About Dalian Zhiyun Automation Co.Ltd(300097)
Matters related to the inquiry letter of 2021 Annual Report
Legal opinion
May, 2002
11th and 12th floors, Taiping financial building, 6001 Yitian Road, Futian District, Shenzhen, China postcode: 518017
11/12F., Taiping financepower, Yitian road 6001, Futian, Shenzhen, China Tel.: (0755) 88265288 fax.: （075588265537
Website: http://www.shujin.cn.
Guangdong Xinda law firm
About Dalian Zhiyun Automation Co.Ltd(300097)
Matters related to the inquiry letter of 2021 Annual Report
Legal opinion
To: Dalian Zhiyun Automation Co.Ltd(300097)
Guangdong Xinda law firm (hereinafter referred to as “Xinda”) accepts the entrustment of Dalian Zhiyun Automation Co.Ltd(300097) (hereinafter referred to as “the company”, “listed company” or ” Dalian Zhiyun Automation Co.Ltd(300097) “), according to the requirements of the annual report inquiry letter of Shenzhen Stock Exchange on Dalian Zhiyun Automation Co.Ltd(300097) (GEM annual report inquiry letter [2022] No. 237, hereinafter referred to as “the inquiry letter”), Check and issue this legal opinion on relevant matters that require lawyers’ opinions.
With regard to this legal opinion, our lawyer hereby makes the following statement:
1. The exchange issues legal opinions in accordance with the facts that have occurred or exist before the issuance date of this legal opinion, the current laws and regulations of China and the relevant provisions of the China Securities Regulatory Commission (hereinafter referred to as the “CSRC”), and such opinions are based on the understanding of relevant facts and relevant laws by the lawyers of the exchange;
2. We have strictly performed our statutory duties, followed the principles of diligence and good faith, and verified the relevant issues requiring lawyers’ opinions in the inquiry letter, so as to ensure that there are no false records, misleading statements and major omissions in this legal opinion;
3. In order to issue this legal opinion, our lawyers have reviewed the transaction agreement and relevant judicial precedents related to the matters involved in this legal opinion, and we have obtained the following guarantee from Dalian Zhiyun Automation Co.Ltd(300097) that the company has provided Xinda with the original and true written materials, copies, copies, written statements or oral testimony and other documents necessary for Xinda to issue this legal opinion; The company did not conceal, omit, make false records or make misleading statements when providing documents to Cinda; The company has provided or disclosed to Cinda all relevant facts necessary for issuing this legal opinion, and all facts are true, accurate and complete; The signatures and seals on all documents provided by the company are authentic. If the documents are copies or copies, all copies or copies shall be consistent with the original; The signatories of all documents and materials submitted by the company to Cinda have full civil capacity, and their signing has been properly and effectively authorized;
4. Our lawyers have checked the relevant documents provided by the company according to the business standards recognized by the lawyer industry. For matters that our lawyers believe are important to the relevant issues of this legal opinion and lack independent evidence support, our lawyers rely on the certificates issued by relevant government departments and other relevant institutions and the statements and commitments of relevant parties on relevant facts and legal issues to issue this legal opinion;
5. Our lawyers have reviewed the relevant documents and materials that our lawyers consider necessary to issue this legal opinion, and issued legal opinions accordingly. The reference of our lawyers to some data, contents and conclusions in the capital verification, audit and asset evaluation reports in this legal opinion does not mean that our law firm makes any express or implied guarantee for the authenticity of these data, contents or conclusions. We and our lawyers are not qualified to verify and evaluate such data, contents or conclusions;
6. The exchange agrees to take this legal opinion as the necessary legal document for the reply of the company’s inquiry letter and report it to Shenzhen stock exchange together with other materials for relevant information disclosure;
7. This legal opinion is only for the purpose of the company’s reply to this inquiry letter, and shall not be used for any other purpose without the written consent of the exchange.
Based on the above statement, our lawyers, in accordance with the company law of the people’s Republic of China, the civil code of the people’s Republic of China, 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 other currently published and effective laws, regulations, administrative rules and relevant normative documents of the CSRC, in accordance with the business standards recognized by the lawyer industry In the spirit of ethics and diligence, the legal opinions on the relevant matters of the inquiry letter are as follows:
Question 2 of the inquiry letter
The annual report shows that the cumulative performance commitments of factor Company Shenzhen Jiutian Zhongchuang automation equipment Co., Ltd. (hereinafter referred to as Jiutian Zhongchuang) in 2020 and 2021 have not been reached. According to the performance commitment and compensation agreement, your company confirms that the counterparty should pay performance compensation of 1180106 million yuan and believes that the counterparty has the ability to perform, so no bad debt is withdrawn in this period. Please your company:
……
(2) Supplement the feasibility of requiring the counterparty to pay performance compensation and implement equity repurchase according to the performance commitment and compensation agreement, and ask the lawyer to express clear opinions.
