF (www.amf-france.org) and may be obtained free of charges from Direct Energie, 2 bis rue Louis Armand, 75015 Paris.
In accordance with Article 231-28 of the AMF's General Regulation, information relating to, in particular, the legal, financial, accounting and other characteristics of Direct Energie will be filed with the AMF and made available to the public in the same manner no later than the day preceding the opening of the Offer.
A notice will be published no later than the day preceding the opening of the Offer, in order to inform the public that these documents are made available.
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