This chapter addresses the trends in the Indian private equity sector in 2021. India is one of the largest private equity markets in the Asia-Pacific region, with 2020 seeing a record high in terms of the deal value of private equity (PE) and venture capital investments. This was primarily on account of a few big-ticket transactions, such as investments of USD26.5 billion in Jio Platforms (a telecom and data services company) and Reliance Retail by multiple private equity investors, including KKR, Silver Lake, General Atlantic and sovereign funds including Abu Dhabi Investment Authority and the Public Investment Fund of Saudi Arabia. 2020, however, saw fewer mid- and small-sized investments across sectors.

While the spread of a catastrophic second wave of the COVID-19 pandemic ravaged the country in the first quarter of 2021, its economic implications were not as severe as in the first wave. The Reserve Bank of India (RBI), India’s central bank, in its annual report and financial stability report has noted that, while the short-term uncertainties remain, economic recovery will depend on revival of private demand, rapid inoculation of citizens and continued policy stimulus for near-term economic growth. With corrections in valuations brought about by the pandemic and liquidity crush, the expectation is for an uptick in the volume of PE investments in 2021.

Further, the shift in global financing practices has also led to an increased focus on environmental, social and governance (ESG) parameters for PE investments.

Bain & Co, in their "India Private Equity Report 2021", predict that the IT, Information Technology Enabled Services (ITES), consumer tech, and healthcare sectors may see more funding in 2021. This is because the COVID-19 pandemic-induced consumer reliance on technology-based services continues to be predominant.

E-commerce platforms, particularly the bigger players, have been steadily receiving large investments. Swiggy raised USD800 million from Falcon Edge, Prosus Ventures, Goldman Sachs, GIC and others. Similarly, Zomato raised USD250 million from Tiger Global, Steadview, Kora Investments and others. Tech in general also saw large-sized deals with the Mphasis buyout by Blackstone, ADIA and GIC for approximately USD2.8 billion.

The pharmaceuticals and healthcare sector also saw large investments in 2020, including Multiples and CPPIB’s USD400 million buyout of Zydus Animal Healthcare and the USD286 million fundraised by Manipal Healthcare Pvt. Ltd.

Key Foreign Exchange Law Developments

In 2019, the Ministry of Finance, Government of India and the RBI notified the Foreign Exchange Management (Non-Debt Instruments) Rules, 2019 and Foreign Exchange Management (Debt Instruments) Regulations, 2019, replacing the erstwhile regime with an aim to simplify and bifurcate the regulation of debt and non-debt instruments and ease the approval process for transactions.

As of February 2021, investors from Foreign Account Tax Compliance (FATC) non-compliant jurisdictions (including Mauritius and the Cayman Islands) are restricted from directly or indirectly acquiring "significant influence" in non-banking financial companies. "Significant influence" means the right to participate in policy decisions and is deemed to exist where investors hold 20% or more of the share capital of a company. Existing investors from the Financial Action Task Force (FATF) non-compliant jurisdictions are, however, permitted to continue making investments to support continuity of business in India.

Foreign portfolio investment (FPI)

In September 2019, the Stock Exchange Board of India (SEBI), India’s securities market regulator, issued new guidelines re-categorising foreign portfolio investors into two categories. Category-I consists inter alia of entities which are regulated (banks, insurance companies, investment managers, etc), pension funds and regulated funds from Financial Action Task Force-compliant countries. Category-II entities are all foreign portfolio investors not classified as Category-I. In light of the COVID-19 pandemic, the SEBI has eased the threshold for foreign portfolio investors registering as Category-I with the aim to boost portfolio investments. Category-I entities enjoy lower compliance requirements than Category-II entities.

Foreign direct investment (FDI) policy

Foreign investments in India are made either under the "automatic route" (ie, without regulatory approval) or under the "approval route" (ie, requiring specific consent from the relevant sectoral regulator). The Consolidated FDI Policy has been amended to liberalise foreign investments in sectors that include contract manufacturing, single-brand retail trading and digital media. Further, the cap on investment in the defence and insurance sectors has been increased from 49% to 74% under the automatic route, subject to specific conditionalities. 

