Anti-Dilution Rights - How to Work Around the FEMA (TISPRO) Regulations, 2017 for Non-Residents [Part 5 of the five-part series]

regulations

In order to avoid the ‘Pricing Guidelines’ [discussed previously in Part 4 of this story], the additional shares to be allotted to the original investor of the Indian startup company to comply with the Anti-Dilution Rights must be issued under the ‘rights issue’ mechanism under Section 62 (1) (a) of the Companies Act, 2013 instead of ‘preferential allotment’ mechanism under Section 62 (1) (c) of the Companies Act, 2013.

The FEMA (TISPRO) Regulation, 2017, under Regulation 6, clearly lays down the provisions governing the ‘acquisition of shares through a rights issue or a bonus issue’ to a ‘person resident outside India’. Regulation 6 (5), clearly lays down that, “In case of an unlisted Indian company, the rights issue to persons resident outside India shall not be at a price less than the price offered to persons resident in India.” This means that, under ‘rights issue’, the shares can be issued at any price (including price per share lower than the fair market value), provided the Indian company offers the shares under ‘rights issue’ to the other shareholders at the same price.

Generally, all investment agreements, which have Anti-Dilution Rights, have elements of shareholders agreements and are accordingly executed by all shareholders of the investee company (new shareholders of the investee company are inducted into such ‘investment agreement’ therein through addendum). Therefore, contractually, if one can bind the other shareholders of the investee company to reject such shares offered under ‘rights issue’, then the non-resident investor can exercise its ‘rights issue’ and subscribe to such number of shares that is required to comply with the Anti-Dilution provisions.

Anti-Dilution Rights – Exception for Non-Residents [Part 4 of the five-part series]

exception

Contravention of FEMA (TISPRO) Regulations, 2017

It is clear from the ‘Introduction’ [Part 1 of this story] that, if the Anti-Dilution Rights gets triggered, a startup company must issue additional shares to the investor exercising such Anti-Dilution Rights at no price or at a price lower than the value at which the fresh subscription has been made by the new investor.

This actually directly violates the ‘Pricing Guidelines’ under Regulation 11 of FEMA (TISPRO) Regulations, 2017, in the event the original investor is a ‘person resident outside India’ under FEMA (TISPRO) Regulations, 2017. As per the said Pricing Guidelines, no Indian unlisted company can issue shares to a ‘person resident outside India’, at a price lower than the fair market value, determined by a Chartered Accountant or a Securities and Exchange Board of India registered Merchant Banker or a practicing Cost Accountant.

Under the Companies Act, 2013, any fresh issue of securities to a new investor can be made only under Section 62 (1) ©of the Companies Act, 2013, and accordingly the Company within 30 days of such allotment must file a Return of Allotment under Form PAS-3 of the Company (Prospectus and Allotment of Securities) Rules, 2014. One of the mandatory conditions under Rule 12 (7) of the Company (Prospectus and Allotment of Securities) Rules, 2014 is that any shares issued under Section 62 (1) ©of the Companies Act, 2013, must attach a valuation report of a registered valuer (an independent SEBI Registered Merchant Banker or Chartered Accountant in practice having a minimum 10 years of experience) along with the Form PAS-3 filed for this.

Thus, any sale of additional shares by the Indian unlisted company, at no price or a cost below the fair market value determined by a registered valuer under Rule 12 (7) of the Company (Prospectus and Allotment of Securities) Rules, 2014, for the purpose of compliance with the Anti-Dilution Rights will contravene the ‘Pricing Guidelines’ under the FEMA (TISPRO). In the next part of this story, we shall discuss the work-around to this problem.

Anti-Dilution Rights — Weighted Average Method [Part 3 of the five-part series]

average

In Part 1 of the Anti-Dilution Rights story, we discussed the Anti-Dilution Rights in general, and identified that there are two mechanisms for Anti-Dilution Rights protection: i. Full Ratchet Method; and ii. Weighted Average Method.

