The start-up ecosystem in India has experienced rapid growth and transformation over the past years. At the beginning, there were only a few start-ups, and they primarily belonged to a single category. The term ‘unicorn’ was not commonly used to describe Indian start-ups. However, in the past decade, the landscape has changed dramatically. Various sectors such as computer games, consumer media tech, health tech, fintech services (including mobile wallets and digital payment solutions), bots, AI-powered automation platforms and software as a service (SaaS) companies have been part of these emerging start-ups. This shift can be attributed to effective government policies and the trust of venture capitalists, which have played significant roles in facilitating this transformation. In 2022, the Department for Promotion of Industry and Internal Trade (DPIIT) officially recognised a total of 80,152 start-ups. Approximately 19,000 start-ups were recognised by the DPIIT in 2022 alone. Bengaluru re-established itself as the most favoured start-up hub, with an impressive 652 start-ups from the city, attracting close to US$12.3 billion in funding during 2022. This accounted for 50 per cent of the total funding secured nationwide during the year. Following closely behind were start-ups based in Delhi-NCR, which secured deals amounting to US$5.3 billion in funding. Mumbai, Chennai and Pune also featured in the top five list, mirroring the trends from the previous year.2 This continuity underscores the sustained prominence and appeal of these cities as key destinations for start-up activity and investment in India.
Currently, India has one of the fastest-growing economies in the world. The year 2021 saw India become the third-largest start-up ecosystem in the world.3 Strong demographic trends are being driven by the country’s young labour force; it has been reported that over 238,767 jobs were created by recognised start-ups in 2022.4 Continuous progress in India’s governance policy has led to increased competitiveness and made the country more appealing to offshore investors. In addition, effective structural reforms, such as the introduction of the Insolvency and Bankruptcy Code and the Goods and Services Tax regime, have also had a profound impact on the economy’s growth. As a result, permanent capital in the form of foreign direct investment (FDI) is coming into India from all over the world, making it an appealing investment destination.
In 2022, India secured the fourth position globally in terms of venture capital investments, following the United States, China, and the United Kingdom, with a total investment value of US$24.1 billion.5
In an indication of the robust start-up ecosystem and investor confidence, India achieved a remarkable milestone by becoming the third country globally to surpass the creation of 100 unicorns in May 2022. However, the number of unicorns plunged from 44 in 2021 to 23 in 2022. Despite the decline, India’s performance outshined that of China for the second time in a row, which recorded 42 new unicorns in 2021, only to see the figure drop to 11 in 2022. Funding for start-ups in non-metros grew to 18 per cent of the total, and nine out of the 23 unicorns added in the year emerged from cities outside of the top three metros, indicating a shift towards more democratic funding geographically.
Additionally, India accounted for 5.1 per cent of global venture capital funding value and 6.3 per cent of volume in 2022, showcasing its significance in the global venture capital landscape. While the United States, the United Kingdom and China experienced a decline in venture capital funding deal volume in 2022 compared to the previous year, India stood out as a notable exception, registering a 0.6 per cent growth.
India witnessed an upward trend in early and growth-stage deal sizes in 2022 compared to 2021. The average funding amount for growth-stage deals (Series C and Series D) increased to US$7.9 million, up from US$6.9 million last year. Similarly, early-stage deal sizes rose to an average of US$4 million in 2022, compared to US$3.4 million in 2021.
However, the total deal value in India witnessed a slowdown, declining from US$38.5 billion in 2021 to US$25.7 billion in 2022. The decline in funding primarily occurred during the latter half of 2022, influenced by global headwinds, resulting in a significant 70 per cent drop compared to the previous year. Notably, the largest decline was observed in large ticket size deals or mega-rounds, decreasing from 92 in 2021 to 45 in 2022.
Despite these challenges, key funds continued to raise substantial amounts of money, with many achieving their largest fund sizes to date. The total size of the new funds launched in 2022 rose almost three times to US$18 billion from US$6 billion last year. Out of the 126 funds introduced, 62 venture capital funds successfully raised US$13.9 billion from limited partners (LPs) during the same period. For instance, Sequoia’s India Fund VIII raised US$2 billion, Lightspeed India established a US$500 million fund dedicated to India and Southeast Asia, Fireside Ventures secured US$225 million for Fund III, Blume Ventures raised US$250 million for Fund IV, and Artha Select launched a US$55 million micro VC fund.6 These newly launched funds have predominantly adopted a sector-agnostic approach, while others have specific focuses on sectors, such as environmental, social and governance (ESG), software as a service (SaaS), fintech, health tech, crypto, blockchain, agri-tech and gaming. This influx of capital and the diversity of sectors targeted reflect the robust and evolving nature of the Indian start-up landscape, attracting investments across various industries and paving the way for future growth and innovation.
