Author name: CBCL

Mitigating Liability of Directors and Officers. [Mincy Mathew] The author is a third-year student at National Law Institute University, Bhopal. The board of directors is the primary management body of any company, and as such, it owes a fiduciary duty to the company and is expected to act in good faith and to promote the best interests of all the stakeholders. The directors are personally liable to pay losses suffered by the company following an act which is wrong, negligent, outside the company’s authority, beyond their power, or which evidences insufficient skill and care in managing the company’s affairs. The liability of the directors, in such cases, is joint and several. Along with the Companies Act, the directors must comply with income tax law, labor laws, and environmental laws, among others. With an increasing role of the directors in ensuring compliance with corporate governance norms, the directors may ask for protection against any future liability. The liability of an “officer in default” is unlimited and the directors would, therefore, seek to protect their personal assets. For mitigating the liability of a director, the Companies Act, 2013 provides certain safe harbor provisions. According to section 463 of the Act, if in any proceeding for negligence, default, breach of duty, misfeasance or breach of trust against an officer of a company, it appears to the court hearing the case that the officer has acted honestly and reasonably, and that having regard to all the circumstances of the case, he ought fairly to be excused, the court may relieve him, either wholly or in part, from his liability on such terms as it may think fit. In addition, for independent directors, the liability will be “only in respect of such acts of omission or commission by a company which had occurred with his knowledge, attributable through board processes, and with his consent or connivance or where he had not acted diligently.”[1] However, it is important to ensure that there is an additional protection given to the directors, because in certain cases, statutory protection may be inadequate. It may sometimes be difficult to ascertain whether an act was “within the knowledge” of a director or whether a director acted “diligently” and, therefore, such liabilities are difficult to foresee. Accordingly, a company may also provide certain indemnities to its directors for any liability arising out of any act done in his professional capacity, excluding intentional criminal conduct. The Companies Act, 1956 prohibited any indemnity to the director, but there is no corresponding provision in the 2013 Act. The 2013 Act, therefore, may allow greater flexibility to directors to ask for such indemnities from the company especially where no fault could be attributed to them. Such protection may be provided to them by incorporating an indemnity provision in the constituent documents, or by issuing a letter of indemnity to individual directors, as is the case with several companies in India. An indemnification agreement is entered into by a director with the company, which makes good any losses caused by the director to the company, during the performance of his duties. Even though indemnification may be provided in the charter documents, it is advisable that a separate indemnification agreement is entered into between the director and the company. A separate agreement provides the surety that the new management cannot amend the articles to the detriment of the directors and that its scope extends even after his resignation. In addition, a separate agreement, being a bilateral agreement, ensures a more detailed and a better negotiated deal. While negotiating the indemnities, care must be taken to draft it wide enough to cover any complicated corporate transaction, while still excluding dishonest or fraudulent conduct. The indemnification agreement should ideally also include a D&O insurance to provide security in case the company is financially unable to pay for the indemnification. The Companies Act, 2013 recognizes the right of the companies to purchase D&O insurance in section 197. The section provides that: Where any insurance is taken by a company on behalf of its managing director, whole-time director, manager, Chief Executive Officer, Chief Financial Officer or Company Secretary for indemnifying any of them against any liability in respect of any negligence, default, misfeasance, breach of duty or breach of trust for which they may be guilty in relation to the company, the premium paid on such insurance shall not be treated as part of the remuneration payable to any such personnel. Provided that if such person is proved to be guilty, the premium paid on such insurance shall be treated as part of the remuneration. D&O insurance provides indemnity to the directors and the officers of the concerned company against costs incurred in defending proceedings instituted against and in respect of any damages awarded to the claimants against them, such as an out-of-court settlement. A typical D&O insurance policy may include three types of coverage: A-side coverage. This part covers directors, officers, and sometimes employees for defense costs, settlement fees, or judgments in situations when they are not indemnified by the company. B-side coverage. This covers the company for the losses incurred by its directors, officers, and employees when the company does indemnify them. C-side coverage. This financially protects the entire corporation, against any loss and is also known as ‘entity coverage’. The company has to have the consent of the board of directors in order to avail itself of a D&O policy. Further, while procuring such policies, it must be ensured that the sameprovide for certain exceptions especially as regards fraud or wilful misconduct. D&O insurance is essential to mitigate the liability of the director, as it ensures indemnification of any loss even if the company is unable to pay. A mitigation strategy adopted by the company cannot decrease the liability of a director acting in complete disregard of his duties and cannot act as a replacement for corporate governance mechanisms. However, it will ensure that the directors feel safeguarded against any unknown liability. Thus, quality personnel stay in the company and are best able to fulfill their professional duties. [1]Section 149(12).