To curb opportunistic acquisition of Indian companies following the COVID-19-induced economic slow-down, as of April 2020, prior government approval is required for (direct and indirect) investment into India by persons resident in a country with which India shares a land border (ie, China, Afghanistan, Bhutan, Myanmar, Nepal, Pakistan and Bangladesh). Previously, this restriction was applicable only in the case of investments from Pakistan and Bangladesh. The operation of this amendment, however, has raised queries which remain unanswered, eg, the threshold for beneficial ownership which will trigger the requirement for government approval and the impact, if any, on FPI and investment by venture-capital funds. While stakeholders have sought clarifications in this respect, a response from the government is awaited. Meanwhile, over a hundred applications from Chinese/Hong Kong entities are pending government approval.

Key Taxation-Related Developments

To attract investors, the government has abolished dividend distribution tax (where a dividend was taxed in the hands of companies before being passed on to shareholders). The government also proposes to grant a ten-year tax holiday for companies that invest over USD500 million in, inter alia, medical devices, telecom, and electronics sectors. Further, a number of tax incentives have been proposed to promote the relocation of assets held by offshore funds to International Financial Services Centres in India. 

On off-market secondary investments by players (resident and non-resident entities with a permanent establishment in India) whose turnover in the preceding financial year exceeds USD1.3 million, the Government has now introduced the requirement to withhold taxes at the rate of 0.1% from payments to be made to resident sellers. In cases where the thresholds for applicability of the withholding provision are not met by the buyer but the seller has a gross turnover in the preceding financial year in excess of approximately USD1.3 million, the seller is required to collect and pay tax at 0.1% over and above the consideration from the buyer.

Key developments by the SEBI

The SEBI has eased certain acquisition-related restrictions to allow aid by way of capital infusion in distressed companies hit by the COVID-19 pandemic. Further, the SEBI has amended existing guidelines regarding infrastructure investment trusts (InvITs) and real estate investment trusts to increase investor participation in these sectors, including by introducing a new framework for privately placed unlisted InvITs.

The SEBI has prescribed a code of conduct to be followed by investment managers and members of the investment committee of registered alternative investment funds, increasing their fiduciary and regulatory responsibility.

In India, private equity investments are not regulated per se. However, certain private equity transactions may be subject to regulatory compliance or approvals, depending on the nature of the target, the industry in which the target is engaged and/or, the size of the target.

India-domiciled private equity investors invest through alternative investment funds which must be registered with the SEBI, while foreign investors may invest through any of the following routes:

• FDI: investment in an unlisted company or in 10% or more of the fully diluted capital of a listed company by any person resident outside India;
• FPI: investment in under 10% of the fully diluted capital of a listed company by a person registered with SEBI as a foreign portfolio investor; or
• foreign venture capital investment: investment in an Indian company engaged in any of the ten specified sectors or in a start-up, irrespective of the sector in which it is engaged by a person registered with the SEBI as a foreign venture capital investor.

There is no specific regulatory framework for the acquisition of unlisted companies. Acquisitions of listed companies, however, must comply with the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (Takeover Regulations).

A transaction may require approval of the Competition Commission of India, India’s antitrust regulator, where the assets or turnover of the target, the investor (and, in some cases, the investor’s group) exceed specified thresholds.

Residents outside India and Foreign Investors

The Indian rupee is not freely convertible and transactions between Indian residents and persons resident outside India are regulated under Indian law. Foreign investment in certain sectors such as gambling and real estate is prohibited, while foreign investment in certain other sectors is capped (eg, media) or permitted only with approval of the relevant sectoral regulator (eg, defence). Additionally, guidelines have been prescribed in relation to the price at which transfers between foreign investors and Indian residents can occur.

A private equity transaction is usually preceded by a detailed legal due diligence of the target, and its subsidiaries.

The diligence period generally covers the preceding three financial years and the key focus areas include review of the charter documents, existing shareholder arrangements for any restrictions on admitting new shareholders, material agreements and financing arrangements entered into by the target for any onerous obligations and/or, liabilities and consent requirements; compliance with foreign exchange laws, if applicable; and intellectual property rights and compliance with information technology laws. In India, many shareholders continue to hold physical share certificates, and ascertaining clear title of shares is important in the case of a secondary market transaction. While due diligence is conducted primarily on the basis of the information and documentation provided by the target, it is common also to conduct public searches in respect of the corporate filings, intellectual property rights, litigation and materially adverse media reports.

