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Top M&A Deals of 2022

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This blog is written by Aishwarya Deshpande, LLM Student at Jindal Global Law School. She was a participant of our Mergers & Acquisitions Course.

TOP MERGER DEALS OF 2022

  • L&T AND MINDTREE –

NCLT gave its permission for the merger of IT services companies L&T Infotech and Mindtree. The National Company Law Tribunal’s (NCLT) Mumbai and Bengaluru Benches both accepted the scheme of amalgamation and arrangement between the two entities in two different rulings. In May 2022, the two businesses announced their intention to unite. LTIMindtree will be the name of the combined company. According to the market value of the combined firm, India will now have the fifth-largest IT service provider. The corporation has started conducting business as a single unit from November 14, 2022.

73 shares of LTI would be issued to each Mindtree shareholder out of every 100 Mindtree shares as part of the transaction. L&T, the amalgamated entity’s parent business, will own 68.73% of it. November 24, 2022 has been set as the Record Date for identifying Mindtree stockholders who are entitled to receive equity shares of LTI under the programme. The merged company employs 90,000 people and has a clientele of over 700.

  • BHARTI INFRATEL MERGES WITH INDUS TOWERS-

On November 19, 2022, one of the largest mergers in India’s telecom sector was formally concluded. The largest telecom infrastructure company in our nation was created with the merger of Bharti Infratel Ltd. and Indus Towers. Bharti Airtel will own a total of 36.73% of the shares in Indus Towers Limited (together with Nettle). In accordance with the agreement, Vodafone Idea chose to sell all of its shares in Indus Towers. As a result, it has now been paid Rs 3,760 crore for all of its Indus Towers shares.

The Vodafone Group Plc received 75.78 crore equity shares worth Rs 10 each from the board of Bharti Infratel. This equates to a 28.12% ownership interest in the combined company. 8.75 crore shares, priced at Rs. 10, have been allocated to Providence. Indus Towers Ltd. is therefore owned by Providence (or PF Asia Holding Investments [Mauritius] Ltd.) to the tune of 3.25%. With more than 1,63,000 towers spread out over 22 telecom service zones, it has a pan-Indian tower reach. Additionally, according to Bharti Infratel, the consolidation of the two tower firms would result in annual cost savings of close to Rs 560 crore. On Friday, shares of the merged companies rose significantly (November 20). The price of Bharti Infratel’s shares increased by 17.8% to close at Rs.219.05 The share price of Vodafone Idea saw a rise of 8.65% and closed at Rs 10.05 on the NSE.

  • MX TAKATAK MERGER WITH MOJ

The announcement of the strategic combination of Moj and MX Taka Tak to create the largest short video platform for Indians was made by MX Media, the parent company of MX TakaTak, and ShareChat, the parent of Moj. ShareChat will now oversee the two platforms.

The combined platform will have 250 billion monthly video views, 100 million artists, and over 300 million monthly active users (MAU). ShareChat will add MX Media and its stockholders as strategic shareholders. Ankush Sachdeva, CEO and co-founder of ShareChat and Moj, said, “We at ShareChat are establishing India’s largest content ecosystem, which has been on an unparalleled growth trajectory.

  • PROLOGIS MERGER WITH DUKE REALTY

Two of the largest logistics real estate companies in the world are now combined thanks to the June merger of Prologis and Duke Realty. With debt included, the acquisition had a value of $26 billion and was funded by Prologis’ equity. It solidified Prologis as the biggest developer of logistics real estate in the world.

The new company, whose name has not yet been selected, will have an astounding portfolio of logistical real estate once the deal is finalized. This includes 153 million square feet of real estate spread over 18 US regions, 11 million square feet of construction currently under way, representing an investment of more than $1.5 billion, and 1,228 acres of land that is both owned and optioned.

  • ORANGE MERGER WITH GRUPO MÁSMÓVIL

A new market leader for mobile phones has emerged in Spain as a result of the merger between Orange and Grupo MásMóvil. The synergies from the acquisition are expected to total €450 million annually after a four-year post-integration period, and each of the companies will have equal governance powers in the new entity (likely to be called Orange).

Although neither of the two merging partners would confirm it, it seems like a push for size that would help the new business expand into nearby countries like Spain and France. The new entity may leverage the combined financial strength of the two businesses to make crucial investments in 5G and fibre before that can happen.

ACQUISITIONS OF 2022

  • ZOMATO ACQUIRES BLINKIT

Zomato has completed the acquisition of rapid commerce provider Blinkit (previously Grofers) and its warehousing and related services business, according to a filing on August 11, 2022. “The Company has finished buying all of the shareholders’ shares in BCPL. As a result, BCPL became an immediate wholly owned subsidiary of the Company, effective August 10, 2022 “said Zomato. The three most recent fiscal years saw Blinkit’s annual turnover of Rs 263 crore in FY22, Rs 200 crore in FY21, and Rs 165 crore in FY20.

In accordance with the terms of the agreement, SoftBank, the largest shareholder in Blinkit, would receive 28.71 crore Zomato shares, followed by Tiger Global with 12.34 crores, BCCL with 1.5 crore, and South Korean investor DAOL with 3.66 crore. Sequoia will receive 4.51 crore additional shares in Zomato, increasing its ownership in the company from 1.33 crore to 5.84 crore shares.

  • PHONEPE ACQUIRES WEALTHDESK AND OPENQ

Walmart Owned PhonePe announced in May 2022 that it would acquire WealthDesk, an Indian wealth management fund, for $50 million, and OpenQ, a smart beta wealth management

platform, for $25 million. The deals, which totalled $75 million, were made in order to diversify PhonePe’s payment options. With its involvement in a $40 million investment round into Smallcase last August, PhonePe now has a presence in the investing and wealth management industry, where its main rival Amazon is only marginally active.

  • SHIPROCKET ACQUIRED PICKRR

Pickrr is an e-commerce SaaS platform for D2C brands and SME e-tailers. Shiprocket, a tech- enabled shipment and fulfilment company, has signed a contract to acquire a majority investment in Pickrr. The deal’s estimated $200 million value is made up of cash, shares, and earn-outs. The consolidation also gives a solitary entry point for other enablers and suppliers to serve the community of digital retailers, which is constantly expanding.

  • RELIANCE RETAIL ACQUIRES STAKE IN ONLINE LINGERIE RETAILER CLOVIA

According to a statement released by the business on March 20, Reliance Retail Ventures (RRV) has purchased an 89% ownership in online lingerie retailer Clovia in a deal worth Rs 950 crore that combines initial investment and secondary share sales. According to Reliance Retail Ventures’ statement, the Clovia founding team and management will hold the remaining equity in the company. Following the acquisitions of Zivame and Amante, Clovia is the third online lingerie retailer by RRV. After leading a $240 million investment round in Dunzo and acquiring a 25% share in the Bengaluru company, the agreement was announced.

  • LENSKART ACQUIRED OWNDAYS

The two companies announced that India’s Lenskart is purchasing the bulk of Owndays’ shares in Japan, forming one of Asia’s largest online eyeglass sellers. The companies would not disclose the deal’s financial details, but a source with knowledge of the situation said the merger values the 32- year-old enterprise Owndays.

According to those with knowledge of the situation, the development occurs just as Lenskart, which is supported by SoftBank and Premji Invest, is closing a fresh round of fundraising at a valuation of over $4.5 billion. Shuji Tanaka and Take Umiyama, co-founders of Owndays, will remain stockholders and head the management group at the Japanese company.

Deal Cycle of an M&A Transaction

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This blog is written by Taniya Shah, LLM Student at Jindal Global Law School. She was a participant of our Mergers & Acquisitions Course.

WHAT ARE MERGERS AND ACQUISITIONS (M&A)?