The Fugitive Economic Offenders Bill, 2017- Government’s New Weapon to Curtail “Economic Fraud”? [Shivika Dixit] The author is a fourth-year student at National Law Institute University, Bhopal. She may be reached at [email protected]. On March 1, 2018, the Union Cabinet cleared the Fugitive Economic Offenders Bill, 2017. According to the long title of the Bill it is, “A Bill to provide for measures to deter economic offenders from evading the process of Indian law by remaining outside the jurisdiction of Indian courts, thereby preserving the sanctity of the rule of law in India.”[i] The Bill will be tabled before Parliament and will be debated upon in the next meeting during the presently ongoing budget session. The government on clearing the Bill said that it is expediting the matter for crackdown on defaulters and that the Centre cannot allow people to “make mockery of laws.”[ii] But is this Bill the be-all-end-all of the problem of high value economic fraud in the country? Maybe not. A “fugitive economic offender” defined under section 4(1)(e)[iii] means “any individual against whom a warrant for arrest in relation to a scheduled offence has been issued by any court in India, who: (i) leaves or has left India so as to avoid criminal prosecution; or (ii) refuses to return to India to face criminal prosecution.” A “scheduled offence”[iv] refers to a list of economic offences contained in the schedule to this Bill. Only those cases where the total  value  involved  in  such  offences  is  Rs. 100  crore  rupees  or  more are within  the purview of this Bill.  The Bill is mainly centered on seizure of assets and confiscation of the properties of the fugitive economic offender. The explanatory note[v] to the Bill provides that, in order to ensure that courts are not over-burdened with a floodgate of such cases, the limit is set of Rs. 100 crores. Any class legislation according to article 14 of the Indian Constitution should have a rational nexus between the classification and the object sought to be achieved. However, there is no justification on this point neither in the Bill nor in its explanatory note. There are no parameters to explain why the cap of Rs.100 crores has been set. There is no legal void to try economic offenders fleeing the country before they are apprehended. We have the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the Insolvency and Bankruptcy Code, 2016 and the Prevention of Money Laundering Act, 2002. However, according to the government,[vi] the existing civil and criminal provisions in the various laws mentioned above are not adequate to solve the severity of the problem. The  civil  provisions  deal  with  the  issue  of  non -repayment of debt, but there are no special provisions to deal either with high-value  offenders or with those who might have absconded from India when any criminal case is pending. In case of the latter, “proclaimed offenders” under Section 82[vii] of the Code of Criminal Procedure, 1973 can be used and the property of such offender can be attached as provided under section 83[viii] of the Code. However, this poses difficulty if a high value economic offender is involved as there can be multiple cases in various criminal courts throughout the country where his/her property is situated and the disposal of such cases will take considerable time and the person can escape out of the jurisdiction of the Indian courts. Further, the Prevention of Money laundering Act, 2002 provides for the Enforcement Directorate to confiscate the properties of the defaulter on conviction in the trial whereas the Bill adopts the principle laid down in the United Nations Convention Against Corruption which India ratified in 2011.[ix] This Convention recommends non-conviction-based asset confiscation for corruption-related cases. The note explains[x] that all necessary constitutional safeguards in terms of providing hearing to the person through counsel,[xi] allowing him time to file a reply,[xii] serving notice of summons to him[xiii] whether in India or abroad, and allowing an appeal to the High Court[xiv] have been provided for. The Bill also provides for service of notice to the contracting State[xv] where the fugitive economic offender absconded to; this might slightly ease out the difficulties in extradition requests that India faces. There are certain concerns pertaining to the Bill. For instance, the Special Court[xvi] can, on an application[xvii] by the Director[xviii] for declaration of a person as a fugitive economic offender, declare the person as one and will order the Centre Government to confiscate: (a) proceeds of crime[xix], whether or not such property is owned by the fugitive economic offender, and (b) any other property in India, owned by the fugitive economic offender.