Zheshang Securities Co.Ltd(601878)
Letter of concern on Zhejiang Reclaim Construction Group Co.Ltd(002586)
Verification opinions on matters involved
Listed company management department I of Shenzhen Stock Exchange:
We have received your letter of concern on Zhejiang Reclaim Construction Group Co.Ltd(002586) (company department concern letter [2022] No. 129) transferred from Zhejiang Reclaim Construction Group Co.Ltd(002586) (hereinafter referred to as "Waihai shares" or "the company"). According to the requirements of your department, Zheshang Securities Co.Ltd(601878) (hereinafter referred to as the "independent financial advisor") replied to the relevant questions raised in your letter of concern that require the independent financial advisor to express opinions as follows:
Attention content 3. (3) the settlement framework agreement also stipulates that this Agreement shall prevail in the agreements previously signed by all parties, such as the agreement on issuing shares and paying cash to purchase assets, the agreement on profit compensation for issuing shares and paying cash to purchase assets, the share transfer agreement and other agreements on the lifting of the ban on shares, performance gambling, payment of share transfer funds, accounts receivable and so on, Other matters not covered herein shall be settled separately by the parties through negotiation.
Please explain whether the above agreement is suspected of changing performance commitments and whether it complies with the relevant provisions of the guidelines for the application of regulatory rules - listing class No. 1. The independent financial advisor is requested to check and comment.
[reply of independent financial advisor]
1、 The matters agreed in the settlement framework agreement on the lifting of the ban on shares, performance gambling, payment of share transfer funds, accounts receivable and other matters are not suspected of changing the performance commitment
(I) lifting of stock ban
1. The lock up period of shares involved in the purchase of assets by issuing shares and paying cash is arranged as follows in the agreement on the purchase of assets by issuing shares and paying cash and the agreement on profit compensation for the purchase of assets by issuing shares: (1) the agreement on the purchase of assets by issuing shares and paying cash
"4.3 new share locking arrangements:
4.3.1 legal sales restriction period
According to Article 46 of the measures for the administration of reorganization of listed companies issued by the CSRC, the shares of listed companies acquired by specific objects through asset subscription shall not be transferred within 12 months from the date of the completion of share issuance; Under any of the following circumstances, it shall not be transferred within 36 months: (I) the specific object is the controlling shareholder, actual controller or related person controlled by the listed company; (II) the specific object obtains the actual control of the listed company by subscribing for the shares issued this time; (III) when a specific object obtains the shares issued this time, it has continuously owned interests in its assets used to subscribe for shares for less than 12 months. The restriction on the sale of shares of the performance commitment party in this transaction shall be implemented in accordance with the above provisions of the CSRC and the arrangement of this agreement.
4.3.2 agreed sales restriction period
The new shares obtained by the performance commitment party in this offering are lifted three times, and the lifting time and proportion are as follows:
(1) After 12 months from the date of listing of the above shares, the special review opinions on the actual profitability of the subject company in 2017 are disclosed and the compensation obligations (if any) that should be performed in the current year have been fulfilled (whichever is later), 30% of the above shares deducting the number of shares that should be compensated during the performance of the above compensation obligations will lift the restriction on sale.
(2) After 24 months from the date of listing of the above shares, after the special review opinions on the actual profitability of the subject company in 2018 are disclosed and the compensation obligations (if any) that should be performed in the current year have been fulfilled (subject to the later date of satisfaction of the conditions), 30% of the above shares deducting the number of shares that should be compensated during the performance of the above compensation obligations will lift the restriction on sale.
(3) After 36 months from the date of listing of the above shares, after the special review opinions on the actual profitability of the target company in 2019 are disclosed and the compensation obligations (if any) that should be performed in the current year have been fulfilled (subject to the later date of satisfaction of the conditions), 40% of the above shares deducting the number of shares to be compensated during the performance of the above compensation obligations shall be released from the sales restriction.
If Party B becomes a director, supervisor or senior officer of Waihai shares, or if the shares held by Party B exceed 5% of the total share capital of Waihai shares, it shall be implemented with reference to the relevant provisions of the CSRC.
If the target company fails to reach 90% of the performance commitment after the end of any year of the performance commitment period, the sales restriction period of the remaining locked shares held by the performance commitment party after deducting share compensation will be automatically extended for 12 months. The shares of the listed company held by the actual controller and performance commitment Party of the target company shall not be pledged during the sales restriction period and before the ban is lifted.
