Home » corporate governance
Category Archives: corporate governance
Alibaba to secure “centuries” of the future of an already “US$150 billion ecosystem of consumers, merchants and business partners” via an internal partnership (rejuvenated each year) of top executive owners (with just 10% of shares) also controlling the board
With Michael Dell acquiring the rest 84% stake in Dell for $2.15B in cash, before becoming the next IBM, and even getting the cash back after the transaction [‘Experiencing the Cloud’, Feb 8, 2013] on Sept 12, 2013 approved by Dell stockholders (for $13.88 per share in cash against the originally proposed $13.65) we had a clear evidence that in these turbulent and extremely fast changing market and business conditions the traditional way of corporate governance is becoming a significant strategic obstacle. Here we have an even more glaring example. Especially because of The value of Taobao.com and TMall.com in China, as well as outside [‘Experiencing the Cloud’, Sept 2, 2013] and the role those key assets of the Alibaba Group are playing for The Upcoming Mobile Internet Superpower [‘Experiencing the Cloud’, Aug 13, 2013].
Alibaba slams HK exchange after IPO talks fail [South China Morning Post, Sept 30, 2013]
A senior Alibaba executive sharply criticized the Hong Kong stock exchange for not allowing the Chinese e-commerce giant to go public with its unique management structure, forcing it to shift efforts to the U.S for the potentially mammoth listing.
The company dropped plans this week to hold an IPO in the southern Chinese financial center because the stock market wasn’t willing to make an exception to its listing rules. Instead, it’s looking to New York for an initial public offering that analysts estimate could value the company at more than $100 billion.
That would dwarf the tech world’s other hotly anticipated share offering by Twitter, which is estimated to have a market value of $10 billion.
In a column posted late Thursday on Alibaba’s blog, Vice Chairman Joe Tsai said “Hong Kong must consider what is needed in order to adapt to future trends and changes.”
Tsai said the company had ended its discussions for a potential listing. It’s the first public acknowledgement that it has dropped its plans for an IPO in Hong Kong, which Tsai said was the company’s “first choice” because most of its business is in China.
Hangzhou, China-based Alibaba failed to persuade the Hong Kong stock exchange to grant it an exception from listing rules to allow it to maintain a “partnership” structure in which top executives, who own 10 percent of the company, retain control of the board.
Chairman Jack Ma has described the partnership system, which currently includes 28 people, as essential to preserving the company’s innovative culture.
Ma, a former English teacher, founded Alibaba in 1999 as a platform linking Chinese suppliers with retailers abroad. It has expanded in consumer e-commerce with its Taobao and Tmall platforms, which are among the world’s busiest online outlets.
China has the world’s biggest population of Internet users, and while it trails the U.S. and Japan in total e-commerce spending, the Boston Consulting Group forecasts it will rise to No. 1 by 2015.
Alibaba’s proposal failed because it was at odds with the Hong Kong exchange’s principle of treating all shareholders equally.
Tsai challenged the exchange over its rigidity.
“The question Hong Kong must address is whether it is ready to look forward as the rest of the world passes it by,” he said.
Alibaba’s two biggest shareholders, Yahoo and Japan’s Softbank, issued statements backing Alibaba.
“In a fast-moving technology market, it’s critical that a company’s leadership can continue to preserve its culture and set its strategic course for the future,” said Jacqueline Reses, chief development officer at Yahoo, which owns a 23 percent stake. She added that the U.S. Internet company believes Alibaba’s system reflects “the desire to govern the company for long-term success while also balancing the rights of shareholders.”
Masa Son, founder of Softbank Corp., which owns 35 percent, said he was “supportive” of the company’s structure.
Alibaba has not yet chosen an exchange or set a timetable for a U.S. listing. But it has hired U.S. law firm Simpson Thacher & Bartlett to help advise on the IPO and plans to hire underwriters soon, said a source familiar with the matter who was not allowed to speak publicly.
Goldman Sachs has estimated that a share sale could value Alibaba at as much as $105 billion.
