LEGALIZATION OF OPTIONS IN INDIA

1.                       BACKGROUND

It is common to incorporate ‘put’ / ‘call’ options; ‘right of first offer’ / ‘right of first refusal’ and tag / drag along rights (all of them collectively referred as “Options”) in the investment agreements. However, the issue of enforceability of Options has always been a challenge before an Indian court due to lack of clarity under the company law and the objections raised by the Indian regulators i.e. Reserve Bank of India and (“RBI”) and Securities Exchange Board of India (“SEBI”). Some of the recent changes seem to have brought clarity in the legal positions and Indian investment regime. Please see below our observations with regards to these recent changes.

2.                       NEW COMPANIES ACT

Indian courts under Section 111-A of the Companies Act, 1956 have at several occasions held that enforcement of Options are contrary to the principle of ‘free transferability’ of shares of a public limited company.

New Company Law: The new Companies Act, 2013 (“2013Act”) under Section 58(2) specifically provides that any contract or arrangement between 2 (two) or more persons in respect of transfer of securities shall be enforceable as a contract. Section 58 of 2013Act has been notified in September 2013 and hence Options under the investment agreements are now enforceable.

3.                       SEBI NOTIFICATION

Supreme Court in its judgment[1] has held that Securities Contract (Regulation) Act, 1956 (“SCRA”) is also applicable to unlisted public companies. According to SEBI, SCRA permits derivatives contract (i.e. Options) only if they are entered into on the stock exchanges and any other private agreement is in violation of Section 18A of the SCRA. Based on the above, SEBI has at several occasions requested parties to delete these Option clauses in investment agreements.

Amendment Notification: SEBI vide notification dated 3 October 2013 has now permitted contract of pre-emption rights including but not limited to right of first refusal or tag-along or drag along rights or such other pre-emptive rights contained under the shareholders agreements or articles of association of companies or other body corporate. SEBI has also permitted clauses for purchase or sale of securities pursuant to exercise of an option contained therein to buy or sell the securities under certain specified circumstances as provided in the notification.

However, this new permissible legal regime applies only prospectively and does not “affect or validate any contract which has been entered into” prior to the date of the notification. Hence, all the investment agreement executed before this SEBI notification will not be entitled to the benefit of this amendment unless the investment agreement is appropriately amended.

4.                       RBI NOTIFICATION

RBI in past has been objecting to inclusion of Options in investment agreements when such investment is done by a non-resident as it viewed Options as secured mode of exit to a foreign investor within a specific period of time. RBI believed such assured exit was primarily defeating the spirit of equity instrument and making them parallel to debt instruments. Debt instruments are governed under the Foreign Exchange Management (Borrowing or Lending in Foreign Exchange) Regulations, 2000 (“Borrowing Regulations”) which lay down strict conditions such as end-use restriction of the loan, ceiling on the interest payment, etc. RBI viewed Options in equity instruments as a method of getting around the Borrowing Regulations.

Amendment Circular: Vide a circular dated 9 January 2014, RBI has now permitted inclusion of Options in investment agreements subject to certain conditions laid down in the circular. The key conditions are as follows:

• Minimum lock-in period of 1 (one) year or a minimum lock-in period as prescribed under Foreign Direct Investment Regulations, whichever is higher; and
• Foreign investor exercising Options shall be eligible to exit without any ‘assured return’.

5. MHCO COMMENTS

In the last 6 (six) months, the regulatory bodies and the government has provided much needed clarity on Options. The changes are very welcome and will encourage investors, more particularly, foreign investors to see India as a favourable investment option again. Enforceability of Options will provide a boost to the foreign investment in India. This is because the changes will induce confidence amongst foreign investors in terms of securing their exit and otherwise making India a favourable investment destination for foreign investors yet again.

(The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or contact@mhcolaw.com for any assistance)

---

[1] Bhagwati Developers v Peerless General Finance

SEXUAL HARASSMENT ACT NOTIFIED | EMPLOYERS TO GET INTO ACTION

1. BACKGROUND
   1. After a period of 7 months of President’s assent, the Government has recently notified the effective date for The Sexual Harassmentof Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) as 9 December 2013. The Ministry has also notified Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“Rules”) which enunciate procedural aspect of the Act. The Act and the Rules cover provide a mechanism for women to lodge complaints against sexual harassment against them in workplace and at dwelling houses. The Act and Rules are collectively referred to as “Sexual Harassment Laws”.
   2. The objective of this update is to elucidate on the newly enacted Sexual Harassment Laws, with a focus on the obligations caste upon employers of private workplaces.