Tracing back to history, most Mergers and Acquisitions have taken place as a result of Economic Factors such as GDP growth, interest rates, and monetary policies, which are crucial in determining how M&A between businesses or organizations are structured. Initially, the mergers took place so that the businesses could enjoy their monopoly in the market. Roadways, Electricity, Railways, etc., are some of the first lines of business wherein mergers and acquisitions used to take place.

In the words of Simon Sinek, “Mergers are like marriages. They are the bringing together of two individuals. If you wouldn’t marry someone for the ‘operational efficiencies’ they offer in the running of a household, then why would you combine two companies with unique cultures and identities for that reason?”. Thus, the expression “mergers and acquisitions” refers to the merging of businesses or their key financial assets through business-to-business financial transactions. A business can completely buy out and absorb another business, combine with it to form a new business, take over some or all of its key assets, make a tender offer for its stock, or launch a hostile takeover.

Although the phrases mergers and acquisitions are frequently used synonymously, they really denote significantly different concepts. An acquisition is a takeover in which one business buys another and positions itself as the new owner. For instance, Walmart acquired Flipkart with the intention to enter the Indian Market making it the largest e-commerce deal. On the other hand, a merger is the coming together of two businesses that are roughly the same size in order to continue ahead as one new organization rather than continuing to be owned and run independently. For instance, Idea and Vodaphone merged into VI to improve their operational efficiency and survive the competition and monopoly that Jio created in the market.

PROCESS OF AN M&A TRANSACTION

It’s important to get the timetables correct in any M&A process. What happens when is essential to the relative success of the finished product, just like how diverse elements come together to make a meal. Generally speaking, the M&A cycle is volatile and the length and complexity of the transaction will determine how many steps there are in the M&A process.

  • DEVELOPING STRATEGY

A Company must develop an appropriate acquisition strategy. A successful acquisition strategy is dependent on the buyer having a clear understanding of what they want to achieve from the transaction and why they are buying the target firm. This step is crucial as it assists the buyer in defining its goals by taking into cognizance, the market, and the capital required, the type of transaction, etc.

  • DEVELOP A SEARCH CRITERIA

As a buyer, considering the following factors is crucial: – the firm size, financial standing (profit margins), products or services supplied, clientele, culture, and any other relevant elements. It’s important to establish broad criteria at the start in order to save time and not engage prospects who won’t meet your standards. Companies often consider  a variety of M&A factors when deciding which transactions to pursue. These consist of:

Revenue – The size of the firm in terms of economic output will be one of the main parameters.

Geography – Would an acquisition offer access to a new territory or more market share in an existing geography?

Industry – Does the acquisition target work in the same sector as the buyer, or in a different one? How much of each industry overlaps the other?

Market – If both firms are in the same sector, does the target company operate in a market segment that is growing more quickly than the buyers?

Intellectual property – Would an acquisition give the buyer ownership of any intangible assets, such as IP?

  • IDENTIFYING AND CONTACTING TARGETS

Once the buyer is done developing an M&A strategy, it is time to search, identify and contact such potential target entity that meets the pre-determined requirements of the buyer. The buyer then contacts the targets to indicate interest in them after compiling a list of all prospective targets. This step’s major goal is to learn more about the targets and gauge their level of interest in a potential deal.

  • INFORMATION EXCHANGE

The initial documentation process begins once the initial conversation goes well and both parties have expressed interest in moving forward with the transaction. Typically, this involves submitting a Letter of Intent to formally express interest in the transaction and signing a Confidentiality Agreement to ensure that the proceedings and discussions of the deal will remain confidential. Following that, the parties exchange data such as financials, business histories, etc. to enable both parties to more accurately determine how the deal will benefit each party’s shareholders. In this phase, along with determining the target company’s owner’s interest in a sale or merger, it also helps in acquiring a basic idea of their expectations for valuation.

  • VALUATION AND SYNERGIES

Both parties will start evaluating the goal and the trade as a whole after learning more about the counterparty. The seller is attempting to find a fair price at which the shareholders would profit from the transaction. A respectable offer for the target is being evaluated by the seller. The buyer is also attempting to determine the degree to which they would benefit from the deal in terms of synergies in M&A, such as cost savings, enhanced market dominance, etc.

  • OFFER AND NEGOTIATION

The buyer makes an offer to the target’s shareholders after completing their valuation and analysis. This offer could be in the form of cash or shares. If the seller determines that the offer is not reasonable after reviewing it, they will bargain for a higher price as neither side wants to give the other the advantage by acting hurriedly to seal the contract, this phase may take a while to accomplish. Another frequent challenge at this stage is that, occasionally, if the target is a really alluring company, there may be more than one possible buyer.

  • DUE DILIGENCE

The systematic analysis and reduction of risk associated with a business or investment decision is known as due diligence. A study, audit, or inquiry known as “due diligence” is carried out to validate the truth or specifics of an issue under discussion11. Thus, after the target’s acceptance of the buyer’s offer, the buyer starts its investigation of the target company. Due diligence is a comprehensive examination of all aspects of the target company, including its goods, clientele, financial records, personnel resources, etc. The goal is to confirm that the details previously given to the buyer and upon which the offer was made are accurate. If certain inconsistencies are discovered, the bid may need to be revised to reflect the correct data.

  • PURCHASE AGREEMENT

Assuming due diligence has been completed without any significant issues or concerns emerging, a final contract for sale is executed once the parties have decided on the kind of the purchase agreement, such as whether it will be an asset acquisition or a share purchase.

  • DEAL CLOSURE AND INTEGRATION

Once the purchase agreement is complete, both sides sign the paperwork to complete the transaction, and the buyer takes possession of the target. The management teams of the two companies collaborate once the acquisition is finalized to incorporate them into the new company.

CONCLUSION

M&A transactions frequently occur, and sometimes they take the form of amicable deals, and other times they take the form of hostile transactions. They support business expansion into new sectors as well as growth within the same industry. Depending on the size and complexity of the transaction, the M&A procedure may be extensive or brief. The time frame could also be affected by the necessary regulatory permissions.

Significant clauses of a Shareholders Agreement

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This blog is written by Akhil Gupta, 5th year Law Student at National University of Study and Research in law, Ranchi. He was a participant of our Mergers & Acquisitions Course.

Significant clauses of a Shareholders’ Agreement

A shareholders’ agreement is a contract that specifies how a company will be handled and operated amongst its owners. It often addresses matters like the duties and rights of shareholders, how directors are chosen, how decisions concerning the company’s activities are made, and how disagreements are settled. An agreement that governs the relationship between shareholders, the management of the business, share ownership, rights, duties, and the protection of shareholders is sometimes referred to as a shareholders’ agreement. A shareholders agreement serves to safeguard the interests of the shareholders by establishing a clear set of rules and regulations for the administration and operation of the business. It can aid in ensuring that the business is conducted fairly and openly and in averting misconceptions and shareholder disputes. A shareholders’ agreement may also be a helpful instrument for luring investors and establishing the credibility of the firm because it shows that the latter is well-organized and has a defined course for the future. By preventing future management from abusing present shareholders’ interests, the shareholder agreement helps safeguard their interests. The agreement aids in protecting specific actions, such as dividend distribution and the issuance of new shares or debt, if new management is appointed or another organization buys the business. 

The specific clauses of a shareholders’ agreement will depend on the specific needs and circumstances of the company and its shareholders. However, some common clauses that are often included in a shareholders’ agreement are:

  • Purpose
  • Shareholding
  • Board of Directors
  • Management & Control 
  • Capital Contribution 
  • Transfer of shares
  • Deadlock
  • Termination
  • Governing law
  • Confidentiality 
  • Pre-emptive rights & Anti-dilution 

 

Let us understand each one elaborately: 

  • Purpose  

This clause sets out the purpose of the shareholders’ agreement and the nature of the company. 

  • Shareholding 

This clause sets out the details of the shareholding of each shareholder, including the number of shares held, the class of shares held, and any restrictions on the transfer of shares.

  • Board of Directors

This clause sets out the composition and powers of the board of directors, including the number of directors, the process for appointing and removing directors, and the responsibilities of the directors. 

