CREATING AN ESOP POLICY
In our experience of having assisted several entrepreneurs with execution of ESOPs for their startups, we have observed that most entrepreneurs are under the impression that by just mentioning the number of ESOPs on their cap table, or in offer letters to their employees, the startup has fulfilled its obligation to grant ESOPs to its employees. This is actually incorrect.
Mentioning ESOP pool on your cap table actually just makes your investors happy. Why? Well when an investor invests in your startup, they want to ensure that they do not get diluted for any reason except in case of future rounds of fundraising by your startup (even for that they have the right to maintain valuation aka pre-emptive right). It is important for investors that their shareholding does not get diluted in order to give shares to your employees, mentors or all those well-wishers of yours, whose help and guidance you took in the initial days of starting up and promised equity to. Only you the founder should get diluted to give these promised equity shares to your mentors and advisors, not the investors. This is the reason why investors require a startup to create an ESOP pool/advisory stock option pool, as a condition precedent to their investment in a startup. This is also the reason why investors require you to convert all loans from friends and family, and conversion of convertible notes, if any.
Related reading: Understand how valuations work and how a founder’s shareholding gets diluted when an investor invests in a startup in our blog titled ” The Valuation Game.. What Does It Mean Exactly? , by our co-founder, Karthik Chandrasekar.
Therefore, all you have achieved by mentioning a “ESOP Pool” on your cap table and inserting a number against it is (a) carving out the maximum number / percentage up to which your investors won’t get diluted, and (b) demonstrating to your investors, your intention to give ESOPs some day to your employees.
At this stage, where your startup’s ESOPs are only on the cap table, your ESOPs are only a virtual pool. How do you convert the ESOPs in to reality? Well, that’s easy, you will just have to create an actual ESOP pool. In order to do that, you will have to take the following steps:
Draft an ESOP Policy in compliance with the Indian Companies Act, 2013. The ESOP Policy will have to set out in detail the terms of ESOPs, cliff period, vesting schedule, exercise price/strike price, exercise period, consequences of employee leaving the startup, consequences of the startup getting acquired, etc.
Once the draft ESOP policy has been finalized and if you have investors in your startup, then check your Shareholders’ Agreement and Articles of Association, to verify if the approval of investors for a ESOP policy will be required. Lost? Well, just look for a clause that is titled either as “reserved matter right” or “affirmative voting matter” or “affirmative voting right” or “investor protection matter”. Once you find this clause, then look through the several items and check if creating a stock option, ESOP etc is listed therein. If it is, then you would have to send an email to your investor alongwith copy of the ESOP policy for your startup, requesting the investor for its approval to the ESOP policy.
LexGyaan: Most VCs get their respective legal team to also review the ESOP policy. Therefore, be prepared for few iterations and discussions.
Where you don’t have any investors in your startup, you can skip step 2 and directly proceed with step 3, i.e., convene a Board Meeting for approval of the ESOP Policy. How to convene a board meeting properly under Companies Act, 2013?
Convene a meeting of Shareholders (aka EGM) of your startup, for approval of the ESOP Policy.
Now you have an ESOP policy and can formally start granting ESOPs. Click here to download a free template of a ESOP grant letter!
Click here to read FAQs on ESOPs.
Granting ESOPs to Promoters/Co-Founders
I often get asked this question – “Can I grant ESOPs to a Co-Founder who I recently brought on board my Startup?”. Well the answer is both yes and no!
The Companies Act, 2013 prohibits grant of ESOPs to the Promoter of a company. The term “Promoter” does not necessarily refer to only a person who is named as a Promoter at the time of incorporation of the company. A Promoter is defined broadly and includes, the following:
- Any person who has been named as such in a prospectus or is identified by the company in its annual return; or
- Any person who has control over the affairs of the company, directly or indirectly whether as a shareholder, director or otherwise; or
- Any person in accordance with whose advice, directions or instructions the Board of Directors of the company is accustomed to act. Provided that such person is not someone who is acting merely in a professional capacity.
Therefore, typically a Co-Founder who you bring on board at a later stage, may not be a Promoter as stated in the Charter Documents (Memorandum and Articles of Association of your Startup) but still can be considered a “Promoter”, thus restricting him from receiving ESOPs in the company.
ESOPs to Promoters/Co-Founders of recognized Startups
The Companies Act, 2013 has made an exception to the above rule, by allowing Startups that are recognized by Govt. of India to grant ESOPs to founders, as long as the grant of such ESOPs is within 5 years from their incorporation. This means if your Startup has a Certificate of Recognition from DPIT, Govt. of India, then you can grant ESOPs to Promoters/Co-founders.
Related Readings : How to Get Startup India Registration
What is Differential Voting Rights?
Shares with Differential Voting Rights (DVRs) means shares that give the holder differential rights as to voting (either more or less voting right) as against the Ordinary shareholders of the company.
