Article 1 In order to standardize the conducting of affiliated transactions by listed companies, to improve the compliant operation of listed companies, and to safeguard the interests and rights of listed companies and their shareholders, these Guidelines are formulated in accordance with the Rules of the Shanghai Stock Exchange for Listing Shares (hereinafter referred to as "Share Listing Rules"), the Rule No. 2 on Contents and Format of Information Disclosure for Companies Offering Securities – Contents and Format for Annual Reports and other provisions.
第一條 為規(guī)范上市公司關(guān)聯(lián)交易行為,提高上市公司規(guī)范運(yùn)作水平,保護(hù)上市公司和全體股東的合法權(quán)益,根據(jù)《上海證券交易所股票上市規(guī)則》(以下簡(jiǎn)稱“《股票上市規(guī)則》”)、《公開(kāi)發(fā)行證券的公司信息披露內(nèi)容與格式準(zhǔn)則第2號(hào)<年度報(bào)告的內(nèi)容與格式>》等規(guī)定,制定本指引。
Article 3 The board of directors of a listed company shall provide for the duties of the audit committee or affiliated transaction control committee under the board to perform the control and daily management of related parties.
According to relevant regulatory provisions, the board of directors of banks and of companies in certain industries shall have an affiliated transaction control committee. The Exchange encourages the board of directors of the listed companies with significant affiliated transactions to set up an affiliated transaction control committee.
According to relevant regulatory provisions, the board of directors of banks and of companies in certain industries shall have an affiliated transaction control committee. The Exchange encourages the board of directors of the listed companies with significant affiliated transactions to set up an affiliated transaction control committee.
Article 4 The disclosure of affiliates and affiliated transactions provided in the section other than the financial reports of an interim or regular report of a listed company shall be subject to the Share Listing Rules and the Rule 2 on Contents and Format of Information Disclosure for Companies Offering Securities – Contents and Format for Annual Reports.
The disclosure of affiliates and affiliated transactions provided in the financial reports of a regular report shall be subject to the Enterprise Accounting Principles No. 36 – Disclosure of Affiliated Transactions.
The disclosure of affiliates and affiliated transactions provided in the financial reports of a regular report shall be subject to the Enterprise Accounting Principles No. 36 – Disclosure of Affiliated Transactions.
第四條 上市公司臨時(shí)報(bào)告和定期報(bào)告中非財(cái)務(wù)報(bào)告部分的關(guān)聯(lián)人及關(guān)聯(lián)交易的披露應(yīng)當(dāng)遵守《股票上市規(guī)則》和《公開(kāi)發(fā)行證券的公司信息披露內(nèi)容與格式準(zhǔn)則第2號(hào)<年度報(bào)告的內(nèi)容與格式>》的規(guī)定。
定期報(bào)告中財(cái)務(wù)報(bào)告部分的關(guān)聯(lián)人及關(guān)聯(lián)交易的披露應(yīng)當(dāng)遵守《企業(yè)會(huì)計(jì)準(zhǔn)則第36號(hào)——關(guān)聯(lián)方披露》的規(guī)定。
Article 5 For a company listed both on an overseas stock exchange and on the A-share or B-share market of the Exchange, the disclosure of affiliated transactions and relevant procedures for decision making shall be subject to the provisions of the overseas stock exchange in question and the Exchange.
Chapter 2: Determination of Affiliates and Affiliated Transactions
Article 8 A legal person or other organization falling into one of the followings is an affiliate of a listed company:
(1) Any legal person or other organization that directly or indirectly controls the listed company;
(2) Any legal person or other organization, other than listed company and its controlled subsidiaries, that is directly or indirectly controlled by the legal person or other organization mentioned in (1);
(3) Any legal person or other organization, other than listed company and its controlled subsidiaries, that is directly or indirectly controlled by an affiliated natural person of the listed company as stated in Article 10 or in which the affiliated natural person assumes the position of director or officer;
(4) Any legal person or other organization that holds 5% or more of the stock of the listed company; or
(5) Any other legal person or other organization that, as determined by the Exchange under the "substance over form" principle, has any special relationship with the listed company or may cause a disequilibrium of interests of the listed company, including the legal person or other organization that holds 10% or more of shares of a controlling subsidiary which may have an important influence on the listed company.
(1) Any legal person or other organization that directly or indirectly controls the listed company;
(2) Any legal person or other organization, other than listed company and its controlled subsidiaries, that is directly or indirectly controlled by the legal person or other organization mentioned in (1);
(3) Any legal person or other organization, other than listed company and its controlled subsidiaries, that is directly or indirectly controlled by an affiliated natural person of the listed company as stated in Article 10 or in which the affiliated natural person assumes the position of director or officer;
(4) Any legal person or other organization that holds 5% or more of the stock of the listed company; or
(5) Any other legal person or other organization that, as determined by the Exchange under the "substance over form" principle, has any special relationship with the listed company or may cause a disequilibrium of interests of the listed company, including the legal person or other organization that holds 10% or more of shares of a controlling subsidiary which may have an important influence on the listed company.
(一)直接或者間接控制上市公司的法人或其他組織;
(二)由上述第(一)項(xiàng)所列主體直接或者間接控制的除上市公司及其控股子公司以外的法人或其他組織;
(三)由第十條所列上市公司的關(guān)聯(lián)自然人直接或者間接控制的,或者由關(guān)聯(lián)自然人擔(dān)任董事、高級(jí)管理人員的除上市公司及其控股子公司以外的法人或其他組織;
(四)持有上市公司5%以上股份的法人或其他組織;
(五)本所根據(jù)實(shí)質(zhì)重于形式原則認(rèn)定的其他與上市公司有特殊關(guān)系,可能導(dǎo)致上市公司利益對(duì)其傾斜的法人或其他組織,包括持有對(duì)上市公司具有重要影響的控股子公司10%以上股份的法人或其他組織等。
Article 9 Where a listed company and the subjects as stated in Item (2) of the preceding paragraph are subject to the same control of a state-owned assets administrative agency, no affiliated relationship is created thereby, except for the circumstances under which the legal representative, general manager or one half of the directors of the subjects concurrently act as the director, supervisor or officer of the listed company.
Article 10 A natural person falling into one of the followings is considered an affiliated natural person of a listed company:
(1) Any natural persons who directly or indirectly holds 5% or more of the shares of the listed company;
(2) The directors, supervisors or officers of the listed company;
(3) The directors, supervisors and officers of the affiliated legal persons as stated in Item (1) of Article 8;
(4) Family members that have a close relationship with a person as specified in Items (1) and (2) of this Article; or
(5) Other natural persons as determined by the Exchange under the "substance over form" principle that have any special relationship with the listed company or may cause a disequilibrium of interests of the listed company, including a natural person which holds 10% or more of shares of a controlling subsidiary which may have an important influence on the listed company.
(1) Any natural persons who directly or indirectly holds 5% or more of the shares of the listed company;
(2) The directors, supervisors or officers of the listed company;
(3) The directors, supervisors and officers of the affiliated legal persons as stated in Item (1) of Article 8;
(4) Family members that have a close relationship with a person as specified in Items (1) and (2) of this Article; or
(5) Other natural persons as determined by the Exchange under the "substance over form" principle that have any special relationship with the listed company or may cause a disequilibrium of interests of the listed company, including a natural person which holds 10% or more of shares of a controlling subsidiary which may have an important influence on the listed company.