Alibaba’s profit in the first three months of the year tripled to $669 million on revenue that rose 71 percent to $1.4 billion, according to Yahoo’s latest quarterly earnings.
Alibaba Offers an Alternative View of Good Corporate Governance [Joe Tsai on Alizila blog, Sept 26, 2013]
Until recently, Alibaba was in dialogue with Hong Kong capital markets regulators on how to translate our guiding philosophy into a form of corporate governance in connection with a potential listing on the Hong Kong Stock Exchange. As a company with most of our business in China, it was natural for Hong Kong to be our first choice.
We proposed a governance structure that would enable Alibaba’s partners – key people who manage our businesses – to set the company’s strategic course without being influenced by the fluctuating attitudes of the capital markets so as to protect the long-term interests of our customers, company and all shareholders.
It has been said that Alibaba threatens the “one-share-one-vote” principle. Nothing is further from the truth. We never made any proposal that involved a dual-class shareholding structure. A typical dual-class structure allows those who hold high-vote shares to out-vote the rest of shareholders on all corporate matters. Our governance structure preserves significant rights of shareholders, including the unfettered rights to elect independent directors as well as rights to vote on substantial transactions and related party transactions.
Why do we insist on our governance structure? Our overarching objective is to maintain the Alibaba culture. For the past 14 years, Alibaba operated with the ethos of helping the “small guy” to succeed, as embodied in our mission: “to make it easy to do business anywhere”. This clear sense of mission, long-term focus and commitment to values defines the “Alibaba culture” and it is what makes us successful.
At the same time, we have also noticed that many great companies quickly deteriorate after their founders leave; in the same vein, a number of successful founders have also made fatal mistakes. The final governance structure we have selected is to replace founders with partners. The reason is simple – a group of partners who cherish the same culture and ideals is more likely to carry forward our principles and make good decisions for all stakeholders with a long-term view. And in the decade to come, those partners will be guided by these principles when grappling with inevitable disruption and competition.
We believe this partnership system is the right way to build a sustainable business: partners are peers and, without bureaucracy or rigid hierarchy, they solve problems through collaboration. Partners are not just managers but they are owners of the business with a keen sense of responsibility. The partnership is rejuvenated each year through admission of new partners and, as such, it provides both continuity and longevity because it is a living body. With this system, we believe we can sustain the flame of innovation and constantly improve the talent pool of people who run the Alibaba business.
Those who lack appreciation of our partnership philosophy may view our proposal merely as a founder wanting to preserve control. We could not have a more different objective. Over the past 14 years, we have never sought to control this company through the shareholding structure and we will not begin to do so now. What we want to establish is a mechanism to safeguard the Alibaba culture and we hope that the company’s future is sustainable beyond the life of any one founder. (In fact, Alibaba did not have one or two founders, but 18 founders. In a sense, we have operated as a partnership from Day One.) Our hope is to achieve a mechanism for safeguarding the development of the company “to last 102 years,” i.e. spanning at least three centuries starting from 1999, the year we were founded.
As the largest e-commerce marketplace operator in the world and a custodian of a US$150 billion ecosystem of consumers, merchants and business partners, our commitment to openness, transparency, sharing and responsibility is at the core of our value system.
We fervently believe maintaining an innovative culture and company mission are the essence of success in this disruptive world we operate in. Our governance structure is a creative way to address the core issues that matter to shareholders while staying true to who we are – which we cannot, and will not, change.
As an e-commerce company, we are deeply aware of the disruption that is brought about by the Internet across all industries, and the capital markets are not exempt from this disruption. As a social enterprise, we will strive to drive and promote this type of innovation. We welcome a debate about models of good governance for a business like ours in the 21st century.
We understand Hong Kong may not want to change its tradition for one company, but we firmly believe that Hong Kong must consider what is needed in order to adapt to future trends and changes. The question Hong Kong must address is whether it is ready to look forward as the rest of the world passes it by.
