Guangdong Prometheus (Maoming) law firm
About Maoming Petro-Chemical Shihua Co.Ltd(000637)
Reply to the relevant matters involved in the concern letter [2022] No. 99 of the company Department of Shenzhen Stock Exchange
Legal opinion
Guangdong Prometheus (Maoming) law firm
Address: 7th floor, Jiayan Yinghui international, No. 111, Zhanbei fifth road, Maoming, Guangdong
Tel: 0668-2804160 13902447786
Guangdong Prometheus (Maoming) law firm
About Maoming Petro-Chemical Shihua Co.Ltd(000637)
Reply to the relevant matters involved in the concern letter [2022] No. 99 of the company Department of Shenzhen Stock Exchange
Legal opinion
Pu (MAO) FA Yi Zi [2022] No. [0001] to: Maoming Petro-Chemical Shihua Co.Ltd(000637)
Guangdong Prometheus (Maoming) law firm (hereinafter referred to as the firm) has accepted the entrustment of Maoming Petro-Chemical Shihua Co.Ltd(000637) (hereinafter referred to as the company) to appoint lawyer Sheng Zhixiang Lawyer Yang Yi signed an agreement with Beijing Xinyu Investment Center (limited partnership) on the acquisition of 69% equity of Beijing xinvoda Marine Technology Co., Ltd. (hereinafter referred to as the equity transfer agreement) with the company involved in the letter of concern on Maoming Petro-Chemical Shihua Co.Ltd(000637) (company department concern letter [2022] No. 99) (hereinafter referred to as the "concern letter") issued by the company management department of Shenzhen Stock Exchange Check relevant matters and issue this legal opinion.
Based on the facts that have occurred or existed before the date of issuance of this legal opinion, our firm and our lawyers have strictly performed their statutory duties, followed the principles of diligence and good faith, and fully verified and verified the facts and legal issues involved in the letter of concern in accordance with the principles of prudence and importance, so as to ensure the authenticity of the facts identified in this legal opinion Accurate and complete, and the issued concluding observations are legal and accurate.
This legal opinion is in accordance with the company law of the people's Republic of China (hereinafter referred to as the "company law"), the civil code of the people's Republic of China (hereinafter referred to as the "Civil Code"), the guidelines for the governance of listed companies, the stock listing rules of Shenzhen Stock Exchange (revised in 2022) (hereinafter referred to as the "Stock Listing Rules") and other currently effective laws Regulations, normative documents and relevant provisions of the Maoming Petro-Chemical Shihua Co.Ltd(000637) articles of Association (hereinafter referred to as the articles of association).
In order to issue this legal opinion, our lawyers reviewed the relevant documents and materials of the agreement signed between the company and Beijing Xinyu Investment Center (limited partnership) to acquire 69% equity of Beijing xinwoda Marine Technology Co., Ltd., as well as the relevant deliberation documents and disclosure materials of the company. The lawyer of this firm has obtained the following guarantee from the company, that is, he has provided the materials that the lawyer of this firm considers necessary to issue this legal opinion, the original materials, copies, copies and other materials and oral testimony provided meet the requirements of authenticity, accuracy and integrity, and the relevant copies, copies and other materials are consistent with the original materials.
The exchange and its lawyers agree to Maoming Petro-Chemical Shihua Co.Ltd(000637) quote the contents of this opinion to reply to the letter of concern to Shenzhen Stock Exchange and fulfill the obligation of information disclosure. In addition, unless approved in writing by the exchange and its lawyers, this legal opinion shall not be used by any person for any other purpose.
In accordance with the requirements of relevant laws, regulations and normative documents, and in accordance with the business standards, ethics and the spirit of diligence recognized by the lawyer industry, our lawyers have verified the matters involved in the letter of concern and issued the following legal opinions:
Concerns of the letter:
1、 Your company will hold a general meeting of shareholders on February 10, 2022 to consider the proposal on cash acquisition of 69% equity of Beijing xinwoda Marine Technology Co., Ltd., and the agreement will take effect from the date when all parties to the transaction affix their official seals. Please explain the signing time of the above agreement, the time of affixing the company's official seal, whether the agreement has come into force, and whether the deliberation procedures performed by the exchange comply with the relevant provisions of the stock listing rules of the exchange.
Verification statement of the board of directors of the company: after the proposal on cash acquisition of 69% equity of Beijing xinwoda Marine Technology Co., Ltd. was deliberated and approved at the eighth interim meeting of the 11th board of directors of the company on January 24, 2022, the company and Beijing Xinyu Investment Center (limited partnership) Beijing xinwoda Marine Technology Co., Ltd. has reached the equity transfer agreement between Beijing Xinyu Investment Center (limited partnership) and Maoming Petro-Chemical Shihua Co.Ltd(000637) on Beijing xinwoda Marine Technology Co., Ltd. The equity transfer agreement (signed by three parties) between the company and Beijing Xinyu Investment Center (limited partnership) on Beijing xinwoda Marine Technology Co., Ltd. was signed on January 25, 2022, and the date of affixing the company's official seal was January 25, 2022. Article 13.1 of the agreement agreed that "this Agreement shall come into force as of the date of affixing the official seal of each party".