Challenges, however, arise where the target is a public listed company. Under extant insider trading regulations, sharing of unpublished price-sensitive information (UPSI) is prohibited. Whilst certain exceptions exist for the conduct of due diligence, UPSI shared during the course of due diligence usually needs to be made public prior to the transaction being completed. This requirement may disincentivise listed targets from sharing information during the diligence process.

Vendor due diligences are common in auction sales, although the private equity investor is often provided an opportunity to conduct a top-up diligence to verify the findings of the vendor diligence. Further, advisers usually do not provide reliance on the vendor diligence reports and, consequently, limited credence is provided to such reports.

Acquisitions of majority interest and asset purchases by private equity funds are uncommon in India. Private equity transactions are typically undertaken through private sale and purchase agreements for a minority stake. A transaction may, however, involve a court-approved scheme when it contemplates a pre-sale reorganisation of the target to streamline its businesses.

Private equity funds typically seek exclusivity with the target for an agreed period. Auction sales, while not common in India, are held, in the case of secondary market transactions for shares of companies listed on a stock exchange. In such cases, the scope for negotiation tends to be lower than in the case of exclusively negotiated transactions.

Private equity funds typically set up special-purpose vehicles to invest in targets. The fund’s representative will then be appointed to the board of the target. The fund is not, however, party to the acquisition or sale documentation and its direct involvement, if at all, is typically limited to the issue of a commitment letter providing a backstop on the indemnity obligations of the special-purpose vehicle, which is a selling entity. 

Private equity transactions are typically funded through the injection of equity by the private equity fund into the special-purpose vehicle. However, funds do not generally provide equity commitment letters certifying certainty of funds for the transaction. 

While investments in convertible notes are permitted in India, these have not gained popularity owing to regulatory uncertainty on whether such notes are to be considered as "securities" requiring companies to undertake a valuation at the time of issue of the notes (thereby defeating the purpose of the structure).

The RBI prohibits banks from granting loans for the purchase of shares. While non-banking finance companies may grant loans to private equity funds, this remains uncommon in India. The issuance of non-convertible debentures is less regulated than other modes of debt financing and, therefore, it is common for private equity investors to raise debt financing, where necessary through the issue of debentures.

While private equity funds typically acquired minority stakes in their targets, India has seen an increasing number of funds acquiring control in the concerned target. Specifically, in the case of early-stage companies, the majority shareholding is typically held by multiple private equity funds and not necessarily by the founders of the target.

Where the target is a subsidiary of a foreign company, investors often enter into an agreement with both companies to reserve a percentage of the share capital of the holding company, the acquisition of which is achieved at or immediately prior to a liquidity event through a put option.

Private equity transactions involving consortia of private equity sponsors are not common in India. However, India has seen a few deals involving consortia, including the acquisition led by Brookfield Infrastructure Partners of the Jio tower assets of Reliance Industries for USD3.5 trillion in 2019.

Further, co-investments in the private equity context are also uncommon in India. Where there is co-investment, it is limited to the acquisition of passive stakes by limited partners alongside the fund, which are already investors in the target.

In India, private equity funds typically invest with fixed-price and/or locked-box consideration structures. The involvement of private equity funds as sellers or buyers does not affect the type of consideration mechanism used. Further, while earn-outs or deferred consideration are becoming a common feature of private equity transactions, per RBI guidelines, the deferred component cannot exceed 25% of the total consideration and must be paid within 18 months of the execution of the transaction document.

Locked-box consideration structures are becoming more prevalent in the context of private equity in India. Where a locked-box mechanism is used, interest is charged on an agreed set of leakages, including transaction costs, payment of dividends and bonuses to employees.

A dispute resolution clause specifically for the consideration structure is not common in India. However, the agreement customarily includes a generic, overarching dispute resolution clause for all disputes, including those on the consideration structure. In addition, referral to an expert or third party to break a deadlock on the consideration structures is also often included in the transaction documentation.