……
reply:
(I) verification method and process
In order to verify the above matters, our lawyers have mainly performed the following verification procedures:
1、 Obtain the equity transfer agreement on 757727% equity of Shenzhen Jiutian Zhongchuang automation equipment Co., Ltd. (hereinafter referred to as “equity transfer agreement”) and the performance commitment and compensation agreement on Shenzhen Jiutian Zhongchuang automation equipment Co., Ltd. (hereinafter referred to as “performance compensation agreement”) signed by the company and the original shareholders of Shenzhen Jiutian Zhongchuang automation equipment Co., Ltd. (hereinafter referred to as “Jiutian Zhongchuang”) ）And its supplementary agreement;
2. Check the relevant announcements disclosed by the company on the acquisition of Jiutian Zhongchuang;
3. Inquire about the judicial precedents on the disputes over performance compensation and equity repurchase at the same time;
4、 Refer to the special audit report on the achievement of performance commitments of Shenzhen Jiutian Zhongchuang automation equipment Co., Ltd. in 2020 (xyzh / 2021szaa30218) issued by ShineWing Certified Public Accountants (special general partnership) and the special audit report on the achievement of performance commitments of Shenzhen Jiutian Zhongchuang automation equipment Co., Ltd. in 2021 issued by Lixin Zhonglian Certified Public Accountants (special general partnership) (Lixin Zhonglian zhuanshen Zi [2022] d-0340).
(II) verification results
1. Specific conditions of performance compensation and equity repurchase agreement and achievement of entrepreneurship performance in nine days
In March 2020, the listed company transferred 757727% equity of Jiutian Zhongchuang (hereinafter referred to as “target equity”) held by it to Anji Kaisheng enterprise management consulting partnership (limited partnership), Anji Meiqian investment partnership (limited partnership) and Anji Zhongqian enterprise management consulting partnership (limited partnership) (hereinafter referred to as “counterparty”) for RMB 295513300, The listed company signed the equity transfer agreement and performance commitment and compensation agreement with the above-mentioned counterparties and their ultimate stakeholders Zhou Fei and Zhou Kai. According to the equity transfer agreement and performance compensation agreement, the counterparty and Zhou Fei and Zhou Kai promise that the net profit of Jiutian Zhongchuang in 2020 will not be less than 32 million yuan, the cumulative net profit in 2020 and 2021 will not be less than 82 million yuan, and the cumulative net profit in 2020, 2021 and 2022 will not be less than 140 million yuan; If the net profit actually realized by jiutianzhongchuang fails to reach the above promised net profit, the counterparty shall compensate the listed company in cash, and the amount of performance compensation is (the cumulative net profit promised by the end of the current period – the cumulative net profit realized by the end of the current period) ÷ the sum of the promised net profit in the commitment year × Valuation of the underlying assets – the amount of cash compensated, and the parties to the transaction and the ultimate actual equity holders of the transaction, Zhou Fei and Zhou Kai, bear joint and several guarantee liabilities for the above performance compensation obligations (hereinafter referred to as “performance compensation terms”); If the performance fails to reach 50% of the promised performance, the listed company has the right to require the counterparty or Zhou Fei and Zhou Kai to repurchase the underlying equity. The repurchase price is the sum of the transaction price actually paid by the listed company and the interest calculated at an annualized simple interest of 5% from the payment of the transaction price to the date of repurchase obligation (hereinafter referred to as “equity repurchase clause”). The performance compensation clause and equity repurchase clause in the performance compensation agreement are parallel clauses, and there is no other agreement on their relationship in the agreement.
According to the announcement on the achievement of performance commitments, equity repurchase plan and related party transactions of Jiutian Zhongchuang in 2021 (Announcement No.: 2022017) disclosed by the listed company on April 26, 2022, the net profit of Jiutian Zhongchuang in 2021 was -809333240 yuan. The cumulative net profit realized by Jiutian Zhongchuang in 2020 and 2021 was 2609226691 yuan, and the completion rate of performance commitment was 31.82%. At the same time, it triggered the performance compensation clause and equity repurchase clause of the performance compensation agreement.
In view of the fact that the achievement of entrepreneurial performance in the nine days triggers the performance compensation clause and equity repurchase clause agreed in the performance compensation agreement at the same time, and the performance compensation agreement does not stipulate that if the performance compensation and equity repurchase compete, only one of them can be claimed. As far as the text of the performance compensation agreement signed by the listed company and all parties to the transaction is concerned, In this case, in principle, the listed company has the right to require the counterparty to pay performance compensation and repurchase the underlying equity at the same time.