  • Management and control

This clause sets out the roles and responsibilities of the shareholders in relation to the management and control of the company, and may include provisions on voting rights, decision-making processes, and the allocation of profits and losses.

  • Capital contributions

This clause sets out the obligations of the shareholders to contribute capital to the company, and may include provisions on the timing and amount of capital contributions and the conditions under which additional capital may be required.

  • Transfer of shares

This clause sets out the rules and procedures for the transfer of shares, including any restrictions on the transfer of shares, and may include provisions on pre-emptive rights, tag-along rights, and drag-along rights.

  • Deadlock

This clause sets out the procedures to be followed in the event of a deadlock between the shareholders, and may include provisions on the appointment of an independent third party to resolve disputes. This situation arises when the shareholders are not able to come in consensus.

  • Termination

This clause sets out the circumstances under which the shareholders’ agreement may be terminated, and may include provisions on the buy-out of shares and the winding up of the company. This clause addresses the situation wherein the shareholder leaves the Company. This happens after the essential milestones; the founders offer the investors to buy out or exist option from the business. Hence, through this clause the investors are provided with the exit formalities. 

  • Governing law

This clause sets out the jurisdiction under which the shareholders’ agreement will be governed, and may include provisions on the resolution of disputes through arbitration or other alternative dispute resolution mechanisms.

  • Confidentiality 

This clause sets out the obligations of the shareholders to maintain the confidentiality of sensitive company information, and may include provisions on the disclosure of information to third parties. 

  • Pre-emptive rights & Anti-dilution 

Pre-emptive rights and anti-dilution clauses are provisions that can be included in a shareholders’ agreement to protect the interests of shareholders in a company. Pre-emptive rights give shareholders the right to maintain their ownership percentage in the company by allowing them to purchase additional shares of the company before they are offered to new investors. This can help to prevent dilution of the shareholders’ ownership percentage, which can occur when new shares are issued and the overall number of outstanding shares increases. An anti-dilution clause, on the other hand, is a provision that protects shareholders from dilution by adjusting the conversion ratio of their convertible securities (such as preferred stock or convertible bonds) in the event that the company issues new shares at a lower price. This can help to ensure that the value of the shareholders’ securities is not significantly reduced by the issuance of new shares.

  • Restrictions on Transfer of Shares 

A restriction on transfer of shares clause is a provision that can be included in a shareholders’ agreement to limit the ability of shareholders to sell or transfer their shares in the company. This type of clause is typically used to protect the interests of the company and of the other shareholders by ensuring that the ownership of the company is stable and that new shareholders meet certain criteria. There are several types of restrictions on transfer of shares that can be included in a shareholders’ agreement, including: 

Right of first refusal: This gives the company or the other shareholders the right to purchase the shares before they are offered to a third party.

Drag-along rights: This gives the majority shareholders the right to force the minority shareholders to sell their shares along with the majority shareholders when the majority sells their shares to a third party.

Tag-along rights: This gives minority shareholders the right to sell their shares along with the majority shareholders when the majority sells their shares to a third party.

Restrictions on transfer to specific parties: This prohibits the transfer of shares to certain parties, such as competitors or individuals who do not meet certain criteria. 

  • Non-Compete & Non-Solicitation Provision

Non-compete and non-solicitation provisions are provisions that can be included in a shareholders’ agreement to protect the interests of the company and the other shareholders by limiting the ability of shareholders to compete with the company or to solicit its customers or employees after they leave the company. Therefore, these provisions can be useful tools for protecting the company’s intellectual property and confidential information and for preventing the loss of customers and employees. However, it is important to note that these provisions may be difficult to enforce and may be considered unenforceable if they are overly restrictive. As such, it is important for shareholders to carefully consider the potential implications of including these provisions in a shareholders’ agreement. 

Understanding the Agreement through the lens of the Companies Act, 2013 

A shareholder’s agreement is not required by law, but it can be a useful tool for establishing a clear set of rules and guidelines for the management and operation of the company and for protecting the interests of the shareholders. It is important to note that the provisions of a shareholder’s agreement must not conflict with the provisions of the Companies Act, 2013 or with the articles of association of the company. If there is a conflict, the provisions of the Companies Act, 2013 and the articles of association will take precedence.  The Companies Act, 2013 does not specifically address shareholders agreements, but it does contain provisions that relate to the rights and responsibilities of shareholders in a company. These provisions include:

Section 47 & 48: This section outlines the rights and duties of shareholders in a company. It specifies that shareholders have the right to receive notice of and attend meetings of the company, the right to vote on resolutions put before the company, and the right to receive dividends and other distributions from the company.

Section 96: This section outlines the procedure for calling meetings of shareholders. It specifies that meetings of shareholders must be called by the directors of the company, and that notice of the meeting must be given to all shareholders.

Sections 107, 108, 109 & 110: These sections outline the procedure for voting at meetings of shareholders. It specifies that each shareholder has the right to one vote on each resolution put before the company, and that decisions of the company must be made by a majority of the votes cast.

Section 152: This section outlines the procedure for appointment of the directors of the company. It specifies that the appointment of directors must be approved by a resolution of the shareholders.

It is important to note that these provisions of the Companies Act, 2013 apply to all companies incorporated in India, regardless of whether or not they have a shareholder’s agreement in place. If a shareholder’s agreement conflicts with the provisions of the Companies Act, 2013, the provisions of the Companies Act, 2013 will take precedence.

CONCLUSION

In India, shareholders agreements are typically governed by state laws, and disputes related to shareholders agreements are typically heard in state courts. The Supreme Court of India may consider cases involving shareholders agreements if the case involves a federal issue or if the case has been appealed from a lower court. There are many clauses in the Shareholders Agreement, however, the above-mentioned are some of the most important clauses that a Shareholders Agreement must have. Therefore, it is pertinent to mention that shareholders agreement does not find its express mention under the Companies Act, 2013, however, it is governed under the provisions of the Companies Act, 2013 wherein certain rights & obligations are mentioned of the shareholders of the company. 

Key Clauses of a Shareholders Agreement

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This blog post is written by Ms. Ritu Sajnani, Senior Legal Counsel, Coinswitch, Ex-AZB & Partners and Cyril Amarchand Mangaldas.

A Shareholders’ Agreement (“SHA”) seeks to regulate the relationship between the shareholders and the issuer company (the “Company”) itself. SHA particularly governs the rights, obligations, ownership of shares, privileges, voting and various protective provisions of the said shareholders.  

Key Clauses

  1. Board of Directors: This clause deals with the responsibilities, rights, duties, and obligations of the Board of Directors (“Board”). It also includes the composition of the Board which prescribes the manner of appointment, the rights vested with the promoters to alter the Board size, and the voting rights of shareholders pursuant to the process of removal and replacement of directors.
  2. Board proceedings: This clause stipulates the frequency of the Board meetings, the time interval permitted between both two meetings, the sitting fees of the directors, and the mode of carrying out the Board proceedings. The details regarding the appointment of chairman, constitution of a valid quorum for a Board meeting, the matters in which the quorum requirement is exempted or relaxed, etc. are also listed in this clause.

