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The”10 billion arbitration case” of Kehua biology was full of fog, and the performance of the acquisition subject increased sharply, causing trouble

Ten billion arbitration disputes between Kehua biology and its subsidiaries are still fermenting

In the storm, Kehua biology and Xi’an Tianlong Technology Co., Ltd. (hereinafter referred to as”Tianlong company”) are not easy. On the one hand, the equity of subsidiaries held by Kehua biology has been frozen, and the equity transfer of major shareholders has been blocked. At the same time, it is also faced with the embarrassing situation that the subsidiaries are out of control, the audit cannot be promoted, and the annual report of listed companies is difficult to give birth. On the other hand, the original founding team of Tianlong company fell into the dilemma of no way to negotiate, suspension of business development and”sale” of controlling shares.

Is it Tianlong’s initiative to provoke disputes due to dissatisfaction with the transaction consideration of the remaining equity, or is there another secret? Where is the dispute between the two sides? Where will the arbitration case go in the future? Recently, the reporter of China Securities Journal gradually peeped into and approached the truth behind the fog of the”10 billion arbitration case” through multiple visits and research.

Mother child opposition:is the 10 billion purchase price reasonable

Looking back three years ago, on June 11, 2018, Kehua biology signed the investment agreement with the founding shareholder of Tianlong company. According to the agreement, Kehua biology acquired the equity of Tianlong company held by Peng niancai, Li Ming and other four parties in a”two-step” way. In the first stage, Kehua biology obtained 62%equity of Tianlong company at a consideration of 554 million yuan; In the second stage, the two sides agreed to dispose of the remaining 38%of the shares in 2021. The listed company can request to acquire the shares according to RMB 1.2 billion or 30 times of the net profit after deducting non profits in 2020, or other target shareholders can request to acquire the shares according to RMB 900 million or 25 times of the net profit after deducting non profits in 2020. Whichever is higher, the acquisition of 100%equity of Tianlong company will be completed.

In this regard, an investment banker said that such a design actually balances the situation of both sides. On the one hand, help Kehua biology avoid the goodwill risk brought by the comprehensive acquisition of Tianlong company; On the other hand, it can also set aside some time for the business development of Tianlong company.

According to the calculation of both parties at that time, after the completion of the package deal, the post investment P/E ratio of Tianlong company will not exceed 10 times. However, affected by the epidemic, Tianlong’s profits have increased explosively since 2020. This makes the PE calculation base of the above acquisition change qualitatively. Whether the transaction consideration of more than 10 billion yuan calculated based on the surge in profits caused by sudden factors is reasonable has become the focus of dispute between the two sides.

Is Tianlong worth so much money? Can it maintain such profits after the end of the epidemic? Kehua biology believes that the performance growth caused by the outbreak of the epidemic has exceeded the normal predictable and predictable range of all parties when signing the investment agreement. If the transaction terms are continued, it will be obviously unfair to the listed company. In its reply, Kehua biology repeatedly invited the counterparty to further negotiate with the company and renegotiate the transaction terms according to law.

The company’s core competitiveness is not affected by the”strong R & D investment”, but the company’s core competitiveness is not affected by the”strong R & D investment”. For the three consecutive years of losses before the acquisition of Kehua biology, insiders of Tianlong explained that the company did not have a penny of loan before 2007, and its operation was in good condition. After South Korea SK group became a shareholder, the company increased its R & D investment, which directly led to losses after 2012. However, if there is no sustained high proportion of R & D investment in the early stage, Tianlong will not have the current performance explosion.

“At the end of 2017, after the former shareholder SK group withdrew, before formal negotiations with Kehua, we met with nearly 100 domestic investment institutions and listed companies, many of which offered higher prices and higher valuations. We believe that at that time, Kehua’s management and controlling shareholders had ideas and strategic planning, were moved by their sincerity, and finally chose to cooperate with them.” A management of Tianlong company told the China Securities Journal that it had participated in the whole process of Kehua biology’s acquisition of Tianlong company.