Joe Tsai is a co-founder and Executive Vice Chairman of Alibaba Group
Background from the point of view of philosophies behind stock exchange regulations:
Breakingviews: Hong Kong’s Alibaba loss is New York’s gain? [Reuters TV YouTube channel, Sept 26, 2013]
– How Alibaba unlocked the door to online shopping in China [Reuters TV YouTube channel, Oct 1, 2013]
Note that Alipay was “the largest online platform in the world in terms of registered users, transactions and total payment volume” back in 2011 according to Forbes. The above video shows that now it has a dominant position in China (which is also the largest e-commerce market in the world this year):
Background about the Alibaba Group and Alipay relationship (in order to see that the closing statement in the above video of not getting any benefit from Alipay is not true for the would be new shareholders of Alibaba):
- Alibaba Group, Yahoo!, and SoftBank Reach Agreement on Alipay [press release, July 29, 2011]
Alibaba Group, Yahoo! (NASDAQ:YHOO), and SoftBank (TYO:JP:9984) today announced they have reached an agreement in which Alibaba Group will continue to participate in Alipay’s future financial performance, including a future IPO or other liquidity event. The agreement is consistent with the two agreed-upon principles established at the outset of the negotiations: structure the inter-company relationship between Alipay and Taobao in order to preserve the value within Taobao and, by extension, within Alibaba Group; and provide that Alibaba Group is appropriately compensated for the value of Alipay.
Key Terms of the Agreement:
The agreement establishes the following:
- The agreement preserves the existing relationship between Taobao and Alipay. Alipay will continue to provide payment processing services to Alibaba Group and its subsidiaries (including Taobao) on preferential terms.
- Alibaba Group will license to Alipay certain intellectual property and technology and provide certain software technology services to Alipay and its subsidiaries. Alipay will pay to Alibaba Group, prior to a liquidity event, a royalty and software technology services fee, which consists of an expense reimbursement and a 49.9% share of the consolidated pre-tax income of Alipay and its subsidiaries.
- Alibaba Group will receive no less than $2 billion and no more than $6 billion in proceeds from an IPO of Alipay or other liquidity event. The exact proceeds to Alibaba Group will be determined by multiplying the total equity value of Alipay by 37.5%, subject to the foregoing floor and ceiling amounts.
“Over the last few months, we have worked cooperatively with our partners at Yahoo! and SoftBank to reach an agreement that serves the interests of all parties,” said Jack Ma, Alibaba Group Chairman and CEO. “This agreement is good for Alibaba Group and its stakeholders, including customers, employees and shareholders. Most importantly, Alipay was able to secure the license it needed to continue operating.”
“This is a good outcome for Yahoo! and for our shareholders, as well as all the parties to this agreement,” said Carol Bartz, Yahoo! CEO. “As a result of this constructive process, we have an agreement that preserves the value of Taobao, provides for profit sharing at Alipay, and creates a structure to allow Alibaba Group to participate if Alipay’s value is realized in an IPO or other liquidity event. Alibaba Group and its management team have an impressive track record of value creation and we look forward to participating in Alibaba Group’s—and Alipay’s—continued success.”
“This agreement was in part made possible by the strong long-term relationship and trust that exists between the principals at Alibaba Group, SoftBank and Yahoo!, and also lays the foundation for Alibaba Group to continue its impressive growth under the dynamic leadership of Jack Ma,” said Masayoshi Son, SoftBank CEO. “Alibaba Group is a clear leader in the China Internet business, the largest and fastest growing market in the world, and the close relationship with Alipay will allow Alibaba Group to strengthen that leadership position in the years to come.”
Alipay provides payment processing services to Alibaba Group and some affiliates, including Taobao, and to third parties. Taobao is China’s largest online retail website. Alibaba Group’s principal shareholders include Yahoo!, SoftBank, and Jack Ma and Joseph Tsai. In May 2011, Alipay obtained a license to operate in China from the People’s Bank of China following the restructuring of Alipay. The license will enable Alipay to continue serving Taobao and its other customers in China.