2. WHAT CONSTITUTES SEXUAL HARASSMENT?
   The definition of Sexual Harassment in the Act is an inclusive one. It has been defined to include any one of the following unwelcome acts or behaviour (whether directly or by implication) – physical contact and advances, demand or request for sexual favours, making sexually coloured remarks, showing pornography or any other physical, verbal or non-verbal conduct of sexual nature.


3. TO WHOM DOES THE SEXUAL HARASSMENT LAWS APPLY?
   1. The Sexual Harassment Laws covers the mechanism for women in workplaces and women employees in dwelling houses to come forward with any acts of sexual harassment against them.
   2. What qualifies as workplace? Apart from government financed bodies, government corporations and co-operative societies, ‘workplace’ has been defined to include all private bodies (including NGO’s, trusts, service providers carrying on commercial, professional, vocational, educational, entertainmental, industrial, heath or financial services), hospitals, nursing homes, sports bodies. The workplace also includes any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey.
   3. Who qualify as aggrieved women in the workplace ? Any aggrieved woman can make a complaint for sexual harassment at the workplace. An aggrieved woman in relation to a workplace is a woman of any age, whether employed or not, who alleges to be subjected to any act of sexual harassment.


4. EMPLOYER AND HIS/HER OBLIGATIONS
   1. Who is employer of a workplace? For a governmental body, the head of such body or other specified person and persons discharging contractual obligations with respect of the employees are employers. For private workplaces, any person responsible for the management, supervision and control of the workplace and persons discharging contractual obligations with respect of the employees are employers.
   2. What are the obligations of employers? The key obligations of an employer of a workplace under Sexual Harassment Laws are:
      • Constituting an Internal Complaint Committee (“ICC”) at each office or branch, of an organization employing at least 10 employees as set out in the Sexual Harassment Laws;
      • Provide a safe working environment at the workplace;
      • Display conspicuously at the workplace, the (a) penal consequences of subjecting women to sexual harassment and (b) composition of ICC;
      • organising (a) workshops and awareness programmes at regular intervals for sensitizing employees on Sexual Harassment Laws and (b) orientation programmes for members of ICC;
      • providing the members of ICC with facilities to deal with complaints and conduct inquiries;
      • supporting woman if she wants to file a complaint in relation to an offence under law;
      • treating sexual harassment as a misconduct under the service rules and initiate action for misconduct;
      • monitoring the timely submission of reports by the ICC.
   3. If an employer fails to constitute an ICC or does not comply with any provisions of Sexual Harassment Laws, the Act prescribes a monetary penalty of up to INR 50,000 (US$850). A repetition of the same offence could result in the punishment being doubled and / or cancellation of business licenses or de-registration of the entity.


5. LOCAL COMPLAINTS COMMITTEE
   The government is required to set up a Local Complaints Committees ("LCC") at the district level, as set out in the Sexual Harassment Laws, to investigate complaints of sexual harassment from establishments where the ICC has not been constituted due to the establishment having less than 10 employees or if the complaint is against the employer himself.


6. MECHANISM FOR COMPLAINTS, INQUIRY AND PENALTIES
1. Complaints in time-bound manner : Aggrieved women can make complaints about sexual harassment at the workplace to the ICC and if the ICC is not constituted to the LCC, within a period of 3 months with an extendable time of 3 months at the discretion of the ICC or LCC.
2. Conciliation : The aggrieved woman has the option to go in for a conciliation (in which there cannot be a monetary settlement).
3. nquiry : If (a) no settlement is reached upon conciliation, (b) aggrieved woman complains of violation of settlement terms by the respondent or (c) aggrieved woman does not opt for conciliation, the ICC or LCC shall:




7. OBSERVATIONS
   1. The Sexual Harassment Law has been enacted after almost 16 years of the Supreme Court in making it mandatory for workplaces to lay down a Redressal mechanism for women to report any sexual harassment they have been subjected to. While codification of the guidelines set down by the Supreme Court is a very welcome step, it puts the employers to task to put in place the required machinery at their workplaces and compulsorily put the sexual harassment policy for the workplace in place.
   2. While the Sexual Harassment Law may need a few improvements, such as,
      • gender neutrality,
      • defining sexual harassment in a more comprehensive manner,
      • practical issues in reaching non-monetary settlements during the prescribed conciliation process, setting up an ICC at all administrative units or offices of a workplace, getting a member from an NGO to be a part of each ICC, deducting the salary as a form of punishment given the limitation in Payment of Wages Act, 1939 etc,
      it is a step forward and we hope that the government is able to implement the law in a very holistic, useful and effective manner.

(The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or contact@mhcolaw.comfor any assistance)