[xx] Under section 12,[xxi] the Special Court may appoint an administrator who is an insolvency resolution professional under the Insolvency and Bankruptcy Code, 2016 to manage and deal with the confiscated property. Further, the Special Court may, while making the confiscation order, exempt from confiscation any property which is a proceed of crime in which any other person other than the fugitive economic offender has an interest, provided it is shown that such interest was acquired without knowledge of the fact that the property was a proceed of crime.[xxii] Section 10(5) shifts the onus of proof on the person other than the fugitive economic offender to show that the interest in such property was acquired without such knowledge.[xxiii] There is no clarification by the government as to why the existing civil or criminal provisions in various other laws are inconsistent. In such a scenario, the non-conviction based asset confiscation will have a chilling effect. Further, section 11[xxiv] provides that if a person is declared as a fugitive economic offender, any court in India, in any civil proceeding before it, may, in its discretion, disentitle such individual from putting forward or defending any civil claim. This is seemingly barbaric. Moreover, section 19 stipulates that, on coming into force, the provisions of the Bill have an

The Precarious Nature of Earn-out Clauses in Share Purchase Agreements. [Prajoy Dutta] The author is a fourth-year student at Institute of Law, Nirma University. The merger and acquisitions market in India has seen some exceptional activity in the recent years,[1] especially in cases of start-ups. Concerns usually revolve around the valuation of the company, the purchase price that both parties can agree on, and the issue of control over the newly acquired company post the completion of the acquisition. A pertinent legal point that covers both the issue of purchase price and control is the earn-out clause in the share purchase agreement. Structure of Earn-out Clauses An earn-out clause allows the deal to move forward when the buyer and seller cannot mutually agree on the valuation of the target company. The clause stipulates that a portion of the mutually agreeable purchase price shall only be payable contingent on the achievement of certain milestones or the satisfaction of certain conditions[2] by the company, post the transfer of shares. These milestones or conditions may include provisions such as revenue from certain products, cash flow over a defined period of time, EBITDA, market share captured by the company over a defined period of time etc. Thus, in the case of an earn-out, a basic purchase price is paid upfront and a variable purchase price component(s) is paid at a later date, contingent on the fulfillment of certain predetermined performance indicators set out in the earn-out clause. The significance of this is that the seller continues to participate in the economic success of the target company, even after all the risks and rewards have been transferred.[3] The Role of Earn-out Clauses in M&A Deals Earn-out clauses are almost always insisted upon by the buyer. The most pertinent reason for this could be the inaccessibility to private information about the target company at the time of the acquisition[4] which may, as a consequence, result in an incorrect valuation of the target company. Other reasons that could result in incorrect valuations could be uncertainty in the market itself, or that the company’s product or service is too futuristic for the present market. All of these are factors that the buyer must reduce his risk in. An incorrect valuation or measurement of the target’s performance benchmark pre-acquisition could very well be the basis of undesired future litigation, post-acquisition. An earn-outs clause thus provides the best possible solution. Types of Earn-out Clauses The practice of mergers and acquisitions has led to the development of two principal types of earn-out clauses: Economic Earn-outs: Parameters set out in these types of earn-out clauses set down financial thresholds. These might include conditions such as the targets net revenue, net income, cash flow, EBIT, EBITDA, and net equity thresholds.[5] Performance Earn-outs: Parameters set out in these types of earn-out clauses set down non-financial thresholds. Apart from the reason that they may give operational focus to the target, performance earn-outs are usually used in cases of companies that may be difficult to value, mainly due to their high growth rates.[6] Performance earn-outs can include conditions such as the launch of a new product in the market by the target, the existing products capturing a significant portion of the existing market share or even in some cases, the target company receiving a coveted industry award.