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  1. Committees: This clause envisages those circumstances wherein the Board might have delegated powers to committees of specific directors and/ or officials for specific tasks. It also states aforementioned provisions like quorum and decision making to such delegated committees.
  2. General Meetings: This clause provisions for the calling of a general meeting along with the mandate of holding a certain number of meetings each year, the quorum required for conducting these meetings and consequently, passing resolutions, sending notice particulars, and provision for holding an extraordinary general meeting.
  3. Reserved Matters: This clause refers to a set of matters that mandate an additional layer of obtaining consent from a specific group of persons, in order to have a legally binding effect. A violation of this clause, or the failure to obtain the requisite consents, would render any decision made, action taken or resolution passed as void and invalid.
  4. Exit: This clause confers an obligation upon the Company and its founders to provide a full exit with a stipulated exit period to its investors. Typically, exit can be in any of the following ways:

a) Initial Public Offering (“IPO”): In the event an exit is in the form of an IPO, this clause directs that it shall only be undertaken with the prior written consent of the investors’ majority, in consultation with independent merchant bankers and the statutory guidelines in force.

b) Company Sale: This clause envisages a situation wherein the Company fails to undertake a qualified IPO – in the event of which, it must typically undertake a company sale on the terms and conditions (including pricing) approved by the investors’ majority.

c) Third Party Sale: In the event, the Company fails to provide an exit in the stipulated exit period by way of an IPO or Company Sale, then the investors’ majority shall, by issuing a notice to the Company (Exit Notice), at any time subsequent to the expiry of the exit period, have the right to require the Company to appoint a merchant banker acceptable to them, to find a buyer for the shares held by the investors at a price that is the higher of: (i) Preference Amount; or (ii) Fair Market Value as on the date of the Third Party sale.

d) Buy Back: In the event, the Company fails to provide an exit in the stipulated exit period by way of an IPO or Company Sale or through Third Party Sale, then upon request of the investors’ majority, the Company, at its discretion, may propose by way of a notice (Buy Back Notice), to buy the shares held by its investors (on a pro-rata basis) at a price that is the higher of: (i) Preference Amount on an as-if-converted basis; or (ii) Fair Market Value as on the date of the Buy Back Notice, subject to applicable law in lines with the approval of the investors’ majority.

e) Drag Along Right: In the event, the Company fails to provide an exit in the stipulated exit period by way of an IPO or Company Sale or Third-Party Sale or through buy back or in case of default, the investors’ majority shall have the right and not an obligation to cause the transfer of all shares held by other investors or employees to a bona fide third party (not being an affiliate of any of the dragging investors) at the same price and same terms and conditions as may be offered to the dragging investors by the drag purchasers. 

  1. Event of Default: It is a non-obstante clause wherein in the event of breach, the other parties shall be entitled to seek specific performance and such other rights and remedies as are available to them under applicable law.
  2. Transfers: This clause fundamentally lays down the legal contours of transfer of shares by shareholders and investors by placing certain restrictions and conferring certain privileges. A transfer undertaken in violation of the agreement would be null, void and not binding on the parties and Company or any of the parties. Typically, the clause on transfers includes the following:

8.1 Right of First Offer (“ROFO”): A ROFO is a contractual obligation pursuant to which any investor intending to sell its share to a third person can only exercise such right after providing the right to purchase said shares to the promoter entity. The clause comprehensively regulates the procedure and manner in which the promoter entity may exercise their right. On the other hand, a Right of First Refusal provides non-selling shareholders with the right to accept or refuse an offer by a selling shareholder after the selling shareholder has solicited an offer for their shares from a third-party buyer.

8.2 Pre-emptive Right: This clause confers a contractual obligation upon the Company by virtue of which, in the event the said Company is desirous of issuing new equity shares, this clause mandates that the Company must provide the existing investors a right to participate in the proposed issuance by subscribing a quantum necessary to maintain their pro-rata shareholding in the Company on a fully diluted basis. 

8.3 Tag Along Rights of Investors: In the event, a promoter entity or its affiliates desire to transfer all or part of the equity securities held by them to another person, this clause confers a contractual right and not a mandatory obligation upon the investors to transfer its equity shares at the same price, terms and conditions, on a pro-rata basis, to the proposed transferee. 

8.4 Fall Away: This clause is a non-obstante clause which typically states that if the investors and/or its affiliates collectively cease to hold a prescribed number of equity securities or their shareholding falls below a certain threshold, typically all rights conferred upon them in the SHA will immediately and automatically cease to have effect.

  1. Value Protection/ Anti-Dilution Rights: In the event, the Company intends to issue securities to any third party other than its existing shareholders, which has the effect of lowering the investor’s entry valuation or dilute their effective shareholding in the Company, this clause imposes an obligation upon the Company to take all steps necessary to ensure that the investor is adequately compensated and/or steps are undertaken by the Company in a form and manner satisfactory to the investor.
  2. Most Favorable Clause: This clause confers an obligation upon the promoter entity that the Company shall not, without prior consultations with the investors, induct any new investor in the Company on terms which are more favorable than the existing shareholders’ rights granted to them under the transaction documents.
  3. Information and Inspection Rights: This clause imposed an obligation upon the Company to furnish necessary documents like audited and unaudited consolidated financial statements, monthly reports, any updates on functioning and operations on the Company’s business, including any breach of representations and warranted to the investors for their perusal.
  4. Liquidation Preference: This clause provides how the total proceeds from a liquidity event, shall be distributed between holders of relevant securities.

Due Diligence in the Mergers and Acquisitions transactions

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This blog post is written by Kartik Singh, a final year law student from National Law University, Odisha. He was a participant of our Mergers & Acquisitions Course. He is also an Incoming Associate at Trilegal law firm. 

What is Due Diligence?

Due diligence is essentially a background check to ensure that the parties to a deal have the information they need to proceed with the transaction. It is an examination and risk assessment of an anticipated commercial transaction. A thorough investigation is necessary to uncover misrepresentation and fraudulent activity in a significant business transaction. Due Diligence is the process through which interested parties who are planning to enter into a business deal exchange, review, and evaluate sensitive, legally binding, financial, and other material information. The phrase “due diligence” frequently refers to the thorough investigation and study carried out before signing a contract or starting a business with a party.

Due diligence-driven transactions have a better likelihood of succeeding. By improving the calibre of data available to decision-makers, due diligence aids in making educated decisions. The buyer can feel more certain that their expectations for the deal are accurate thanks to due diligence. Purchasing a business without performing due diligence elevates the risk to the purchaser significantly in mergers and acquisitions (M&A). To provide the buyer confidence, due diligence is carried out. Due diligence, however, could also work in the seller’s favour because a careful financial analysis might actually show that the seller’s company is worth more than was previously believed. As a result, it is usual for sellers to create their own due diligence reports before possible purchases.

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Need for a Due Diligence Report

In the framework of M&A activities, for instance, or to protect the value chain or to conform with restrictions and with laws on the combating of money laundering, bribery, and corruption, due diligence risk and adherence check tools assist businesses in protecting their interests. When it comes to due diligence, the adage “discovering skeletons in the closet before the deal is preferable than discovering them later” is applicable. The data gathered throughout this procedure must be published because it is essential for making decisions. The due diligence report clarifies how the business intends to increase profits (monetary as well as non-monetary).

It acts as a quick reference for realising the situation at the moment of buying, sale, etc. Getting a clear image of how the organization will function in the future is the ultimate goal. The main objective of this report is to accurately portray the firm’s future operations to the dealing party. Prior to the purchase being finalised, the primary objective of due diligence is to spot any warning signs. It assists in identifying potential threats in the future. For making decisions, the data obtained for this report is essential. The company might be able to negotiate if it finds any flaws during the due diligence process. The report aids the organisation in understanding how the target wants to generate additional revenue. It serves as a doomsayer, for instance, when determining the state of affairs at the time of sale or purchase.

When is Due Diligence Required?

The following transactions entail the requirement of conducting by the parties involved:

  • Mergers and Acquisitions (M&A): Both the buyer and the seller’s perspectives are taken into account when performing due diligence. The seller concentrates on the previous experience of the buyer, the financial capabilities to complete the deal, and the ability to uphold commitments made, whereas the consumer investigates the financials, litigation, patents, and a wide range of important information.
  • Partnership: Business alliances, business collaborations, and other types of partnering are subject to due diligence.
  • Joint Ventures: Reputation of the combined company is an issue when two businesses join forces. It is crucial to comprehend the other company’s position and assess whether their resources are adequate.
  • Public Offer: Decisions about public issues, disclosures in a prospectus, post-issue compliance, and similar problems are involved during the making of a public offer. Normally, these would demand careful consideration and thus, the process of due diligence is required.

