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Company Incorporation further Simplified by MCA

Ease of doing business – Some new additions in Company Incorporation rules

Ministry of corporate affairs (MCA) has announced the Companies (Incorporation) Third Amendment Rules,2016. The set of announcements made will replace or change the the Companies (Incorporation) Rules, 2014.

There are about 12 changes announced in the notification published at MCA website here. However, the simplifying impact is well associated with few clauses with reasonable clarity.

Mr. Sanjay Khan Nagra, iSPIRT volunteer explains the new announcements in below the embedded video.

Rule 13(2) of Companies (Incorporation) Rules, 2014 following explanation has been added

2014 notification: Following provisions existed

i) The memorandum and articles of association of the company shall be signed by each subscriber to the memorandum, who shall add his name, address, description and occupation, if any, in the presence of at least one witness.

ii) Where a subscriber to the memorandum is illiterate, he shall affix his thumb impression or mark which shall be described as such by the person, writing for him, who shall place the name of the subscriber against or below the mark and authenticate it by his own signature

2016 notification: Now the type written or printed particulars of all the subscriber and witnesses shall be allowed.

Rule 16(1)(m) – of Companies (Incorporation) Rules, 2014 following explanation has been added

2014 notification : Every subscriber to the memorandum was required to submit and file Proof of Identity with the jurisdictional Registrar of companies.

2016 notification: If the subscriber is holding a valid Director Identification Number (DIN), and the same  have been updated as on the date of application and the declaration on this effect is given in the application, the proof of identity and residence need not be attached.

For other changes in the rules we suggest you refer to the Notification given at MCA website. Access this link here.

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ESOP provisions get a booster from MCA for Startups

ESOP another Stay-in-India checklist item gets MCA nod

Ministry of corporate affairs (MCA) has recently relaxed sweat equity issuance norms for startups. These new relaxations are for limited to Startups recognized by Department of Industrial Policy and Promotion (DIPP).  The announcement will immensely help startups. For startups not recognized under DIPP, there is not change.

The new announcement is  – Companies (Share Capital and Debentures) Third Amendment Rules, 2016 (Amendment Rules). It amends the Rule 8 governing sweat equity shares issuance and Rule 12 of Rules 2014 that pertains to issue of shares under ESOP. The other rules to draw out an ESOP plans remains same.

This blog explains the new announcement and some basic concepts for those who may not be aware of terms like ESOPS and Sweat Equity and how they benefit the startups.

Mr. Sanjay Khan Nagra, iSPIRT volunteer explains the new announcements in below the embedded video.

There is lot of material on internet on examples and ESOPS plans and how they benefit the entrepreneur and the employee both. The objective of this blog is to set a background and describe new announcement.

An ESOP plan effects the basic capital structure of the company. It also has long term legal or tax implications. A good ESOP plan can maximizing the benefits from the existing and new provisions. Hence, we suggest startups interested in drawing up an Employee Stock Option Plan (ESOP) should seek a professional advice.

What is an ESOP?

An Employee Stock Option Plan (ESOP) is a benefit plan for employees which makes them owners of stocks in the company. ESOPs have several features which make them unique compared to other employee benefit plans. Most companies, both at home and abroad, are utilising this scheme as an essential tool to reward and retain their employees. Currently, this form of restructuring is most prevalent in IT companies where manpower is the main asset. (Definition Source: The Economic Times).

How ESOPS benefit Startups

ESOPs are a proven tool for startups to succeed and grow. There are many ways that ESOPS can be beneficial for startups.

Some of the ways this helps are as given below:

  • Promoters or founders who can’t contribute capital but bring knowledge and dedication to startup can be have access to equity.
  • Startups can attract experience and talent with sweat equity
  • Startups can use ESOPs as a reward to motivate employees
  • It gives sense of ownership to employees and hence act as an employee retainer ship tool

Change made for Startups

MCA has announced two changes. One, that will increas the base of sweat equity that a startup can issue. Two, that will expand the horizon of sweat equity to promoters and director. Both the changes have are described below.

Increase in limit of Sweat equity shares issued by start-ups

The Rule 8(4) of Rules, 2014 restricted companies from issuing sweat equity shares in excess of 25% of the paid up capital at any time. The rule also limits the issuance of sweat equity shares per year to 15% of the paid up capital or issue value of Rs.5 crores whichever is higher.

The amendment in new announcement expressly permits Start-ups to issue sweat equity shares not exceeding 50% of its paid up capital up to 5 years from the date of its incorporation or registration.

The limits of 15% of paid up per year or capital or Rs.5 crores whichever is higher will still need compliance.