Types of DVR
- Shares that have superior voting rights
- Shares that have inferior voting rights
Eligibility/Condition for issue of shares with DVR*
- AOA of the Company should authorize issue of DVR;
- Consistent track record of distributable profits for the last three years;
- No default in filing annual return for last 3 Financial Years;
- No default in payment of declared dividend or repayment of deposit or loan borrowed;
- the shares with differential rights shall not exceed twenty-six percent of the total post-issue paid up equity share capital;
- No penalty by court or tribunal for any offense for the last 3 Financial Years; and
- The shares issued with DVR cannot be changed later.
*This provisions shall not apply to private companies in case MOA and AOA of the company provide otherwise.
Procedure for issue of shares with differential voting rights
- Check AOA of the Company;
- Obtain valuation certificate from registered valuer;
- Open a separate bank account;
- The terms of issue of shares should be finalized;
- Conduct board meeting for issue of shares with DVR;
- In case issue of DVR affects the rights of existing class of shares then obtain consent from 3/4th of the shareholders of that class;
- Filing form MGT-14 with ROC within 30 days of EGM;
- Circulate offer letter along with the share application form to the investors;
- Receive share application money along with the application form ;
- Conduct board meeting for allotment of shares;
- File form PAS-3 within 15 days of allotment of shares;
- Pay stamp duty and issue share certificates; and
- Make entry in register of members.
Difference between DVR shares and Ordinary Shares
- Provide few or higher voting right to shareholders.
- Rate of dividend is low or higher.
- DVR shares are ideal for small shareholders or promoters.
- Issued at a discount in comparison with ordinary shares.
- One share One Vote.
- Rate of dividend is fixed for class of shareholders.
- Ideal for large shareholders.
- Issue at FMV.
Advantages of Issuing shares with DVR
From Issuer Perspective
- To raise more capital without diluting its ownership structure.
- Get control in decision making process.
- A tool to avoid hostile take over.
- To fund large Project.
From Investor Perspective
- Benefit to investors since share are issued at discount & also for incremental dividend.
- Better for investors who are looking for good quick return rather than voting rights.
- Institutional Investors can invest in private companies without any limit and making it a subsidiary.
Dis-advantages of DVR
From companies Perspective
- Lack of investor awareness about such issue of shares.
- Issue shares at discount.
- Minority shareholders can lose faith in the Company.
From investor Perspective
- Lack of investor awareness about such issue of shares.
- Possible misuse of voting power
- by the promoters & hence act
- against the interest of the shareholders.
- Lack of liquidity may hamper return.
- Not beneficial for Institutional
- Investors as they are
- interested in voting rights and long term capital gains both.
Case of Tata Motors
- In 2008, issued DVR shares.
- It was the first company in India to issue DVR shares and amongst the very few in Asia.
- Issued at Rs 305 a share which was about 10% lower than the issue of normal rights at Rs.340.
- Will offer 5% of more dividends.
- Gives an additional 10.3% discount.
- But carry one-tenth the voting rights of ordinary shares. This means 10 DVR shares = 1 ordinary share as far as voting rights is concerned.
Amazon caps voting rights in Witzig Advisory Services at 17%
- Amazon has bought 17% stake in the company through Class A shares and the rest 32% through Class B shares having differential voting rights (DVR).
- Each Class A share shall have one vote, while the Class B shares shall not carry any voting rights. This effectively caps Amazon’s voting rights in Witzig at 17%.
- Amazon appears to have made use of DVR shares to comply with the new ecommerce FDI norms that came into force from February 1, and also to ensure that More can continue selling on its Indian marketplace.
- The new ecommerce FDI guidelines had forced Amazon to reduce its stake from 49% to 24% in Cloudtail and Appario, the two top sellers on its marketplace. The American etailer had also evaluated the idea of limiting its holding in Witzig to less than 26%, and not acquiring 49% in the company as was originally planned.
- By capping its voting rights in Witzig at less than 17%, Amazon will be able to continue with More as a seller. Samara Capital will hold 51% in Witzig, making the latter an Indian owned-and-controlled company.
- For an investor, who wants to be in the company’s decision processes, DVR shares is not an attractive proposition due to limited voting rights.
- But if an investor isn’t concerned much with voting rights, then investing in the DVR would certainly be an attractive option.
1. If it’s not to an employee or a director, then don’t call them ESOPs! Think of alternative structures.
ESOPs under Indian Companies Act, 2013 can be issued only to employees and directors. In case of a startup recognized by Department of Promotion for Industry and Internal Trade, you can even issue ESOPs to a promoter. Yes, you heard that right, ESOPs cannot be issued to promoters otherwise. Therefore, if you have promised ESOPs or sweat equity to a mentor or advisor or co-founder, think through and decide on alternative structures, unless you can actually issue ESOPs to them, under the law.
Related readings : Are you a recognized startup?
2. There is a statutorily mandated 1 year cliff on ESOPs
The Indian Companies Act, 2013 mandates a 1 year cliff period. This is compulsory and you cannot contractually exempt it.
Related Readings: Mandatory 1 year cliff on ESOPs