The above-mentioned persons admitted that the terms made it clear that the second share delivery could also adopt the mode of equity replacement, that is, the listed company issued additional shares to the three founding shareholders of Tianlong company. This is also the core reason why the founding shareholders chose to transfer the controlling right at a low price at that time. They hope to become the core shareholder of the listed company through this transaction and help the enterprise become bigger and stronger, which is an important goal of Tianlong company.

An analyst who asked not to be named said that it would be cost-effective to spend 554 million yuan to buy 62%equity of a company that contributes more than 1 billion yuan a year. The performance of the second stage agreement will certainly increase the cost. When Kehua has mastered the controlling stake, the best choice for Kehua is to maintain the status quo. In other words, Kehua biology has no incentive to buy the remaining equity, let alone the sky high price of 10.5 billion yuan.”In contrast to the founding team of Tianlong, the previous control right was sold cheaply, hoping to become the shareholder of the listed company after the implementation of the second stage plan. Therefore, Tianlong’s demand for negotiation is more urgent than Kehua, and the price is the focus of the game between the two sides.” These people said.

China Securities News reporter learned from various channels that even if it has entered the arbitration procedure, Tianlong still hopes to return to the negotiating table with Kehua biology and make great concessions on the arbitration amount.

In an interview with China Securities News, Kehua biology said that the leaders of the company had held consultations with minority shareholders of Tianlong for many times, and the company had invited the other party to negotiate by written letter for many times since May 2021. The president of the company also put forward negotiation suggestions to the general manager of Tianlong by telephone at the end of 2021, hoping to properly resolve relevant differences, but no positive reply was received from the other party. And stressed that the above facts have been disclosed in the announcement.

Blocking deals:negotiations break down without warning

In May 2020, Kehua changed its ownership. At that time, the largest shareholder LAL company transferred 95.863 million shares (accounting for 18.63%of the total share capital) to Zhuhai Baolian, which is a wholly-owned subsidiary of Gree real estate. Before and after this transaction, the listed company has no actual controller.

With the change of a series of executives, the close partnership between Kehua biology and Tianlong began to become subtle. Especially after Gree real estate took the helm of Kehua biology, the management did not visit Tianlong company, even though Tianlong company had broken out in performance and became the largest profit contributor of listed companies.

Seeing that no one mentioned the subsequent performance of the agreement, the anxious management of Tianlong company began to take the initiative. Insiders of Tianlong company recalled to reporters that at the end of 2020, the person in charge of Tianlong company began to actively contact Kehua, trying to negotiate the follow-up performance details of the Agreement three years ago, and made a special trip to Zhuhai on February 23, 2021 to meet with Lu Junsi, President of Gree real estate, and Zhou Qinqin, chairman of Kehua biology.

“The atmosphere is still very harmonious.” The person commented on the scene of the three people meeting that day. After the other party said that”everything can be discussed”, the person in charge of Tianlong company breathed a sigh of relief and thought that this was a positive signal from the other party. After returning to Xi’an, Tianlong company began to actively promote the negotiation process with the other party, and hired professional institutions to make four basic plans for subsequent performance, but Kehua did not reply.

During this period, we will wait for the news of yikehua to come out again. On May 12, 2021, Kehua biology announced that the company received the notice from the largest shareholder that Zhuhai Baolian, a wholly-owned subsidiary of Gree real estate, signed the share transfer agreement with Shengxiang biology on the same day. Shengxiang biology plans to transfer 95.863 million ordinary shares of Kehua biology held by Zhuhai Baolian at the price of 1.95 billion yuan (equivalent to 20.34 yuan/share), accounting for 18.63%of the total share capital of Kehua biology. The largest shareholder of listed companies will change again.

This made Tianlong company, which was full of confidence in the negotiation, angry and quickly fought back. The founding shareholder of Tianlong filed an arbitration and asked Kehua biology to fulfill the investment agreement, immediately pay the remaining investment price of 10.5 billion yuan, or buy back the shares of Tianlong held by Kehua biology at the corresponding price.

The performance payment of 10.5 billion yuan is undoubtedly an astronomical figure for Kehua biology, whose total market value is only 7 billion yuan. Shortly after the arbitration was initiated, the above-mentioned Kehua change of ownership transaction was quickly aborted. On the evening of August 5, 2021, Shengxiang biology, Gree real estate and Kehua biology collectively announced that Shengxiang biology planned to terminate the acquisition of 18.63%equity of Kehua biology.