(一)直接或間接持有上市公司5%以上股份的自然人;
(二)上市公司董事、監(jiān)事和高級(jí)管理人員;
(三)第八條第(一)項(xiàng)所列關(guān)聯(lián)法人的董事、監(jiān)事和高級(jí)管理人員;
(四)本條第(一)項(xiàng)和第(二)項(xiàng)所述人士的關(guān)系密切的家庭成員;
(五)本所根據(jù)實(shí)質(zhì)重于形式原則認(rèn)定的其他與上市公司有特殊關(guān)系,可能導(dǎo)致上市公司利益對(duì)其傾斜的自然人,包括持有對(duì)上市公司具有重要影響的控股子公司10%以上股份的自然人等。
Article 11 A legal person, other organizations or natural person falling into one of the followings is considered an affiliate of a listed company:
(1) Any person or other organization that, according to the relevant agreements and arrangements concluded with the listed company or its affiliates, will fall into any of the circumstances as prescribed in Article 8 or 10 after the said agreements or arrangements take effect or in the upcoming 12 months ; and
(2) Any legal persons, other organizations, or natural persons that have fallen into any of the circumstances as stated in Article 8 or 10 in the past 12 months.
(1) Any person or other organization that, according to the relevant agreements and arrangements concluded with the listed company or its affiliates, will fall into any of the circumstances as prescribed in Article 8 or 10 after the said agreements or arrangements take effect or in the upcoming 12 months ; and
(2) Any legal persons, other organizations, or natural persons that have fallen into any of the circumstances as stated in Article 8 or 10 in the past 12 months.
Article 12 Affiliated transaction of a listed company refers to the matters that may cause the transfer of resources or obligations between a listed company or its controlled subsidiary and an affiliate of the listed company, including:
(1) Purchase or sale of assets;
(2) Investment (including trust management of finances, trusted loans, etc.);
(3) Provision of financial assistant;
(4) Provision of security;
(5) Leasing or rent-out of assets;
(6) Entrusting or entrusted management of assets and operations;
(7) Donating assets or receiving donated assets;
(8) Restructuring of creditor's right or debts;
(9) Conclusion of licensing agreement;
(10) Transferring or acquiring research and development projects;
(11) Purchase of raw materials, fuels, and power;
(12) Sale of products or goods;
(13) Supplying or receiving labor services;
(14) Entrusting or entrusted sales;
(15) Deposits in or loans from financial company of an affiliate;
(16) Joint investment with the affiliate; and
(17) Other matters the Exchange deems in accordance with the substance over form principle likely to lead to the transfer of resources or obligations through agreement, including providing the company jointly invested with the affiliate with financial aid or guarantee that exceeds its equity or investment proportion, or waiving the right of first refusal or the right to proportionally increase its holding in such jointly invested company.
(1) Purchase or sale of assets;
(2) Investment (including trust management of finances, trusted loans, etc.);
(3) Provision of financial assistant;
(4) Provision of security;
(5) Leasing or rent-out of assets;
(6) Entrusting or entrusted management of assets and operations;
(7) Donating assets or receiving donated assets;
(8) Restructuring of creditor's right or debts;
(9) Conclusion of licensing agreement;
(10) Transferring or acquiring research and development projects;
(11) Purchase of raw materials, fuels, and power;
(12) Sale of products or goods;
(13) Supplying or receiving labor services;
(14) Entrusting or entrusted sales;
(15) Deposits in or loans from financial company of an affiliate;
(16) Joint investment with the affiliate; and
(17) Other matters the Exchange deems in accordance with the substance over form principle likely to lead to the transfer of resources or obligations through agreement, including providing the company jointly invested with the affiliate with financial aid or guarantee that exceeds its equity or investment proportion, or waiving the right of first refusal or the right to proportionally increase its holding in such jointly invested company.
第十二條 上市公司的關(guān)聯(lián)交易，是指上市公司或者其控股子公司與上市公司關(guān)聯(lián)人之間發(fā)生的可能導(dǎo)致轉(zhuǎn)移資源或者義務(wù)的事項(xiàng)，包括:
（一）購(gòu)買(mǎi)或者出售資產(chǎn);
（二）對(duì)外投資（含委托理財(cái)、委托貸款等）;
（三）提供財(cái)務(wù)資助;
（四）提供擔(dān)保;
（五）租入或者租出資產(chǎn);
（六）委托或者受托管理資產(chǎn)和業(yè)務(wù);
（七）贈(zèng)與或者受贈(zèng)資產(chǎn);
（八）債權(quán)、債務(wù)重組;
（九）簽訂許可使用協(xié)議;
（十）轉(zhuǎn)讓或者受讓研究與開(kāi)發(fā)項(xiàng)目;
（十一）購(gòu)買(mǎi)原材料、燃料、動(dòng)力;
（十二）銷(xiāo)售產(chǎn)品、商品;
（十三）提供或者接受勞務(wù);
（十四）委托或者受托銷(xiāo)售;
（十五）在關(guān)聯(lián)人的財(cái)務(wù)公司存貸款;
（十六）與關(guān)聯(lián)人共同投資。
（十七）本所根據(jù)實(shí)質(zhì)重于形式原則認(rèn)定的其他通過(guò)約定可能引致資源或者義務(wù)轉(zhuǎn)移的事項(xiàng)，包括向與關(guān)聯(lián)人共同投資的公司提供大于其股權(quán)比例或投資比例的財(cái)務(wù)資助、擔(dān)保以及放棄向與關(guān)聯(lián)人共同投資的公司同比例增資或優(yōu)先受讓權(quán)等。
Article 16 An affiliated natural person of a listed company shall report the following information:
(1) Name and identity number; and
(2) Description of the affiliated relationship with the listed company.
An affiliated legal person of a listed company shall report the following information:
(1) Name and the organization code of the legal person; and
(2) Description of the affiliated relationship with the listed company.
(1) Name and identity number; and
(2) Description of the affiliated relationship with the listed company.
An affiliated legal person of a listed company shall report the following information:
(1) Name and the organization code of the legal person; and
(2) Description of the affiliated relationship with the listed company.
Article 17 A listed company shall reveal its relationship with an affiliate layer by layer and state:
(1) Full name and organization code (if available) of the controlling party or the party holding the shares;
(2) Full name and organization code (if available) of the controlled party or the investee; and
(3) The total share capitals held by the controlling party or the investing party in the controlled party or the investee.
(1) Full name and organization code (if available) of the controlling party or the party holding the shares;
(2) Full name and organization code (if available) of the controlled party or the investee; and
(3) The total share capitals held by the controlling party or the investing party in the controlled party or the investee.
Chapter 4: Disclosure of Affiliated Transactions and Decision-Making Procedures
Article 19 Any contemplated affiliated transaction between a listed company and its affiliated legal person in an amount over 3 million yuan and accounting for 0.5% or more of the absolute value of the company's latest audited net assets (except for that for which the listed company has provided a security) shall be disclosed in a timely manner.
