Company Name: Yamauchi No.10 Family Office
Company Representative: Hirowaka Murakami, Chief Investment Officer
Company Name: KITE Inc.
Company Representative: Representative Director, Banjo Yamauchi
May 24, 2023
Notice Concerning Partial Amendments to the “Notice Concerning the Tender Offer for Shares of Toyo Construction C., Ltd. (Securities Code: 1890)”
Yamauchi - No. 10 Family Office LLC (formerly Vpg LLC) and KITE Co., Ltd. (collectively “YFO”) decided to acquire common shares (the "Target Company Shares") in Toyo Construction Co., Ltd. (the "Target Company") through a tender offer (the "Tender Offer") under the Financial Instruments and Exchange Act (Act No. 25 of 1948, as amended). YFO published the "Notice Concerning the Tender Offer for Shares of Toyo Construction Co., Ltd. (Securities Code: “1890”) on May 18, 2022 (including subsequent amendments, the “Tender Offer Notice”[1]) in connection with the Tender Offer. Unless otherwise expressly defined herein, the terms used in this document shall have the meanings as defined in the Tender Offer Notice.
YFO, along with our Special Related Parties, WK1 Limited, WK2 Limited, and WK3 Limited, pledged (the “Pledge,”) that, from the period from June 8, 2022 to May 24, 2023, we would not make a tender offer for the Target Company’s shares, acquire any additional shares in the Target Company, or make any “large-scale acquisitions” (this includes procuring that a third party acquire shares or take similar actions on YFO’s behalf) as defined by the Target Company in its poison pill. Additionally, YFO announced that it was not intending to make any additional acquisitions of the Target Company’s shares in the Tender Offer Notice on May 18, 2022. (Please refer to the Appendix for details of the relevant disclosures and the details of the content that has been amended).
As described in YFO’s subsequent disclosure, the Target Company’s current Board has serious corporate governance defects and has refused to engage in genuine discussions with YFO. Therefore, YFO determined that it was not able to engage in productive discussions with the Target Company’s current board and reformulated its response policy to demand the rebuilding of the Target Company’s board of directors and auditors. Throughout this process, YFO has upheld its obligations under the Pledge.
However, YFO has no intention to extend the expiry date of the Pledge because the Pledge can no longer fulfill its intended purpose. Therefore, depending on the circumstances, YFO may conduct additional purchases, etc. of the Target Company Shares after May 24, 2023, the expiry date of this Pledge, in a manner permitted by laws and regulations. However, even if such additional purchases, etc. are conducted, the ownership ratio of stock certificates, etc. prior to the commencement of the Tender Offer (including those owned by Special Related Parties) shall not exceed 1/3, and the purchase price of such additional purchases, etc. shall not exceed the Tender Offer Price (JPY 1,000 per share) in order to prevent coercion (undue pressure on shareholders to sell) due to comparison of such additional purchases with the Tender Offer Price. Furthermore, we understand that YFO’s Special Related Parties—WK1 Limited, WK2 Limited and WK3 Limited—have no intention to extend the expiry date of the Pledge, for the same reasons.
[1] Refers to YFO’s future policy regarding:
“Notice Concerning Amendment to "Notice Concerning the Tender Offer for Shares of Toyo Construction Co., Ltd. (Securities Code: 1890)"" dated June 8, 2022,
"Notice Regarding Change of "Notice Concerning the Tender Offer for Shares of Toyo Construction Co., Ltd. (Securities Code: 1890)"" dated June 30, 2022,
"Notice Regarding Change of "Notice Concerning the Tender Offer for Shares of Toyo Construction Co., Ltd. (Securities Code: 1890)"" dated September 30, 2022,
“Notice of Extension of Proposed YFO Acquisition on "Notice Concerning the Tender Offer for Shares of Toyo Construction Co., Ltd. (Securities Code: 1890)"” dated November 11, 2022,
"Notice of Extension of Proposed YFO Acquisition regarding "Notice Concerning the Tender Offer for Shares of Toyo Construction Co., Ltd. (Securities Code: 1890)"” dated December 13, 2022, and
"The January 27, 2023 Policy of the Company and its Affiliates Regarding The "Notice Concerning the Tender Offer for Shares of Toyo Construction Co., Ltd. (Securities Code: 1890)"” dated January 27, 2023.
Appendix
Changes are underlined.
< Reasons for disclosure>
(Before amendment)
< Omitted >
In addition, the Company is not planning to make additional purchases of Target Company Shares or to sell Target Company Shares until the settlement of the TOB or until public announcement that the TOB will not commence due to non-satisfaction of the aforementioned “Preconditions of the Tender Offer.” Furthermore, if the Tender Offer is consummated, the Company (KITE) intends to remain as a shareholder of the Target Company over the long term. Further, Special Related Parties are not planning to make such additional purchases of Target Company Shares or to sell Target Company Shares.
< Omitted >
(After amendment)
In addition, the Company is not planning to make additional purchases of Target Company Shares or to sell Target Company Shares until the settlement of the TOB or until public announcement that the TOB will not commence due to non-satisfaction of the aforementioned "Preconditions of the Tender Offer." Furthermore, if the Tender Offer is consummated, the Company (KITE) intends to remain as a shareholder of the Target Company over the long term. Further, the Special Related Parties are not planning to make such additional purchases of Target Company Shares or to sell Target Company Shares.
The Company and the Special Related Parties, as of June 8, 2022, pledged to the Target Company that they would not acquire additional Target Company Shares without the Target Company’s prior consent until May 24, 2023. But once the pledge expired on May 24, 2023, the Company could conduct additional purchases, etc. of the Target Company Shares in a manner permitted by laws and regulations, depending on the circumstances. However, even if such additional purchases, etc. are conducted, the Ownership Ratio of Stock Certificates, etc. (including those owned by Special Related Parties) prior to the commencement of the Tender Offer shall not exceed 1/3, and the purchase price of such additional purchases, etc. shall not exceed the Tender Offer Price (JPY 1,000 per share) in order to prevent coercion (undue pressure on shareholders to sell) due to comparison of such additional purchases with the Tender Offer Price. Furthermore, the Special Related Parties have no intention to extend the pledge period beyond the expiry date of May 24, 2023.
< Omitted >
Background and Reasons for Launching the Tender Offer
(3) Reasons for and background to the Tender Offer.
a) Background to Purchase of Target Company Shares by Special Related Parties
(Before amendment)
< Omitted >
The Special Related Parties do not intend to make additional purchases of the Target Company Shares or to sell the Target Company Shares until the settlement of the Tender Offer or until public announcement that the Tender Offer will not commence due to the non-satisfaction of the aforementioned “Preconditions of the Tender Offer.”
(After amendment)
< Omitted >
The Special Related Parties do not intend to make additional purchases of the Target Company Shares or to sell the Target Company Shares until the settlement of the Tender Offer or until public announcement that the Tender Offer will not commence due to the non-satisfaction of the aforementioned “Preconditions of the Tender Offer.”
As of June 8, 2022, the Special Related Parties pledged to the Target Company that they would not acquire additional Target Company Shares without the Target Company’s prior consent until May 24, 2023. However, the Special Related Parties have no intention to extend the pledge period beyond the expiry date of May 24, 2023.