[7] Important Considerations while Structuring an Earn-out Clause Though an earn-out clause seems like the perfect solution to keep the deal moving forward despite a disagreement over price, it has some inherent disadvantages for the seller. If these disadvantages are not identified and remedied contractually, the seller could stand a chance of being paid a much lower amount than what was mutually agreed upon. This is principally because the variable component of the purchase price stands to be paid post the transfer of shares of the target company and its associated risks and rewards. Further, since the disadvantages and their remedies were not identified in the earn-outs clause itself, the share purchase agreement can very well be interpreted to mean that the seller understood the associated risks of an earn-out but chose to not protect himself against such risk. Therefore, there may be very limited legal remedies for the seller to recover the variable component of the price. Hence, the following major issues are considerations that the seller must keep in mind while structuring an earn-outs clause in the share purchase agreement. Following a Consistent Accounting Methodology – Pre Sale and Post Sale[8] A major concern that arises in most M&A deals is the accounting practice to be followed by the newly created merged entity or the acquired company. Common accounting standards become all the more important in the case of an earn-out due to financial conditions required to be fulfilled in order to receive the variable purchase price component. If the acquired company is required to follow the accounting standards of the buyer, there may arise a situation where the buyer may manipulate the results of the earn-out. Manipulations could potentially include inventory valuation methods, depreciation schedules and reserves for bad debts. Sometimes, the manipulations may occur simply because the target company’s industry is very different from that of the buyer. Should the seller set out a clear methodology of the accounting practices to be followed, the risk of above mentioned manipulations is significantly reduced. Tax Sharing Agreements With The New Parent Company[9] In a case where the earn-out is based upon a before tax indicator, such as EBIT or EBITDA, care should be taken to ensure that tax payable includes payments made under tax sharing agreements with the new parent company. In the event that the earn-out is based upon an after tax indicator, special attention must be paid to how the taxes of the parent holding company are allocated to all the member companies of the group. Special focus must also be given towards certain tax sharing agreements which mandate that the newly acquired company may have to make payments to the new parent company as a consideration of the overall reduction in taxes

Looking Through the Prism of the Bombay High Court Judgment in Chief Controlling Authority v. RIL: An Analysis of the Issue of Stamp Duty. [Gauri Nagar] The author is a third-year student at Ram Manohar Lohiya National Law University, Lucknow. A recent celebrated decision of the Bombay High Court in Chief Controlling Revenue Authority v. Reliance Industries Limited (“RIL“) (judgment dated 31st March, 2016) has essentially ignited a debate among corporate lawyers over whether stamp duty is payable on the order permitting a scheme of amalgamation where the transferor company and the transferee company have their respective registered offices in two distinct states in India. In the case of J.K. (Bombay) Pvt. Ltd v. M/s Kaiser-I-Hind Spinning & Weaving Co. Ltd., the Supreme Court’s view was that the particular scheme of amalgamation was obligatory in nature and had a force equivalent to that of a statute. The creditors and the shareholders could not, therefore, dissent to it. Moreover, the scheme could be altered only by the court’s sanction irrespective of the shareholders’ and the creditors’ acquiescence to the alteration. An important thing that should be known is that the Indian Stamp Act, 1899 was enacted as a central legislation in order to impose stamp duties across the nation, but states have the requisite power to incorporate amendments in the Act. Further, states have an exclusive right to design their stamp duty laws in accordance with List II and List III of Schedule VII of the Constitution. States like Maharashtra, Karnataka, and Kerala have their own legislations pertaining to the subject matter of stamp duty. When the Bombay Stamp Act, 1958 was enacted, it had similar provisions as those in the Indian Stamp Act, 1899. Section 2(g) of the Act was amended subsequently. Pertaining to ‘conveyance,’ the provision states, “every order made by the High Court under Section 394 of the Companies Act, in respect of amalgamation of companies; by which property, whether movable or immovable, or any estate or interest in any property is transferred to, or vested in, any person, inter vivos, and which is not otherwise specifically provided for by Schedule I.” The definition of ‘instrument’ as given under section 2(l) of the Act serves as a point of guidance. An instrument means “any document by which any right or liability is created and transferred.” In the case of Hindustan Lever v. State of Maharashtra (judgment dated 18th November, 2003), the Supreme Court held that an instrument would encapsulate within its fold every court’s order (also an order of an industrial tribunal), and that it would be subjected to a stamp duty. The order under section 394 would come within the periphery of section 2(l) of the Bombay Stamp Act that includes all documents through which any right or liability has been transferred. The transfer is sanctioned by the court’s order due to which the “sanctioning order” becomes an instrument to transfer properties. However, a completely different stance was adopted by a division bench of the Calcutta High Court in the case of Madhu Intra Limited & Anr. v. Registrar of Companies & Ors.