Article 20 A contemplated affiliated transaction between a listed company and its affiliate shall, in addition to the timely disclosure requirement, also be submitted to the board of directors and the board of shareholders for review if it reaches any of the followings:
(1) Any significant affiliated transaction (excl guarantees offered by the listed company, cash assets donated to the listed company and debts exempted for the company) involving an amount over 30 million yuan and accounting for 5% or more of the audited absolute value of the company's net assets for the latest reporting period. Where a listed company contemplates an important affiliated transaction, it shall provide the audit or appraisal reports issued by the securities service institution with the qualification of practicing businesses related to securities and futures on the transaction underlying. For transaction underlying involving the affiliated transactions concerning the daily operations as stated in Chapter 7, no audit or appraisal is required; or
(2) The listed company provides the affiliate with a security.
(1) Any significant affiliated transaction (excl guarantees offered by the listed company, cash assets donated to the listed company and debts exempted for the company) involving an amount over 30 million yuan and accounting for 5% or more of the audited absolute value of the company's net assets for the latest reporting period. Where a listed company contemplates an important affiliated transaction, it shall provide the audit or appraisal reports issued by the securities service institution with the qualification of practicing businesses related to securities and futures on the transaction underlying. For transaction underlying involving the affiliated transactions concerning the daily operations as stated in Chapter 7, no audit or appraisal is required; or
(2) The listed company provides the affiliate with a security.
第二十條 上市公司與關(guān)聯(lián)人擬發(fā)生的關(guān)聯(lián)交易達(dá)到以下標(biāo)準(zhǔn)之一的,除應(yīng)當(dāng)及時(shí)披露外,還應(yīng)當(dāng)提交董事會(huì)和股東大會(huì)審議:
(一)交易(上市公司提供擔(dān)保、受贈(zèng)現(xiàn)金資產(chǎn)、單純減免上市公司義務(wù)的債務(wù)除外)金額在3000萬(wàn)元以上,且占上市公司最近一期經(jīng)審計(jì)凈資產(chǎn)絕對(duì)值5%以上的重大關(guān)聯(lián)交易。上市公司擬發(fā)生重大關(guān)聯(lián)交易的,應(yīng)當(dāng)提供具有執(zhí)行證券、期貨相關(guān)業(yè)務(wù)資格的證券服務(wù)機(jī)構(gòu)對(duì)交易標(biāo)的出具的審計(jì)或者評(píng)估報(bào)告。對(duì)于第七章所述與日常經(jīng)營(yíng)相關(guān)的關(guān)聯(lián)交易所涉及的交易標(biāo)的,可以不進(jìn)行審計(jì)或者評(píng)估;
(二)上市公司為關(guān)聯(lián)人提供擔(dān)保。
Article 22 Where a listed company tends not to subscribe a same proportion of capital increase in the company jointly invested with the affiliate or tends to waive the preemptive right, the amount of transaction shall be the amount involved in the listed company's waiver of its right to subscribe in the capital increase or the preemptive right, and the provisions of Articles 18, 19 and paragraph (1) of Article 20 shall apply.
Where a listed company's waiver of its right to subscribe a capital increase or the preemptive right may cause any change to the scope of its consolidated statement, the amount of transaction shall be the total net assets of the company corresponding to the waiver in the latest period, and the provision of Articles 18, 19 and paragraph (1) of Article 20 shall apply.
Where a listed company's waiver of its right to subscribe a capital increase or the preemptive right may cause any change to the scope of its consolidated statement, the amount of transaction shall be the total net assets of the company corresponding to the waiver in the latest period, and the provision of Articles 18, 19 and paragraph (1) of Article 20 shall apply.
第二十二條 上市公司擬放棄向與關(guān)聯(lián)人共同投資的公司同比例增資或優(yōu)先受讓權(quán)的,應(yīng)當(dāng)以上市公司放棄增資權(quán)或優(yōu)先受讓權(quán)所涉及的金額為交易金額,適用第十八條、第十九條、和第二十條第(一)項(xiàng)的規(guī)定。
上市公司因放棄增資權(quán)或優(yōu)先受讓權(quán)將導(dǎo)致上市公司合并報(bào)表范圍發(fā)生變更的,應(yīng)當(dāng)以上市公司擬放棄增資權(quán)或優(yōu)先受讓權(quán)所對(duì)應(yīng)的公司的最近一期末全部?jī)糍Y產(chǎn)為交易金額,適用第十八條、第十九條和第二十條第(一)項(xiàng)的規(guī)定。
Article 24 Where a listed company conducts any of the following affiliated transactions, it shall, under the principle of accumulative calculation for a consecutive 12 months, calculate the amount of the transaction and shall apply the provisions of Articles 18, 19 and paragraph (1) of Article 20 respectively:
(1) The transaction conducted with the same affiliate; and
(2) The transactions conducted with different affiliates, of which the category of transaction underlying is related.
The same affiliate as specified above includes being under the same direct or indirect control of a legal person or other organization with the affiliate or having mutual equity control relationship; and legal person or other organization in which the same affiliated natural person acts as the director or officer.
Any affiliated transaction for which the decision making procedures have been performed in the board of shareholders in accordance with the accumulated calculation principle needs not be included in relevant calculation.
(1) The transaction conducted with the same affiliate; and
(2) The transactions conducted with different affiliates, of which the category of transaction underlying is related.
The same affiliate as specified above includes being under the same direct or indirect control of a legal person or other organization with the affiliate or having mutual equity control relationship; and legal person or other organization in which the same affiliated natural person acts as the director or officer.
Any affiliated transaction for which the decision making procedures have been performed in the board of shareholders in accordance with the accumulated calculation principle needs not be included in relevant calculation.
第二十四條 上市公司進(jìn)行下列關(guān)聯(lián)交易的,應(yīng)當(dāng)按照連續(xù)十二個(gè)月內(nèi)累計(jì)計(jì)算的原則,計(jì)算關(guān)聯(lián)交易金額,分別適用第十八條、第十九條、和第二十條第(一)項(xiàng)的規(guī)定:
(一)與同一關(guān)聯(lián)人進(jìn)行的交易;
(二)與不同關(guān)聯(lián)人進(jìn)行的交易標(biāo)的類(lèi)別相關(guān)的交易。
上述同一關(guān)聯(lián)人,包括與該關(guān)聯(lián)人受同一法人或其他組織或者自然人直接或間接控制的,或相互存在股權(quán)控制關(guān)系;以及由同一關(guān)聯(lián)自然人擔(dān)任董事或高級(jí)管理人員的法人或其他組織。
已經(jīng)按照累計(jì)計(jì)算原則履行股東大會(huì)決策程序的,不再納入相關(guān)的累計(jì)計(jì)算范圍。
Article 25 Where a listed company plans to conduct an important affiliated transaction with its affiliate, it shall refer the transaction to the board of directors for consideration after the independent directors deliver prior approval opinions. Before making any judgment, an independent director may engage an independent financing adviser to produce a report and then use the report as the basis of its judgment.
The audit committee of a listed company (or control committee of affiliated transaction) shall also review the matters concerning the affiliated transaction and produce its written opinions, which shall be delivered to the board of directors for consideration and meanwhile reported to the board of supervisors. The audit committee (or control committee of affiliated transaction) may engage an independent financing adviser to produce a report and use such report as a basis of judgment.
The audit committee of a listed company (or control committee of affiliated transaction) shall also review the matters concerning the affiliated transaction and produce its written opinions, which shall be delivered to the board of directors for consideration and meanwhile reported to the board of supervisors. The audit committee (or control committee of affiliated transaction) may engage an independent financing adviser to produce a report and use such report as a basis of judgment.
