Beijing Yingke Law Firm
About the subscription of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) by Beijing Energy Group Co., Ltd
The non-public offering of shares is exempt from the obligation of tender offer
Legal opinion
Beijing Yingke Law Firm
19-25, building 2, Zhengda center, yard 20, Jinhe East Road, Chaoyang District, Beijing
Tel: 8610-85199901 Fax: 8610-85199906 zip code: 100004
Beijing Yingke Law Firm
About Beijing Energy Group Co., Ltd
Subscription Beijing Huayuanyitong Thermal Technology Co.Ltd(002893)
The non-public offering of shares is exempt from the obligation of tender offer
Legal opinion
To: Beijing Energy Group Co., Ltd
Beijing Yingke Law Firm (hereinafter referred to as "the firm") accepts the entrustment of Beijing Energy Group Co., Ltd. (hereinafter referred to as "Beijing Energy Group" or "Subscriber" or "purchaser"), This legal opinion is issued on matters related to the exemption of the subscriber from the obligation of tender offer involved in the non-public offering of 60840000 domestic listed RMB ordinary shares (after the issuance, the shares in which Beijing Energy Group has interests exceed 30% of the issued shares of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) ) by Beijing Energy Group's intention to subscribe for Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) (hereinafter referred to as " Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) " or "listed company" or "issuer") in cash.
In accordance with the company law of the people's Republic of China, the securities law of the people's Republic of China, the measures for the administration of the acquisition of listed companies (hereinafter referred to as the "measures for the administration of acquisition"), the standards for the contents and forms of information disclosure by companies offering securities to the public No. 16 - Acquisition report of listed companies (2020 Amendment) (hereinafter referred to as the "No. 16 standard"), and other laws Relevant provisions such as administrative regulations, departmental rules and normative documents have verified the facts and legal matters related to the purchaser's exemption from acquiring shares of listed companies by offer, including but not limited to: 1. The subject qualification of the purchaser; 2. Basic information of this subscription; 3. This subscription meets the conditions of exemption from tender offer; 4. Whether there are or may be legal obstacles to this acquisition.
The lawyers of this firm express this legal opinion in accordance with the facts that have occurred or exist before the date of issuance of this legal opinion and the relevant provisions of Chinese laws, regulations, departmental rules and other normative documents, and the lawyers' judgment on the legality and effectiveness of a matter is based on the laws and regulations applicable at the time of the occurrence of the matter, At the same time, the approval and confirmation given by relevant government departments have also been fully considered. For the fact that it is very important to issue this legal opinion and cannot be supported by independent evidence, the exchange relies on professional reports, instructions or other documents issued by relevant government departments, Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) , accounting firms and asset appraisal institutions.
Our lawyers have obtained the following guarantees from Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) and Beijing Energy Group, that is, we have provided our lawyers with the original written materials, copies or oral testimony that are necessary, true and complete for the issuance of this legal opinion, and there is no concealment, falsehood or misleading. If the materials provided are copies or copies, we guarantee that they are consistent with the original or the original.
In accordance with the provisions of the measures for the administration of law firms engaging in securities legal business and other provisions and the facts that have occurred or exist before the date of issuance of this legal opinion, the firm and its handling lawyers have strictly performed their statutory duties, followed the principles of diligence and good faith, conducted sufficient verification and verification, and ensured that the facts identified in this legal opinion are true, accurate and complete, The concluding opinions issued are legal and accurate, without false records, misleading statements or major omissions, and shall bear corresponding legal liabilities.
This legal opinion is only used by Jingneng group for the purpose of Exempting the subscription of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) non-public offering shares from tender offer, and shall not be used for any other purpose.
Based on our understanding of the facts and the current laws, regulations and normative documents in China, and in accordance with the recognized business standards, ethics and diligence spirit of the lawyer industry, our lawyers hereby issue the following legal opinions:
1、 Subject qualification of purchaser
(I) basic information of the purchaser
According to the business license provided by the acquirer Jingneng group and the inquiry of our lawyer in the national enterprise credit information publicity system, as of the date of issuance of this legal opinion, the basic information of Jingneng group is as follows:
Name: Beijing Energy Group Co., Ltd
Unified social credit code 91110000769355935a
Address: 9 / F, West A, Tianyin building, No. 2, Fuxingmen South Street, Xicheng District, Beijing
Legal representative: Jiang Fan
The registered capital is 21338060000 yuan
Paid in capital: 21338060000 yuan
Company type: limited liability company (solely state-owned)
Investment, development and operation management of energy projects; Energy supply and management; Energy project information consultation; Real estate development; Investment management; Technology development, business scope, technology transfer, technical consultation and technical services. (market entities shall independently choose business projects and carry out business activities according to law; projects that must be approved according to law shall carry out business activities according to the approved contents after being approved by relevant departments; they shall not engage in business activities of projects prohibited and restricted by national and municipal industrial policies
Move.)
