Legal experts analyze the dispute between the United States and Pakistan: another gome War

East Sunrise West Rain, there the Gome war has not really fallen, the battle of Alibaba seems to have been strong. This year, for the business sector, it seems destined to be an eventful one. With the advent of the October, the latent in Alibaba five years long a convention, like the Vampire "ghost" general, inadvertently quietly surfaced in people's view. All of this, compared with the Gome war seems to be only the place, the role and the plot changes, but the language between the parties is slightly foggy. To this end, this newspaper invited the famous enterprise legal risk management experts, Beijing Chi Wei law firm, the chief partner, the Beijing Bar Association Enterprise Legal Risk Management Professional Committee director Mr. Chen Xiaofeng, to analyze the more deep-seated legal issues in the battle of Alibaba.

If the Gome war occurred because Huang has violated the criminal law risk, and detonated the legal risk of corporate governance, such as "big event" caused, can also be understood, and has been the smoke of the Alibaba "scramble", but rumors because 5 years ago an agreement clause is coming into force. Although this rumor is indeed laughable and questionable, the words of the parties seem to confirm the truth of the rumor. People can't help asking: What's wrong with the business world?

"Contract Spirit" important?

Or is "Ma Yun Power" important?

A media disclosure, the current upcoming battle, and 5 years ago, Yahoo investment Alibaba Group in the signing of the investment agreement with MA.

In 2005, Yahoo traded 1 billion dollars and Yahoo China for its 40% per cent stake in the Alibaba Group, which was widely touted as "Alibaba's full takeover of Yahoo China and a 1 billion dollar investment by Yahoo." At that time, the two sides agreed to Jack Ma chief executive, Ma Yun and other management shareholders can be stationed in four directors of two directors.

At that time, the happy Alibaba management shareholder, Ma Yun, and so on, may have yet to heed the investment agreement today to make it "uneasy" clause.

Under the investment agreement, Mr. Ma will no longer be assured of "not being resigned as CEO of Alibaba Group" since October 2010, and Yahoo will have the right to add a director to Alibaba Group since October 2010.

At the same time, media reports show that, in addition to the increase in the number of board members, according to the agreement, since October 2010, Yahoo Holdings Alibaba Group 39% Economic interests, the company's voting rights will be increased from the terms of the 35% to 39%, and Mr Ma and other management's vote will be reduced from 35.7% to 31.7% SoftBank keeps 29.3% of economic interest and voting rights unchanged. This means that since October 2010, Alibaba's shareholders will be more than 0.7% of Yahoo's voting power, down from Yahoo 7.3%.

These can be confirmed by the prospectus of Alibaba's listed companies.

In addition to the above, coupled with the rumors of Alibaba's attempt to buy back Yahoo's stake, the foreign declaration of "The foundation of the partnership between the two companies" has deepened the recognition of the rumors.

Is this the case?

If the above "control" is really threatened, which leads to the current "war situation", it is believed that the majority of the public are not recognized or considered to be very improper, and also believe that Ma Yun, as an entrepreneur's spiritual idol, will not do so. Because the public opinion will question: is 5 years ago the agreement can not comply with it?

Believe that for the "contract Spirit" and "Ma Yun Power" is the most important choice, most people will make a very rational choice, even if Ma Yun will like most people to make the right and rational choice. Because we want to be able to see Chinese enterprises can have a real "contract spirit", can be "the rule of law and integrity" in the face of the world.

"Grandpa" and "grandson".

According to media reports, in the September 11, 2010 Alibaba listed company's network business conference, Alibaba CEO David Wei in public, the ruthless words: "Yahoo no longer has its own search engine technology, we do not need a business synergy and technology of financial investors, Alibaba and Yahoo cooperation between the Foundation has ceased to exist." ”

According to media reports, in the media asked Yahoo and Alibaba web site relationship, Mr. Wei described as a pair of estranged ye Sun, "Anyway, Grandpa is going to die." "Obviously, Mr. Wei's core idea is that Yahoo, as a big shareholder of Alibaba Group, has no value, so please leave!" According to the values, Alibaba hopes to "buy back" Yahoo shares in Alibaba Group "bought away" five years ago.

More media speculation, 5 years ago, through Yahoo injected 1 billion U.S. dollars, capital hungry Alibaba won the critical fuel of the hurricane. 5 years later, the book on the face of tens of billions of yuan Alibaba is no longer the same as the "fight famine" of the poor boy, it will have a higher pursuit, and this pursuit is the idea of "take back" Yahoo's stake.

Some professionals cautioned that history should not be forgotten so quickly. In the 2005, when Yahoo invested in Alibaba Group, Ma Yun's situation is indeed very difficult, soft silver injected money has been burned almost, the urgent need for new funds to add in, Yahoo's capital injection just to solve the immediate needs of MA. In addition, Yahoo has the world's leading business-to-business business and Asia's leading auction and online security payment system. Through cooperation, Alibaba won the Yahoo's leading search technology and platform support, as well as strong product development and protection, and search technology in the development of E-commerce plays an extremely crucial role in the development of Taobao and Alipay to pay. In addition, Yahoo also played a synergistic effect to help Alibaba expand overseas business. These are not to be obliterated.

