Guohao law firm (Shanghai)
About
Baoxiniao Holding Co.Ltd(002154) the actual controller subscribes for the company’s non-public offering shares
Exemption from tender offer obligation
of
Legal opinion
Beijing Shanghai Shenzhen Hangzhou Tianjin Kunming Guangzhou Ningbo Fuzhou Xi’an Nanjing Nanning Hong Kong Paris Madrid
Address: floor 23-25, Jiadi center, No. 968, Beijing West Road, Shanghai zip code: 200041
Tel: 021-52341668 Fax: 021-62676960
website: http://www.grandall.com..cn.
January 2022
Guohao law firm (Shanghai)
About Baoxiniao Holding Co.Ltd(002154) actual controller
Subscription for non-public shares of the company
Legal opinion on exemption from tender offer obligation
To: Baoxiniao Holding Co.Ltd(002154)
Section I introduction of legal opinion
1、 Basis for issuing legal opinion
According to the non litigation legal service entrustment agreement signed with Baoxiniao Holding Co.Ltd(002154) (hereinafter referred to as ” Baoxiniao Holding Co.Ltd(002154) “, “the issuer” or “the company”), Guohao law firm (Shanghai) acted as the special legal adviser for the issuer’s non-public offering of A-Shares in 2021 (hereinafter referred to as “this offering” or “this non-public offering”).
In accordance with the securities law of the people’s Republic of China, the company law of the people’s Republic of China, the measures for the administration of securities issuance by listed companies, the detailed rules for the implementation of non-public development of shares by listed companies and other laws and regulations, as well as the relevant provisions of the China Securities Regulatory Commission, In accordance with the requirements of the measures for the administration of securities legal business of law firms and the rules for the practice of securities legal business of law firms (for Trial Implementation), in accordance with the generally recognized business standards, ethics and the spirit of diligence and responsibility of the lawyer industry, based on the facts and the law, The issuer’s actual controller has checked and verified the matters related to the exemption of the company’s non-public offering shares from the obligation of tender offer, and hereby issued this legal opinion.
2、 Statement of legal opinion
The lawyers of the firm give legal opinions according to the facts that have occurred or existed before the date of issuance of the legal opinion, the current laws and regulations of China and the relevant provisions of the CSRC, and declare as follows:
(i) In accordance with the securities law, the measures for the administration of securities business of law firms, the rules for the implementation 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 legal opinion, the firm and its handling lawyers have strictly performed their statutory duties and followed the principles of diligence and good faith, It has conducted sufficient verification and verification to ensure that the facts identified in this legal opinion are true, accurate and complete, that the concluding opinions issued are legal and accurate, and that there are no false records, misleading statements or major omissions, and shall bear corresponding legal liabilities.
（2） Our lawyers agree to publicly disclose this legal opinion as a necessary legal document for the issuer’s non-public offering, and bear corresponding legal liabilities for the authenticity, accuracy and completeness of the contents of the legal opinion issued by our lawyers.
（3） For the fact that it is very important to issue this legal opinion and cannot be supported by independent evidence, the exchange relies on the supporting documents and testimony issued or provided by relevant government departments, companies, other relevant units or relevant persons, as well as the handling lawyers to identify the letters and interview results of relevant departments or persons.
（4） The issuer has guaranteed that it has provided the exchange with all relevant factual materials necessary for issuing this legal opinion, that the relevant written materials and written testimony are true and effective, without any major omissions and misleading statements, and that the copies provided are consistent with the original.
（5） This legal opinion only expresses opinions on the exemption of the issuer’s actual controller from the obligation of tender offer for the subscription of the company’s non-public shares and relevant legal issues, and does not express opinions on other non-legal matters.
（6） This legal opinion is only used by the issuer for the purpose of this non-public offering and shall not be used for any other purpose.
Section II main body
1、 Subject qualification of subscriber
Wu Zhize, male, China nationality, ID number 3303241960******13, residence in Lucheng, Wenzhou, Zhejiang, five Ma Street People’s East Road Kai Tai Building * * *.