The net profit of the target company in 2021 is 80.7953 million yuan, and the net profit of the company in the latest audited fiscal year (2020) is - 380000 Yuan. According to the stock listing rules, the relevant net profit of the year accounts for more than 50% of the audited net profit of the listed company in the latest fiscal year, and the absolute amount exceeds 5 million yuan, A listed company shall make timely disclosure and submit it to the general meeting of shareholders for deliberation. For this transaction, the Strategy Committee (5 members) of the board of directors of the company held a video communication meeting on January 23, 2022 to study and discuss the acquisition. Four members agreed to submit the proposal to the board of directors for deliberation, while one member disagreed. On January 24, 2022, the company held the eighth interim meeting of the 11th board of directors in the form of on-site combined with video communication, and adopted the proposal on cash acquisition of 69% equity of Beijing xinwoda Marine Technology Co., Ltd. with 7 affirmative votes, 2 negative votes and 0 abstention. This proposal still needs to be considered and approved by the company's first extraordinary general meeting in 2022. On January 24, 2022, the company held the second interim meeting of the 11th board of supervisors in the form of on-site combined with video communication. The proposal on cash acquisition of 69% equity of Beijing xinwoda Marine Technology Co., Ltd. was deliberated and approved by 2 votes in favor, 1 vote against and 0 abstention. This proposal still needs to be deliberated and approved by the company's first extraordinary general meeting in 2022. On January 26, 2022 The Securities Times published an announcement and disclosed the announcement on cash acquisition of 69% equity of Beijing xinwoda Marine Technology Co., Ltd., the appraisal report, the announcement on the resolution of the eighth interim meeting of the 11th board of directors, the audit report of Beijing xinwoda Marine Technology Co., Ltd. (final) and the announcement on the resolution of the second interim meeting of the 11th board of supervisors The independent directors' independent opinions on matters related to the eighth extraordinary meeting of the 11th board of directors and the notice on convening the company's first extraordinary general meeting in 2022 are published at the same time. It is planned to convene the company's first extraordinary general meeting in 2022 on February 10, 2022, The deliberations of the meeting included the proposal on cash acquisition of 69% equity of Beijing xinwoda Marine Technology Co., Ltd.
On February 8, 2022, the company published the announcement on canceling some proposals of the first extraordinary general meeting of shareholders in 2022 and the supplementary notice of the general meeting of shareholders on cninfo.com and the securities times. The extraordinary general meeting cancelled the proposal on cash acquisition of 69% equity of Beijing xinwoda Marine Technology Co., Ltd., which was originally scheduled to be submitted for deliberation, When the conditions are ripe, the above proposal will be submitted to the general meeting of shareholders of the company for deliberation. Before the transaction was considered and approved by the general meeting of shareholders, the equity transfer agreement agreed to take effect from the date when the trading parties affix their official seals, there are certain trading risks and compliance defects, and the provisions of item (IV) of article 6.1.3 of the stock listing rules were not strictly implemented. However, in order to ensure the transaction security and compliance, the company held the ninth interim meeting of the 11th board of directors by means of communication voting on February 17, 2022, and adopted the proposal on the supplementary agreement between Beijing Xinyu Investment Center (limited partnership) and Maoming Petro-Chemical Shihua Co.Ltd(000637) on the equity transfer agreement by 9 votes in favor, 0 votes against and 0 abstentions. On the same day, the company held the third interim meeting of the 11th board of supervisors by means of communication voting. The proposal was adopted by 3 votes in favor, 0 against and 0 abstention. On the same day, the company signed the supplementary agreement to the equity transfer agreement (hereinafter referred to as the supplementary agreement) with Beijing Xinyu and the target company, Article 6 of the supplementary agreement stipulates that "the effective provisions of article 13.1 of the equity transfer agreement are revised to:" the equity transfer agreement and the supplementary agreement shall be established from the date when they are stamped with the official seal of each party, and shall take effect only after they are approved by the general meeting of shareholders of the transferee and the voting Committee of the transferor. ".
After verification, our lawyers believe that the equity transfer agreement states that the signing date is January 25, 2022, and all parties affix their official seals; The supplementary agreement states that the signing date is February 17, 2022, and the parties affix their official seals; As agreed in the supplementary agreement, according to the relevant provisions of the civil code, the equity transfer agreement was established on January 25, 2022, with the entry into force condition that "the equity transfer agreement will take effect only after it is approved by the general meeting of shareholders of the transferee and the voting decision meeting of the transferor". Therefore, as of the date of issuance of this legal opinion, the equity transfer agreement has been established but has not yet taken effect. The deliberation procedures performed by the exchange comply with the relevant provisions of the stock listing rules.