Elements of Due Diligence Report

The various elements of a due diligence report are as follows:

  • Financial Information: It comprises looking over copies of the last five years’ worth of audited financial statements, along with all associated notes and management’s analysis and comments.
  • Corporate Records: A target company’s primary formation documents, such as the articles or certificate of incorporation and bylaws, are reviewed by legal counsel. Consider that the target company is a corporation or that the operating agreement and certificate of organisation, along with any changes, are a limited liability company.
  • Debt: This involves analysing the seller’s debt in terms of loans, notes, cash advances, and security agreements; evaluating the lender relationship; and performing ongoing commercial code checks with each daughter company.
  • Employment and Labor: This section includes the full names of all executives, employees, and directors, as well as information about pensions, stock plans, profit sharing, deferred pay, and other benefits or non-salary compensation. It also includes information about any ongoing labour and employment law cases.
  • Legal: It includes copies of documents submitted to government authorities, including reports and licences, as well as information on any environmental duties and details of any legal disputes.
  • Technology: The evaluation of the technology available to the organisation is a crucial issue to take into account. A required evaluation is one that helps determine future course of action.
  • Agreements: All contracts made by the corporation and its subsidiaries, such as leases on real estate, partnerships, joint ventures, and agreements governing the marketing, commission, sales, and distribution of goods, among other important contracts.
  • Effect of Synergy: The result of synergy Making decisions is aided by the creation of synergy between the target firm and the current business.

Types of Due Diligence

  • Business Due Diligence: It entails investigating the participants to the deal, the prospects of the company, and the calibre of the investment. It entails a thorough investigation of the parties involved in a transaction, the future profitability of the firm, and the investment’s standard.
  • Financial Due Diligence: Here, financial, operational, and commercial hypotheses are verified. The acquiring business can now acquire a company with much less difficulty, which is a tremendous relief. Here, a thorough review of accounting principles, audit procedures, tax compliance, and internal controls is conducted. It provides the acquiring company with a clear image of the value of the acquisition.
  • Legal Due Diligence: It mostly concentrates on legal dangers, other legal matters, and the legal implications of a transaction. It looks for any legal obstacles or red flags. It encompasses both intra-corporate transactions and transactions between corporations. This diligence includes the currently existing documentation as well as several regulatory checklists.

Conclusion

The impacts and usefulness of a due diligence report are clear from the points above. Another compliance, carried out by numerous due diligence report service providers in India, is how the companies must follow the process. Companies must implement the aforementioned procedures in order for the transactions to be feasible; otherwise, it may be difficult for both sides to effectively finish the project agreement.

The due diligence report should give you the amount of assurance you want regarding the possible investment and any associated risks. The report needs to be able to give the acquiring firm enough information to prevent the signing of any onerous contracts that might compromise the current return on investment. No specific rule oversees this process because it is more of a diligence method than a compliance attempt. Each business must complete this crucial phase in order to make investments and assess its overall health.

Metaverse: An Era

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This blog post is written by Ms. Ritu Sajnani & Ms. Aastha Vyas.

The concept of Metaverse

Metaverse = Meta + Universe!

Metaverse is a virtual environment made with the help of technologies like blockchain, computer vision, pervasive computing, scene understanding, and ubiquitous interfaces. The physical, virtual, and human worlds are all combined in the metaverse’s design.

Although metaverse produces a virtual world that is parallel to the real world, unlike the real world, it is not constrained by the laws of space and time because it exists in its own space and time. It enables overcoming the limitations of both times—by going back in time and moving toward the future—and of actual space—by traveling across space in the metaverse. 

By allowing users to create content through recommendations and customised avatars, Artificial Intelligence contributes to improving the metaverse ecosystem. 

In the meantime, technologies like blockchain assist with the monetization of content and avatar trade. In the metaverse, digital assets like Non-Fungible Tokens (“NFTs”) serve as a barter commodity that may also be exchanged for fiat money.

Features of Metaverse

Our physical and digital lives are seamlessly combined in the metaverse, creating a single, virtual society where we can work, play, unwind, do business, and interact. That said, the majority of conceptions of the metaverse make use of avatars, virtual reality, augmented reality, and a vast network.

  • The fact that there are multiple virtual worlds emerging to enable people to deepen and extend social connections virtually is one of the key elements of Metaverse. This is accomplished by enhancing the web with a three-dimensional, immersive overlay to produce experiences that are more real and organic.
  • As a result, interoperability will be a characteristic of the metaverse. Users would be able to move their avatars and other data, such as digital assets, between metaverse apps in an interoperable metaverse, regardless of whether those metaverses share ownership or management.
  • The metaverse will pose fresh and challenging legal challenges relating to intellectual property rights, digital security, privacy and identity—as well as self-sovereignty—as will any breakthrough technical advancement.

The Metaverse Economy

Building a smart city involves fulfilling the daily needs of people in terms of entertainment, video games, remote work, education, tourism, and social networking. Now with the growing applications all are being used as examples of metaverse applications to build a Metaverse Economy. The COVID-19 pandemic bought about the widespread use of smartphones and the internet. 

The advancement of blockchain technology and the expansion of Web 3.0 have all contributed to the emergence of the metaverse. Although many tech businesses are looking into new projects, gaming is thought to be the gateway to the metaverse. Brands are utilising the flexibility that gameplay offers to interact with in-game environments for audience growth and exposure through Metaverse storefronts and NFTs. The gaming industry is already working with sectors like music, fashion, cosmetics, sports, and education to incorporate their brands into the gameplay.

Indian business: The game changers

By releasing its most current collection, “Romance of Polki,” on April 7, 2022, Tanishq became the first Indian jewellery company to establish itself in the Metaverse. Three dimensional designs were made visible to the general public by scanning a QR code.

A similar action was done by the travel agency MakeMyTrip, which also launched virtual holiday NFTs.

Mahindra and Mahindra has introduced NFTs, which are themed on their legendary “Thar” car.

Metaverse and Data Privacy

The metaverse has a global reach and makes its features available to users wherever they may be, so it cannot be confined to a single or small number of data privacy laws. In many instances, the same data or even the same person will be subject to multiple privacy laws. For instance, the EU General Data Protection Regulation (“GDPR”) permits any company, no matter where it is situated in the globe, to be subject to its provisions if it provides goods or services to EU residents or keeps track of their behaviour.

Thus, European users of a metaverse run by a U.S. corporation may utilise their GDPR rights. That EU data subject might be in a virtual nightclub there with a Californian and a Japanese national. Physically, everyone is still in their homes, each with a different level of privacy. The option of privacy legislation in the metaverse is still years away since privacy law has not yet caught up to national and international borders.

Depending on whatever privacy regime is in effect, different rights and obligations apply. In accordance with the GDPR, the controller is required to reveal the details such as the controller’s name and contact information, the reasons for the processing, the legal justification, and the recipients of the personal data. Additionally, under certain conditions, the person may seek access to all information gathered, its correction, or its erasure.

Anytime a person uses a service or makes a purchase—like purchasing NFTs in a metaverse—their data is gathered and kept. For instance, a company that sells goods and services should be aware that it may be the recipient of numerous requests for the exercise of data subject rights that it must abide by.

The jurisdictional challenges

Given that users of Metaverse are likely to come from various backgrounds, countries, and regions, it is crucial to consider which country’s laws would govern the virtual world and Metaverse ecosystem. In a borderless virtual environment, jurisdiction will be even more ambiguous, a significant worry for many government organizations.

There still needs to be more clarity around the authorities’ position on this matter, with a lot more coming in the future. The only workable solution is to collaborate and create laws jointly. The regulations must change in reaction to shifting dynamics, adding a variety of measures to address new problems and offer the world remedies.