Private equity transactions in India are typically subject to regulatory, third-party consents and other conditions, such as shareholder approval, lender consent, intimation to contracting parties and compliance with an investor’s internal policies. Depending on the nature of the target, the investor, and the type of deal, the transaction may be subject to regulatory conditions as detailed in 3. Regulatory Framework.

Where the agreement between the target and the third party (such as a lender or commercial counterparty) requires consent for the transaction, that consent is included as a "condition precedent" to the transaction. The requirement for that consent is identified during the due diligence exercise conducted by the investor.

Separately, material adverse change provisions (usually with built-in cure periods) are customary in private equity transactions. Material adverse changes typically trigger termination of the agreement. The COVID-19 pandemic has brought greater focus on the definition of "material adverse change" and parties’ rights in respect thereof in the transaction documentation.

A "hell or high water" undertaking is common where the transaction is subject to regulatory conditions. In these cases, the transaction documents will include conditions requiring the buyer’s co-operation for obtaining any such approvals.

Break fees are usually a matter of contractual agreement and are not common in the Indian private equity context. Indian law does not expressly regulate break fees or the terms or limits thereof. There are, however, several issues when it comes to payment of break fees. For instance, cross-border payments will require RBI approval, while break fees from listed companies may require SEBI approval.

Break fees, if paid, are restricted to reimbursement of actual expenses incurred by the receiving party in relation to the transaction.

Agreements for private equity investments may usually be terminated:

• by mutual consent;
• by a party on account of the failure of the other party to meet conditions precedent by the long-stop date;
• by a party in the event that closing does not occur as contemplated; and
• on the occurrence of a material adverse change.

Private equity sellers usually assume very limited risk in relation to the target’s business, with warranties being restricted to the seller’s capacity and title to, and encumbrances over, the securities being sold. Liability in the case of a breach of the private equity seller’s warranties is also often limited by time and/or quantum, based on negotiations between the parties. While private equity buyers usually expect robust warranties in relation to the target’s business and operational matters, this is not usually the case where the seller is a private equity investor.       

A private equity seller normally provides "fundamental" warranties regarding the title of the shares and the seller’s ability to execute the transaction to a buyer on exit. The target and its management separately provide commercial warranties regarding the target and its business.

The commercial warranties may be qualified with the knowledge of the target’s management and disclosures made by the target. In this respect, a full disclosure of the data room provided to the buyer or investor is not common and the target provides a separate letter with a limited set of disclosures against specific warranties. No such limitations and disclosures are typically accepted against the fundamental warranties.

The position does not differ when a buyer is a private equity fund. Typically, liability on loss for breach of warranties in the case of commercial warranties (ie, other than fundamental warranties) is limited in time and quantum, for which the time-period and amount, respectively, are heavily negotiated between the parties.

Key protections for a private equity investor include:

• standstill obligations on the target, preventing it from making any material business decisions without the investor’s consent between the signing of the transaction document and the closing of the transaction; and
• the private equity investor receiving exclusivity during negotiations by the target for any primary or secondary investments.

Indemnities are usually provided for the various representations and warranties given by the private equity seller and management shareholders. However, as previously mentioned, liability of a private equity seller is usually restricted to fundamental warranties. Although warranty and indemnity insurance is gaining popularity in India, it remains rare.

Further, an escrow or retention to back the obligations of the private equity seller is not common in India.

Private equity funds are slow to make claims against the target or its management and do not typically approach the courts in the case of a dispute. To the extent that disputes do occur, these are usually in respect of the investor’s exit rights. Given the considerable backlog in Indian courts, arbitration is the preferred mode of dispute resolution.

Indian law does not contemplate outright public-to-private transactions. Under the Takeover Regulations, an acquirer must first acquire control of a listed company and thereafter commence the delisting process. However, delisting of listed companies is infrequent on account of regulatory issues arising out of the SEBI (Delisting of Equity Shares) Regulations, 2021, as well as the unfavourable pricing mechanism mandated therein.

