Shanghai jintiancheng law firm
About Xcmg Construction Machinery Co.Ltd(000425) absorbing and merging XCMG Construction Machinery Co., Ltd. and related party transactions
of
Supplementary legal opinion (III)
Address: 11/12 level, Shanghai Center Tower, 501 Yingcheng Middle Road, Pudong New Area, Shanghai.
Tel: 02120511000 Fax: 02120511999 zip code: 200120
catalogue
Declaration matters 2 text 4 the first part is a feedback reply four
1、 Question 2 four
2、 Question 3 twelve
3、 Question 4 one hundred and sixteen
4、 Question 5 one hundred and thirty-two
5、 Question 6 one hundred and thirty-nine
6、 Question 7 one hundred and forty-six
7、 Question 8 one hundred and forty-nine
8、 Question 9 one hundred and fifty-two
9、 Question 10 one hundred and sixty-three
10、 Question 11 one hundred and sixty-eight
11、 Question 22 one hundred and eighty-four
12、 Question 23 two hundred and five
13、 Question 25 210 Part II changes in legal matters during the update period two hundred and thirty-one
1、 Update of this major asset restructuring transaction plan two hundred and thirty-one
2、 Update of subject qualifications of relevant parties in this major asset restructuring two hundred and thirty-one
3、 Update of contracts and agreements related to this major asset restructuring two hundred and thirty-two
4、 Update of the approval and authorization of this major asset restructuring two hundred and thirty-three
5、 Update of the subject assets of this major asset restructuring two hundred and thirty-three
6、 The handling of creditor’s rights and debts involved in this major asset restructuring and the renewal of employee resettlement two hundred and fifty-four
7、 Update of related party transactions and horizontal competition two hundred and fifty-nine
8、 Update of information disclosure two hundred and fifty-nine
9、 Update of the substantive conditions of this major asset restructuring two hundred and sixty
10、 Conclusion two hundred and sixty
Shanghai jintiancheng law firm
About Xcmg Construction Machinery Co.Ltd(000425) absorption and consolidation
XCMG Construction Machinery Co., Ltd. and related party transactions
Supplementary legal opinion (III)
No.: 01f20219455 to: Xcmg Construction Machinery Co.Ltd(000425)
Shanghai jintiancheng law firm (hereinafter referred to as “the firm”) accepts the entrustment of Xcmg Construction Machinery Co.Ltd(000425) (hereinafter referred to as “listed company” or ” Xcmg Construction Machinery Co.Ltd(000425) “), and according to the legal service contract on major asset restructuring project signed between Xcmg Construction Machinery Co.Ltd(000425) and Shanghai jintiancheng law firm between the listed company and the firm, As the special legal adviser of the listed company on the absorption and merger of XCMG Construction Machinery Co., Ltd. and related party transactions.
As the special legal adviser of the listed company on this transaction, It has issued the legal opinion of Shanghai jintiancheng law firm on Xcmg Construction Machinery Co.Ltd(000425) absorption and merger of XCMG Construction Machinery Co., Ltd. and related party transactions, the supplementary legal opinion of Shanghai jintiancheng law firm on Xcmg Construction Machinery Co.Ltd(000425) absorption and merger of XCMG Construction Machinery Co., Ltd. and related party transactions (I), and Supplementary legal opinion of Shanghai jintiancheng law firm on Xcmg Construction Machinery Co.Ltd(000425) absorption and merger of XCMG Construction Machinery Co., Ltd. and related party transactions (II) (hereinafter collectively referred to as the “original legal opinion”).
On December 17, 2021, China Securities Regulatory Commission issued the notice on the first feedback on the examination of administrative licensing projects of China Securities Regulatory Commission (No. 213159) (hereinafter referred to as the “first feedback”), in addition, for the matters that occurred or changed between July 1, 2021 and September 30, 2021 (hereinafter referred to as the “supplementary period”) of XCMG Co., Ltd. and its subsidiaries, The bourse, together with independent financial advisers and other intermediaries of listed companies, has further verified relevant issues. On this basis, our lawyers issued the supplementary legal opinion of Shanghai jintiancheng law firm on Xcmg Construction Machinery Co.Ltd(000425) absorption and merger of XCMG Construction Machinery Co., Ltd. and related party transactions (III) (hereinafter referred to as the “supplementary legal opinion”).