2. Judicial recognition of simultaneous claims for performance compensation and equity repurchase
In view of the certain overlap in the nature of performance compensation and equity repurchase, and under certain circumstances, the simultaneous claims of both will lead to the obligee to obtain additional high income in addition to making up for losses, when the relevant performance compensation agreement does not clearly stipulate the coordination and treatment mechanism when performance compensation and equity repurchase are triggered at the same time, whether the obligee can require the commitment party to undertake the obligations of performance compensation and equity repurchase at the same time, At present, there are disputes in judicial practice. Local courts have different judgments on this, and the main types are as follows.
(1) It is considered that performance compensation and equity repurchase can be claimed at the same time
1) Dispute over capital increase of Tianjin Pukai Tianji equity investment fund partnership ((2019) supreme law min Shen No. 5691)
In this case, on the contradiction between supporting performance compensation and equity repurchase at the same time, the Supreme People’s court held that the applicable condition of performance compensation is that the net profit of Hongli heat pump in 2012 is less than 45 million yuan, while the applicable condition of equity repurchase is that Hongli heat pump cannot be listed on A-Shares before December 31, 2014, and the applicable conditions and the agreed exercise time are not the same; When the conditions for performance compensation were fulfilled, the conditions for equity repurchase involved in the case had not been fulfilled, and Pukai Tianji and Pukai Tianxiang were still shareholders of Hongli heat pump. There was no problem that Pukai Tianji and Pukai Tianxiang claimed by Hongli group were not shareholders and did not enjoy the right of performance compensation. At the same time, there was a contradiction between supporting performance compensation and equity repurchase rights.
2) Dispute between Gongqingcheng Jinghong investment management partnership and Yi Chunhua, Cui Dan and other partnerships ((2019) Yu 01 min Chu No. 781)
In this case, the first intermediate people’s Court of Chongqing held that according to the supplementary agreement reached by all parties on the equity increase and share expansion of Jinghong enterprise’s investment in Jinhong company, Yi Chunhua, Cui Dan, Jiang Yonggang and Huang Wenmin promised that if the operating performance of Jinhong company during the assessment period did not meet the objectives of the assessment period, Jinghong enterprise could choose to require Yi Chunhua, Cui Dan, Jiang Yonggang and Huang Wenmin to make cash compensation or equity compensation; It is also agreed that when Jinhong company fails to achieve 70% of any performance assessment commitment in the assessment year from July 2017 to December 31, 2018, 1 according to the minutes of the civil and commercial trial work meeting of the national court (Fa [2019] No. 254), “gambling agreement”, also known as the valuation adjustment agreement, refers to that when the investor and the financier reach the equity financing agreement, in order to solve the uncertainty of both parties to the transaction about the future development of the target company It is designed for information asymmetry and agency cost, including equity repurchase, monetary compensation and other agreements to adjust the valuation of the target company in the future. It can be seen that equity repurchase and performance compensation have the nature of gambling compensation.
Jinghong enterprise has the right to require Yi Chunhua, Cui Dan, Jiang Yonggang and Huang Wenmin to repurchase all or part of the equity of Jinhong company held by Jinghong enterprise; The consolidated profit of Jinhong company in 2017 and 2018 assessment years was – (59765665 yuan + 61279843 yuan) = – 121045508 yuan. The operating index of Jinhong company did not meet the “consolidated profit of no less than 80 million yuan” agreed in the agreement. Therefore, Jinghong enterprise chose to require Yi Chunhua, Cui Dan, Jiang Yonggang and Huang Wenmin to make cash compensation and buy back equity in accordance with the contract.
3) Dispute over equity transfer between Wang Damin and Wang Yanli ((2017) Gan min Zhong No. 159)
In this case, Jiangxi Higher People’s court held that the performance compensation agreed by both parties in the contract is not the same as the share repurchase payment, and should not be deducted from the share repurchase payment; On November 3, 2015, Damin seed industry paid a dividend of 2.4 million yuan to jiusuihe company, which is the company’s dividend to shareholders. Shareholders’ dividend is the right of jiusuihe company as a shareholder and is not the same as share repurchase. Therefore, the court did not support the claim that Wang dadongzhang should deduct the performance compensation and dividend from the share repurchase payment.
(2) It is considered that performance compensation and equity repurchase can be claimed at the same time, but the amount of compensation can be adjusted according to the principle of fairness
In the dispute case of partnership agreement between Song Xuebing and Shanghai zandao asset management center, Li Xiangdong and others ((2019) Su 05 min Zhong No. 9001), the parties agreed that if the outsider Xiangdong company failed to obtain the relevant product registration certificate as agreed, the existing shareholders, namely song Xuebing, Li Xiangdong, Luan Nan