- Alibaba Group Clarification with Respect to Alipay Status and Related Statements by Yahoo! [press release, May 13, 2011]
Alibaba Group management has taken actions to comply with Chinese law governing payment companies in order to secure a license to continue operating Alipay. The Alibaba Group board discussed at numerous board meetings over the past three years the impending imposition of new regulatory requirements on the online payment industry, including ownership structures, as they were being developed in China, and was told in a July 2009 board meeting that majority shareholding in Alipay had been transferred into Chinese ownership. The actions taken by Alibaba Group management to comply with the licensing regulations and to ensure continuation of operations are in the best interests of the company and its shareholders. The continued operation of Alipay is essential to the preservation and enhancement of the value of Alibaba Group’s businesses such as Taobao, as Alipay is the payments platform for e-commerce in these businesses.
- Kendall Law Group Announces Class Action Lawsuit Against Yahoo! Inc. on Behalf of Shareholders [press release, June 7, 2011]
Kendall Law Group, a national securities firm led by a former federal judge with attorneys that include a former U.S. Attorney, announces a lawsuit filed on behalf of shareholders against Yahoo! Inc. (NASDAQ: YHOO) for alleged violations of the Securities Exchange Act of 1934 concerning false and misleading statements regarding Yahoo’s business prospects.
A class action lawsuit was filed in the United States District Court, Northern District of California on June 6, 2011. Yahoo shareholders who purchased stock between April 19, 2011 and May 13, 2011 are urged to contact the Kendall Law Group for more information at 877-744-3728 or by email at firstname.lastname@example.org. Any shareholder who purchased YHOO stock during this time period may move the Court to serve as a plaintiff in this class action. If you wish to serve as lead plaintiff, you must move the Court for appointment by August 5, 2011. A lead plaintiff is a class member who acts on behalf of other class members in directing the litigation. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff.
From: Yahoo! Inc. Quarterly Report on Form 10-Q [May 10, 2011]
To expedite obtaining an essential regulatory license, the ownership of Alibaba Group’s online payment business, Alipay, was restructured so that 100 percent of its outstanding shares are held by a Chinese domestic company which is majority owned by Alibaba Group’s chief executive officer. Alibaba Group’s management and its principal shareholders, Yahoo! and Softbank Corporation, are engaged in ongoing discussions regarding the terms of the restructuring and the appropriate commercial arrangements related to the online payment business.
Regarding which in Yahoo Discloses Jack Ma Takes Control Of Alipay From Alibaba [Forbes, May 11, 2011]
Stifel Nicolaus analyst Jordan Rohan writes in a research note this morning that “there are concerns that the People’s Bank of China will prohibit foreign ownership of a payment solution and having Alipay owned 100% by a domestic entity will be required to obtain the appropriate licenses.”
Rohan points out that Alipay is the largest online platform in the world in terms of registered users, transactions and total payment volume; he’s been estimating the company’s value at $2 billion. The company has 550 million registered users, compared with 94.4 million for PayPal at the end of 2010.
On May 10, 2011, Yahoo disclosed that its $1 billion investment in a strategic partnership with Alibaba Group Holdings Limited, China’s largest e-commerce company, had likely been severely impaired by the misappropriation of Alipay, Alibaba’s most valuable asset, from Alibaba to another private company, controlled by Alibaba’s Chairman, Jack Ma. On May 15, 2011, Yahoo announced that Alibaba, Yahoo and Softbank Corporation were “engaged in and committed to productive negotiations to resolve the outstanding issues related to Alipay in a manner that serves the interests of all shareholders as soon as possible.” News reports indicate that Alibaba received $46 million for Alipay’s assets, which securities analysts valued at $5 billion.
The complaint alleges that Yahoo was informed no later than March 31, 2011 that Alipay’s structure had been shifted from Alibaba, therefore reducing the value of Yahoo’s investment in Alibaba by billions of dollars. The complaint also alleges that Yahoo failed to develop a strategy to recover the value it had in Alibaba, knowing that Chinese regulations regarding foreign ownership had been anticipated to change as far back as 2009, which would require Yahoo or Alibaba to divest themselves of Alipay. As a result of the alleged misstatements and omissions, Yahoo’s stock traded at artificially inflated prices during the class period.