In accordance with the company law of the people’s Republic of China (hereinafter referred to as the “company law”), the securities law of the people’s Republic of China (hereinafter referred to as the “Securities Law”), the measures for the administration of major asset restructuring of listed companies, the provisions on several issues concerning the regulation of major asset restructuring of listed companies and other relevant laws This supplementary legal opinion is issued in accordance with the laws and regulations and the relevant provisions of the China Securities Regulatory Commission, in accordance with the business standards, ethics and the spirit of diligence recognized by the lawyer industry.
This supplementary legal opinion and the original legal opinion form an integral part. For the contents already expressed in the original legal opinion, this supplementary legal opinion will not be repeated.
The abbreviations, abbreviations and terms used in this supplementary legal opinion have the same meanings as those in the original legal opinion unless otherwise specified.
Declaration matters
In accordance with the provisions of the securities law, the measures for the administration of securities legal business of law firms, the rules for the practice of securities legal business of law firms (for Trial Implementation) and the facts that have occurred or exist before the date of issuance of this supplementary legal opinion, the firm and its handling lawyers have strictly performed their statutory duties and followed the principles of diligence and good faith, Sufficient verification and verification have been carried out to ensure that the facts identified in this supplementary legal opinion are true, accurate and complete, the concluding opinions issued are legal and accurate, and there are no false records, misleading statements or major omissions, and bear corresponding legal liabilities.
This supplementary legal opinion only expresses legal opinions on the facts that have occurred or exist before the issuance date and the legal issues related to this major asset reorganization, and does not express opinions on professional matters such as accounting, audit, asset evaluation and investment decision-making. The reference in this supplementary legal opinion to some data and conclusions in professional reports such as audit report, capital verification report, asset evaluation report and profit forecast audit report (if any) does not mean that the exchange makes any express or implied guarantee for the authenticity and accuracy of such data and conclusions, and the exchange does not have the ability to check and evaluate such data Appropriate qualifications for conclusions.
Our lawyers’ understanding and judgment of the relevant facts involved in this supplementary legal opinion ultimately depend on the documents, materials, statements and explanations provided by the transaction to us. Before issuing this supplementary legal opinion, the client and relevant transaction parties have guaranteed the authenticity of the documents, materials, statements and explanations provided by them to us and our lawyers Completeness and accuracy, without false records, misleading statements or major omissions; If the document is a copy or copy, its contents shall be consistent with the original or the original; The signatories of all documents submitted to the exchange have full civil capacity, and the signing has been properly and effectively authorized. The lawyer believes that the original of this document has been checked in the process of legal opinion. Our lawyers rely on the supporting documents issued by relevant government departments, listed companies or other units or the reports of relevant professional institutions to express legal opinions on the facts that are crucial to the issuance of legal opinions and cannot be supported by independent evidence.
This supplementary legal opinion is only used by listed companies for the purpose of this major asset restructuring, and shall not be used for any other purpose without the consent of the exchange.
The exchange agrees to take this supplementary legal opinion as the necessary legal document for the major asset reorganization of the listed company, report it together with other materials, and bear corresponding legal liabilities for the legal opinions issued in accordance with the law.
Based on the above, the firm and its handling lawyers, in accordance with relevant laws, regulations, rules and relevant provisions of the CSRC, and in accordance with the recognized business standards, ethics and diligence spirit of the lawyer industry, issue the following legal opinions:
text
Part I one time feedback reply
1、 Question 2
According to the application documents, Xuzhou XCMG Jinfan leading enterprise management consulting partnership (limited partnership, hereinafter referred to as XCMG Jinfan) is the employee stock ownership platform of XCMG Co., Ltd., holding 2.7183% of the equity of XCMG Co., Ltd. and 1.60% of the shares of the surviving company after the transaction. Part of the capital of the platform comes from the financing loan from Shanghai Pudong Development Bank Co.Ltd(600000) (XCMG Jinfan transfers the usufruct corresponding to part of its equity to Shanghai Pudong Development Bank Co.Ltd(600000) , and repurchases it after maturity). Please your company: 1) in combination with the identity of the personnel participating in the shareholding plan, the selection and employment mechanism of the shareholding Management Committee and the shareholding platform manager, the subscription, transfer and withdrawal mechanism of capital contribution shares, and the approval of relevant state-owned assets regulatory authorities (if necessary), supplementary disclosure of whether the ESOP is established and operated according to law. 2) Supplementary disclosure: XCMG Jinfan’s funds are partly derived from the reasons for Shanghai Pudong Development Bank Co.Ltd(600000) financing loan and the actual purpose of the loan, whether the financing arrangement is in line with the purpose of establishing the employee stock ownership plan, and whether there are major legal disputes between relevant parties during the financing period; Up to now, whether the usufruct corresponding to the relevant equity has been repurchased, and whether the financing arrangement will lead to unclear ownership or limited transfer of some equity held by XCMG Jinfan. If so, supplementary disclosure of whether this transaction complies with the provisions of item 4, Article 11 of the restructuring measures. 3) Supplementary disclosure: in addition to Shanghai Pudong Development Bank Co.Ltd(600000) , whether XCMG Jinfan has any other external financing. If so, please make supplementary disclosure according to the above questions. Independent financial advisers and lawyers are invited to check and express clear opinions.