(judgment dated 22nd January, 2004) wherein the Court did not take into consideration the viewpoint adopted by the Bombay High Court in the Li Taka Pharmaceuticals (judgment dated 19th February, 1996) and ruled that the process of transferring assets and liabilities by the transferor company to transferee company occurs only on an order made under sub-section (1) of section 394 due to applicability of sub-section (2) of section 394. This is the reason why a court’s order that sanctions a scheme cannot tantamount to be an instrument due to the reason that such transfer is only through the operation of law. The same issue cropped up in the case of Delhi Towers Ltd v. GNCT of Delhi (judgment given in December, 2009), wherein it was ruled by the Delhi High Court that the Supreme Court judgment on this issue stands to be consistent and that the scheme of amalgamation is well within the definition of instrument. On the other hand, the High Court of Delhi was on the same page with the Supreme Court (in Hindustan Lever case) and opposed the view of the Calcutta High Court. Also, at that time, Delhi did not have its own stamp law that had similar provisions as that in the Bombay Act. The intention of the legislature was to include a court’s order under section 394 within the term instrument and that extended to the Indian Stamp Act, 1899 as well. Registered Offices in Different States within India If an instrument is subjected to a stamp duty and that an order passed under section 394 is an instrument, it can be inferred that such order would attract a stamp duty. If the amalgamating parties are present in the same state, they would have to pay the stamp duty of that certain state only. The RIL case basically dealt with a circumstance wherein the two amalgamating companies were present in two different states. The Court suggested that sections 391 and 394 should be read collectively and that an order sanctioning the amalgamation scheme should be obtained by both the transferor as well as by the transferee company.  It is obligatory for both the companies to obtain such order from their respective high courts that have the required jurisdiction and should pay the stamp duty that is pertinent to their respective states. The amalgamation scheme is supposed to bind the dissenting members and creditors of both the companies and should not merely be used for transferring property, assets, etc. Two Schemes and Stamp Duty Being Paid Twice: Can a Claim for Rebate Exist? If an execution of a scheme occurs outside State A but is eventually given to the stamping authorities in State A, the party has to pay the stamp duty in the state in which it was executed. Not only this, it also has to pay the stamp duty in the state where the certified copy of the instrument had been received. Also, the party can ask for differential payment

Condonation of Delay Scheme: Testing the Utility. [Tushar Behl and Priyanka Sharma] The authors are third-year students of School of Law, University of Petroleum and Energy Studies, Dehradun. They may be reached at [email protected]. The Companies Act, 2013 (‘‘Act’’) has been in need of a substantial revamp for some time now, to make it more contemporary and relevant to the corporate world. The changes in the Act have long term implications which have been set to notably change the manner in which the corporates operate in India. While several successful as well as unsuccessful attempts have been made earlier to revise the existing Act, one of them leads us to the very recent, Condonation of Delay Scheme (“CODS”). Every company registered under the Act is inter alia required to file their annual financial statements[1] and annual returns[2] with the Registrar of Companies (‘‘ROC’’), and non-filing of such reports is an offence under the Act. Under the present Act, on account of default by a company in filing annual return or financial statement for a continuous period of 3 years, company directors are, by virtue of section 164(2)[3] read with section 167[4] of the Act, disqualified. Additionally, the Companies (Appointment and Qualification of Directors) Rules, 2014[5] confer a responsibility upon the director to inform the company concerned about his disqualification in respect of form DIR-8.