第二十五條 上市公司擬與關(guān)聯(lián)人發(fā)生重大關(guān)聯(lián)交易的,應(yīng)當(dāng)在獨(dú)立董事發(fā)表事前認(rèn)可意見(jiàn)后,提交董事會(huì)審議。獨(dú)立董事作出判斷前,可以聘請(qǐng)獨(dú)立財(cái)務(wù)顧問(wèn)出具報(bào)告,作為其判斷的依據(jù)。
上市公司審計(jì)委員會(huì)(或關(guān)聯(lián)交易控制委員會(huì))應(yīng)當(dāng)同時(shí)對(duì)該關(guān)聯(lián)交易事項(xiàng)進(jìn)行審核,形成書(shū)面意見(jiàn),提交董事會(huì)審議,并報(bào)告監(jiān)事會(huì)。審計(jì)委員會(huì)(或關(guān)聯(lián)交易控制委員會(huì))可以聘請(qǐng)獨(dú)立財(cái)務(wù)顧問(wèn)出具報(bào)告,作為其判斷的依據(jù)。
Article 26 When the board of directors of a listed company considers any affiliated transaction matters, the affiliated director shall withdraw from voting nor exercise the voting right on behalf of other directors.
Such meeting of the board of directors may be held so long as a majority of non-affiliated directors present, and any resolution made at the meeting of the board of directors shall be adopted by a majority of the non-affiliated directors. Where the number of non-affiliated directors presenting at the meeting of the board of directors is less than three, the company shall submit the transaction to the board of shareholders for consideration.
Such meeting of the board of directors may be held so long as a majority of non-affiliated directors present, and any resolution made at the meeting of the board of directors shall be adopted by a majority of the non-affiliated directors. Where the number of non-affiliated directors presenting at the meeting of the board of directors is less than three, the company shall submit the transaction to the board of shareholders for consideration.
第二十六條 上市公司董事會(huì)審議關(guān)聯(lián)交易事項(xiàng)時(shí),關(guān)聯(lián)董事應(yīng)當(dāng)回避表決,也不得代理其他董事行使表決權(quán)。
該董事會(huì)會(huì)議由過(guò)半數(shù)的非關(guān)聯(lián)董事出席即可舉行,董事會(huì)會(huì)議所作決議須經(jīng)非關(guān)聯(lián)董事過(guò)半數(shù)通過(guò)。出席董事會(huì)會(huì)議的非關(guān)聯(lián)董事人數(shù)不足三人的,公司應(yīng)當(dāng)將交易提交股東大會(huì)審議。
Article 29 The control committee of affiliated transaction established under the board of directors of a listed company shall meet the following conditions:
(1) Consisting of at least three directors, of which independent directors shall make up the majority, and at least one of the independent directors shall be a professional accountant;
(2) With an independent director acting as the chairman and being in charge of presiding over the work of the control committee of the affiliated transaction;
(3) No member of the control committee of affiliated transaction shall be nominated or recommended by the controlling shareholders (except for independent directors) or be any person who holds a position in the organization of any controlling shareholder; and
(4) Any other conditions required by the Exchange.
(1) Consisting of at least three directors, of which independent directors shall make up the majority, and at least one of the independent directors shall be a professional accountant;
(2) With an independent director acting as the chairman and being in charge of presiding over the work of the control committee of the affiliated transaction;
(3) No member of the control committee of affiliated transaction shall be nominated or recommended by the controlling shareholders (except for independent directors) or be any person who holds a position in the organization of any controlling shareholder; and
(4) Any other conditions required by the Exchange.
（一）至少應(yīng)由三名董事組成，其中獨(dú)立董事應(yīng)占多數(shù)，獨(dú)立董事中至少有一名會(huì)計(jì)專業(yè)人士;
（二）由獨(dú)立董事?lián)沃魅挝瘑T，負(fù)責(zé)主持關(guān)聯(lián)交易控制委員會(huì)的工作;
（三）關(guān)聯(lián)交易控制委員會(huì)委員不得由控股股東提名、推薦（獨(dú)立董事除外）或在控股股東單位任職的人員擔(dān)任;
（四）本所要求的其他條件。
Article 30 In conducting any affiliated transaction, a listed company shall sign a written agreement to specify the pricing policy for the affiliated transaction. In the event of any important change to the major clauses of the agreement concerning the transaction price in the process of execution of the affiliated transaction, the listed company shall go through again the corresponding examination and approval procedures based upon the changed amount of transaction.
Article 31 The affiliated transaction of a listed company shall be priced fairly by reference to the following principles:
(1) Where there is a price set by the government for an affiliated transaction, such a price shall apply;
(2) Where there is a government guidance price for such a transaction, the ultimate price may be set within the indicative range set by the government;
(3) Despite government price or guidance price, the price for an affiliated transaction may be set based on the market price or charge standard of a comparable independent third party as long as such a price or standard is available.
(4) Where such a market price is not available, the price may be based on the transacting price of a deal between the affiliate of the listed company in question and a third party independent of the affiliate;
(5) Where there is neither a market price of an independent third party nor a price of non-affiliated transaction as relevant, an appropriate composite price, comprised of reasonable cost and expenses and profit, may be used as a basis for pricing.
(1) Where there is a price set by the government for an affiliated transaction, such a price shall apply;
(2) Where there is a government guidance price for such a transaction, the ultimate price may be set within the indicative range set by the government;
(3) Despite government price or guidance price, the price for an affiliated transaction may be set based on the market price or charge standard of a comparable independent third party as long as such a price or standard is available.
(4) Where such a market price is not available, the price may be based on the transacting price of a deal between the affiliate of the listed company in question and a third party independent of the affiliate;
(5) Where there is neither a market price of an independent third party nor a price of non-affiliated transaction as relevant, an appropriate composite price, comprised of reasonable cost and expenses and profit, may be used as a basis for pricing.
(一)交易事項(xiàng)實(shí)行政府定價(jià)的,可以直接適用該價(jià)格;
(二)交易事項(xiàng)實(shí)行政府指導(dǎo)價(jià)的,可以在政府指導(dǎo)價(jià)的范圍內(nèi)合理確定交易價(jià)格;
(三)除實(shí)行政府定價(jià)或政府指導(dǎo)價(jià)外,交易事項(xiàng)有可比的獨(dú)立第三方的市場(chǎng)價(jià)格或收費(fèi)標(biāo)準(zhǔn)的,可以優(yōu)先參考該價(jià)格或標(biāo)準(zhǔn)確定交易價(jià)格;
(四)關(guān)聯(lián)事項(xiàng)無(wú)可比的獨(dú)立第三方市場(chǎng)價(jià)格的,交易定價(jià)可以參考關(guān)聯(lián)方與獨(dú)立于關(guān)聯(lián)方的第三方發(fā)生非關(guān)聯(lián)交易價(jià)格確定;
(五)既無(wú)獨(dú)立第三方的市場(chǎng)價(jià)格,也無(wú)獨(dú)立的非關(guān)聯(lián)交易價(jià)格可供參考的,可以合理的構(gòu)成價(jià)格作為定價(jià)的依據(jù),構(gòu)成價(jià)格為合理成本費(fèi)用加合理利潤(rùn)。
Article 32 When setting the price for an affiliated transaction based on Item (3), (4) or (5) of the preceding article, a listed company may use one of the following methods, depending on the nature of the transaction:
(1) Cost-plus pricing, which prices an affiliated transaction at the reasonable cost of the transaction plus the gross profit of a comparable non-affiliated transaction, and which is applicable to procurement, sale, transfer and use of tangible assets, provision of services, financing and other affiliated transactions;
(2) Resale, price method where the fair price at which the affiliated party purchases goods is the price at which it sells the same previously purchased less the gross profit of a comparable non-affiliated transaction. This method applies to the simple processing of goods by the reseller other than any substantial value-added processing that changes the look, property, structure or trademark of the goods, or the outright purchase and sale of the same;
(3) The comparable uncontrolled price method, which prices an affiliated transaction at the level for a business activity between unrelated parties the same as or similar with the affiliated transaction in question. This method applies to all the types of affiliated transactions;
(4) The transactional net margin method, which determines the net margin of an affiliated transaction using the margin of a comparable non-affiliated transaction. This method is applicable to procurement, sale, transfer and use of tangible assets, provision of services, and other affiliated transactions;
(5) The profit split method, which calculates attributable profits of the listed company and the transacting affiliate based on their respective contribution to the consolidated profit in connection with the affiliated transaction. This method is applied where an affiliated transaction is highly integrated and where the results of the transaction are difficult to be assessed separately for each trading party.