Regulatory Challenges: A point of concern

With the emergence of the metaverse, intellectual property rights will face a new problem. In order for the Animation, Visual Effects, Gaming, and Comics industries to prosper, ownership of art and properties in the real world is a different realm from that in the virtual world. NFTs may raise legal questions over rights to and ownership of Intellectual Property (“IP”). 

To prevent IP theft, care must be taken to understand the conditions and smart contracts that are a component of the NFTs transaction.

With the growing advancements, it is necessary to have equipment that will deal with the issues arising from metaverse technology, among them, the protection of privacy.  This will further involve having privacy regulations, laws related to payment governing this aspect, and IP regulations and protections. Even though the concept of metaverse is evolving across the globe, how only time will tell us to what extent India brings laws governing the virtual world. 

Metaverse: A step ahead into the future 

Primary Directions in which the metaverse is advancing includes; Hardware, infrastructure, content, community, and currency. 

International organisations working in the fields of technology and communication have begun developing rules for upholding standards in light of the extensive coverage of technologies that the metaverse requires. The blockchain will be the most crucial piece of technology needed for the metaverse to take off. The first set of global blockchain standards was released in 2019 by the International Telecommunication Union. The Institute of Electrical and Electronics Engineers (“IEEE”) standards for Data Format for Blockchain Systems were published by IEEE in 2020 to promote standardisation. Meanwhile, other nations are attempting to establish laws governing the metaverse and similar technologies.  India too in this race has taken its first movie in the direction by drafting the National Strategy on Blockchain, and by rolling out the 5G testbed, has started testing the testing quantum communication technology. 

By developing the National Strategy on Blockchain, India has also made the first move in that direction.

Conclusion

When it comes to ensuring the secure operation of this new platform, there is a legal gap in front of us. Regulators must step in now, while Metaverse is still in its infancy, before the technology improves. If they wait, it will be more challenging to regulate after there is a higher level of user dependence.

Although disruptive technologies like VR, AR, blockchain, etc., have enormous potential in their applications, there is still doubt over how they will affect established legal systems. Undoubtedly, regulating new technologies would be challenging and call for revising current legal frameworks.

Tips to ace your interview!

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This blog post is written by Ms. Ritu Sajnani & Ms. Varsha Gupta.

 

The type of interview you’ll have truly depends on the company and the position you’ve applied for, but candidates can typically anticipate a phone or video interview as well as a panel interview, which may be done by a combination of Senior Partners, Senior Associates and Associates.

You might be asked a variety of questions during a law job interview, ranging from general questions about your career thus far, to specific questions about the company you’re interviewing for and the law, to questions that test your abilities and competences, as well as questions about your commercial awareness. You could also be asked questions that gauge how well you handle the unexpected.

THE KNOWLEDGE AND EXPERTISE THAT THE FIRM APPRECIATES

You must first understand the qualifications that the employer values in a candidate. This gives you an opportunity to present yourself as the ideal applicant for the job. Read between the lines of the employer’s job listings to learn the talents and experience they appreciate. To obtain a sense of the kind of employees the employer seeks, you can also locate information on their career page. Additionally, speak with any present workers and find out from them what their employer values most in the workplace.

KNOW EVERYTHING ABOUT THE WORKPLACE WELL

Employees who occupy critical positions within an organization are considered its key players. The first stage is to start by doing research on the business or firm, its founders, promoters, key management, and partners. This enables you to learn more about the company, its operations, revenues, growth strategies, and future prospects. With this information, you can also pose factual queries. This will also help you identify the important actors in the organisation. You may learn more about the most recent news and updates about the organisation from this excellent source. Doing your research about the company you want to work for shows that you’re dedicated and willing to go the extra mile – two qualities which will no doubt make you a valuable asset to any team!

READ THE PROFILE OF THE INTERVIEWER

The best way to prepare for an interview is to familiarize yourself with the person who will be conducting it. By taking the time to learn about them, you’ll be able to connect with them on a more personal level and start a meaningful conversation. This will give you an advantage throughout the interview process. While it may be difficult to identify the interviewer, a little research will usually uncover their identity.

First, try to locate the person’s name in the email you received regarding the interview. If you can’t find any information, ask for the interviewer’s name in your email response to the sender. Once you have the interviewer’s name, look them up on LinkedIn. Doing this research will help you to learn more about the interviewer’s background, role within the organisation, and perhaps even some shared hobbies – all of which will come in handy during your conversation.

KNOW YOUR JOB PROFILE

It’s important to understand the role you would play if hired, and you can learn a lot about a company by doing your research beforehand. This way, you’ll be more prepared for the interview, and you’ll have a better idea of what the company does, who their clients are, and what kind of work they do. You can usually find this information on a company’s website – take a look at their services, blog, case studies, and news section to get a better understanding of their work. You can also check out their press releases and events to see what they’re up to lately. Doing your research will help you be more confident and knowledgeable in the interview process, and it may just help you land the job!

KNOW YOUR CV

Be knowledgeable about all aspects of your resume as you will be grilled on these topics during your interview. Highlight the sections of your resume that you want to emphasize the most and be prepared to speak in-depth about them. Focus on your strong points; we all have certain areas we are particularly knowledgeable about and weak points in other areas. By preparing to speak about your strengths, you will be able to avoid your weaknesses and make a more positive impression overall.

ORGANIZE YOUR PAPERWORK

Even if you submitted your application using a digital version of your resume, it’s always a good idea to carry hard copies of all your supporting documentation with you in case the interviewer requires them for quick access. Take a printout of your cover letter and CV. Place all of your significant papers, such as certificates, mark sheets, IDs, and photos, in a folder. Be sure to have them ready as well if the HR has requested that you bring any specific documents, such as pay stubs, a letter of resignation from your previous employment, or bank statements. Having all of these documents readily available will show that you’re prepared and organized, two qualities that any employer would want in their employees.

ASK THE INTERVIEWER THOUGHTFUL QUESTIONS

Most interviewers will give you the chance to ask questions and clarify any doubts you may have. During the interview, keep a note of the questions you want to ask the interviewer. Towards the end of the interview, you can ask any questions you may have about the job, the firm, or any other matter. 

BE HONEST

Honesty is always the best policy! Your interviewer will be able to tell based on your answers whether or not you have strong moral principles, and this does matter in the grand scheme of things. If you don’t know the answer to a question, it’s perfectly fine to say so. What isn’t okay is trying to guess answers or just throwing random information out there in hopes that something will stick. Even though no one can be an expert in everything, it’s better for a candidate to admit their limitations and learn from them than it is for someone to try to bluff their way through an interview.

KNOW YOUR AREA OF PRACTICE 

Know the legal and current events that are taking place in your field of expertise and that particular area of practice, as well as the legal theories that underpin those events.

Be familiar with the fundamentals of law; questions about the Contract Act, Companies Act, Civil Procedure Code, Arbitration Act, Registration Act, Transfer of Property Act, etc., which are all significant laws, may be asked of you. Depending on the kind of place you are applying to, the actual laws may change.The IPC, CrPC, and Evidence Act will undoubtedly be brought up if you are working with a criminal lawyer, whereas the Arbitration Act and CPC will likely come up more if you are looking for a position with a corporate litigation team. Be ready to respond to inquiries concerning legal compliances, labour and employment law, and contract law if you submit an application for an in-house legal team.

You’ll be on the right track if you concentrate on the regulations that have the greatest effects on business!

ONLINE INTERVIEWS

If the interview is conducted online, please accept the calendar invitations and install the programme on which the interview-meeting is scheduled. Please bring headphones, a quiet setting, and a backup internet connection to the interview. In case your primary internet connection stops working or hangs for whatever reason, keep a backup device nearby. Make sure your video is on during the interview so there are fewer distractions and you can connect with the interviewer more easily. Your username should be professional, and please use a professional email address as well.