In accordance with the relevant laws and regulations, Yahoo is a shareholder of Alibaba Group because it invests the corresponding capital (or assets), thus owning its corresponding stake and establishing its shareholder status, which is the "value" of its shareholders, and does not require additional "business synergy and Technology". Even if Yahoo becomes a pure "financial investor", it cannot change its base position and basic value as shareholder, and it should not be the "grandfather" who has no "value" and always dies in the eyes of Wei. In fact, many "grandpa Company" invested "grandson Company", the result of "grandson Company" died for many years, "Grandpa Company" may still be healthy alive!

It should be said that Mr Wei, the CEO of Alibaba's listed company, should concentrate on creating value for Alibaba shareholders, respecting all shareholders, including Yahoo and SoftBank, instead of "abusing" and "blaming" Alibaba shareholders, whether or not they are accredited by Yahoo, the big shareholder.

If according to the values of David Wei, it is said that the mother did not have the milk, it can be said that the mother has no value, and can abandon it?

Of course, according to Ma's social experience and professional training, I believe that Mr. Wei can not represent MA.

It's not about money, it's about reason.

Analysts pointed out that in 2005, Yahoo to 1 billion U.S. dollars and Yahoo China business, in exchange for its Alibaba group nearly 40% stake. 5 years later, Yahoo's investment has been extremely rewarding. Yahoo has at least $2.7 billion worth of business in Hong Kong-listed Alibaba, which now has about $96 trillion in market capitalisation.

More professional analysts believe that if Alibaba Group unlisted assets, Yahoo's return on investment prospects more attractive. Because Yahoo currently has 39% of Alibaba Group shares, it also has Alibaba Group's Alipay, Taobao, Aliyun, China Yahoo and other subsidiaries of 39% shares. If it is assumed that unlisted Alipay and Taobao are valued at $10 billion and $20 billion respectively, Yahoo has a value of nearly 15 billion dollars in Alibaba.

According to this, some people think that Yahoo should be content, should also quit.

Boats。 Alibaba's value has increased, all shareholders should be happy, but for Alibaba management, but may not be happy. Because Alibaba management wants to be able to "buy back" Yahoo holding shares, but has been rejected by Yahoo, Yahoo is hoping to wait until "hold this part of the stake until Taobao and Alipay listed, and these shares may give Yahoo a greater return." However, Alibaba management seems to have no patience to wait until that day, contradictions arising therefrom.

5 years ago, Yahoo invested 1 billion U.S. dollars and sold Yahoo China for the then still thirsty "poor kid" Alibaba Group 40% of the shares, Yahoo in the pursuit of capital investment return, but also risked a small risk. This is "rationale".

5 years later, Yahoo won a huge return that neither of them expected, which Yahoo deserved. The purpose of the investment is to pursue returns, and Yahoo is not exempt. This is also "rationale".

Today, Alibaba Management wants to be able to "buy back" Yahoo held shares, and Yahoo rebuffed said not to sell, this should be "rationale"-Yahoo has the right to decide whether or when to sell their shares.

If Yahoo "has made a lot of money" for the reasons, ask Yahoo to quit Alibaba, it may be difficult to work, because it is not "money", but "reason" thing, because it is Yahoo's own decision.

Of course, if either side of the party is in dispute because of "no sale", and do any harm to Alibaba's behavior, then will not be allowed, because this is not only "reason" things, but also violates the "legal principle" of the matter, and has violated the "legal principle" of the matter, must bear the corresponding legal responsibility.

Ma Yun and Jerry Yang's understanding

It should be said that the current emergence of the "Alibaba scramble", to a certain extent, that Ma Yun in the foreign financing process, there is still a lack of relevant legal risk recognition of the situation, and grew up in the developed capital market-the United States, the capital of the local Yahoo, is often more experienced. At the same time, Alibaba is not a case, but has a certain universality, many Chinese enterprises external financing process, also exists this kind of situation, such as Prince Milk and the British Union, Morgan, Goldman Sachs three big investment banks "to gamble" and eventually led to the destruction of Prince's milk, and Prince of milk Li Huixing for gambling failure unscrupulous and imprisoned, Flying crane Milk and Sequoia Capital signed the "gambling" agreement September 19, 2010 triggered the issuance of additional provisions may lead to a further increase in the milk industry crisis, and so on, this also can reflect to a certain extent the Chinese enterprises in the investment and financing legal risk management has the more serious problem, this may also be a universal problem.

