Q: Peter and company,quick pick on Alibaba.
I always wondered why a Chinese company would relinquish some ownership ''just'' to have the dubious privilege of an American listing.
Well I got the answer via 'Wall street on Parade' yesterday: they simply don't give up anything and that makes much better sense for them. Does it for you?
If you are interested, read on:
The concerns about this Chinese company’s opaque structure as a Variable Interest Entity (VIE) in the Cayman Islands are so serious that a U.S. Senator, Bob Casey (D-Pa), issued two letters this year to Mary Jo White, SEC Chair, demanding answers.
In a July 11, 2014 letter, Senator Casey drilled down to the core of the stock ownership problem, writing:
“…American investors in Chinese companies often do not enjoy the same protections and legal guarantees that they are afforded when they invest in American firms. Most Chinese firms that list in the U.S. use a structure known as a variable interest entity (VIE). VIEs are shell companies that give investors contractual claims to a firm’s profits but do not legally grant them ownership of the company. For example, according to Alibaba’s securities filing, Americans who invest in the company will not be buying stakes in Alibaba’s profitable e-commerce business, but in a related Cayman Islands shell company. These structures allow companies to circumvent Chinese regulatory restrictions on foreign investment.
“More concerning, given the Chinese government’s interest in restricting foreign ownership in certain industries, it is far from clear that the contractual claims underlying VIEs are enforceable. In fact, in recent years Chinese courts and arbitration boards appear to have invalidated VIE contracts and similar arrangements. As a result, VIE structures pose significant risks to American investors accustomed to the idea that shares sold on stock exchanges amount to legally sound ownership stakes in revenue-generating companies.”
The VIE structure for Chinese companies trading in the U.S. sounds more like an international lawsuit waiting to happen than an ownership piece of the corporate pie. If you think VIE shareholders have any right to elect the Board of Directors of this company, think again. Here’s a revealing section from the Alibaba prospectus:
“Risks Related to Our Corporate Structure
“The Alibaba Partnership and related voting agreements will limit your ability to nominate and elect directors.
“Our articles of association, as we expect them to be amended and become effective upon completion of this offering, will have the effect of allowing the Alibaba Partnership to nominate a simple majority of our board of directors…
“The interests of the Alibaba Partnership may conflict with your interests.
“The nomination rights of the Alibaba Partnership will limit your ability to influence corporate matters, including any matters to be determined by our board of directors. The interests of the Alibaba Partnership may not coincide with your interests, and the Alibaba Partnership or its director nominees may make decisions with which you disagree, including decisions on important topics such as compensation, management succession, acquisition strategy and our business and financial strategy.”
The history of Chinese companies listing here in the U.S. hasn’t exactly been a rose garden for investors either. Senator Casey notes the following in his July 17 letter:
“In the past three years alone, the SEC has charged a number of China-based companies with fraud, including China Sky One Medical Inc., AutoChina, SinoTech Energy Limited and China MediaExpress. The sheer number of fraud cases involving China-based companies listed in the U.S. reveals systemic problems with many Chinese companies’ legal structures and accounting practices. Indeed, earlier this year, SEC Administrative Law Judge Cameron Elliot ruled that the Chinese units of several large accounting firms could not audit U.S.-listed companies due to their willful failure to disclose information to U.S. financial regulators.”
This seems to be more the realm of traders than the one of your subscribers, don't you think so?
I always wondered why a Chinese company would relinquish some ownership ''just'' to have the dubious privilege of an American listing.
Well I got the answer via 'Wall street on Parade' yesterday: they simply don't give up anything and that makes much better sense for them. Does it for you?
If you are interested, read on:
The concerns about this Chinese company’s opaque structure as a Variable Interest Entity (VIE) in the Cayman Islands are so serious that a U.S. Senator, Bob Casey (D-Pa), issued two letters this year to Mary Jo White, SEC Chair, demanding answers.
In a July 11, 2014 letter, Senator Casey drilled down to the core of the stock ownership problem, writing:
“…American investors in Chinese companies often do not enjoy the same protections and legal guarantees that they are afforded when they invest in American firms. Most Chinese firms that list in the U.S. use a structure known as a variable interest entity (VIE). VIEs are shell companies that give investors contractual claims to a firm’s profits but do not legally grant them ownership of the company. For example, according to Alibaba’s securities filing, Americans who invest in the company will not be buying stakes in Alibaba’s profitable e-commerce business, but in a related Cayman Islands shell company. These structures allow companies to circumvent Chinese regulatory restrictions on foreign investment.
“More concerning, given the Chinese government’s interest in restricting foreign ownership in certain industries, it is far from clear that the contractual claims underlying VIEs are enforceable. In fact, in recent years Chinese courts and arbitration boards appear to have invalidated VIE contracts and similar arrangements. As a result, VIE structures pose significant risks to American investors accustomed to the idea that shares sold on stock exchanges amount to legally sound ownership stakes in revenue-generating companies.”
The VIE structure for Chinese companies trading in the U.S. sounds more like an international lawsuit waiting to happen than an ownership piece of the corporate pie. If you think VIE shareholders have any right to elect the Board of Directors of this company, think again. Here’s a revealing section from the Alibaba prospectus:
“Risks Related to Our Corporate Structure
“The Alibaba Partnership and related voting agreements will limit your ability to nominate and elect directors.
“Our articles of association, as we expect them to be amended and become effective upon completion of this offering, will have the effect of allowing the Alibaba Partnership to nominate a simple majority of our board of directors…
“The interests of the Alibaba Partnership may conflict with your interests.
“The nomination rights of the Alibaba Partnership will limit your ability to influence corporate matters, including any matters to be determined by our board of directors. The interests of the Alibaba Partnership may not coincide with your interests, and the Alibaba Partnership or its director nominees may make decisions with which you disagree, including decisions on important topics such as compensation, management succession, acquisition strategy and our business and financial strategy.”
The history of Chinese companies listing here in the U.S. hasn’t exactly been a rose garden for investors either. Senator Casey notes the following in his July 17 letter:
“In the past three years alone, the SEC has charged a number of China-based companies with fraud, including China Sky One Medical Inc., AutoChina, SinoTech Energy Limited and China MediaExpress. The sheer number of fraud cases involving China-based companies listed in the U.S. reveals systemic problems with many Chinese companies’ legal structures and accounting practices. Indeed, earlier this year, SEC Administrative Law Judge Cameron Elliot ruled that the Chinese units of several large accounting firms could not audit U.S.-listed companies due to their willful failure to disclose information to U.S. financial regulators.”
This seems to be more the realm of traders than the one of your subscribers, don't you think so?