Kendall Law Group was founded by a former federal judge, includes a former United States Attorney, prosecutors and securities lawyers who are experienced in complex securities litigation. The firm has been counsel in numerous merger and acquisition cases nationwide, including some of the largest transactions in the United States.
- Research and Markets: China Third-party Payment Industry Report, 2010-2013 [press release, July 7, 2011]
Research and Markets (http://www.researchandmarkets.com/research/24e22a/china_thirdparty) has announced the addition of the “China Third-party Payment Industry Report, 2010-2013” report to their offering.
Third-party payment refers to an Internet-based means of exchange that provides online (Internet) and offline (telephone & mobile phone) payment channels enabling user-to-merchant online payment, fund settlement, inquiries and statistics, etc.
In 2010, market transaction volume of third-party payment broke through RMB 1 trillion and registered RMB 1.1395 trillion [$176.2B] in China. However, third-party payment market is still in its infancy stage and is expected to develop rapidly in the next several years.
People’s Bank of China issued Regulation on Payment Service of Non-financial Organization on 14 Jun. 2010, with the aim to officially supervise the domestic third-party payment industry. On 26 May 2011, People’s Bank of China granted the first batch of Payment Transaction License to 27 third-party payment companies including Alipay, Tenpay, ChinaPay and 99Bill. In terms of market share, the top three third-party payment service providers in China are Alipay, Tenpay and ChinaPay.
My insert here from the How Alibaba unlocked the door to online shopping in China video above:
Alipay: Alipay is a third-party payment platform that belongs to Alibaba group. As of Dec. 2010, its number of registered users broke through 550 million, and daily transaction value reached RMB 2.6 billion [$402M] and daily number of transactions hit 11 million. It is expected that the annual transaction value of Alipay will achieve about RMB 1 trillion [$154.6B] in each of the next two years.
TenPay: As Tencent’s third-party payment platform, TenPay accumulated 150 million personal users and over 400 thousand cooperative merchants till Dec. 2010.
ChinaPay: ChinaPay is a third-party payment service provider with diversified business. Its business growth is mainly driven by those monopolistic fields including fund and insurance online payment. However, this monopolistic advantage is gradually diminished. In addition, with limited investment, online payment service is not the core business of ChinaPay, and its competitiveness is weak.
99Bill: As of 30 Apr. 2011, with transaction volume over RMB 100 billion, 99bill has 91 million registered users and over 980 thousand business partners. During 2008-2009, 99Bill shifted its major business to the segment markets, including insurance and fund industries, to get involved in the differential competition.
YeePay: YeePay is an integrated payment platform. Till 26 Nov. 2010, with over 10 thousand large and medium signed merchants, its daily transaction volume and number of transactions exceeded RMB200 million and 1 million respectively. Moreover, YeePay plays a leading role in the telephone payment market. During 2008-2010, it experienced rapid development in the fields of aviation, telecommunication and education.
Chinabank Payments: The lower online payment price is the key competitive advantage of Chinabank Payments. In addition, its offline credit card payment business has the early entry advantage.
Shengpay: With a registered capital of RMB250 million and about 250 employees, Shengpay is an independent third-party payment service provider belongs to Shanda Group. It provides payment solution for Shanda’s business including literature, music, film, recreation and tourism.
Key Topics Covered:
- Overview of Third-Party Payment
- Market Environment of Third-Party Payment Industry
- Market Analysis of Third-Party Payment Industry
- Key Licensed Enterprises
- Other Key Enterprises
- Market Forecast of Third-Party Payment Industry
- Chinabank Payments
- All In Pay
- Beijing Digital Wangfujing Technology Ltd. Co.
- Property & Credit (Zihexin)
- Open Union
- Shanghai FFT Information Service Ltd.
- China UnionPay Merchant Services Co., Ltd.
- Beijing UnionPay
- Beijing Cloudnet Internet Co., Ltd.
- Union Mobile Pay (UMPay)
For more information visit http://www.researchandmarkets.com/research/24e22a/china_thirdparty