For the reason for the arbitration, an insider of Tianlong company admitted to reporters that it is indeed related to the acquisition of Shengxiang biology.”I felt very sudden. At that time, we were discussing the follow-up acquisition with Gree, and the communication was very good. Suddenly, we knew from the announcement that the listed company was going to sell to our competitors.” He said.

Competitors suddenly want to become their own boss, which is unbearable for the founding shareholders of Tianlong company, who have experienced years of hard work and whose performance is in an explosive period.

What makes the management of Tianlong more uneasy is that Tianlong is an important consideration in the acquisition of Shengxiang biology. If the competitor obtains the controlling right of the company, Tianlong company is worried that the later development will be adversely affected. In Tianlong’s view, the initiation of arbitration can set obstacles to the transaction and win more negotiation time.

Shengxiang’s entry into the game:is the meaning of drunken man not wine?

With regard to the purpose of acquiring Kehua biology, Shengxiang biology said in the announcement at that time that the strategic cooperation with Kehua biology would realize the complementary advantages of both sides in the fields of technology platform, product line, channel and market, which would be conducive to further improving the disease solution and whole scene system solution of both sides, and building a more perfect new ecology of in vitro diagnosis application universality and whole scene, It will help promote the construction of the domestic medical and health system.

An insider close to Shengxiang biology told reporters that the acquisition of Kehua biology mainly focuses on the latter’s channels and complements the company’s business. It will be acquired whether there is Tianlong company or not.

However, the reporter’s in-depth investigation found that there were irregularities in the acquisition process, and the relationship between Shengxiang biology and Gree real estate was intriguing.

First, before signing the formal share transfer agreement, Shengxiang biology did not make on-the-spot adjustments to the listed company and its important holding subsidiaries. An insider admitted to reporters that such major equity transfer usually requires more than half a year of contact and detailed adjustment of its assets before signing a formal share transfer agreement.

“From the reaction of Tianlong company, as an important holding subsidiary and profit contributor of listed companies, it has not accepted any adjustment, which makes people feel strange.” These people said.

Secondly, in the case of blocked acquisition and termination of transfer, Shengxiang biology still retains its”irrevocable preemptive right”. On August 5, 2021, Shengxiang biology and Kehua biology both issued an announcement. In addition to announcing the termination of share transfer at this stage, they also added a special agreement, that is,”if the shares of the target company held by the transferor are re transferred, the transferee has the preemptive right under the same conditions, and the priority is irrevocable”.

“When Tianlong company rejects Shengxiang biology, in fact, the best solution for Gree real estate is to find another acquirer, but this clause actually blocks other companies interested in (Kehua Biology) assets. The only explanation is that Gree real estate only wants to sell to specific acquirers.” The above analysis.

Thirdly, after the termination of the acquisition, Kehua biology and Shengxiang biology were not only established了合资公司,科华生物现任高管中还有人被曝出“曾在圣湘生物担任重要职务”。

2021年11月8日晚间,科华生物公告,与圣湘生物签订《投资框架意向书》组建合资公司,并在公告中表示,“合资公司共创阶段,其试剂研发可依托科华生物的仪器技术平台为基础;科华生物现有已获注册证的42项产品及在研37项产品,可以授权给合资公司使用。”

科华生物曾在2021年7月28日发布一项高管任职通知,根据记者获得的相关文件,该人士担任助理总裁职务,分管人力资源工作,并向总裁汇报。而据知情人士透露,该人士曾在圣湘生物担任高管,并在圣湘生物2020年8月上市之时,作为高管和核心人员参与了战略配售投资者“华泰圣湘生物家园1号科创板员工持股集合资产管理计划”,持股比例超过1.5%。

上述事项也成为天隆公司2021年11月开始拒绝配合科华生物预审会计报表和后续审计工作的重要理由之一。天隆公司认为,圣湘生物是公司直接竞争对手,在科华生物与圣湘生物展开合作及存在各种密切关系期间,如继续开放财务资料,直接竞争对手可能获取公司商业和技术秘密,从而损害天隆公司及上市公司全体股东的利益。

