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 為規范上市公司關聯交易行為,提高上市公司規范運作水平,保護上市公司和全體股東的合法權益,根據《上海證券交易所股票上市規則》(以下簡稱“《股票上市規則》”)、《公開發行證券的公司信息披露內容與格式準則第2號<年度報告的內容與格式>》等規定,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.
定期報告中財務報告部分的關聯人及關聯交易的披露應當遵守《企業會計準則第36號——關聯方披露》的規定。
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.
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.
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.
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.
（一）購買或者出售資產;
（二）對外投資（含委托理財、委托貸款等）;
（三）提供財務資助;
（四）提供擔保;
（五）租入或者租出資產;
（六）委托或者受托管理資產和業務;
（七）贈與或者受贈資產;
（八）債權、債務重組;
（九）簽訂許可使用協議;
（十）轉讓或者受讓研究與開發項目;
（十一）購買原材料、燃料、動力;
（十二）銷售產品、商品;
（十三）提供或者接受勞務;
（十四）委托或者受托銷售;
（十五）在關聯人的財務公司存貸款;
（十六）與關聯人共同投資。
（十七）本所根據實質重于形式原則認定的其他通過約定可能引致資源或者義務轉移的事項，包括向與關聯人共同投資的公司提供大于其股權比例或投資比例的財務資助、擔保以及放棄向與關聯人共同投資的公司同比例增資或優先受讓權等。
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.
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.
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.
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.
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.
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.
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.
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.
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.
(一)成本加成法,以關聯交易發生的合理成本加上可比非關聯交易的毛利定價。適用于采購、銷售、有形資產的轉讓和使用、勞務提供、資金融通等關聯交易;
(二)再銷售價格法,以關聯方購進商品再銷售給非關聯方的價格減去可比非關聯交易毛利后的金額作為關聯方購進商品的公平成交價格。適用于再銷售者未對商品進行改變外型、性能、結構或更換商標等實質性增值加工的簡單加工或單純的購銷業務;
(三)可比非受控價格法,以非關聯方之間進行的與關聯交易相同或類似業務活動所收取的價格定價。適用于所有類型的關聯交易;
(四)交易凈利潤法,以可比非關聯交易的利潤水平指標確定關聯交易的凈利潤。適用于采購、銷售、有形資產的轉讓和使用、勞務提供等關聯交易;
(五)利潤分割法,根據上市公司與其關聯方對關聯交易合并利潤的貢獻計算各自應該分配的利潤額。適用于各參與方關聯交易高度整合且難以單獨評估各方交易結果的情況。
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.
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).
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)關聯交易方;
(二)交易內容;
(三)定價政策;
(四)交易價格,可以獲得同類交易市場價格的,應披露市場參考價格,實際交易價格與市場參考價格差異較大的,應說明原因;
(五)交易金額及占同類交易金額的比例、結算方式;
(六)大額銷貨退回的詳細情況(如有);
(七)關聯交易的必要性、持續性、選擇與關聯人(而非市場其他交易方)進行交易的原因,關聯交易對公司獨立性的影響,公司對關聯人的依賴程度,以及相關解決措施(如有);
(八)按類別對當年度將發生的日常關聯交易進行總金額預計的,應披露日常關聯交易事項在報告期內的實際履行情況(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.
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.
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.
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.
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.
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.
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.
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.
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.
