I. Provisions of laws and regulations on actual controllers
1. Interpretation of "actual controller" in the Company Law: An actual controller refers to a person who can actually control the company's behavior through investment relations, agreements or other arrangements, although he is not a shareholder of the company.
2. Interpretation of "controlling shareholder" in the Company Law: A controlling shareholder refers to a shareholder whose capital contribution accounts for more than 50% of the total capital of a limited liability company or whose shares account for more than 50% of the total capital of a joint stock limited company; Although the capital contribution or the proportion of shares held is less than 50%, but according to their capital contribution or shares held, shareholders have enough voting rights to the shareholders' meeting and the resolutions of the shareholders' meeting.
3. Interpretation of "Control Right of Listed Companies" in the Measures for the Administration of Acquisition of Listed Companies issued by China Securities Regulatory Commission:
Article 84 In any of the following circumstances, it shall be deemed to have the control right of a listed company:
(1) The investor is the controlling shareholder holding more than 50% of the shares of the listed company;
(two) investors can actually control more than 30% of the voting rights of listed companies;
(3) investors can decide to appoint more than half of the members of the board of directors of the company by actually controlling the voting rights of the shares of the listed company;
(4) The voting rights of the shares of the listed company actually controlled by the investors are sufficient to have a significant impact on the resolutions of the shareholders' meeting of the company;
4. Interpretation of concerted action in the Measures for the Administration of Acquisition of Listed Companies issued by the China Securities Regulatory Commission: Article 83 The term concerted action as mentioned in these Measures refers to the act or fact that investors and other investors, through agreements or other arrangements, expand the voting rights of shares of listed companies under their control.
Investors who act in concert are mutual concerted actors in the acquisition of listed companies and changes in related equity. If there is no evidence to the contrary, investors are acting in concert under the following circumstances:
(1) There is an equity control relationship between investors;
(2) Investors are controlled by the same entity;
(3) Being a major member of a director, supervisor or senior manager of an investor and concurrently serving as a director, supervisor or senior manager of other investors;
(4) One investor's shareholding in another investor may have a significant impact on the major decisions of the holding company;
(five) other legal persons, other organizations and natural persons other than banks provide financing arrangements for investors to obtain relevant shares;
(six) there are other economic interests such as partnership, cooperation and joint venture among investors;
(7) The natural person holding more than 30% of the shares of the investor and the investor hold the shares of the same listed company;
(8) Directors, supervisors and senior managers who hold positions among investors hold shares of the same listed company with investors;
(9) Natural persons who hold more than 30% of the shares of investors, directors, supervisors and senior managers who work for investors, their parents, spouses, children and their spouses, their parents, brothers and sisters and their spouses, their brothers and sisters and their spouses and other relatives hold shares with investors in the same listed company;
(10) The directors, supervisors, senior managers and their relatives listed in the preceding paragraph hold shares of the company at the same time, or enterprises directly or indirectly controlled by themselves or their relatives.
(11) Directors, supervisors, senior managers and employees of a listed company hold shares of the company with legal persons or other organizations controlled or entrusted by them;
(12) Investors have other related relationships.
The parties acting in concert shall calculate the shares they hold in a consolidated manner. When calculating the shares held by investors, it should include the shares registered in their names and the shares registered in the names of their concerted parties.
Investors who think that they and others should not be regarded as people acting in concert may provide evidence to the contrary to the China Securities Regulatory Commission.
Two. The principle that the CSRC determines the actual controller-the principle that fact is more important than form. That is to say, although laws and regulations list some specific situations that belong to the actual controller, the situation of the actual controller cannot be exhausted by listing, so the China Securities Regulatory Commission often stipulates "other situations identified by the China Securities Regulatory Commission" in addition to listing specific forms.
Three, when the company has no more than 50% of the controlling shareholders, how to determine who is the actual controller of the two shareholders with similar shareholding ratio should be studied from the aspects of the history of the company's shareholders' meeting, the composition of the board of directors, the resolution voting, and the decision-making process of the company's major issues. Whoever continues to dominate the company's decision-making on major issues is the actual controller. 4. Understanding and application of Article 12 of the Measures for the Administration of the Listing of Initial Public Offerings, "The actual controller has not changed"-1Provisions on the actual controller in the Opinions on the Application of Securities and Futures Law.