Stock options to promoters and shareholder/directors of startups

The new announcement allows Startups to issue the sweat equity under ESOP to their promoters and to directors who hold more than 10% for the first 5 years from the date of their incorporation. The restriction on issuing stock options to promoters and such directors continues for all other companies

In order to provide this benefit MCA has used notification to exempt the startups from application of Clause (i) and (ii) under Explanation C of Section 62 (1)(b) of Act, 2013 that defines the term ‘Employee’. The Explanation in Section 62(1)(b) reads as below.

Explanation:

For the purposes of clause (b) of sub-section (1) of section 62 and this rule ”Employee” means-

(a)   a permanent employee of the company who has been working in India or outside India; or

(b)   a director of the company, whether a whole time director or not but excluding an independent director; or

(c)    an employee as defined in clauses (a) or (b) of a subsidiary, in India or outside India, or of a holding company of the company but does not include-

             (i).   an employee who is a promoter or a person belonging to the promoter group; or

           (ii).   a director who either himself or through his relative or through any body corporate, directly or indirectly, holds more than ten percent of the outstanding equity shares of the company.

[The clauses (i) and (ii) given in blue does not apply on DIPP registered startups for 5 years]

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Convertible Notes

In this session we take up another announcement by ministry of corporate affairs on convertible notes. This is a step forward to solving the problem of receiving funds as loan from foreign investors as convertible notes.

Sanjay Khan Nagra talks about the issue in the video embedded below.

What is a convertible note?

Convertible notes are debt instruments that converts in to equity, at a later date. The lender initially gives a loan with an understanding that he can convert these in to equity. In most cases, this later date is the date of next valuation of the company. If there is no next round of valuation, the company should return the debt back to lender in a fixed time interval.

Convertible notes are quite popular in startup ecosystems like Silicon Valley in USA. In India, there are other forms of convertible instruments. Such as CCDS/CCPS (compulsorily convertible debenture or preference share). These are not exactly akin to convertible notes prevalent in valley.

Ministry of corporate affairs has announced acceptance of the convertible note as a concept for startups through a circular no. G.S.R. 639(E) New Delhi, dated 29th June, 2016.

What is the new in the recent announcement?

In existing CCD/CCP instruments, company receiving funds upfront enters into an agreement defining the value or a formula at which these will convert in to equity. This value, at which they will convert cannot be lower than the present fair market value. The CCD or CCP are compulsorily convertible if there is a next round of valuation in a specified period. If there is no valuation in that period, then the money raised remains as a simple loan to be repaid.

The convertible note practice in valley is better placed. There also, a convertible note is also a loan given by investor to company. The difference being, the lender gets an advantage to convert debt to equity at a later date at a discounted rate.

So if a Rs.10 share value at later date is Rs. 50, the lender may get a conversion at Rs. 40. Next valuation round may also happen at lower than present fair market value.

So, this seems more of less like similar, what is the problem then?

The anomaly is that the Indian company can raise funds using convertible notes from Indian lenders only, and not from foreign investors.

RBI does not allow valuation linked convertibles notes. iSPIRT approached RBI with this stay-in-India check list item. RBI felt that there has to be an acceptance in company law for the convertible note concept, as akin to the practice in developed world.

iSPIRT approached ministry of corporate affairs (MCA), and the new announcement is a step forward in this direction. We soon expect RBI to follow suit and permit convertible notes from foreign investors.

Are there any conditions in MCA announcement?

MCA has announced a definition for “convertible notes” under G.S.R. 639(E) by amending the Companies (Acceptance of Deposits) Rules, 2014. You can read the complete circular here.

The limitations are:

a) The provision of Convertible note applies only to Startups
b) The amount has to be 25 lakhs or more

As per circular the definition of convertible note is added as follows:
“convertible note” means an instrument evidencing receipt of money initially as a debt, which is repayable at the option of the holder, or which is convertible into such number of equity shares of the start-up company upon occurrence of specified events and as per the other terms and conditions agreed to and indicated in the instrument.

iSPIRT stand

iSPIRT will actively pursue this further with RBI.

DIPP and MCA have taken an appreciable step forward, in getting the regulation relaxed for DIPP registered Startups.

However, in order to bring the Indian startup ecosystem at par with developed world, the limitation to DIPP registered Startups should not exist. These measures are to be adopted for all startups/companies across country.

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iSPIRT’s Stay-in-India Checklist gains further traction: RBI and MCA follow the Startup India Action Plan

Several notable announcements have been made by RBI and MCA pursuant to iSPIRT’s Stay-in-India Checklist (discussed in my earlier post here). In its bi-monthly monetary policy statement released earlier today, RBI has stated that it will take steps to contribute to an ecosystem that is conducive for growth of startups. It is noteworthy that each of the points in the policy framework released by RBI has attempted to address specific issues set out in iSPIRT’s Stay-in-India Checklist. As a member of iSPIRT’s Stay-and-List-in-India Policy Expert Team, it is a proud moment for me to see the result of months of interaction with various authorities on the Stay-in-India Checklist.