Any person (including an acquirer) who, individually or together with persons acting in concert (PACs) with them, holds shares or voting rights aggregating to 5% or more in the target is required to disclose their holding in accordance with the Takeover Regulations. Thereafter, any change in shareholding of 2% or more is also required to be disclosed.

Additionally, any person, who alone or together with their PACs, holds shares or voting rights amount to 25% or more of a listed company is required to make annual disclosures of the aggregate shares or voting rights held by them.

Under the Takeover Regulations, a mandatory open offer is triggered:

• if an acquirer acquires shares or voting rights of a listed company that, together with the existing holding of the acquirer and their PACs, entitle them to 25% or more in a listed company; and
• if a person already holding 25% or more in a listed company (together with their PACs) acquires more than 5% of the listed company in a financial year.

In addition to the above, a mandatory open offer is triggered where there is a direct or indirect acquisition of control of a listed company. The definition of "control" is inclusive and refers to control over management or policy decisions arising from shareholders’ agreements in the past, the SEBI has tried to require that an open offer be made in the event of acquisition of negative control. This issue has yet to be resolved by the SEBI and/or the courts.

Although consideration other than cash (including through a share swap) is permitted in India, most private equity transactions in India have occurred for cash consideration only.

The SEBI does not grant acquirers much flexibility and the only conditions that an acquirer may impose on an open offer are:

• a minimum level of acceptance; and
• that the relevant regulatory approvals required for the acquisition be obtained.

Financing arrangements need to be made prior to the open offer. Break fees may be negotiated between the parties. However, as discussed in 6.6 Break Fees, there may be regulatory hurdles at the time of payment.

At least 25% of the capital of a public listed company is required to be in the hands of the public. If, pursuant to an open offer, the public shareholding falls below 25%, unless the acquirer had announced an intention to delist at the time of making the open offer, the acquirer is required to dilute its shareholding to increase the public shareholding to 25%. Whilst a target may be delisted from the stock exchange, the promoters of the target cannot compel the public shareholders to surrender their shares.

A squeeze-out of minority shareholders may be undertaken by unlisted targets (including those that have been delisted) in accordance with the Companies Act, 2013. Shareholders of a target holding 75% or more of the capital may squeeze out the minority shareholders through a scheme of arrangement sanctioned by the National Company Law Tribunal. Alternatively, a person who alone or together with his or her PACs holds 90% or more of the capital of a target may compel the minority shareholders to sell their shares to him or her.

Except in the case of a hostile takeover, it is common for the promoters to make irrevocable commitments to tender their shares or vote. In such cases, negotiations between the private equity investor and the promoters would generally precede the open offer.

While hostile takeovers are not prohibited by Indian law, they are not often undertaken. Private equity buyers do not usually engage in hostile takeover offers.

Equity incentivisation of the management team within private equity transactions is not common in India. To the extent that such incentivisation is provided as part of the transaction, this is typically done through stock option plans where the option pool size is 5% to 10% of the share capital. 

However, Indian law, prohibits the issue of such stock options to employees who are also promoters or part of the promoter group of a company that is not a "start-up" registered with the Department for Promotion of Industry and Internal Trade. This prohibition extends to a director who holds more than 10% of equity in the company. Incentives, in such cases, are often structured as convertible instruments or equity value-linked bonus payments.

Management shareholders, where they participate in the transaction, typically subscribe to ordinary shares. Such participation does not extend to management personnel who are not shareholders. The company’s issue of stock options and sweat equity to incentivise those management personnel is independent of the transactions.

Stock options issued to management shareholders are typically granted over a four-year vesting period, with some options vesting each year. 

Good and bad leaver clauses are generally the subject of negotiation, especially in early-stage companies where greater reliance is placed on the management of the company. Typically, for good leavers (ie, persons whose employment is terminated otherwise than for cause, death or disability), vesting of their options is accelerated. However, for bad leavers (ie, persons whose employment is terminated for cause), unvested options are terminated and, in certain cases, the company has the right to buy back vested shares.

Private equity investors typically require the re-execution of promoter and key employee employment agreements as a condition subsequent to their investments. These agreements usually contain non-compete and non-solicitation provisions which remain in force for one to two years following their termination. 

