SEBI Clarifies Applicability of Portfolio Managers Regulations to an Indian Manager of an Offshore Fund

In an interpretative letter sought under the SEBI (Informal Guidance) Scheme, 2003 (“Informal Guidance”), the markets regulator has clarified that the investment manager of an alternative investment fund (“AIF”) can provide investment management services to an offshore fund only as a SEBI-licensed  portfolio manager under the SEBI (Portfolio Managers) Regulations, 2012 (“PM Regulations”). SEBI also reiterated that the investment managers of AIFs are considered to be regulated by SEBI. In this post, we will explore the queries, SEBI’s responses, and implications for the industry.

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ESOP Has SEBI Put an End to ‘Sell All’ Method of Cashless Exercise

Employee stock options are frequently used as an employee incentivisation and retention tool, given the benefit accrued over time. An ESOP-wrapped compensation is attractive because the gains from the shares acquired on exercise of employee stock options are much higher than the exercise price paid for the options. While the maximum or minimum price payable on exercise of the options is not prescribed by the law – which only lays down the requirement for the price to be accounting-standard compliant –  the price typically ranges from the face value of the share to the fair market value of the share.

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Regulatory overload on Audit Committees

Background

The regulatory architecture under the Companies Act, 2013 (“Act”), and the SEBI (LODR) Regulations, 2015 (“LODR”) places significant emphasis on the functioning of various committees of the Board of Directors (“Board”) of a listed company. While all Board committees have been entrusted with important responsibilities, a disproportionate amount of the regulatory burden has been placed on the Audit Committee. The Audit Committee has multifarious responsibilities under Section 177 and various other provisions of the Act, the LODR, and the SEBI (Prohibition of Insider Trading) Regulations, 2015 (“PIT Regulations”).

Continue Reading Regulatory overload on Audit Committees – Is there a need to have a fresh look at its role?

Role of IFSC in the Indian SPAC Dream

In part 2 of this series of blogs (Key Features IFSC Lisiting Regulations in Relation to Listing of SPACs), we touched upon the newly-introduced framework for the issuance and listing of special purpose acquisition companies (“SPACs”) at the International Financial Services Centres (“IFSC”) under the International Financial Services Centres Authority (Issuance and Listing of Securities) Regulations, 2021 (“IFSC Listing Regulations”). In this part of the blog we are going to look at the IFSC Listing Regulations with a critical eye to detect the gaps that continue to exist despite the framework being put in place and identify areas that can be improved upon to leverage the unique status of entities in IFSC.

Continue Reading Role of IFSC in the Indian SPAC Dream: An Overview – Part 3

SEBI Operational Guidelines

The Securities and Exchange Board of India (“SEBI”) has recently issued the operational guidelines (“Operational Guidelines”)[1] for its circular dated August 13, 2021, on ‘Security and Covenant Monitoring using Distributed Ledger Technology’ (the “DLT Circular”)[2]. This article will examine the key highlights of the Operational Guidelines and analyse their impact.

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Revised threshold of Rs. 1000 Crore for ‘material’ RPTs under LODR – Does it pass the Article 14 test

Background

SEBI[1] has recently revised the materiality threshold for obtaining shareholder approval for related party transactions (“RPTs”) under Regulation 23(1) of the SEBI (LODR) Regulations, 2015 (“LODR”), to cover RPTs that exceed INR 1000 crore or 10% of a listed entity’s annual consolidated turnover (as per the last audited financial statements), whichever is lower.

The revised materiality threshold has come into effect on April 1, 2022, and this change assumes significance, as prior to April 1, 2022, there was no absolute numerical threshold for RPTs that require shareholders’ approval.

This also raises the question as to whether an absolute numerical threshold of INR 1000 crore could potentially be considered as violative of Article 14 of the Indian Constitution.

In this post, the authors aim to probe deeper into this constitutional aspect and examine some of the arguments that can be made from both sides of the spectrum.

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SEBI

Background

In order to provide for an alternative and efficient dispute resolution mechanism for securities law violations, the Securities and Exchange Board of India (“SEBI”) introduced the consent mechanism through a circular in 2007[1] (which was partially modified in 2012)[2]. This was subsequently codified through the SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2014 (“2014 Regulations”), pursuant to the notification of the Securities Laws (Amendment) Act, 2014, which expressly empowered SEBI to settle matters with a view to removing any ambiguity over the validity of the settlement process. This regime specifically excluded certain serious violations (e.g. insider trading, fraud) from the purview of the settlement mechanism. Explicit provisions which enabled initiation of settlement proceedings prior to the issuance of show cause notice were also introduced, to reduce administrative burden and cost on SEBI.

Continue Reading Amendments to SEBI Settlement Regime – A Snapshot

Widened scope of ‘employee under the New SEBI ESOP Regulations

Background:

The Securities and Exchange Board of India had notified the SEBI (Share Based Employee Benefits and Sweat Equity) Regulations, 2021 (“New SEBI ESOP Regulations”), on August 13, 2021. The New SEBI ESOP Regulations govern all share-based employee benefit schemes dealing in securities, including employee stock options, employee share purchase, stock appreciation rights, general employee benefits and retirement benefits (“Share Based Benefit Schemes”). The New SEBI ESOP Regulations also include regulations on sweat equity shares.

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An Introduction of ESG Disclosures in Indian Regulatory Space

Introduction

In the previous part, we first discussed the relevance of ESG disclosures for stakeholders involved in business processes, and then reflected upon the existing regulatory space for such disclosures along with the Business Responsibility and Sustainability Reporting (“BRSR”) framework, recently introduced by Securities Exchange Board of India (“SEBI”). Taking forward the discussion, this part will analyse the BRSR framework and suggest ways in which it could be further improved.

Continue Reading An Introduction of ESG Disclosures in Indian Regulatory Space – Part 2

An Introduction of ESG Disclosures in Indian Regulatory Space

Introduction

The 2021 conference of parties (CoP26) on climate change was recently held in Glasgow, with the global community negotiating ways to manage climate change and mitigate its impact while ensuring that no adverse effect is felt on employment, food security, and living standards of the masses. Addressing climate change is one the most urgent tasks before us, particularly for India, due to rising threats from drastic physical events, such as floods, droughts, hurricanes, rising temperatures, and other climate change related events. It has become necessary to take immediate and consequential steps towards climate change adaption and mitigation; otherwise, the global community is set to lose trillions of dollars and millions of jobs.

Continue Reading An Introduction of ESG Disclosures in Indian Regulatory Space – Part 1