The author believes that through this case, enterprises need to pay attention to the following points:
1. It was learned that Versa Inc is a company registered in Cayman through the administrative penalty decision, and it was learned through enterprise investigation that the company passed Hong Kong Versa (Hong Kong) Co., Ltd. The company registered in China is Shanghai Weishan Network Technology Co., Ltd. (hereinafter referred to as "Shanghai Weishan") with the registration date of 201710. Cai Tianyi and Zhao Yajie registered Shanghai Tian Yi Network Technology Co., Ltd. (referred to as "Shanghai Tian Yi") on April 22, 20 16, and completed the B round of financing. The above information can show that Tencent's A-round investment in Versa Inc. and its B-round investment in Versa Inc. both took place outside China (Tencent and Billie directly purchased the equity of Cayman), and the domestic equity structure, legal representative and actual controller of Versa Inc. have not changed; Therefore, it is proved from the side that China's monopoly law has extraterritorial effect, especially by controlling extraterritorial entities to indirectly control domestic entities, and it is still necessary to declare the concentration of operators.
2. According to the name of Versa Inc., it can be inferred that the company's organizational form is a joint stock limited company, but it is different from the domestic company law that Versa Inc. can set up a shareholding structure with different rights (at present, the company law in China stipulates that a joint stock limited company must have the same rights), and it can be inferred from the registration information of Shanghai Yitian and Shanghai Visa in China that the actual controller of the company has not changed, but even so it is still presumed by the General Administration of Market Supervision.
4. If only the equity purchase agreement was signed at the time of equity purchase, but the equity of the purchased equity was supplemented in the actual operation afterwards, considering that the control right recognized by the General Administration of Market Supervision is relatively loose and vague, it is suggested to conduct a centralized evaluation on the behavior of equity supplement and report the concentration of operators.
5. Once again, obtaining equity by agreement or obtaining control by VIE series agreement belongs to the concentration of business operators in Article 20 of the Anti-Monopoly Law, and it is necessary to report the concentration of business operators to the General Administration of Market Supervision in a timely manner. What needs to be explained here is that after signing the equity purchase agreement or VIE series agreement, it is necessary to submit the declaration to the General Administration of Market Supervision in time, which is different from the obvious time node that usually exists in China: obtaining the declaration consent before the enterprise registration department obtains the new business license; Equity purchase agreements or VIE series agreements signed by overseas companies only have actual delivery, and there is no obvious time node. Therefore, it is especially necessary to pay attention to timely declaration after signing relevant agreements, and do not handle delivery before obtaining approval.
6. The above penalties for Tencent and Mi Le are all 500,000 yuan, and all similar administrative penalty decisions issued by the General Administration of Market Supervision involve a centralized penalty of 500,000 yuan for operators, which is consistent with the maximum penalty of 500,000 yuan stipulated in Article 48 of the current Anti-Monopoly Law. However, it is worth noting that the draft amendment to the anti-monopoly law under consideration in the National People's Congress Standing Committee (NPCSC) has raised the maximum penalty to 5 million. Therefore, enterprises should pay special attention. Compared with the current Anti-Monopoly Law, if the draft amendment is passed, the illegal cost of centralized declaration by operators will increase sharply, which deserves the vigilance and double attention of enterprises. Especially for giant enterprises with many member companies, such enterprises have many subordinate companies, and often operate certain businesses through joint ventures with other enterprises; Or giant enterprises and private equity funds often acquire the equity of other enterprises, especially high-growth enterprises, through equity investment; The above two types of behaviors are also easy to be ignored by enterprises and punished by the General Administration of Market Supervision.
The above is a summary of the experiences and lessons that Tencent and Bi Li Bi Li gained the equity of Versa Inc and were punished by the General Administration of Market Supervision. I hope all enterprises can take a warning. In view of the disposal of its own equity and assets in the process of operation, we should be vigilant against the Anti-Monopoly Law in the process of disposal, and evaluate whether the operators declare in a timely and centralized manner to avoid being punished by the General Administration of Market Supervision.