For Ma Yun speaking, at that time, Alibaba in a more difficult period, if there is no Yahoo and other capital investment, it may face the fate of bankruptcy, may be for Ma Yun speaking, as long as can be melted to a certain amount of funds, other conditions can be discussed. In fact, for Alibaba at that time, Yahoo opened the conditions is not very harsh, but also more tolerant, such as the board of Directors only set 4 seats, and Jack Ma and other Alibaba management shareholders occupy 2 seats, such as Ma Yun was guaranteed within five years "not to resign Alibaba Group CEO position" and so on, Also did not see the corresponding harsh to the gambling agreement existence and so on. However, the problem is that the initial agreement with Yahoo and other investment, Ma Yun's current "huge development performance" is also unexpected. It can be expected that if Mr Ma and Yahoo and others sign an investment agreement, there is a general estimate of possible future performance, and can set up a corresponding equity incentives, management retention and the role of the CEO "reassurance", then today's situation may be rewritten.

For Yahoo, the initial investment of 1 billion U.S. dollars and the sale of Yahoo China in exchange for the future is not clear the prospects of Alibaba Group 40% of the shares, will certainly have a very deep understanding of China's vast market prospects for the Internet, which has strengthened the confidence of the investments. At the same time, Ma Yun's team has full trust, this point from the relevant board seats and the design of the quota can be seen. However, I believe that Yahoo's Jerry Yang also ignored some things, the four-member board itself is at risk of a "deadlock" (although it has not yet happened), such as the day when Alibaba's control is bound to "shift" over time, and there is still no concern about the legal risks that may arise in the transfer , such as the "exit" mechanism for the relevant capital is not legally designed and so on. And these, all may cause the corresponding legal risk to occur.

Solution of the way:

How Ma Yun became more important

The scramble for Alibaba is rumored to be due to the loss of "control" by management shareholders such as Mr Ma and the possible change in the position of Mr Ma's "Alibaba Group chief executive".

As the Enterprise "control" is derived from the will of capital and shares, coupled with the two sides had a "contract" agreement, and Alibaba has a complete corporate governance mechanism to protect, I believe there should be no so-called "control" of the dispute.

As for Mr Ma's concern about "chief executive", he believes that if Mr Ma becomes more important, there will be no such concern.

So why does Ma Yun become more important?

If Ma Yun and his team have irreplaceable core competencies, Alibaba Group and shareholders can create greater value, and have "who" advantage, believe that Ma Yun will naturally become more important, but also believe that Yahoo, SoftBank will be difficult to abandon the "Ma", the so-called "chief executive" position of concern, may be unfounded.

It is noteworthy that, although Ma is also Alibaba Group shareholders, but more time will be playing another identity and role-"professional manager", this should be the most important identity of MA. According to the basic principles of corporate governance, shareholders ' interests are the best interests of the company, and the shareholders ' meeting is the highest authority of the company, and the directors and the Board are the governing body of the company under the authority of the shareholders ' general meeting. It is clear that if directors or professional managers violate the will of shareholders or betray the interests of shareholders, they believe that shareholders can make rational choices through "power" in their hands.

In addition, according to the Alibaba Hong Kong listed "prospectus" related to the public content, Alibaba listed companies used by the "Alibaba" trademark and related patented technology is still vested in Alibaba Group (Alibaba listed companies are only authorized to use), and, "in connection with the sale of Alibaba's core business transactions, and enter into a transaction involving the monopoly, sale or transfer of Taobao or Alipay held by Alibaba or its subsidiaries, "extending or entering into new business outside the Chinese territory", "any debts or warranties occurring within 12 months, and in relation to the company (the listed company of Alibaba) and its subsidiaries, A single exchange involving more than 150 million dollars, or a total of more than 300 million dollars "," to approve the revision or amendment of the memorandum or rules of Incorporation, "to approve the merger, exchange of stock arrangements between the company (the listed company of Alibaba) or all or most of the assets of the company on its own or directly or indirectly affiliated with other persons or the person Consolidation or other reorganization of other relevant mergers and exchange arrangements, integration or other reorganization in accordance with the laws, regulations, listing rules to be voted by the shareholders "," the approval directly or indirectly led to Alibaba Group in accordance with the overall diluted base of the calculation of the company has issued a voting shares of less than 55% Actions such as the "percentage of shares held by Yahoo and its controlled affiliates" require Yahoo's approval. Thus, it can be seen that Yahoo in the investment Alibaba Group, the director and professional managers of the power of relatively strict restrictions, even if Alibaba listed company's professional managers team "anti-water", there will not be too much "space".

Although most of Alibaba's listed company's directors are from Alibaba's founding team, this does not mean that Alibaba is entirely a founding team, Alibaba ultimately belongs to shareholders. Media disclosure, in response to the current differences that have occurred, Alibaba responded that "the two companies (Yahoo and Alibaba listed companies) game may take a long time", in fact, may not be "Yahoo" and "Alibaba listed company" battle, but should be "Yahoo" and Alibaba listed companies "professional managers" Game-because "Yahoo" as the actual shareholder of Alibaba listed company, do not need to fight with the company that oneself invests.

Finally attributed to a sentence: more cooperation, less fighting, if not abandoned, become someone else's heart most important! In this way, there may be a real bargaining price!