CONDUCT MOCK INTERVIEWS

No matter how well you think you’ve prepared, it’s only natural to feel some level of stress or anxiety leading up to your interview. This is where mock interviews come into play – they can help you shake off some of the nerves by simulating an actual interview setting. You can ask a friend or family member to act as the interviewer, or if you’re having trouble finding someone, you can always practice in front of a mirror. For an added level of feedback, try recording the entire mock interview so you can review it afterwards and identify any areas that need improvement.

Company Law in a Nutshell

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Company Law in India

Company law is a compendium of legislative measures, rules, and regulations that govern the formation, structure, management, operation, administration, and compliance of companies. The Companies Act, 2013 (the “Act”), – which replaced the erstwhile Companies Act, 1956 – along with circulars, orders, rules, amendments, forms, and notifications together encompass the company law in India. 

 

Company – Meaning, Nature, Characteristics

A company is a separate legal entity or legal person (a.k.a. Artificial Legal Person) that has its own corporate personality independent from that of its members. It is legally competent like a natural person to own property, incur debts, borrow money, have a bank account, have transferable shares, employ people in its name, enter into contracts, sue, or be sued independently. However, in certain cases, the courts may examine a company from beyond the purview of its corporate personality and begin to look at the members or managers directly, termed as the ‘lifting of the corporate veil’.

 

Company v/s Partnership Firms and Limited Liability Partnership

Partnership firms are often confused to have similar characteristics as a company. However, unlike a company’s distinction from its members as a legal person, a partner is an agent of the partnership firm whose liability is unlimited and the partner cannot independently dispose of the property or contract with the firm or transfer their shares without the other partner’s consent. Furthermore, the process of dissolution, accounting, and auditing of a partnership firm differs from that of a company.

 

On the other hand, a limited liability partnership is a blend of both, a company and a partnership firm. It is a separate legal entity like a company but functions in consonance with the contractual agreement between the partners with flexible compliance and governance like a partnership firm. 

Kinds of companies

Companies in India are incorporated when a certain number of persons sign a memorandum for any lawful purpose, with or without limited liability, and contractually agree to comply with the requirements of the Act. These companies can be divided into various kinds on the basis of the following categories:

  1. Based on incorporation: Statutory Company, Registered Company
  2. Based on members: Private, Public, One Person Company
  3. Based on liability: Limited by shares, Limited by guarantee, Unlimited
  4. Based on control: Associate or Joint Venture Company, Holding and Subsidiary Company

A company can further be classified into Foreign Company, Government Company, and Section 8 Company.

Incorporation of a Company

The formation and incorporation of a company begin with the registration of at least one suitable name, in order of preference, with a maximum of six other options, followed by the filing of documents like a declaration of compliance, notice of situation of the registered office, and particulars of the director(s), etc. post the name approval. A company’s incorporation is incomplete without drafting and stamping the Memorandum and Article of the Company. These two documents are vetted by the Registrar of Companies (the “RoC”) having jurisdiction over the proposed registered office of the company. RoC further issues a certificate of incorporation, and a Corporate Identity Number, post which the companies are required to maintain copies of all documents and information.

Some of the significant company documents and records that have been detailed in the Act are Memorandum of Association, Articles of Association, Prospectus, Share Certificate, Share Warrant, and Statutory Registers.

Directors and Key managerial personnel

A company’s values and standards are maintained through strategic planning, performance reviews, and robust financial, human resource, and risk management. It requires entrepreneurial leadership demonstrated by the Board of Directors. The constitution of the Board, its powers, restrictions, and appointment of directors are elaborated in the Act. The Act also mandates appointment of Key Managerial Personnel (the “KMP”) by certain classes of companies, as the collective in charge of its operations, and decision-making. Section 2(51) of the Act defines KMP of a company to include the Chief executive officer, manager or managing director, Company Secretary, Whole-time director, Chief financial officer, and such other officers, designated by the Board as KMP but are not more than one level below the directors in whole-time employment or as may be prescribed.

 

Corporate Finances

Corporate finances are the funds or capital that play a great role in the establishment of the company, operating business activities, decision-making, and long-term planning for the company’s future. The issuance of rights shares, employee stock options, preferential allotments, buy-back of shares, and shares with differing voting rights are only a few of the ways to generate capital. It entails a number of approvals, disclosures, filings, and record-keeping requirements that must be met in accordance with Chapter IV of the Act read with the Companies (Share Capital and Debentures) Rules, 2014. 

Company Administration and Corporate Governance

The Act with the Companies Rules provides a robust framework for corporate governance and administration, thus, including, but not limited to, the independent directors’ qualifications and responsibilities, mandatory appointment of a female director, and creation of specific committees such as the CSR Committee, the Audit Committee, the Nomination and Remuneration Committee, and the Stakeholders Relationship Committee. The provisions further dilate the scope, conduct, and essentials of board meetings, General Meetings, and Shareholder Meetings for the efficient functioning of the companies.

Accounts, Financial Statements & Audits

All kinds of companies are mandated to maintain a “Book of Accounts” which forms the basis of the financial statements of the company for annual return filing.  It inter alia includes records maintained in respect of the company’s business transactions, trade of goods and services, and assets and liabilities. The achievement of a company’s business goals, accurate financial reporting on its operations, preventing fraud and asset theft, and lowering its cost of capital ultimately depend on maintaining an efficient system of internal controls. 

Corporate Social Responsibility

India became the first country in the world to have statutorily mandated Corporate Social Responsibility (“CSR”) for certain companies with the enactment of the Act. It strengthens India’s corporate philanthropy by mandating social welfare for companies, whether private limited or public limited, to spend at least 2% of the average net profits made during the 3 immediately preceding financial years, within the defined activities and parameters. Section 135 of the Act read with the CSR Rules sets out a logical framework for the companies to comply with for the formation of the CSR committee, their roles and objects, and the parameters to be adopted for compliance.

Company Processes

A company in its lifetime undergoes various changes and processes. It may experience a compromise demanding vigorous dispute resolution through a compromise plan, arrangement of the rights and obligations of the company’s shareholders, restructuring the capital structure by transfer of assets, amalgamation through mergers and acquisitions, and finally, the winding up of a company, either voluntary or mandatory, to terminate the existence of the company and asset management. All corporate law issues arising during the lifetime of a company are adjudicated by quasi-judicial bodies like National Company Law Tribunal, National Company Law Appellate Tribunal, and other Appellate Tribunals and Special Courts in India.

 

Did you know that the first provision for registration of joint stock companies in India was made in 1850, based on the English Joint Stock Companies Act 1844? It is intriguing to see how far the company laws in India have come since then!!

 

Tips to make the most out of your Legal Internships

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This blog post is written by Ms. Ritu Sajnani & Ms. Varsha Gupta.

A legal internship is a fantastic way to get your foot in the door of the legal industry. Although law school provides you with a great foundation of knowledge, you will mostly develop practical legal skills on the job. An internship is therefore a priceless chance for networking and practical learning. 

Most employers want to see that you have some real-world experience, so an internship is the perfect way to show them what you’re capable of. And since an internship is also a great opportunity to network, you just might end up with a job offer before you even graduate!

In this blog, we’ll show you how to make the most of your legal internship and get ahead in your career as a lawyer.

START BY BEING PUNCTUAL

Arrive on time in the morning, be there for meetings when they start, and finish projects by the due date. Give it your all because internships are just for a brief & specified amount of time. Be prepared to arrive at work early and stay late. As an intern, you must respect your co-workers by being punctual because you are both a guest in a strange setting and a colleague on whom others must rely.

 

DOING THE WORK PROPERLY 

Be flexible with the kinds of duties that are given to you. If you are asked to complete a seemingly unimportant task, such as gathering facts, recording data, or conducting research on a simple legal matter, take this opportunity to demonstrate your skills and commitment. This may lead to further involvement in the transaction and more opportunities for employment. 

Of course, the best way to guarantee that you will be given additional work is to do the initial task well.