Date of establishment: December 8, 2004
Operating period: December 8, 2004 to December 7, 2054
Registration authority: Beijing Municipal Bureau of market supervision
The "national enterprise credit information publicity system" confirmed by Jingneng group and verified by our lawyers（ http://www.gsxt.gov.cn. ）, the registration status of Jingneng group is "existing (operating, opening, registered)". As of the date of issuance of this legal opinion, Jingneng group is a company established and validly existing in accordance with the laws of China, and there is no situation requiring termination in accordance with national laws, regulations, normative documents and the articles of association.
(II) the acquirer is not prohibited from acquiring a listed company
According to the written confirmation of Jingneng group and verified by our lawyers, as of the date of issuance of this legal opinion, the national enterprise credit information publicity system, China judicial document network, the national court information query of the person subject to enforcement - China execution information disclosure network, the website of the securities and futures market dishonesty record query platform of the CSRC, the website of "credit China" and the website of Tianyan inspection, Jingneng group does not have the following circumstances under which it is not allowed to acquire a listed company as stipulated in Article 6 of the acquisition management measures:
1. The acquirer has a large amount of debt, which is not paid off when due and is in a continuous state;
2. The purchaser has committed or is suspected of having committed major illegal acts in the last three years;
3. The acquirer has committed serious dishonesty in the securities market in the past three years;
4. Other circumstances stipulated by laws, administrative regulations and recognized by the CSRC that listed companies may not be acquired.
After verification, our lawyers believe that Jingneng group does not have the situation that it is not allowed to acquire a listed company as stipulated in Article 6 of the administrative measures for the acquisition of listed companies, and has the legal qualification of subscription subject.
2、 Basic information of this subscription
(I) scheme of this subscription
According to the proposal on the company's 2022 non-public stock development plan, the proposal on the company's 2022 non-public stock development plan and the proposal on submitting to the general meeting of shareholders for approval of Beijing Energy Group Co., Ltd. to be exempted from issuing takeover offers, which were adopted at the eighth meeting of the third board of directors of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) , And the conditional effective share subscription agreement signed by Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) and Jingneng group. This issuance refers to that Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) plans to issue no more than 60840000 A shares (including this number), and the total amount of raised funds does not exceed 428313600 yuan (including this number). Jingneng group plans to subscribe all the shares in this issuance in cash.
Before the completion of this subscription, Jingneng group has signed the share transfer agreement and voting right entrustment agreement with Zhao Yibo, the actual controller of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) on February 11, 2022. Jingneng group plans to acquire Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) 14196000 shares by means of transfer, accounting for 7% of the total share capital of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) , It also holds the voting rights corresponding to 43069346 shares of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) through voting right entrustment, accounting for 21.24% of the total share capital of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) , and the total voting shares of Jingneng group in Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) are 28.24%.
After the completion of this subscription, Jingneng group holds a total of 75036000 direct Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) shares, accounting for 28.46% of the total share capital of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) , and holds the voting rights corresponding to Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) 43069346 shares through voting power entrustment. Jingneng group has a total of 118105346 voting shares in Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) , Accounting for 44.80% of the total share capital of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) (the final data shall be determined according to the number of non-public shares approved by the CSRC).
In conclusion, after the completion of this subscription, the proportion of the total number of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) shares owned by Jingneng group will exceed 30%, triggering its obligation of tender offer.
(II) legal procedures for this acquisition
According to the announcement documents disclosed by the listed company and the relevant meeting materials provided by Jingneng group, the acquisition has fulfilled the following approval and decision-making procedures:
1. Approval and decision-making performed by listed companies
On February 11, 2022, the listed company held the eighth meeting of the third board of directors, Deliberated and passed the proposal on the company's 2022 non-public offering stock plan, the proposal on the company's 2022 non-public offering stock plan, and the proposal on submitting to the general meeting of shareholders for approval of Beijing Energy Group Co., Ltd. from issuing takeover offers, and agreed to submit the relevant proposals to the general meeting of shareholders for deliberation, Related directors abstain from voting.