As of the date of issuance of this legal opinion, Wu Zhize directly holds 10.35% of the shares of the issuer, and its concerted actors Wu Tingting (Wu Zhize’s daughter) and Shanghai Jinsha hold 15.24% and 0.20% of the shares of the issuer respectively. Wu Zhize, Wu Tingting and Shanghai Jinsha jointly hold 25.80% of the shares of the issuer and are the actual controllers of the issuer.
According to the commitment issued by Wu Zhize and verified by our lawyers, Wu Zhize does not have the following circumstances under which he is not allowed to acquire a listed company as stipulated in Article 6 of the administrative measures for the acquisition of listed companies:
(i) The acquirer has a large amount of debt, which is not paid off when due and is in a continuous state;
（2） The acquirer 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） If the purchaser is a natural person, there are circumstances specified in Article 146 of the company law;
（5） Other circumstances stipulated by laws, administrative regulations and recognized by the CSRC that listed companies may not be acquired.
Accordingly, our lawyers believe that as of the date of issuance of this legal opinion, Wu Zhize is not prohibited from acquiring a listed company as stipulated in Article 6 of the measures for the administration of the acquisition of listed companies, and has the legal qualification of subscription subject.
2、 Basic information of this subscription
(i) Approval of the board of directors of the issuer
On May 10, 2021, the issuer held the 12th meeting of the 7th board of directors and passed the proposal on the company’s compliance with the conditions for non-public development of shares, the proposal on the company’s non-public development of shares, the plan for non-public offering of shares in 2021, the feasibility analysis report on the use of funds raised by non-public development of shares in 2021, item by item The proposal on the non-public Development Bank‘s shares constituting connected transactions, the proposal on the signing of the non-public Development Bank‘s share subscription agreement with effective conditions between the company and the subscription object, the proposal on submitting to the general meeting of shareholders to approve the increase of the company’s shares held by the company’s actual controller from issuing an offer The proposal on the diluted immediate return and filling measures of the non-public Development Bank‘s shares and the commitments of relevant subjects, the proposal on requesting the general meeting of shareholders to authorize the board of directors to handle matters related to the non-public Development Bank‘s shares, the proposal on requesting the general meeting of shareholders to authorize the board of directors to handle matters related to the non-public offering of shares Proposal on convening the fourth extraordinary general meeting of shareholders in 2020, etc. As the object of this non-public offering is Wu Zhize, the actual controller of the issuer, and is the related party of the issuer. Therefore, Wu Zhize’s participation in the subscription of this non-public offering constitutes a connected transaction with the issuer. Related directors Wu Zhize and Wu Liya have avoided voting when considering relevant proposals. The independent directors of the company also expressed their independent opinions.
（2） Approval of the general meeting of shareholders of the issuer
On May 27, 2021, the issuer held the third extraordinary general meeting of shareholders in 2021, at which the above-mentioned proposals related to the non-public offering submitted by the board of directors of the issuer were voted and approved item by item.
（3） Adjust the issuance plan for the first time
The 2020 general meeting of shareholders of the issuer deliberated and approved the 2020 profit distribution plan of the company, which distributed cash dividends of RMB 0.6 (including tax) for every 10 shares to all shareholders. The above equity distribution was completed on June 3, 2021. According to the implementation of the issuer’s equity distribution in 2020 and the pricing principle of the issuer’s non-public offering plan, the issuer has revised the issuance plan.
On June 25, 2021, the issuer held the 13th meeting of the 7th board of directors, which deliberated and passed the proposal on adjusting the company’s non-public offering scheme and other proposals related to the adjustment of the non-public offering scheme item by item. The adjusted issuance price = the issuance price before the adjustment of 3.23 yuan / share – the cash dividend distributed per share of 0.06 yuan = 3.17 yuan / share, The adjusted number is that the number of shares in this non-public offering does not exceed 277602523 (including this number).
According to the proposal on requesting the general meeting of shareholders to authorize the board of directors to fully handle matters related to the non-public development of shares deliberated and adopted by the issuer’s third extraordinary general meeting in 2021, the general meeting of shareholders agreed to authorize the board of directors to handle all necessary procedures for the implementation of the restricted stock incentive plan, It includes negotiating with the sponsor (lead underwriter) to determine and implement the specific plan of this non-public offering of shares according to the specific situation, including the timing of issuance, the number of issuance and the scale of raised funds, the start and end date of issuance, the issue price, the selection of issuance objects and other specific matters. Therefore, the adjustment of the issuance plan does not need to be submitted to the general meeting of shareholders for deliberation.