[6] In line with the Act, the Ministry of Corporate Affairs (‘‘MCA’’) recently went into the process of marking out defaulting companies and recognized 3,09,614 directors associated with companies that had substantially failed to file their annual financial statements and annual returns in MCA online registry for a 3-year financial period starting from 2013-14 to 2015-2016. Following the MCA identification process, most of the disqualified directors have filed writ petitions and representations before various high courts and the National Company Law Tribunal (“NCLT”), hoping to obtain relief therefrom. Keeping this consideration in view, the Central Government, and the MCA in exercise of its powers conferred under the Act,[7] have collectively decided to roll out the CODS in order to provide a final opportunity in the form of a ‘three-month window’ for the non-compliant and defaulting companies to rectify the default, and normalize and regularize the compliance issues. The CODS came into force from January 01, 2018 and shall continue till March 31, 2018- a clear prescribed period of three months. This scheme will be applicable to all defaulting companies, leaving aside those whose names have been struck off from the ROC by virtue of Section 248(5)[8] of the Act. During this period, the Director Identification Number (“DIN”) of all the disqualified directors will be re-activated temporarily to smoothen the process of filing all overdue documents in respective E-forms.[9] In addition to the overdue documents, the defaulting company has to file form e-CODS 2018 along with a Rs. 30,000 charge. If a director of the defaulting company fails to utilise the CODS and regularise compliance after the end of the three-month window period, his DIN will be deactivated and he will be further disqualified for a total period of 5 years. Primarily, the CODS is meant only for companies whose process of filing is clear/active but whose directors are disqualified. However, as regards a company whose name has been removed[10] and which has filed an application under section 252[11] on or before January 1, 2018 for which the matter has been listed before the NCLT for restoration of the name, the DIN of its disqualified director(s) shall be reactivated temporarily after the NCLT authorizes reinstitution, and permanently only after the overdue documents have been duly filed within the three-month period. A question that still remains unanswered is whether the whole of the process-application for reinstitution, order of the NCLT, and filing of overdue documents- needs to be completed by March 31, 2018, and whether other non-defaulting companies can also apply for the same. Secondly, in the case of defaulting companies which have shut their business or in respect of whom the application for reinstitution has been rejected by NCLT, how exactly the disqualified directors could cure disqualification needs to be clarified. Finally, it remains uncertain whether disqualification will actually be removed upon filing of all pending documents or whether further action will be required, such as filing of form DIR-10.[12] The scheme appears to be a one-time opportunity given to active defaulting companies whose directors have been disqualified. The time period of the scheme is indeed short, especially when we take into account struck-off companies which are burdened with the entire procedure of restitution of name, pending filings and filing of e-CODS 2018 within a short span of three months. Even though the scheme has already become operational, the process for ‘reactivating’ the DINs in system in respect of disqualified directors is still in progress and will not be activated for e-filing until January 12, 2018. This, it is submitted, is likely to delay the process. Taking into consideration the Delhi High Court’s order giving wide publicity[13] to the CODS and its aim of benefitting a large number of disqualified directors, it seems that the scheme may provide for such efficiency as deemed just for placing the company and all other essential persons in the same position (as nearly as possible) as if the company had not been struck off from the register of companies. During the operation of the scheme, it is hoped that the defaulting companies complete their pending annual filings, enable restoration and make the best use of the opportunity. [1] The Act, section 137. [2] Ibid, section 92(4). [3] Ibid, section 164(2). [4] Ibid, section 167. [5] The Companies (Appointment and Qualification of Directors) Rules, 2014, rule 14. [6] Every director of the company in each financial year is required to make disclosure of non-disqualification to the company. [7] The Act, sections 403, 459 and 460. [8] Ibid, section 248(5). [9] Under the CODS, only the following E-forms can be filed: Form 20B/MGT-7, Form 21A/MGT-7, Form 23AC, 23ACA, 23AC-XBRL, 23ACA-XBRL, AOC-4, AOC-4(CFS), AOC (XBRL), AOC-4(non-XBRL), Form 66,