In this Part 3, we will dig deeper into the Weighted Average Method.

The Weighted Average Method of calculation is used more extensively as this method gives importance to the proportionate relevance of the investments, made in both the rounds.

· Under this method, it is first assumed that all shares of the start-up company issued before the 1st round of investment were subscribed at the price per share similar to the price per share of the 1st round of investment (this is done to take into account the increase in valuation of the start-up company since incorporation to the time of 1st round of investment).

· Thereafter, the price per share at 1st investment is multiplied with the total shares in the start-up company after 1st investment (including the shares issued to the 1st investor).

· The result is then added with the 2nd round investment amount to arrive at the actual investment in the start-up company after the 2nd round investment.

· This is then divided with the total number of shares in the start-up company after the 2nd round investment.

· The result will be the weighted average price per share.

· Thereafter, the 1st round investment amount shall be divided by the weighted average price per share.

· The result will be the number of shares that the 1st investor would have received if the weighted average price per share was the price at which the 1st investment was made.

· This, when deducted by the shares actually received by the 1st investor, will determine the additional shares to be issued to the 1st investor under the Weighted Average Method.

As an example,

Total shares of start-up company before 1st round of investment = 800 shares (Shares before 1st investment)

Calculation:

{100 * (800 + 100)} + 5000} / (800+100+100) = 95

10000/95 = 105.2 shares (105 shares -rounded down)

105–100 = 05 (Additional Shares to be provided to 1st Investor under the Weighted Average Method)

Anti-Dilution Rights — Full Ratchet Method [Part 2 of the five-part series]

Ratchet

In Part 1 of the Anti-Dilution Rights story, we discussed the Anti-Dilution Rights in general, and identified that there are two mechanisms for Anti-Dilution Rights protection: i. Full Ratchet Method; and ii. Weighted Average Method.

In this Part 2, we will dig deeper into the Full Ratchet Method.

The Full Ratchet Method is a simpler method of calculating the number of additional shares that the start-up company needs to provide to the original investor in order to comply with the Anti-Dilution Rights. Under this method, the price at which the new investor has subscribed to the shares of the start-up company (“New Price”) is taken into consideration. Then, the number of shares, the original investor would have received, for his actual investment amount at the New Price is calculated. Thereafter, the number of shares actually received by the original investor in the first round of investment is deducted from the number of shares the investor would have received at the New Price. The result is the number of shares that must be allotted to the original investor in order to comply with the Anti-Dilution Rights.

Formula:

Original Investment/New Price = Shares 1st Investor would have got at New Price (New Price Shares)

New Price Shares — 1st Investor’s Shares = Shares to be allotted to Investor

Calculation:

10000/50 = 200

200–100 = 100 (Additional Shares to be provided to 1st Investor under Full Ratchet)

Anti-Dilution Rights — Introduction [Part 1 of the five-part series]

Contract

In India, the inclusion of ‘Anti-Dilution Rights’ in definitive agreements governing a startup or venture capital deal is quite common. These Anti-Dilution Rights provide protection to the investors against the dip in value of their newly purchased shares in the future event of subsequent investments in the startup company. This is actually quite fair in the case of startups because, at the time of any venture capital investment, startup companies are in a volatile stage and it is quite difficult to predict which way the valuation of the startup company will go in the subsequent rounds of investments.

Anti-Dilution Rights of the investors in a venture capital deal will trigger only when the subsequent rounds of investment in the startup company is made below the value paid by the investor in the original round of investment. Therefore, if the subsequent rounds of investments in a startup is made at a value more than the value at which the original investor had originally invested, then although the original investor’s shareholding in the startup company may get diluted, the value of his shares will actually increase in the market.