(1) Cost-plus pricing, which prices an affiliated transaction at the reasonable cost of the transaction plus the gross profit of a comparable non-affiliated transaction, and which is applicable to procurement, sale, transfer and use of tangible assets, provision of services, financing and other affiliated transactions;
(2) Resale, price method where the fair price at which the affiliated party purchases goods is the price at which it sells the same previously purchased less the gross profit of a comparable non-affiliated transaction. This method applies to the simple processing of goods by the reseller other than any substantial value-added processing that changes the look, property, structure or trademark of the goods, or the outright purchase and sale of the same;
(3) The comparable uncontrolled price method, which prices an affiliated transaction at the level for a business activity between unrelated parties the same as or similar with the affiliated transaction in question. This method applies to all the types of affiliated transactions;
(4) The transactional net margin method, which determines the net margin of an affiliated transaction using the margin of a comparable non-affiliated transaction. This method is applicable to procurement, sale, transfer and use of tangible assets, provision of services, and other affiliated transactions;
(5) The profit split method, which calculates attributable profits of the listed company and the transacting affiliate based on their respective contribution to the consolidated profit in connection with the affiliated transaction. This method is applied where an affiliated transaction is highly integrated and where the results of the transaction are difficult to be assessed separately for each trading party.
第三十二條 上市公司按照前條第(三)項(xiàng)、第(四)項(xiàng)或者第(五)項(xiàng)確定關(guān)聯(lián)交易價(jià)格時(shí),可以視不同的關(guān)聯(lián)交易情形采用下列定價(jià)方法:
(一)成本加成法,以關(guān)聯(lián)交易發(fā)生的合理成本加上可比非關(guān)聯(lián)交易的毛利定價(jià)。適用于采購(gòu)、銷(xiāo)售、有形資產(chǎn)的轉(zhuǎn)讓和使用、勞務(wù)提供、資金融通等關(guān)聯(lián)交易;
(二)再銷(xiāo)售價(jià)格法,以關(guān)聯(lián)方購(gòu)進(jìn)商品再銷(xiāo)售給非關(guān)聯(lián)方的價(jià)格減去可比非關(guān)聯(lián)交易毛利后的金額作為關(guān)聯(lián)方購(gòu)進(jìn)商品的公平成交價(jià)格。適用于再銷(xiāo)售者未對(duì)商品進(jìn)行改變外型、性能、結(jié)構(gòu)或更換商標(biāo)等實(shí)質(zhì)性增值加工的簡(jiǎn)單加工或單純的購(gòu)銷(xiāo)業(yè)務(wù);
(三)可比非受控價(jià)格法,以非關(guān)聯(lián)方之間進(jìn)行的與關(guān)聯(lián)交易相同或類(lèi)似業(yè)務(wù)活動(dòng)所收取的價(jià)格定價(jià)。適用于所有類(lèi)型的關(guān)聯(lián)交易;
(四)交易凈利潤(rùn)法,以可比非關(guān)聯(lián)交易的利潤(rùn)水平指標(biāo)確定關(guān)聯(lián)交易的凈利潤(rùn)。適用于采購(gòu)、銷(xiāo)售、有形資產(chǎn)的轉(zhuǎn)讓和使用、勞務(wù)提供等關(guān)聯(lián)交易;
(五)利潤(rùn)分割法,根據(jù)上市公司與其關(guān)聯(lián)方對(duì)關(guān)聯(lián)交易合并利潤(rùn)的貢獻(xiàn)計(jì)算各自應(yīng)該分配的利潤(rùn)額。適用于各參與方關(guān)聯(lián)交易高度整合且難以單獨(dú)評(píng)估各方交易結(jié)果的情況。
Chapter 6: Contents to be Disclosed for Affiliates and Related party transactions
Article 35 In disclosing an affiliated transaction, a listed company shall present the Exchange with the following documents:
(1) Announcement;
(2) Agreements and letter of intent related to the transaction; resolutions of the board of directors, announcements of the resolutions, approval documents (if applicable) involving the transaction as issued by the authorities, and professional reports issued by the securities service agencies (if applicable);
(3) Written documents proving the prior approval of the transaction by the independent director;
(4) opinions of the independent director;
(5) Opinions of the audit committee (or the control committee of the affiliated transaction) ( if applicable); and
(6) Other documents as required by the Exchange.
(1) Announcement;
(2) Agreements and letter of intent related to the transaction; resolutions of the board of directors, announcements of the resolutions, approval documents (if applicable) involving the transaction as issued by the authorities, and professional reports issued by the securities service agencies (if applicable);
(3) Written documents proving the prior approval of the transaction by the independent director;
(4) opinions of the independent director;
(5) Opinions of the audit committee (or the control committee of the affiliated transaction) ( if applicable); and
(6) Other documents as required by the Exchange.
(一)公告文稿;
(二)與交易有關(guān)的協(xié)議或者意向書(shū);董事會(huì)決議、決議公告文稿;交易涉及的有權(quán)機(jī)關(guān)的批文(如適用);證券服務(wù)機(jī)構(gòu)出具的專業(yè)報(bào)告(如適用);
(三)獨(dú)立董事事前認(rèn)可該交易的書(shū)面文件;
(四)獨(dú)立董事的意見(jiàn);
(五)審計(jì)委員會(huì)(或關(guān)聯(lián)交易控制委員會(huì))的意見(jiàn)(如適用);
(六)本所要求的其他文件。
Article 36 Disclosure of an affiliated transaction by a listed company shall include:
(1) A briefing of the affiliated transaction;
(2) Introduction of the affiliate;
(3) Basics about the subject of the affiliated transaction;
(4) Main contents of the affiliated transaction and the pricing policy;
(5) Purpose of the affiliated transaction and its influence on the listed company;
(6) Prior approval and independent opinions of the independent director;
(7) Opinions of independent financial advisers (if applicable);
(8) Opinions of the audit committee (or the control committee of the affiliated transaction) ( if applicable);
(9) Information of previous affiliated transactions; and
(10) Commitments made by controlling shareholders (if available).