IMG_2447The policy changes announced by RBI are as follows:

  • Startups in all sectors will be permitted to receive investments from foreign venture capital investors (FVCI)
  • Transfer of shares from FVCIs to other residents or non-residents will be allowed
  • Permitting receipt of the consideration amount on a deferred basis as also enabling escrow or indemnity arrangements up to a period of 18 months, in case of transfer of ownership of a start-up
  • Enabling online submission of A2 forms for outward remittances on the basis of the form alone or with document(s) upload/submission, depending on the nature of remittance
  • Simplifying the process for dealing with delayed reporting of FDI related transaction by building a penalty structure into the regulations itself
  • Issue of shares without cash payment through sweat equity or against any legitimate payment owed by the company, remittance of which does not require any permission under FEMA
  • Collection of payments by start-ups on behalf of their subsidiaries abroad

In addition to the above, the following Stay-in-India Checklist points have been deferred for consideration with the Central Government.

  • Permitting start-ups to access rupee loans under ECB framework with relaxations in respect of eligible lenders, etc.
  • Issuance of innovative FDI instruments like convertible notes
  • Streamlining of overseas investment operations for start-ups
  • While the above announcements by RBI are encouraging (and extremely fulfilling, given the role iSPIRT’s Stay-in-India Checklist has played), it is important that these relaxations are not limited to the category of startups that are eligible to benefits under the Startup India Action Plan.

In addition to RBI, several key MCA points from iSPIRT’s Stay-in-India Checklist have been discussed in the report of the Companies Law Committee which was submitted to the Government yesterday. These issues are as follows:

  • Reducing private placement process for issuance of securities
  • Excluding convertible notes (convertible into equity or repayable within 5 years from the date of issue, if issued to a person with a minimum investment size of INR 25 lakhs brought in a single tranche) raised by startups from the definition of deposits
  • Allowing startups (which are incorporated as private companies) to raise deposits from members for the first 5 years without any upper limit
  • Simplifying the procedure to convert an LLP into a company
  • Deleting insider trading provisions
  • Allowing startups to issue ESOPs to promoters working as employees or directors
  • Excluding certain private companies under the purview of the definition of ‘listed company’
  • Simplifying the incorporation process

Again, while it is heartening to see this extent of action by the authorities on iSPIRT’s Stay-in-India Checklist, it must be ensured that not everything is linked to the definition of startups announced in the Startup India Action Plan.

photozzLastly, while the RBI has positively stated that it will notify certain changes soon, all of MCA issues and a majority of RBI issues are still at a ‘discussion/recommendation stage’ (and have been merely acknowledged by the authorities as issues that need to be resolved). Hopefully, the authorities will not stop here, and will implement all these changes soon. Needless to add, iSPIRT will keep interacting with, and assisting, the authorities in achieving a quick closure to these items, as well as the remaining issues which have not yet been touched by the authorities.

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Startup Action Plan: Glass Half Full

Innovation and entrepreneurship are cornerstones of sustained economic growth. The Government has done well to recognise this by launching the Startup India Action Plan. The event was an unprecedented and resounding success. The energy in entrepreneurs, leaders of unicorns, seasoned investors, Government officials, etc was intense and, for most part, contagious. No doubt the Startup India Action Plan has provided various important exemptions and incentives to startups. However, the key question is this – Whether the Action Plan adequately addresses the irritants that make the Indian startup ecosystem unattractive? In our view, the answer is no.

iSPIRT has been closely associated with the Government in this endeavour, and had put together a list of thirty four key irritants that need to be resolved to arrest the exodus of Indian startups. The list is called the Stay-in-India Checklist. Of the thirty four issues, ten each came under the Revenue Department and the RBI, nine came under the MCA, and the remaining came under multiple departments such as the DEA, DIPP, RBI, MCA, and SEBI. Based on our analysis of the Action Plan and other announcements made, the present status looks like the following:

Startup Action plan

As noted above, only one RBI issue has been resolved so far (that too by way of a clarification during our discussion prior to the Startup India event). There was no announcement on any other RBI issues as part of the Action Plan. For creating a vibrant startup ecosystem, it is imperative that the investments from foreign sources are made easier. While the RBI, MCA, and other authorities had assured us that action will be taken on most of these issues (see the orange category above) once the definition of ‘startup’ is released, so far, there is no clarity as to when such action will be taken.

We will internally continue to interact on the outstanding (orange and red) items with the RBI, MCA, Revenue, and other departments. We hope that these issues will also be resolved by the relevant authorities soon.