（4） Adjust the issuance plan for the second time
On August 19, 2021, the issuer held the 14th meeting of the 7th board of directors, which deliberated and passed the proposal on adjusting the company’s non-public offering scheme and other proposals related to adjusting the non-public offering scheme one by one, The number of shares in this non-public offering is adjusted to not less than 173501578 shares (including the number) and not more than 260244164 shares (including the number), and the total amount of funds to be raised is adjusted to not less than 550 million yuan and not more than 824974000 yuan (including the number).
According to the proposal on requesting the general meeting of shareholders to authorize the board of directors to handle matters related to the non-public offering of shares considered and adopted by the issuer’s third extraordinary general meeting in 2021, the general meeting of shareholders agreed to authorize the board of directors to handle matters related to the non-public offering of shares within the scope of relevant laws and regulations, It includes negotiating with the sponsor (lead underwriter) to determine and implement the specific plan of this non-public offering of shares according to the specific situation, including the timing of issuance, the number of issuance and the scale of raised funds, the start and end date of issuance, the issue price, the selection of issuance objects and other specific matters. Therefore, the adjustment of the issuance plan does not need to be submitted to the general meeting of shareholders for deliberation. （5） Adjust the issuance plan for the third time
The fourth extraordinary general meeting of the issuer in 2021 deliberated and approved the proposal on the profit distribution plan for the half year of 2021, and distributed cash dividends of RMB 1.5 (including tax) to all shareholders for every 10 shares. The above equity distribution was completed on September 16, 2021. According to the implementation of the issuer’s equity distribution in the half year of 2021 and the pricing principle of the issuer’s non-public offering plan, the issuer has revised the offering plan.
On October 14, 2021, the issuer held the 16th meeting of the 7th board of directors, which deliberated and passed the proposal on adjusting the company’s non-public offering scheme and other proposals related to the adjustment of the non-public offering scheme item by item. The adjusted issuance price = the issuance price before the adjustment of 3.17 yuan / share – the cash dividend distributed per share of 0.15 yuan = 3.02 yuan / share, The adjusted number of shares to be issued is not less than 182119206 shares (including the number) and not more than 273170198 shares (including the number).
According to the proposal on requesting the general meeting of shareholders to authorize the board of directors to handle matters related to the non-public offering of shares considered and adopted by the issuer’s third extraordinary general meeting in 2021, the general meeting of shareholders agreed to authorize the board of directors to handle matters related to the non-public offering of shares within the scope of relevant laws and regulations, It includes negotiating with the sponsor (lead underwriter) to determine and implement the specific plan of this non-public offering of shares according to the specific situation, including the timing of issuance, the number of issuance and the scale of raised funds, the start and end date of issuance, the issue price, the selection of issuance objects and other specific matters. Therefore, the adjustment of the issuance plan does not need to be submitted to the general meeting of shareholders for deliberation. （6） Approval of CSRC
On November 2, 2021, the CSRC issued the reply on approving Baoxiniao Holding Co.Ltd(002154) non-public development of shares (zjxk [2021] No. 3477), approving the issuer’s non-public offering of no more than 273170198 new shares. The reply shall be valid within 12 months from the date of approval of issuance.
Accordingly, our lawyers believe that the issuance has obtained the necessary approval and authorization and has been approved by the CSRC, which is qualified for the implementation of the issuance.
3、 This offering meets the conditions for exemption from submitting the application for exemption from tender offer
According to paragraph 2 (3) of Article 63 of the measures for the administration of the acquisition of listed companies, “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 3 years, and the general meeting of shareholders of the company agrees that the investor is exempt from making an offer”, The purchaser may be exempted from submitting an application for exemption from the offer to the CSRC.
After verification by lawyers of the exchange, the acquisition complies with the provisions of paragraph 2 (3) of Article 63 of the measures for the administration of the acquisition of listed companies, as follows:
(i) The number of shares in this non-public offering shall not be less than 182119206 shares (including this number) and shall not exceed 273170198 shares (including this number). Calculated according to the number of 241721855 shares in this non-public offering, after the completion of this offering, the issuer will be controlled by the actual controller