(1) A briefing of the affiliated transaction;
(2) Introduction of the affiliate;
(3) Basics about the subject of the affiliated transaction;
(4) Main contents of the affiliated transaction and the pricing policy;
(5) Purpose of the affiliated transaction and its influence on the listed company;
(6) Prior approval and independent opinions of the independent director;
(7) Opinions of independent financial advisers (if applicable);
(8) Opinions of the audit committee (or the control committee of the affiliated transaction) ( if applicable);
(9) Information of previous affiliated transactions; and
(10) Commitments made by controlling shareholders (if available).
(一)關(guān)聯(lián)交易概述;
(二)關(guān)聯(lián)人介紹;
(三)關(guān)聯(lián)交易標(biāo)的的基本情況;
(四)關(guān)聯(lián)交易的主要內(nèi)容和定價(jià)政策;
(五)該關(guān)聯(lián)交易的目的以及對(duì)上市公司的影響;
(六)獨(dú)立董事的事前認(rèn)可情況和發(fā)表的獨(dú)立意見(jiàn);
(七)獨(dú)立財(cái)務(wù)顧問(wèn)的意見(jiàn)(如適用);
(八)審計(jì)委員會(huì)(或關(guān)聯(lián)交易控制委員會(huì))的意見(jiàn)(如適用);
(九)歷史關(guān)聯(lián)交易情況;
(十)控股股東承諾(如有)。
Article 38 A listed company's disclosure of an affiliated transaction related to its daily operation shall include:
(1) The parties to the affiliated transaction;
(2) Contents of the transaction;
(3) Pricing policy;
(4) Price of the transaction, where the market price of the same type of transaction is made available, reference market price shall be disclosed; in the case of a larger gap between the actual trading price and the reference market price, the reason shall be explained;
(5) The transaction amount and its proportion in the amount of the same type of transaction and the method of settlement;
(6) Details about the return of large sales (if any);
(7) The necessity and continuity of the affiliated transaction, reasons for selecting the affiliate (instead of other transaction parties in the market) to conduct the transaction, influence of the affiliated transaction on the independence of the company, the degree of dependence on the affiliate and the relevant measures (if any); and
(8) Should the total amount of the daily affiliated transactions to be happened in the year be estimated based upon the type, it is required to disclose the actual performance of the matters (if any) related to the daily affiliated transactions in the reporting period.
(1) The parties to the affiliated transaction;
(2) Contents of the transaction;
(3) Pricing policy;
(4) Price of the transaction, where the market price of the same type of transaction is made available, reference market price shall be disclosed; in the case of a larger gap between the actual trading price and the reference market price, the reason shall be explained;
(5) The transaction amount and its proportion in the amount of the same type of transaction and the method of settlement;
(6) Details about the return of large sales (if any);
(7) The necessity and continuity of the affiliated transaction, reasons for selecting the affiliate (instead of other transaction parties in the market) to conduct the transaction, influence of the affiliated transaction on the independence of the company, the degree of dependence on the affiliate and the relevant measures (if any); and
(8) Should the total amount of the daily affiliated transactions to be happened in the year be estimated based upon the type, it is required to disclose the actual performance of the matters (if any) related to the daily affiliated transactions in the reporting period.
(一)關(guān)聯(lián)交易方;
(二)交易內(nèi)容;
(三)定價(jià)政策;
(四)交易價(jià)格,可以獲得同類(lèi)交易市場(chǎng)價(jià)格的,應(yīng)披露市場(chǎng)參考價(jià)格,實(shí)際交易價(jià)格與市場(chǎng)參考價(jià)格差異較大的,應(yīng)說(shuō)明原因;
(五)交易金額及占同類(lèi)交易金額的比例、結(jié)算方式;
(六)大額銷(xiāo)貨退回的詳細(xì)情況(如有);
(七)關(guān)聯(lián)交易的必要性、持續(xù)性、選擇與關(guān)聯(lián)人(而非市場(chǎng)其他交易方)進(jìn)行交易的原因,關(guān)聯(lián)交易對(duì)公司獨(dú)立性的影響,公司對(duì)關(guān)聯(lián)人的依賴程度,以及相關(guān)解決措施(如有);
(八)按類(lèi)別對(duì)當(dāng)年度將發(fā)生的日常關(guān)聯(lián)交易進(jìn)行總金額預(yù)計(jì)的,應(yīng)披露日常關(guān)聯(lián)交易事項(xiàng)在報(bào)告期內(nèi)的實(shí)際履行情況(如有)。
Article 39 A listed company's disclosure of its affiliated transactions related to acquisition and sales of assets shall include:
(1) The parties to the affiliated transactions;
(2) Contents of the transactions;
(3) Pricing policy;
(4) The book value and evaluation value of the assets, the fair market value and the trading price, In the event of a larger gap between the trading price and the book value or evaluation value or the fair market value, the reasons shall be explained; and
(5) Method of settlement and influence of the transactions on the company's operation results and financial situation.
(1) The parties to the affiliated transactions;
(2) Contents of the transactions;
(3) Pricing policy;
(4) The book value and evaluation value of the assets, the fair market value and the trading price, In the event of a larger gap between the trading price and the book value or evaluation value or the fair market value, the reasons shall be explained; and
(5) Method of settlement and influence of the transactions on the company's operation results and financial situation.
(一)關(guān)聯(lián)交易方;
(二)交易內(nèi)容;
(三)定價(jià)政策;
(四)資產(chǎn)的賬面價(jià)值和評(píng)估價(jià)值、市場(chǎng)公允價(jià)值和交易價(jià)格;交易價(jià)格與賬面價(jià)值或評(píng)估價(jià)值、市場(chǎng)公允價(jià)值差異較大的,應(yīng)說(shuō)明原因;
(五)結(jié)算方式及交易對(duì)公司經(jīng)營(yíng)成果和財(cái)務(wù)狀況的影響情況。
Article 40 A listed company's disclosure of any affiliated transaction happened in the process of joint investment with the affiliate shall include:
(1) the parties to the joint investment;
(2) Name of the investee, its primary business, registered capital, total assets, net assets, and net profits; and
(3) Information about the progress of important projects under construction (if any).
(1) the parties to the joint investment;
(2) Name of the investee, its primary business, registered capital, total assets, net assets, and net profits; and
(3) Information about the progress of important projects under construction (if any).
Chapter 7: Special Provisions on Recurring Affiliated Transaction Disclosure and Decision-making Procedures
Article 43 For a initial recurring affiliated transaction, the listed company shall sign a written agreement with the affiliates and disclose in a timely manner, and present the agreement to the board of directors or the board of shareholders for review, depending on the total amount involved. Where there is no total amount involved, the agreement shall be presented to the board of shareholders for review.
Article 44 For a listed company with a significant number of recurring affiliated transactions, the company shall make a projection on the total amount of recurring affiliated transactions for the current year by category before filing the annual report for the previous year, and present the estimates to the board or board of shareholders for review and make disclosure.
The listed company shall disclose the anticipated recurring affiliated transactions in the annual reports and interim reports in accordance with the requirements of Article 38.
Where the actual total amount exceeds the estimate, the listed party shall resubmit the actual number to the board or board of shareholders for review and make disclosure.
The listed company shall disclose the anticipated recurring affiliated transactions in the annual reports and interim reports in accordance with the requirements of Article 38.
Where the actual total amount exceeds the estimate, the listed party shall resubmit the actual number to the board or board of shareholders for review and make disclosure.