In the event the subsequent rounds of financing in the startup company is made at a price per share lower than the price per share paid by the original investor, the Anti-Dilution Rights of the investor gets triggered and accordingly the investor shall have the right to subscribe to additional shares of the startup company at no additional cost or at a significantly lower price. Thus, the original investor gets additional shares to compensate for the loss of value of the shares purchased by him originally. There are two mechanisms for Anti-Dilution Rights protection: i. Full Ratchet Method; and ii. Weighted Average Method. [these methods will be discussed in the coming parts to this story]

Insolvency Resolution Process When There Exist Only Operational Creditors

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Section 6 of the Insolvency and Bankruptcy Code, 2016 (the “Code”) provides for “Persons who may initiate corporate insolvency resolution process” wherein the financial creditor, operational creditor or the corporate debtor itself, may “initiate the insolvency resolution process”.

An application for insolvency of a corporate debtor or corporate person may be filed under Sections 7, 8 and 9 of the Code by those persons mentioned under Section 6.

Section 21(8) provides that “where a corporate debtor does not have any financial creditors, the committee of creditors shall be constituted and shall comprise of such persons to exercise such functions in such manner as may be specified”

In cases where the corporate debtor does not have any financial creditors or where the financial creditors are “related party” (defined under Section 5(24A)) to the corporate debtor, once the insolvency resolution process has been initiated, a committee consisting solely of such operational creditors can be set up in accordance with Regulation 16 under IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (Amended upto 04.07.2018).

16Committee with only operational creditors

(1) Where the corporate debtor has no financial debt or where all financial creditors are related parties of the corporate debtor, the committee shall be set up in accordance with this Regulation.

(2) The committee formed under this Regulation shall consist of members as under –

(a) eighteen largest operational creditors by value:

Provided that if the number of operational creditors is less than eighteen, the committee shall include all such operational creditors;

(b) one representative elected by all workmen other than those workmen included under sub-clause (a); and

(c)one representative elected by all employees other than those employees included under sub-clause (a).

(1) A member of the committee formed under this Regulation shall have voting rights in proportion of the debt due to such creditor or debt represented by such representative, as the case may be, to the total debt.

Explanation — For the purposes of this sub-regulation, ‘total debt’ is the sum of-

(a) the amount of debt due to the creditors listed in sub-regulation 2(a);

(b) the amount of the aggregate debt due to workmen under sub-regulation 2(b); and

(c) the amount of the aggregate debt due to employees under sub-regulation 2(c).

(d) A committee formed under this Regulation and its members shall have the same rights, powers, duties and obligations as a committee comprising financial creditors and its members, as the case may be.”

Initiation of Insolvency Resolution Process by Operational Creditors

creditors

The Insolvency and Bankruptcy Code, 2016 (the “Code”) allows initiation of an insolvency process, under Section 6 in the prescribed manner, by financial creditors, operational creditors or the corporate debtor itself.

Section 5(20) has defined an ‘operational creditor’ as “a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred.”

Section 6 of the Code provides for “Persons who may initiate corporate insolvency resolution process” wherein the financial creditor, operational creditor or the corporate debtor itself, may initiate the insolvency resolution process”.

An application for insolvency of a corporate debtor or corporate person may be filed under Sections 7, 8 and 9 of the Code.

Section 8 of the Code provides for the initiation of an insolvency process by an operational creditor. An operational creditor may, on default of non-payment of dues by the corporate debtor deliver a “demand notice” (means a notice served by an operational creditor to the corporate debtor demanding payment) of such non-payment, under Section 8(1).

The corporate debtor shall, within 10 days of receipt of the demand notice, bring to the notice of the Operational Creditor of the “existence of a dispute” under Section 8(2)(a), i.e., the pendency of a suit or arbitration proceeding that was filed prior to the receipt of the “demand notice”, or the payment of “unpaid operational debt” as provided under Section 8(2)(b).

Consequently, in the absence of such payment and non-existence of a dispute between the two, the Corporate Insolvency Resolution Process can be initiated under provisions set out in Section 9 of the Code.