Non-compete restrictions are enforceable while the employee is with the company. The likelihood of enforcing non-compete restrictions after the employee’s termination is low. Unlike other jurisdictions, India does not have a reasonability threshold to determine enforceability of non-compete restrictions post termination of employment as they are deemed as a restriction on trade, except where the employee has sold their goodwill. Nevertheless, non-compete clauses usually include language clarifying that the employee agrees that the restrictions imposed are reasonable and necessary to protect the company’s business to deal with any evolution of the law which permits the enforcement of such restrictions.

Minority protection for promoters is typically provided in the form of veto rights, as long as the promoters hold a specific percentage of shares (usually 5% to 10%) in the company. A veto in this respect may exist for any change in control of and/or key operational decisions in respect of the company’s business, including termination of material agreements and making material financial commitments. Such rights, however, are not generally available in the case of early-stage companies or start-ups. Further, minority shareholders do not generally enjoy anti-dilution protection other than the option to subscribe to shares pro rata to their shareholding in future funding rounds.

While veto rights allow the management shareholders some influence over any change in the company’s share capital, these rights do not apply to the private equity investor’s exit rights. Further, it is customary for the management shareholders to be obliged to facilitate the private equity investor’s exit.

Other minority protection rights, such as tag-along rights and information rights, will also extend to managing shareholders by virtue of their stake in the company.

Private equity investors nominate directors and/or observers to the board of directors of the target, while the promoters manage the day-to-day affairs of the target. The role of the nominee director(s) is to ensure that the rights of the private equity investor are protected, primarily through the exercise of affirmative voting rights over matters material to the private equity investor. These rights, inter alia, include changes in capital structure, the nature of business, and transactions above a certain threshold. The private equity investor also typically has rights relating to information and inspection, audit control and the appointment of senior management persons.

Generally, shareholders of a company are not responsible for the actions of the company. Shareholders may only be held liable where the corporate veil is pierced by the courts. Piercing the corporate veil occurs only in exceptional cases. In the past, the corporate veil has been lifted:

• for fraud;
• for improper conduct by the officers of the company;
• for tax evasion;
• in the case of a sham company; and
• in the public interest.

Upon lifting the corporate veil, courts are likely to impose liability on those shareholders whose knowledge, consent or connivance has been established.

It is common for private equity investors to require targets to adopt the investors’ internal policies and compliance protocols. The nature of the policies and protocols so adopted varies, depending on the investor, the size of the investment, the business in which the target is engaged, etc.

A private equity investor usually holds its investments for an average period of four to seven years, depending upon the sector of investment and deal size. Usually, the preferred exit routes for private equity investors are initial public offerings (IPO) and/or secondary sales to another institutional investor. Dual-track processes are also common. While exits slowed in the middle of 2020, there was an increase in the number of exits towards the last quarter of 2020 and the trend is expected to continue in 2021, with a few large IPOs in the pipeline such as Zomato and Paytm.

It is not common for private equity investors to reinvest upon exit.

While transaction documentation typically includes a drag-along right of the private equity investor, this right is rarely exercised. Where there are multiple investors, the drag right lies either with the single largest institutional investor or a group of investors who have the power to exercise the drag right collectively. The drag right ceases to exist upon the investor’s shareholding falling below a certain negotiated percentage (usually 10%). A drag right is usually available against all shareholders (including other institutional investors). Where the drag right does not extend to other investors, the non-dragging investors generally have a right to tag along.

Tag-along rights, in favour of management shareholders are uncommon, as such rights could have an adverse impact on the ability of the private equity investor to exit. Tag rights, where granted, are usually triggered if a controlling stake is being sold.

Following an IPO, and except for select categories of investors, the shares held by non-promoter shareholders prior to the issue are subject to a lock-in period of one year from the IPO’s date of allotment while pre-issue shares of the promoters are subject to a three-year lock-in. However, the SEBI has proposed to reduce the lock-in period for a portion of the promoter’s shareholding from three years to one year and the non-promoter’s shareholding from one year to six months, which will allow quicker exits for investors.

It is uncommon for a private equity investor to have special rights following an IPO, since this is not viewed favourably by the SEBI. Where such rights are granted, they would usually be enshrined in the constitutional documents of the target.