第四十四條 各類(lèi)日常關(guān)聯(lián)交易數(shù)量較多的,上市公司可以在披露上一年年度報(bào)告之前,按類(lèi)別對(duì)公司當(dāng)年度將發(fā)生的日常關(guān)聯(lián)交易總金額進(jìn)行合理預(yù)計(jì),根據(jù)預(yù)計(jì)結(jié)果提交董事會(huì)或者股東大會(huì)審議并披露。
對(duì)于預(yù)計(jì)范圍內(nèi)的日常關(guān)聯(lián)交易,上市公司應(yīng)當(dāng)在年度報(bào)告和半年度報(bào)告中按照第三十八條的要求進(jìn)行披露。
實(shí)際執(zhí)行中超出預(yù)計(jì)總金額的,上市公司應(yīng)當(dāng)根據(jù)超出金額重新提交董事會(huì)或者股東大會(huì)審議并披露。
Article 45 Where there are major changes to the main terms of a recurring affiliated transaction agreement or a renewal is required following the expiration of the agreement, the listed company shall submit the amended or renewed agreement to the board of directors or board of shareholders, depending on the total amount involved, for review and make disclosure in a timely manner. Where there is no total amount involved, the agreement shall be presented to the board of shareholders for review and a timely disclosure shall be made.
Article 46 A recurring affiliated transaction agreement shall include:
(1) Pricing policy and basis;
(2) Transaction price;
(3) Range of the total amount of transactions or the method for the determination of the total amount of transactions;
(4) Time and method of payment;
(5) A comparison with the actual amount of similar recurring affiliated transactions for the previous three years; and
(6) Other main terms for which disclosure is required.
(1) Pricing policy and basis;
(2) Transaction price;
(3) Range of the total amount of transactions or the method for the determination of the total amount of transactions;
(4) Time and method of payment;
(5) A comparison with the actual amount of similar recurring affiliated transactions for the previous three years; and
(6) Other main terms for which disclosure is required.
Article 47 Where the period of a recurring affiliated transaction agreement between the listed company and affiliates exceeds three years, the listed company shall perform relevant decision-making procedures and obligation of disclosure in accordance with the provisions of these Guidelines every three years.
Chapter 8: Special Provisions on Purchase of Assets from Affiliates at Premium
Article 48 For a significant affiliated transaction involving a listed company purchasing assets from an affiliate at a premium of more than 100% over the book value, the listed company shall not only announce the grounds for the premium, but provide the shareholders access to online voting or voting through other media to attend the shareholders meetings, and shall abide by the provisions in Article 49 through Article 52.
Article 49 The listed company shall provide a profitability forecast report for a targeted asset. Such a report shall be audited by an accounting firm with the qualifications in securities and futures related businesses.
Where a profitability forecast report is unavailable, the company shall give explanations, offer risk prompt in the filing for the affiliated transaction, and thoroughly analyze the impact of the transaction on its continued operation capability and future development.
Where a profitability forecast report is unavailable, the company shall give explanations, offer risk prompt in the filing for the affiliated transaction, and thoroughly analyze the impact of the transaction on its continued operation capability and future development.
第四十九條 上市公司應(yīng)當(dāng)提供擬購(gòu)買(mǎi)資產(chǎn)的盈利預(yù)測(cè)報(bào)告。盈利預(yù)測(cè)報(bào)告應(yīng)當(dāng)經(jīng)具有執(zhí)行證券、期貨相關(guān)業(yè)務(wù)資格的會(huì)計(jì)師事務(wù)所審核。
公司無(wú)法提供盈利預(yù)測(cè)報(bào)告的,應(yīng)當(dāng)說(shuō)明原因,在關(guān)聯(lián)交易公告中作出風(fēng)險(xiǎn)提示,并詳細(xì)分析本次關(guān)聯(lián)交易對(duì)公司持續(xù)經(jīng)營(yíng)能力和未來(lái)發(fā)展的影響。
Article 50 Where a listed company assesses and prices an affiliated transaction using the discounted cash flow technique or hypothetical development method that is based on expectation for future revenues, the company shall disclose the discrepancy between the actual profit and the projection for consecutive three years upon the completion of an affiliated transaction, with comments by an accounting firm provided.
The company shall sign a viable compensation agreement with the affiliate for the actual profit below the projection.
The company shall sign a viable compensation agreement with the affiliate for the actual profit below the projection.
第五十條 上市公司以現(xiàn)金流量折現(xiàn)法、假設(shè)開(kāi)發(fā)法等基于未來(lái)收益預(yù)期的估值方法對(duì)擬購(gòu)買(mǎi)資產(chǎn)進(jìn)行評(píng)估并作為定價(jià)依據(jù)的,應(yīng)當(dāng)在關(guān)聯(lián)交易實(shí)施完畢后連續(xù)三年的年度報(bào)告中披露相關(guān)資產(chǎn)的實(shí)際盈利數(shù)與利潤(rùn)預(yù)測(cè)數(shù)的差異,并由會(huì)計(jì)師事務(wù)所出具專項(xiàng)審核意見(jiàn)。
公司應(yīng)當(dāng)與關(guān)聯(lián)人就相關(guān)資產(chǎn)實(shí)際盈利數(shù)不足利潤(rùn)預(yù)測(cè)數(shù)的情況簽訂明確可行的補(bǔ)償協(xié)議。
Article 51 Where a listed company assesses and prices an affiliated transaction using the discounted cash flow technique or hypothetical development method, the company shall disclose the data generated by the two assessment methods including one of the followings, and the independent directors shall give comments on the independence, appropriateness of the assumptions for the assessment and the fairness of the pricing.
第五十一條 上市公司以現(xiàn)金流量折現(xiàn)法或假設(shè)開(kāi)發(fā)法等估值方法對(duì)擬購(gòu)買(mǎi)資產(chǎn)進(jìn)行評(píng)估并作為定價(jià)依據(jù)的,應(yīng)當(dāng)披露運(yùn)用包含上述方法在內(nèi)的兩種以上評(píng)估方法進(jìn)行評(píng)估的相關(guān)數(shù)據(jù),獨(dú)立董事應(yīng)當(dāng)對(duì)評(píng)估機(jī)構(gòu)的獨(dú)立性、評(píng)估假設(shè)前提的合理性和評(píng)估定價(jià)的公允性發(fā)表意見(jiàn)。
Article 52 The audit committee (or the affiliated transaction control committee) shall give comments on such affiliated transactions, which shall include:
(1) Grounds for the comments and considerations;
(2) Whether the price is fair and reasonable, and whether it is in the overall interest of the listed company and the shareholders;
(3) Suggestion to the non-related directors and shareholders to agree or reject the affiliated transaction.
Before making its judgment, the audit committee (or affiliated transaction control committee) may request a report from an independent financial adviser and use such report as a basis.
(1) Grounds for the comments and considerations;
(2) Whether the price is fair and reasonable, and whether it is in the overall interest of the listed company and the shareholders;
(3) Suggestion to the non-related directors and shareholders to agree or reject the affiliated transaction.
Before making its judgment, the audit committee (or affiliated transaction control committee) may request a report from an independent financial adviser and use such report as a basis.