reply:
1、 Verification procedure
For the matters mentioned in the title, our lawyers have performed the following verification procedures:
1. Consulted the request for instructions on the pilot implementation plan of mixed ownership reform of XCMG Construction Machinery Co., Ltd. submitted by XCMG to Xuzhou SASAC and the reply documents made by Xuzhou SASAC;
2. Consulted the employee stock ownership plan and employee stock ownership management measures (for Trial Implementation) formulated by XCMG;
3. Consulted the list of ESOP personnel and the partnership agreement of XCMG Jinfan and relevant shareholding platforms; 4. Consulted the resolution documents of the general meeting of employees who elected the members of the shareholding Management Committee of XCMG;
5. Reviewed the statement of the state owned assets supervision and Administration Commission of Xuzhou Municipality on the compliance of the establishment and operation of employee stock ownership of XCMG Co., Ltd;
6. Reviewed the equity usufruct transfer and repurchase contract signed by XCMG Jinfan and Shanghai Pudong Development Bank Co.Ltd(600000) and obtained the payment voucher for XCMG Jinfan to fulfill the repurchase obligation;
7. Consulted the credit investigation report of XCMG Jinfan;
8. Consulted the written confirmation documents of XCMG Jinfan and Shanghai Pudong Development Bank Co.Ltd(600000) on financing matters.
2、 Verification matters
(I) in combination with the identity of the personnel participating in the shareholding plan, the selection and employment mechanism of the shareholding Management Committee and the shareholding platform manager, the subscription, transfer and withdrawal mechanism of capital contribution shares, and the examination and approval of relevant state-owned assets regulatory authorities (if necessary), supplementary disclosure of whether the ESOP is established and operated in accordance with the law
The ESOP was established and operated in accordance with the law, which complies with the relevant provisions of the opinions on the pilot of ESOP in state-controlled mixed ownership enterprises (hereinafter referred to as the “pilot opinions”), as follows:
No. actual performance of the project
(1) Procedure of employee congress
On June 22, 2020, the third meeting of the fourth and Xcmg Construction Machinery Co.Ltd(000425) fifth employee congress of XCMG listened to the report on the employee stock ownership plan of XCMG.
(2) Decision making procedures of the board of directors and shareholders’ meeting
Employee stock ownership plan on June 22, 2020, XCMG held the board of directors to review and approve the employee stock ownership plan for the establishment of Construction Machinery Co., Ltd. by XCMG group 1.
On June 22, 2020, XCMG group, the sole shareholder of XCMG, made a decision and agreed to the employee stock ownership plan of XCMG Construction Machinery Co., Ltd.
(3) Approval procedures and confirmation of SASAC
Xuzhou SASAC has issued the reply of Xuzhou SASAC on the pilot implementation plan of mixed ownership reform of XCMG Construction Machinery Co., Ltd. (Xu Guozi [2019] 145)
No.), agreed to the pilot implementation plan for mixed ownership reform of XCMG Construction Machinery Co., Ltd., which has covered employee stock ownership.
In addition, in view of the compliance of the establishment and operation of employee stock ownership of XCMG Co., Ltd., Xuzhou SASAC issued the situation statement on February 11, 2022, Confirmation: “XCMG Construction Machinery Co., Ltd. (hereinafter referred to as” XCMG “) as one of the” double hundred enterprises “of state-owned enterprise reform and one of the pilot enterprises of mixed ownership reform, has established and implemented employee stock ownership according to law in the process of implementing mixed ownership reform