2. Approval and decision-making performed by the acquirer
On January 18, 2022, the board of directors of Jingneng group held a meeting and passed the proposal on the acquisition of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) equity project. It was unanimously agreed that: 1. It was agreed that Jingneng group would adopt the package of "transfer of old shares + entrustment of voting rights of remaining shares + Private placement", which was agreed at one time and operated in stages. Jingneng group, as the acquisition subject, agreed to acquire 7% equity of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) and accepted the entrustment of the remaining 21.24% voting rights of Zhao Yibo, the actual controller of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) . Jingneng group takes 80% of the average share price of the 20 trading days before the announcement date of the non-public offering of shares to Jingneng group as the subscription unit price, and the cash subscription of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) does not exceed 30% of the total share capital of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) before the issuance. 2. Sign a package of agreements with effective conditions such as share transfer, voting right entrustment and share pledge, and report to the municipal SASAC, CSRC and other competent departments for approval.
In conclusion, our lawyers believe that as of the date of issuance of this legal opinion, the acquisition has fulfilled the necessary legal procedures such as approval and authorization at this stage, and the following approval procedures are still required:
1. Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) convene the general meeting of shareholders to review and approve the issuance;
2. The state owned assets supervision and Administration Commission of Beijing Municipal People's Government approved the subscription;
3. Perform the declaration of concentration of undertakings and obtain the decision or consent document issued by the competent anti-monopoly authority on the non implementation of further examination or non prohibition of anti-monopoly examination of concentration of undertakings;
4. The CSRC approved the issuance.
3、 This subscription is in line with the exemption from tender offer
Article 63 of the measures for the administration of takeover stipulates: "investors may be exempted from making an offer under any of the following circumstances: (III) With the approval of the non affiliated shareholders of the general meeting of shareholders of the listed company, the investor obtains the new shares issued to him by the listed company, resulting in his equity shares in the company exceeding 30% of the issued shares of the company. The investor promises not to transfer the new shares issued to him within three years, and the general meeting of shareholders of the company agrees that the investor is exempt from issuing an offer ".
After verification by the lawyers of the firm, the acquisition complies with the above circumstances stipulated in the acquisition management measures. The specific circumstances are as follows:
1. Before this offering, the total share capital of the listed company was 202800000 shares, and the total voting shares of Jingneng group in Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) were 28.24%. After the completion of this offering, the issuer will add no more than 60840000 tradable shares with limited sales conditions, calculated based on the upper limit. After the completion of this subscription, Jingneng group has 118105346 voting shares in Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) , accounting for 44.80% of the total share capital of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) (the final data shall be determined according to the number of non-public shares approved by the CSRC), which will exceed 30% of the total shares of Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) .
2. On February 11, 2022, Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) the eighth meeting of the third board of directors has considered and approved the proposal on submitting to the general meeting of shareholders for approval of Beijing Energy Group Co., Ltd. from issuing a takeover offer, the related directors avoided voting, and Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) the board of directors has agreed that Beijing Energy Group is exempt from this subscription by offer triggered by the subscription of this non-public offering of shares. This proposal will be submitted to Beijing Huayuanyitong Thermal Technology Co.Ltd(002893) the first extraordinary general meeting of shareholders in 2022 for deliberation. At that time, the affiliated shares Tokyo energy group and Zhao Yibo will avoid voting.
3. On February 7, 2022, Jingneng group issued the commitment letter on share locking, promise "The shares subscribed by the company for this issuance shall not be transferred in any way within 36 months from the date of issuance, and shall handle matters related to share locking in accordance with relevant laws and regulations and relevant provisions of China Securities Regulatory Commission and Shenzhen Stock Exchange. The company obtains the shares issued by the issuer to specific objects this time due to the distribution of stock dividends and capital reserve by the issuer The shares derived from share capital conversion and other forms shall also comply with the above share locking arrangement ".
In conclusion, our lawyers believe that after the deliberation procedures of the general meeting of shareholders of the above listed company are adopted, the acquisition of Jingneng group meets the provisions of Article 63 of the measures for the administration of acquisition and can be exempted from making an offer