第五十二條 上市公司審計(jì)委員會(huì)（或關(guān)聯(lián)交易控制委員會(huì)）應(yīng)當(dāng)對(duì)上述關(guān)聯(lián)交易發(fā)表意見(jiàn)，應(yīng)當(dāng)包括:
（一）意見(jiàn)所依據(jù)的理由及其考慮因素;
（二）交易定價(jià)是否公允合理，是否符合上市公司及其股東的整體利益;
（三）向非關(guān)聯(lián)董事和非關(guān)聯(lián)股東提出同意或者否決該項(xiàng)關(guān)聯(lián)交易的建議。
審計(jì)委員會(huì)（或關(guān)聯(lián)交易控制委員會(huì)）作出判斷前，可以聘請(qǐng)獨(dú)立財(cái)務(wù)顧問(wèn)出具報(bào)告，作為其判斷的依據(jù)。
Chapter 9: Exemption from Disclosure of Affiliated Transactions and Decision-making Procedures
Article 53 The following transactions between a listed company and its affiliate may be exempt from being considered and disclosed as affiliated transactions:
(1) One party subscribes in cash the shares issued by, and company bond or corporate bond, convertible company bond or other derivatives of the other party;
(2) One party, as a member of underwriting syndicate, undertakes the shares issued by, and company bond or corporate bond, convertible company bond or other derivatives of the other party; and
(3) One party draws dividend, bonus or remuneration according to the resolution of the board of shareholders of the other party.
(1) One party subscribes in cash the shares issued by, and company bond or corporate bond, convertible company bond or other derivatives of the other party;
(2) One party, as a member of underwriting syndicate, undertakes the shares issued by, and company bond or corporate bond, convertible company bond or other derivatives of the other party; and
(3) One party draws dividend, bonus or remuneration according to the resolution of the board of shareholders of the other party.
Article 54 A listed company may apply with the Exchange for exempting its following transactions with affiliate from being considered and disclosed as affiliated transactions:
(1) The affiliated transactions triggered due to the activities by one party to conduct public tendering or public auction facing unspecific targets; and
(2) The price of the daily affiliated transaction between one party and the other party is fixed by the State.
(1) The affiliated transactions triggered due to the activities by one party to conduct public tendering or public auction facing unspecific targets; and
(2) The price of the daily affiliated transaction between one party and the other party is fixed by the State.
Article 55 Where the joint venture company between a listed company and its affiliate reaches the thresholds set for important affiliated transactions, with all the contributors making the investment in cash and the equity proportion of each party in the established company determined according to the investment proportion, the listed company may file an application with the Exchange for exemption from a submission of the transaction to the board of shareholders for consideration.
Article 56 Where a listed company is provided with financial assistance by its affiliate at an interest rate no higher than the benchmark loan interest rate for the same period set by the People's Bank of China and the listed company provides no relevant mortgage or security for the said financial assistance, the listed company may file an application with the Exchange for exemption of the transaction from being considered and disclosed as affiliated transaction.
Where the affiliate has provided a security to the listed company, which however, provides no countersecurity, the provision of the preceding paragraph shall govern.
Where the affiliate has provided a security to the listed company, which however, provides no countersecurity, the provision of the preceding paragraph shall govern.
Article 57 Where a same natural person concurrently acts as the independent director of a listed company and other legal person or organization but there is no other circumstance under which the natural person shall be considered as affiliate of the listed company, for any transaction between the listed company and the legal person or organization, the listed company may file an application with the Exchange for exemption of the transaction from being considered and disclosed as affiliated transaction.
Article 58 Where an affiliated transaction to be disclosed by a listed company belongs to a state secret or trade secret or falls under other circumstances recognized by the Exchange and the disclosure of such affiliated transaction or performance of the relevant obligations may lead to a violation of the national laws and regulations governing confidentiality or may materially damage the interest of the company, the listed company may apply for exempting itself from making the disclosure or performing the relevant obligations as required under these Guidelines.
Article 60 Related director referred to in these Guidelines mean a director who falls into any of the followings:
(1) The counterparty;
(2) The direct or indirect controller of the counterparty;
(3) A director holding a position at the counterparty, or holding a position in the legal person or other organization that directly or indirectly controls the counterparty or that is directly or indirectly controlled by the counterparty;
(4) A close family member of the counterparty or a close family member of the direct or indirect controller of the counterparty;
(5) A close family member of the counterparty or a close family member of the directors, supervisors or officers under the direct or indirect control of the counterparty; and
(6) A director deemed by the China Securities Regulatory Commission, the Exchange or the listed company to have conflicts of interest with the listed company or that may affect the independent business judgment of the listed company.
(1) The counterparty;
(2) The direct or indirect controller of the counterparty;
(3) A director holding a position at the counterparty, or holding a position in the legal person or other organization that directly or indirectly controls the counterparty or that is directly or indirectly controlled by the counterparty;
(4) A close family member of the counterparty or a close family member of the direct or indirect controller of the counterparty;
(5) A close family member of the counterparty or a close family member of the directors, supervisors or officers under the direct or indirect control of the counterparty; and
(6) A director deemed by the China Securities Regulatory Commission, the Exchange or the listed company to have conflicts of interest with the listed company or that may affect the independent business judgment of the listed company.
(一)為交易對(duì)方;
(二)為交易對(duì)方的直接或者間接控制人;
(三)在交易對(duì)方任職,或者在能直接或間接控制該交易對(duì)方的法人或其他組織、該交易對(duì)方直接或者間接控制的法人或其他組織任職;
(四)為交易對(duì)方或者其直接或者間接控制人的關(guān)系密切的家庭成員;
(五)為交易對(duì)方或者其直接或者間接控制人的董事、監(jiān)事或高級(jí)管理人員的關(guān)系密切的家庭成員;
(六)中國(guó)證監(jiān)會(huì)、本所或者上市公司認(rèn)定的與上市公司存在利益沖突可能影響其獨(dú)立商業(yè)判斷的董事。
Article 61 Related shareholder referred to in these Guidelines means a shareholder who falls into any of the followings:
(1) The counterparty;
(2) The direct or indirect controller of the counterparty;
(3) Directly or indirectly controlled by the counterparty;
(4) Directly or indirectly controlled by the same legal person or other organization or natural person with the counterparty;
(5) A shareholder whose voting right is restricted or affected due to an equity transfer agreement with the counterparty or its affiliate that has not been completely performed or other agreements.
(6) A shareholder deemed by the China Securities Regulatory Commission or the Exchange to likely cause a imbalance of interests toward himself.
(1) The counterparty;
(2) The direct or indirect controller of the counterparty;
(3) Directly or indirectly controlled by the counterparty;
(4) Directly or indirectly controlled by the same legal person or other organization or natural person with the counterparty;
(5) A shareholder whose voting right is restricted or affected due to an equity transfer agreement with the counterparty or its affiliate that has not been completely performed or other agreements.
(6) A shareholder deemed by the China Securities Regulatory Commission or the Exchange to likely cause a imbalance of interests toward himself.
(一)為交易對(duì)方;
(二)為交易對(duì)方的直接或者間接控制人;
(三)被交易對(duì)方直接或者間接控制;
(四)與交易對(duì)方受同一法人或其他組織或者自然人直接或間接控制;
(五)因與交易對(duì)方或者其關(guān)聯(lián)人存在尚未履行完畢的股權(quán)轉(zhuǎn)讓協(xié)議或者其他協(xié)議而使其表決權(quán)受到限制和影響的股東;
(六)中國(guó)證監(jiān)會(huì)或者本所認(rèn)定的可能造成上市公司利益對(duì)其傾斜的股東。