Unless otherwise agreed in this agreement, after the expiration of the sales restriction, the shares held by other shareholders shall be lifted at one time. 4.3.3 after the completion of this issuance, the shares of Party A increased by Party B due to the issuance of shares, conversion of share capital and other matters of Party A shall also be implemented in accordance with the above-mentioned lock-in period. After that, the lifting of the ban of corresponding shares shall be implemented in accordance with the relevant provisions of China Securities Regulatory Commission and Shenzhen Stock Exchange. "
(2) Agreement on profit compensation for issuing shares and paying cash to purchase assets
"2.2 compensation method
2.2.1 at the end of each fiscal year during the performance commitment period, Party A shall employ an audit institution with securities and futures business qualification to issue special audit opinions on the profitability of the target company in 2017, 2018 and 2019 based on the annual report, and maintain the accounting principles consistent with this reorganization, and the expenses shall be borne by Party A. If, according to the above special review opinions, the accumulated actual net profit of Millennium design as of the end of the current period is less than the accumulated committed net profit as of the end of the current period, Party A shall notify Party B in writing of the calculation results within 5 working days after calculating the net profit difference according to the provisions of this article, and Party B shall compensate Party A according to the proportion of consideration obtained in this transaction, Party B shall first compensate with the shares of the sea reclamation shares it holds. If the stock compensation is insufficient, it shall compensate in cash. "
2. The relevant provisions on the lifting of the ban on shares in the settlement framework agreement are as follows:
"2.1 Party B issues shares to purchase assets, and the remaining unsolved restrictions on the sale of new shares are as follows:
No. full name of shareholder no. of Limited shares (shares)
Millennium Investment (Party B 1) 40546420
2 Wang Yongchun (Party B 4) 7493346
3 Zhong Chengrong (Party B 2) 4057142
4 Luo Xiang (Party B 5) 3641890
5 Tang Lei (Party B) 102613
Total 55841411
The above 55841411 shares (hereinafter referred to as "target shares") held by Party B 1, Party B 2, Party B 3, Party B 4 and Party B 5 have not been lifted.
Party B has filed an arbitration with Shanghai Arbitration Commission (case No.: (2021) Huzhong case Zi No. 3964), and the case has not been decided yet.
2.2 both parties undertake to complete the rights and obligations agreed in the agreement on the purchase of assets by issuing shares and paying cash and the profit compensation agreement on the purchase of assets by issuing shares and paying cash as soon as possible. Based on this agreement, in view of the relevant reports issued by the relevant professional intermediaries under part (4) during the Shanghai Millennium performance commitment period (2017, 2018 and 2019), Party A promises to immediately hire an intermediary to issue relevant special audit opinions that have not been issued.
2.3 after this agreement takes effect and the conditions for lifting the sales restriction required by laws and regulations are met, Party A shall, according to the respective proportions of Party B 1, Party B 2, Party B 3, Party B 4 and Party B 5, Party A's target shares held by Party B (rounded to one place, the same below; if Party A has any share change from the signing date of this agreement to the actual lifting date, such as share donation, capital reserve conversion to share capital, share allotment and so on, the number of shares that Party A applies for lifting the ban will be adjusted accordingly, the same below); Party B promises that 35841411 of the banned shares will not be reduced within [12] months from the date of lifting the ban, and Party A will make a corresponding announcement on the commitment.
2.4 Party B promises to take the initiative to apply for the lock-in of the 10000000 shares of Party A held by Party B (the restricted shares of Party B 1, Party B 2, Party B 3, Party B 4 and Party B 5 shall be determined according to their respective proportions and rounded to one place) within the same day after the lifting of the ban on the target shares. Party A promises that from the date of lifting the ban on the shares mentioned in article 2.3 above (the starting date of the first phase), Every 12 months, Party A shall apply for the removal of the remaining 10000000 shares (the restricted shares of Party B 1, Party B 2, Party B 3, Party B 4 and Party B 5 shall be determined according to their respective proportions) according to the recovery proportion of Shanghai Millennium accounts receivable (see article 3.1 of this Agreement for details).