2、 The "preconditions for transaction" in the agreement stipulates that the transferee shall meet four preconditions for acquiring the subject equity and paying each equity transfer price (excluding the first equity transfer price). Please explain the reason and rationality that the payment of each equity transfer price does not include the first equity transfer price, and the reason and rationality that the review procedures performed by the transferee are not agreed in the four preconditions.
The board of directors of the company verified that the "first equity transfer price" originally agreed in the equity transfer agreement was paid on the date of signing the agreement, so the "transaction preconditions" agreed in the agreement at that time were not applicable to the payment of the "first equity transfer price". This "transaction prerequisite" in the agreement is mainly to restrict the obligations of the transferor and lock the conditions for the payment of the subsequent equity transfer price. The purpose is to ensure the transaction safety and the interests of the listed company from being damaged. Therefore, the review procedure performed by the transferee is not stipulated in the four preconditions. Even if it is not stipulated, the company actually follows the relevant management regulations such as the articles of association And relevant regulatory documents and regulatory requirements of listed companies have fulfilled the review procedures. In order to further ensure the transaction safety and the interests of the listed company from being damaged, the company signed the supplementary agreement with the counterparty, changed and revised this clause and relevant clauses, and cancelled the exclusion of the "transaction prerequisite" from the "first equity transfer price", At the same time, corresponding changes have been made to the terms such as "deposit", "the first equity transfer price" and "the second equity transfer price", and it is clearly agreed that the agreement shall take effect only after being approved by the general meeting of shareholders of the transferee and the voting and decision meeting of the transferor. " (see below for specific changes)
After verification, our lawyers believe that: Based on the original agreement in the equity transfer agreement that the "first equity transfer price" is paid on the date of signing the agreement, the "transaction preconditions" agreed in the agreement exclude the payment applicable to the "first equity transfer price", there is no ambiguity in the expression of the terms of the agreement and does not violate the mandatory provisions of relevant laws and regulations. The "transaction preconditions" in the agreement mainly restrict the obligations of the transferor and lock the conditions for the payment of the subsequent equity transfer price. The purpose is to ensure the transaction safety and the interests of the listed company from being damaged. Therefore, the review procedures performed by the transferee are not agreed in the four preconditions. If agreed, they can be arranged in other terms and items, The payment of the second equity transfer price in Item (2) of Article 3.1 of the equity transfer agreement clearly stipulates that "on the premise that the general meeting of shareholders of the transferee has approved the transaction and the contents of this Agreement". On January 26, 2022, the company published an announcement on cninfo.com and securities times to disclose the announcement on cash acquisition of 69% equity of Beijing xinwoda Marine Technology Co., Ltd. and other information, and disclosed the deliberation procedures and risk tips of the transaction in accordance with laws and regulations, which is in line with the relevant provisions of the stock listing rules. The company signed the supplementary agreement with the counterparty to change and revise the relevant provisions, canceling the exclusion of the "first equity transfer price" in the "transaction preconditions", and also making corresponding changes to the "deposit", "first equity transfer price", "second equity transfer price", etc, It is clearly agreed that the agreement shall take effect only after being approved by the general meeting of shareholders of the transferee and the voting and decision meeting of the transferor, which is conducive to further ensuring the transaction security and the interests of the listed company.
3、 The agreement stipulates that the transferee shall pay a deposit of 200 million yuan to the transferor before January 26, 2022, and pay the first equity transfer price (i.e. 200 million yuan) to the bank account designated by the transferor on the date of signing the agreement. If the transferee has paid the deposit to the transferor by January 26, 2022 (inclusive), such deposit will be automatically converted into the first equity transfer price, which is deemed to be the first equity transfer price paid by the transferee to the transferor. Please explain to your company:
1. The time of paying the security deposit and whether the security deposit has been automatically converted into the first equity transfer price.
The board of directors of the company verified that after the equity transfer agreement was signed, the company paid a deposit of 150 million yuan and 50 million yuan to Beijing Xinyu Investment Center (limited partnership) on January 25, 2022 and January 28, 2022, respectively, with a total deposit of 200 million yuan. The supplementary agreement has made the following changes to the deposit and equity transfer price: 1.1 the interpretation of the deposit in Item (14) of Article 1.1 of the equity transfer agreement is revised as follows:
Margin refers to the payment made by the transferee to the transferor in accordance with the agreement to ensure the performance of this transaction
Payment of. 1.2 Article 3.1 of the equity transfer agreement shall be amended as follows:
The subject equity transaction price determined by the parties is RMB 420 million (hereinafter referred to as "equity transfer price"),
The specific payment arrangements are as follows:
(1) Margin
The transferee shall pay the people's compensation to the transferor within [five (5)] working days after the signing of the supplementary agreement
