The capital market regulator of India i.e. the Securities and Exchange Board of India (SEBI) ha...
A new set of Regulations governing the share based benefits and sweat equity were released by the Securities and Exchange Board of India (SEBI). These regulations are SEBI (Share Based Employee Benefits and Swear Equity) Regulations 2021 (hereafter ‘SEBI ESOP regulations’). These SEBI ESOP regulations are a successor to other regulations such as SEBI (Share Based Employee Benefits) Regulations, 2014 and SEBI (Issue of Sweat Equity) Regulations, 2002 (collectively referred to as ‘erstwhile regulations’). The SEBI ESOP regulations have been brought to address some of the issues and shortcomings in the previous regime.
Scope of Eligible Employees broadened
The erstwhile regulations allowed share based benefits in the form of ESOPs, Stock Appreciation Rights (SARs), and sweat equity shares to the eligible employees of the company. These regulations permitted benefits of these schemes to the permanent employees of the company only and deprived the non-permanent employees of the company. The new SEBI ESOP regulations offer greater flexibility to the listed companies and allow them to incentivize the non-permanent employees who were previously ineligible for such benefits.
Further, the fact that the new SEBI ESOP regulations have used the terminology of ‘employees’ instead of ‘exclusive employees’, therefore, in the absence of any clarification from SEBI’s end, the benefits have been extended to the employees of the listed companies or their group companies on a non-exclusive basis.
Flexibility in the implementation of the scheme
The erstwhile regulations too allowed implementation of the share-based benefits scheme either directly or through an irrevocable trust. The new SEBI ESOP regulations have gone a step further allowing the listed companies to change the mode of implementation of the scheme if the circumstances warrant such a change. The circumstances warrant that: (i) the company needs to obtain prior approval of the shareholders through a special resolution; and (ii) the proposed change should not be prejudicial to the interests of the employees.
Limit set on the issue of sweat equity shares
The new SEBI ESOP regulations have set a limit on the amount of sweat equity shares a company can issue which was not present in the erstwhile sweat equity regulations. Following are the limits that have been set under the new SEBI ESOP regulations:
This provision of limiting the issue of sweat equity share capital of a listed company has been taken to protect the interests of the public shareholders from being diluted significantly and from experiencing substantial price fluctuations in the price of the listed company’s shares. An even significant cap has been put in place for technology start-ups who often tend to offer sweat equity shares in place of monetary salary in order to retain best talents.
No vesting period in case of dead employees or on permanent incapacity of employee
The new SEBI ESOP regulations provide that no vesting period or lock in period shall be applicable in case of death of an employee of a company or on permanent incapacity of an employee. In such cases the benefits accruing to the employee shall be transferred to the legal heirs or nominees of the employee on the date of death or permanent incapacity of that employee. Therefore, it is suggested that the companies and startups and companies start framing their ESOP policies and SAR  schemes which are in consonance with the applicable laws and these new SEBI ESOP regulations. The erstwhile regulations were silent on this issue.
Vesting benefits to an employee transferred because of Merger
In case of employees who have been vested with the options and shares and such employees are transferred pursuant to an amalgamation or merger before completion of their vesting period. The new SEBI ESOP regulations mandate that the scheme of amalgamation has to specify how the unvested and unexercised options will be treated such thatinterests of the employees are not prejudiced in any manner. Such kind of protection was not available with the employees in the erstwhile regulations.
Secondary sale allowed to make payment of exercise price of ESOPs
In cases where share benefit transfer scheme is entrusted by a trust, in such cases the trust has been permitted to enter into secondary market sales to allow an employee to make payment for the exercise price of ESOPs and related taxes and expenses.
Use of excess money and shares after winding up of schemes
According to new regulations, when a scheme is wound up, subject to the approval of shareholders, the excess money or shares with the trust is transferred to another scheme as recommended by the compensation committee.
The new SEBI ESOP regulations provide much needed clarification regarding granting of share based employee benefits by listed companies. This will better enable listed companies to comply with the SEBI framework in a better manner especially related to the benefits to be given to non-exclusive employees.
Till date grant and issuance of ESOPs is governed by Companies (Share Capital and Debentures) Rules, 2014 which state contrary to what the new SEBI ESOP regulations provide such as: (i) ESOPs and sweat equity must be issued to permanent employees only; (ii) do not state how the secondary sale of shares will be done in a cashless exercise of options by the employees; and (iii) do not provide a course of action as to how will the excess monies and shares will be utilized after ESOP scheme is wound up.
With the new SEBI ESOP regulations and the clarifications and liberalizations offered by them, the start-ups have got a shot in the arm for whom granting of ESOPs is fairly common.
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