天隆公司是否真的像圣湘生物说的属于“可有可无”资产?公开资料显示,2020年天隆公司扣非后净利达到11.06亿元,而科华生物2020年净利为6.75亿元。天隆公司已成为科华生物业绩最大支撑。

记者采访中了解到,天隆公司与圣湘生物存在70%-80%的渠道重合,存在竞争关系。根据圣湘生物2021年5月发布的相关公告,其承诺将在入主科华生物后3年内解决同业竞争问题。

“贡献最大的资产,同时两者又是同业竞争关系,说‘完全不在乎’确实有点牵强。”一位行业人士告诉记者,在检测设备方面,天隆公司产品在国内市场占有半壁江山,市场份额高于圣湘生物,如天隆成为圣湘生物的子公司,圣湘生物大概率会对产品线进行重新整合。

针对收购过程中的种种疑点,以及科华和天隆谈判过程存在的矛盾和争议等问题,科华生物在回复中国证券报记者采访时表示,对于仲裁相关问题,公司已经根据信息披露规定发布了相关公告;案件审理期间,公司不便对仲裁结果作出主观臆测。

仲裁走向:案件有望重塑行业生态

记者了解到,横亘八个月、历经两度延期的科华生物“百亿仲裁案”近期已经完成第一次开庭。根据科华生物3月15日公告,在近期上海新冠肺炎疫情防控形势下,上海国际经济贸易仲裁委员会组织双方当事人采用在线开庭的方式,于2022年3月12日进行了开庭审理,但并未对本次仲裁案作出裁决。

在法律人士看来,无论是金额大小还是事情本身的复杂性和偶然性,这都可以看作是一个特殊的案件,无论仲裁结果如何,都将对上市公司和天隆公司产生巨大影响,并对行业生态和规范性起到至关重要的作用。

对于仲裁庭会否支持科华生物提出的“情势变更”认定,国浩律师事务所樊晖律师表示,认定为“情势变更”的可能性较低,双方于2018年签署的《投资协议书》应为双方真实意图的表达,其中的条款对于不可抗力的因素进行了详细划定。

至于科华生物提出的2020年度天隆公司的业绩已超出订立协议时正常可预见及可预测的范围,该人士认为业绩暴增应属于“商业风险”范畴。

对此,天隆公司相关负责人表示,双方均为医疗类企业,应当了解行业特点。回溯公司历程,多轮业绩增长均来自某类传染病大流行,因此属于双方可以预见的范围,“情势变更”的说法有些牵强。

另一位不愿具名的法律人士表示,科华生物与天隆公司的仲裁案有多种走向,因为需要考虑科华自身现金支付能力以及对其背后广大投资者和市场的影响,目前看天隆公司请求裁决科华生物支付百亿巨款完全获得支持有较大难度。

但如果驳回天隆公司的请求,同时认定科华生物无须支付后续款项,则意味着科华生物“捡了一个大便宜”,而且对于天隆创始股东来说,不仅要承受股权被“贱卖”、丧失公司控制权的尴尬局面,同时还会被严格的竞业条款限制,不太可能重新创业。因此,天隆公司创始股东很可能会通过各种方式与途径与科华生物“长期斗争”,一定程度上会制约公司业务快速发展,错过行业发展黄金期。

上述人士坦言,仲裁可能驳回天隆公司的请求,同时也可能会驳回科华生物的反请求。此时,天隆公司可以请求整体解除合同。若整体解约得到仲裁支持,双方将恢复到股权交易前的状态。这对于科华生物来说,意味着失去了利润贡献最大的子公司,上市公司的业绩会受到很大影响,甚至可能会由盈转亏。

“无论是‘长期斗争’还是‘彻底分手’,对于两家公司以及广大投资者都不是一件好事。”多位法律人士认为,仲裁案裁决关系到两家公司的未来发展,双方都将全力以赴。但也不排除最终双方相互妥协,达成和解的可能性。

业内人士表示,这种分步交易方式A股市场较少,国外市场运用较多,这也为监管方面提供了新样本。目前双方谈判陷入僵局,上市公司审计无法进行,存在被ST风险,希望双方妥善解决争端。

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