2.5 if Party A fails to apply for lifting the ban within the time limit, Party A shall pay liquidated damages at the standard of 0.05% per day based on the market value of the shares that Party B should lift the ban but did not lift the ban on the date of application for lifting the ban. "
3. The agreement on relevant matters in the settlement framework agreement did not lead to changes in performance commitments
According to the report on issuing shares and paying cash to purchase assets and raising supporting funds and related party transactions, Waihai shares issued shares to purchase assets, involving a total of 102247051 new shares. As of the signing date of the settlement framework agreement, 46405640 shares have met the conditions for releasing the restrictions on sale agreed in the agreement on issuing shares and paying cash to purchase assets and the agreement on profit compensation for issuing shares and paying cash to purchase assets, and the restrictions on sale have been lifted. There are still 55841411 shares that have not been lifted.
According to Article 2.2 of the settlement framework agreement, listed companies and performance commitment parties need to complete the rights and obligations agreed in the agreement on issuing shares and paying cash to purchase assets and the profit compensation agreement on issuing shares and paying cash to purchase assets before they can apply for lifting the sales restriction. At the same time, articles 2.3 and 2.4 of the settlement framework agreement further stipulate that the shares held by the performance commitment party will not be reduced within a certain period of time after the restriction is lifted, and the performance commitment party will restrict the sale of some of its shares as a guarantee for the recovery of accounts receivable, without changing the originally agreed restriction on the lifting of the restriction on the sale of shares.
(II) performance gambling
1. The gambling on performance in the compensation agreement on issuing shares and paying cash to purchase assets is as follows:
"Article 1 compensation scheme
1.1 Party B promises that the net profit attributable to the shareholders of the parent company (hereinafter referred to as "committed net profit") after deducting non recurring profits and losses from the consolidated statements audited by Millennium design in 2017, 2018 and 2019 will not be less than 96 million yuan, 126 million yuan and 160 million yuan respectively.
1.2 Party A and Party B agree that at the end of each fiscal year during the performance commitment period, If the cumulative actual net profit of Millennium design by the end of the current period is less than the cumulative committed net profit by the end of the current period (i.e. the actual realized net profit in 2017 during the performance commitment period can be accumulated to 2018 and 2019, and the actual realized net profit in 2018 can be accumulated to 2019), Party B shall compensate Party A in accordance with Article 2 of this agreement.
1.3 the performance commitment period is 2017, 2018 and 2019.
1.4 if the regulatory authorities (including but not limited to China Securities Regulatory Commission and Shenzhen Stock Exchange) have other requirements on the compensation scheme during the review process, the trading parties shall make their best commercial efforts to communicate and negotiate in accordance with the principles of good faith and best goodwill, so as to meet the requirements of the regulatory authorities. "
2. The reconciliation framework agreement does not adjust the performance commitment period, performance commitment net profit and other indicators
(III) share transfer payment
The share transfer payment agreed in the settlement framework agreement corresponds to the consideration of the remaining 9.6795% equity of the target company. The transfer and consideration of this part of equity are not agreed in the agreement on issuing shares and paying cash to purchase assets and the profit compensation agreement on issuing shares and paying cash to purchase assets, It does not belong to the performance commitments agreed in the issuance of shares and the payment of cash for the purchase of assets and the raising of supporting funds by Weihai shares and related party transactions.
(IV) accounts receivable
1. The commitments to the accounts receivable of the performance commitment party in the agreement on issuing shares and paying cash to purchase assets are as follows:
"12.6 performance commitment party promises: ① the net amount of the audited balance of accounts receivable as of December 31, 2019 generated during the three-year performance commitment period of the subject company (from January 1, 2017 to December 31, 2019) after deducting bad debt reserves, within five years from January 1, 2020 (i.e. as of December 31, 2024) Take it all back. If the uncollected part of the net accounts receivable is generated, the performance commitment party shall offset it with cash. If this part of the accounts receivable is recovered later, the listed company shall return it to the performance commitment party according to the actual recovery amount within 10 working days after recovery (undertake and return it according to the proportion of the performance commitment amount of each performance commitment party). " 2. The main provisions of Article 3 "accounts receivable collection clause" of the settlement framework agreement are as follows:
"3.1 Party B promises to urge Shanghai millennium to recover all accounts receivable in time, and the above accounts receivable shall be
As of January 2017