1. Whether the actual controller of the issuer has changed in the last three years, the stability of the company's control rights is used as the standard to judge whether the company has sustainable development and profitability, so that investors can make investment decisions with clear expectations for the company's sustainable development and profitability.
2. Corporate control is the power that can have a significant impact on the resolutions of the shareholders' meeting or actually dominate the company's behavior, and its origin is the direct or indirect equity investment relationship with the company. Therefore, to determine the ownership of the company's control rights, we should not only review the corresponding equity investment relationship, but also comprehensively analyze and judge the substantial impact on the issuer's shareholders' meeting and board resolutions, the nomination and appointment of directors and senior management personnel and other factors. According to the actual situation of the case.
3. Where more than one person * * * owns the control right of the company, it shall meet the following conditions:
(1) Everyone must directly hold the shares of the company and/or indirectly control the voting rights of the shares of the company.
(2) The issuer's corporate governance structure is sound and running well, and the situation that many people have control over the company does not affect the issuer's standardized operation.
(3) The situation that several people jointly own the control right of the company shall generally be clarified through the articles of association, agreement or other arrangements. Relevant articles of association, agreements and arrangements must be legal and effective, with clear rights and obligations and clear responsibilities. This situation is stable and effective in the last three years and the expected period after the initial public offering, and the company's control right has not changed significantly.
(4) Other conditions that the issuance examination department thinks the issuer should meet according to the specific circumstances of the issuer. The issuer, its sponsor institution and lawyers shall provide sufficient facts and evidence to prove the authenticity, rationality and stability of the company's control rights jointly owned by many people. Without sufficient and convincing facts and evidence, their claims will not be recognized. If the relevant shareholders take measures that are beneficial to the stability of the company's control rights, such as share locking, the issuance audit department can take these situations as an important factor to judge that many people jointly own the company's control rights. If the issuer changes the person who holds the highest proportion of voting rights in the company's shares in the last three years, and the shareholders before and after the change do not belong to the same actual controller, it shall be deemed that the company's control rights have changed. If the issuer has great uncertainty about the person who holds the highest proportion of voting rights in the company's shares in the last three years, the provisions of the preceding paragraph shall apply mutatis mutandis.
4. If the issuer does not have the owner of the company's control right or the ownership of the company's control right is difficult to judge, it can be regarded as that the company's control right has not changed if it meets the following circumstances:
(a) the issuer's equity and control structure, management and main business have not changed significantly in the three years before the initial public offering.
(2) The issuer's equity and control structure do not affect the effectiveness of corporate governance.
(3) The issuer, its sponsors and lawyers can provide sufficient evidence to prove it. If the relevant shareholders take measures that are beneficial to the stability of the company's equity and control structure, such as share locking, the issuance audit department can take these situations as an important factor to judge that the company's control rights have not changed.
5. Due to the need of state-owned assets supervision and management, the State Council or the state-owned assets supervision and management institution of the provincial people's government transfers the state-owned shares of the state-owned holding enterprises directly under it or reorganizes these enterprises free of charge, resulting in changes in the controlling shareholders of the issuer. In any of the following circumstances, the company's control right can be regarded as unchanged:
(a) the free transfer or reorganization of state-owned shares belongs to the overall supervision and management of state-owned assets.
Sexual adjustment shall be carried out by the state-owned assets supervision and administration institution of the State Council or the provincial people's government in accordance with relevant procedures, and the issuer can provide relevant decision-making or approval documents.
(2) There is no horizontal competition or a large number of related transactions between the issuer and the original controlling shareholder, and there is no deliberate evasion of other issuance conditions stipulated in the Measures for Initial Public Offering.
(3) The free transfer or reorganization of relevant state-owned shares has no significant adverse effect on the operation and management, main business and independence of the issuer. According to the overall adjustment of state-owned assets supervision and management, the transfer or reorganization of state-owned shares between state-owned enterprises directly under the state-owned assets supervision and administration institution of the State Council and local state-owned enterprises shall be carried out by referring to the provisions of the preceding paragraph, but it shall be approved by the state-owned assets supervision and administration institution of the State Council and relevant approval documents shall be submitted. Under the circumstances specified in the preceding two paragraphs, if the controlling shareholder of the issuer changes due to the free transfer or reorganization of state-owned shares, it shall be deemed that the control right of the company has changed.