法律英語No.5：close associates，connected person，關聯人

今天來了解一下在香港和大陸公司法規定的「關聯人」的區別。

英文選自香港基石投資協議，提供翻譯並解析，不吝賜教^^

請翻譯

Each of the Investor (for itself and on behalf of the Investor Subsidiary) and the Guarantor agrees and undertakes that, save that with the prior written consent of the Company and the Joint Global Coordinators, the aggregate holding (direct or indirect) of the Investor, the Investor Subsidiary and the Guarantor and their respective associates or close associates in the total issued share capital of the Company shall be less than 10% of the Company』s entire issued share capital at all times and it would not become a connected person of the Company within the meaning of the Listing Rules.

參考譯文

投資者（以其名義且代表投資者子公司）和擔保人各方均同意且承諾，除非獲得該公司和全球聯席協調人的事先書面同意，則在該公司已發行的總股本中，投資者、投資者子公司、擔保人及其各自的聯繫人或緊密聯繫人（直接或間接）的總持股量應始終少於該公司已發行的總股本的10%，且其不會成為上市規則意義中的該公司的關聯人。

associates, close associates,

connected person, core connected person

和中國公司法下的關聯人的知識背景

英文的相關概念取自《香港主板上市規則》

（中國《公司法》）關聯人包括關聯法人和關聯自然人

關聯法人：

1）直接或者間接地控制上市公司的法人；

2）由前項所述法人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；

3）關聯自然人直接或者間接控制的、或者擔任董事、高級管理人員的、除上市公司及其控股子公司以外的法人；

4）持有上市公司5%以上股份的法人或者一致行動人；

5）在過去12個月內或者根據相關協議安排在未來12月內存在上述情況之一的；

6）中國證監會、證券交易所或者上市公司根據實質重於形式的原則認定的其他與上市公司有特殊關係，可能或者已經造成上市公司對其利益傾斜的法人。

關聯自然人：

1）直接或者漸漸持有上市公司5%以上股份的自然人；

2）上市公司董事、監事及高級管理人員；

3）直接或者間接地控制上市公司的法人的董事、監事及高級管理人員；

4）上述第1、2項所述人士的關係密切的家庭成員，包括配偶、父母、年滿18周歲的子女及其配偶、兄弟姐妹及其配偶，配偶的父母、兄弟姐妹，子女配偶的父母（省略與上述相同的5、6）

「core connected person」

(a) for a company other than a PRC issuer, or any subsidiary of a PRC issuer, means a director, chief executive or substantial shareholder of the company or any of its subsidiaries or a close associate of any of them; and

(b) for a PRC issuer means a director, supervisor, chief executive or substantial shareholder of the PRC issuer or any of its subsidiaries or close associate of any of them

14A.07 A 「connected person」 is:

(1) a director, chief executive or substantial shareholder of the listed issuer or any of its subsidiaries;

(2) a person who was a director of the listed issuer or any of its subsidiaries in the last 12 months;

(3) a supervisor of a PRC issuer or any of its subsidiaries;

(4) an associate of any of the above persons;

(5) a connected subsidiary; or

(6) a person deemed to be connected by the Exchange.

Where a listed issuer is an investment company listed under Chapter 21, its connected persons also include an investment manager, investment adviser or custodian (or any connected person of any of them)

A deemed connected person includes a person:

(1) who has entered, or proposes to enter, into:

(a) a transaction with the listed issuer』s group; and

(b) an agreement, arrangement, understanding or undertaking (whether formal or informal and whether express or implied) with a connected person described in rule 14A.07(1), (2) or (3) with respect to the transaction; and

(2) who, in the Exchange』s opinion, should be considered as a connected person.

A deemed connected person also includes a person:

(1) who is:

(a) a father in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, uncle, aunt, cousin, nephew or niece(each a 「relative」) of a connected person described in rule 14A.07(1), (2) or (3); or

(b) a majority-controlled company held, directly or indirectly, by the relatives(individually or together) or held by the relatives together with the connected person as described in rule 14A.07(1), (2) or (3), the trustees, his immediate family members and/or family members, or any subsidiary of that majority controlled company; and

(2) whose association with the connected person is such that, in the Exchange』s opinion, the proposed transaction should be subject to the connected transaction requirements.