SHOW YOUR INVOLVEMENT

As an intern, it’s important to be enthusiastic about your work if you want to make a good impression on both your fellow interns and supervisors. Enthusiasm is contagious, so spreading your excitement about your work can benefit the company as a whole. If you want to be hired after your internship, exhibit the traits of an enthusiastic intern within the brief time you have to make a good impression. This means being motivated and excited about your work, and requesting inclusion in professional workshops and meetings. Showing your enthusiasm will help you stand out and make a positive impact.

ASKING THE RIGHT THING AT THE RIGHT TIME

We understand that you might have a lot of questions, and as a law intern, it’s important to be mindful of how you phrase them to your seniors. Before asking, consider the situation carefully and try to take action on your own first. If you still have questions after taking those preliminary steps, ask them in batches and be as specific as possible. This is better than repeatedly approaching your senior with ambiguous inquiries because they’ll appreciate that you tried to handle the situation on your own first and that you’re being mindful of their time. Additionally, asking specific questions in batches shows that you’re organized and that you value their time – two qualities that are essential in the legal field.

BUILDING CONNECTIONS – VERY IMPORTANT!

As you move on from your internship and enter the professional world, it is important to maintain the relationships you built during your time as an intern. Connect with your coworkers on LinkedIn or other social media platforms, and keep them updated on your work and life. 

Additionally, take some time to review your internship experience by reading the essay you wrote at the start of the internship and writing a new essay that reflects on how many of your objectives were accomplished.

BE EFFICIENT

It is a common misconception that you should already know what kind of work you want to do or be assigned to. The truth is, it is perfectly fine to be open to learning and trying new things. A key part of being a professional is being able to adapt and learn from experiences. 

An error that people often make is wanting to do the task as quickly as possible in order to appear good and take on more work. This couldn’t be further from the truth. You should always prioritize quality over quantity.

ABSORB AND ACT

Be a sponge. Your aim as an intern should be to take in every opportunity event that comes your way. You want as much experience “lawyering” in your internship as you can get from a legal skills’ perspective. As an intern, you can take notes and be more prepared for times when your actions will directly affect a case if you attend these sessions.

BE CREATIVE

Before seeking help from a Partner or Associate, it is important to do your own research and give yourself time to think about a possible solution. You can start by looking for resources on internal websites or asking other interns for help. It is key that your coworkers see you as someone who is resourceful and independent, rather than someone who gives up when faced with a challenge. By taking the time to solve problems on your own, you will show that you are a valuable member of the team.

ACCEPT ADDITIONAL LABOUR WITHOUT BEING ASKED

Taking on new and important tasks is a great way to stand out as an intern. Not only will you be remembered for your hard work, but you’ll also be appreciated by your supervisors.

Internships require a lot of work, so it’s important to make the most of your time in the company. That means being punctual and producing high-quality work. But it also means going above and beyond what is expected of you. By taking on new initiatives and tasks, you’ll show that you’re willing to put in the extra effort to get the job done right.

Learn to crack M&A Deals as a Corporate Lawyer

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This blog post is written by Ms. Ritu Sajnani. 

What do you mean by the term M&A?

Mergers and acquisitions (“M&A”) are transactions in which two businesses combine in some way or the other. Although the terms ‘mergers’ and ‘acquisitions’ are used interchangeably, they have distinct legal meanings. A merger is the joining of two companies of similar size to form a new single entity. As opposed to this, an acquisition occurs when a bigger corporation buys a smaller one, taking over that smaller company’s operations. 

One of the key facets of corporate finance is M&A. The general justification for M&A is that integrating two different companies together generates more value than doing it individually. Companies regularly evaluate opportunities through the merger or acquisition pathway in order to optimize wealth.

Major reasons to participate in an M&A Deal

  • Growth: In most instances, inorganic expansion through M&A is a faster approach for a company to boost revenues than growing organically. Instead of taking the risk of creating the same capabilities internally, a business can benefit by acquiring or merging with a business that has the most recent capabilities. 
  • Synergies: Synergy, which is most frequently used in M&A, is the extra value generated by a deal. When a transaction has synergy, it signifies that the combined value of the new business will exceed the combined value of the parts working independently. 
  • Tax benefits: When one business/company generates a substantial amount of taxable income and another experiences tax loss carryforwards, tax benefits are examined. The acquirer can use the tax losses to reduce its tax obligation by purchasing the business/company with the tax losses. 
  • Increased market share: A new product is introduced to one firm’s existing brand portfolio as a result of the merger. The union gives business owners access to a wider client base, which helps them in gaining a large market share.

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Things you need to know before kick-starting work on an M&A Deal!

As an M&A lawyer, you are required to wear multiple hats. That of a good draftsman, that of a diligent mind, and most importantly – of a good negotiator. M&A deals require you to be meticulous on top of every step – be it, in understanding the context of the deal, carrying out the lengthy diligences, or achieving closing. 

Following are the Must-Have Skills that an M&A lawyer needs to possess: 

  1. Negotiation: It won’t be simple at all when we’re talking about negotiating an M&A deal. One side, the buyer, would consistently seek the best conditions and lowest price. The seller, on the other end, would undoubtedly want to reap the rewards of his labour and maximise his sale price, and certainly, with generous conditions as well.  A settlement or agreement is reached through the mutual discussion and structuring of the terms of a transaction known as negotiation. When it comes to M&A, negotiation is the most crucial component. It is at this point that the agreement either comes together as anticipated by the negotiators or breaks down. The signing of a letter of intent is the first step in the protracted process of negotiation, which often lasts until the very end of the deal. A purchase or merger is solely the result of negotiations. M&A transactions frequently cost hundreds or even thousands of crores, and a skilled negotiator is capable of changing the game.
  2. Due diligence: Due diligence is the procedure of acquiring and confirming essential information about a business or a person to enable the parties to make an informed decision. Due diligence is beneficial to both sides in any M&A scenario. The term “due diligence” refers to a thorough investigation of all important business factors like the financial, operational, tax, commercial, tax, IT, integrity, health and safety, and regulatory aspects. The evaluation of the business’s assets, liabilities, and other aspects is considered by a potential buyer as a thorough appraisal of the enterprise.
  3. Problem-solving: It is crucial to be able to absorb and analyse complicated information and understand the challenges they raise on a practical level. The next stage is to come up with a legitimate and practical solution. One essential attribute that any commercial lawyer must have is the ability to solve problems. A smart commercial lawyer must be able to detect and spot potential deal-killers as well as engage in firefighting when it comes to issues raised by transactional specifics. 
  4. Hold over theoretical concepts: It’s also advised to have a thorough awareness of current legal changes and statutes. The majority of laws are opaque amalgamations of difficult language that demand in-depth understanding. The law changes from time to time, and the lawyer is expected to be aware of any new notifications issued by regulatory authorities, formalities that have been implemented and ways to get over any obstacles that may arise while applying the law. 
  5. To know your client: Understanding the deal’s backdrop and your client’s motivation for engaging in that M&A deal is crucial at the very beginning of the transaction. The only way you will be able to present your client’s important request is if you are aware of their goals. As a lawyer, it is always your responsibility to make sure that your client benefits from the arrangement in all respects and is satisfied with it.

Deal Table: Dos and Don’ts

If you want to make that deal work in your favour, keep an eye out for a few things that will help you. 

  • First and foremost, maintain composure; otherwise, you risk making a mess of yourself and losing control of the situation. 
  • You must treat the other party with the utmost respect and courtesy. It’s your obligation to communicate your points and agenda across the table in a precise and understandable manner. 
  • Being an excellent listener should always be a priority. Always listen to what the other person is saying. 
  • Always be well-prepared and diligent because doing so will enable you to close a number of clauses in your transaction agreements. 
  • Ensuring that your client’s request is met is one of your main duties as an M&A lawyer. 
  • Time is of the essence when it comes to M&A, therefore you should always be proactive and prompt. 

So roll up your sleeves and get ready to be a terrific M&A lawyer NOW!

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