A 「connected subsidiary」 is:

(1) a non wholly-owned subsidiary of the listed issuer where any connected person(s) at the issuer level, individually or together, can exercise or control the exercise of 10% or more of the voting power at the subsidiary』s general meeting. This 10% excludes any indirect interest in the subsidiary which is held by the connected person(s) through the listed issuer; or

(2) any subsidiary of a non wholly-owned subsidiary referred to in (1) above

「close associate」

(a) in relation to an individual means:—

(i) his spouse;

(ii) any child or step-child, natural or adopted, under the age of 18 years of the individual or of his

spouse (together with (a)(i) above, the 「family interests」);

(iii) the trustees, acting in their capacity as trustees, of any trust of which he or any of his family interests is a beneficiary or, in the case of a discretionary trust, is (to his knowledge) a discretionary object; and

(iv) [Repealed 3 June 2010]

(v) any company in the equity capital of which he, his family interests, and/or any of the trustees

referred to in (a)(iii) above, acting in their capacity as such trustees, taken together are directly or indirectly interested so as to exercise or control the exercise of 30% (or any amount specified in the Takeovers Code as the level for triggering a mandatory general offer) or more of the voting power at general meetings, or to control the composition of a majority of the board of directors and any subsidiary of this company; and

(b) in relation to a company means:—

(i) its subsidiary or holding company or a fellow subsidiary of its holding company;

(ii) the trustees, acting in their capacity as trustees, of any trust of which the company is a benefi ciary or, in the case of a discretionary trust, is (to the company』s knowledge) a discretionary object; and

(iii) [Repealed 3 June 2010]

(iv) any other company in the equity capital of which the company, its subsidiary or holding

company, a fellow subsidiary of its holding company, and/or any of the trustees referred to in (b)(ii) above, acting in their capacity as such trustees, taken together are directly or indirectly interested so as to exercise or control the exercise of 30% (or any amount specified in the Takeovers Code as the level for triggering a mandatory general offer) or more of the voting power at general meetings, or to control the composition of a majority of the board of directors and any subsidiary of this other company;

(c) a depositary acting in its capacity as a depositary for depositary receipts, is not treated as a close associate of holders of the depositary receipts for the purposes of (a) and (b) merely because it is holding the shares of the issuer for the benefit of the holders of the depositary receipts.

An 「associate」 of a connected person described in rule 14A.07(1), (2) or (3) who is an individual includes:

(1) (a) his spouse; his (or his spouse』s) child or step-child, natural or adopted, under the age of 18 years (each an 「immediate family member」);

(b) the trustees, acting in their capacity as trustees of any trust of which the individual or his immediate family member is a beneficiary or, in the case of a discretionary trust(全權信託), is (to his knowledge) a discretionary object (other than a trust which is an employees』 share scheme(員工持股計劃) or occupational pension scheme(職業養老金計劃) established for a wide scope of participants and the connected persons』 aggregate interests in the scheme are less than 30%) (the 「trustees」); or

(c) a 30%-controlled company held, directly or indirectly, by the individual, his immediate family members and/or the trustees (individually or together), or any of its subsidiaries;or

(2) (a) a person cohabiting with him as a spouse, or his child, step-child, parent, stepparent, brother, step-brother, sister or step-sister (each a 「family member」); or

(b) a majority-controlled company held, directly or indirectly, by the family members (individually or together), or held by the family members together with the individual, his immediate family members and/or the trustees, or any of its subsidiaries

An 「associate」 of a connected person described in rule 14A.07(1), (2) or (3) which is a company includes:

(1) its subsidiary or holding company, or a fellow subsidiary of the holding company;

(2) the trustees, acting in their capacity as trustees of any trust of which the company is a beneficiary or, in the case of a discretionary trust, is (to its knowledge) a discretionary object (the 「trustees」); or

(3) a 30%-controlled company held, directly or indirectly, by the company, the companies referred to in (1) above, and/or the trustees (individually or together), or any of its subsidiaries.

A 30%-controlled company held by a person will not be regarded as his or its associate if the person』s and his or its associates』 interests in the company, other than those indirectly held through the listed issuer』s group, are together less than 10%.

For PRC issuers only, a person』s associates include any joint venture partner of a cooperative or contractual joint venture (whether or not it is a separate legal entity) where:

(1) the person (being an individual), his immediate family members and/or the trustees; or

(2) the person (being a company), any company which is its subsidiary or holding company or a fellow subsidiary of the holding company, and/or the trustees, together directly or indirectly hold 30% (or an amount that would trigger a mandatory general offer or establish legal or management control over a business enterprise under the PRC law) or more in the joint venture』s capital or assets contributions, or the contractual share of its profits or other income.

以上簡單歸類如下：

core connected person：公司及其子公司的董事、監事、高管、大股東，或該等人的close associate。

connected person：公司及其子公司的董事、監事、高管、大股東、過去12個月擔任董事，或該等人的associate和relative，該等人及其associate和relative主要控股的公司，關聯子公司（10%）、已簽訂或擬簽訂協議/交易等。

close associate：（自然人）immediate family member，受託人，與上述人一起的30%控股公司；（公司）子公司，母公司，集團公司，公司的受託人等。

An 「associate」 of a connected person：（自然人）immediate family member，受託人，與上述人一起的30%控股公司，family member，與上述所有人一起主要控股的公司；（公司）子公司，母公司，集團公司，公司的受託人，與上述公司一起30%控股的公司。

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