Year in review
In 2022, the Indian venture capital market underwent a period of adjustment following several years of significant capital growth. As India broke various records in terms of private equity investments in 2021, similar growth rate expectations emerged for 2022 and the first half of 2023. However, the global macroeconomic landscape became more uncertain, with concerns surrounding inflation and recession, leading investors to adopt a more cautious approach. Consequently, acquiring capital became less accessible due to the rapid increase in cost due to rising interest rates.
Legal framework for fund formation
i Structures and legal entities used in the formation of venture capital funds
In India, a venture capital fund (VCF) can be structured or incorporated in the form of a trust, a company, a limited liability partnership (LLP) or a body corporate, which:
- is a privately pooled investment vehicle that collects funds from investors in private equity, hedge funds, angel funds, VCFs using a defined investment policy; and
- is not covered under the Securities and Exchange Board of India (SEBI) (Mutual Funds) Regulations 1996; the SEBI (Collective Investment Schemes) Regulations 1999 or any other SEBI regulations that regulate fund management activities.
Each form of incorporation of VCFs has its own set of pros and cons. We outline some of these below for a trust, a company and an LLP.
Venture capital fund as a trust
A trust offers wide operational flexibility in comparison to an LLP or a body corporate. There are also limited disclosures that need to be made and the compliance requirement is also more relaxed. A trust is not under any separate supervisory authority, which is not the case with LLPs and companies. A person who establishes a trust and put assets into it is called a settlor. A trust is therefore set up by a settlor for the benefit of one or more individuals (beneficiaries) legally owned by trustees who are legally obliged to act in the best interest of the beneficiaries. Furthermore, the Trust Act permits trusts to receive contributions from individuals other than settlors. Lastly, the liquidation procedure for a trust is governed by the trust deed and no further compliance is required, which, again, is not the case with LLPs or companies. In India, the majority of VCFs are established as trusts.
Venture capital fund as a limited liability partnership
An LLP offers the protection of the members’ assets from any impending liability as it is a separate legal entity, which is not the case with a trust. The major disadvantage of the LLP is that public disclosure needs to be made, which again is not the case with trusts. The winding-up of an LLP needs to comply with the LLP Act 2008. These factors suggest that the compliance cost for LLPs is higher than that for trusts.
Venture capital fund as a company
A company has the most compliance requirements. Under the Companies Act, a company must comply with a number of requirements periodically, thereby increasing the cost of operation. This form is not as effective as the agreement of shareholders is required to operate.
ii Structures for fund managers
The investment manager is involved with all operations of a fund, including its investment and divestment-related choices. The investment committee (IC) scrutinises all prospective transactions (acquisition and exit). Typically, members, directors, nominees of the sponsor, an alternative investment fund (AIF) manager with the strong market knowledge and domain experts comprise the IC. The IC’s job includes maintaining price discipline, ensuring that all transactions conform to the fund’s strategy and evaluating the risk-return profile of the agreements.
There is also the advisory board whose job is to provide informed counsel to the fund manager and IC of the fund based on the information and reports given to it by the fund manager. The advisory board typically provides recommendations to the investment manager and IC concerning managing conflicts of interest, threshold levels advice pursuant to the fund documents, investment risk management, and corporate governance and compliance-related aspects.
The fund managers further appoint a management company. The management company is the entity that embodies the firm itself: the management company employs the investment professionals, typically owns the firm’s branded assets and receives management fees from each of the firm’s investment funds. As a consequence, the management company structure is essential in creating governance and remuneration, which in turn create a firm’s distinctive culture.
iii Key considerations in structuring venture capital funds in India
From time to time, the government of India has introduced regulations on, among other things, mutual funds and other collective investment schemes for investment purposes. Previously, multiple considerations had to be taken into account before structuring a VCF. Primarily, the person setting up the fund had to decide what category of investment funds it wanted, which could cause confusion and resulted in the VCF being used by many other investment funds such as private equity (PE) funds for investment into public equity, real estate and other segments. This made it difficult for the government to promote innovation, entrepreneurship, emerging companies and the start-up ecosystem. It was against this backdrop that in 2012 it was deemed necessary to bring in regulations to cater to the start-up sector pursuant to which SEBI introduced the SEBI (Alternative Investment Funds) Regulations 2012 (the AIF Regulations) and recognised AIFs, such as PEs and VCFs, as a distinct asset class separate from promoter holdings, creditors and public investors.
Through its reforms, the government has recognised the benefits of private equity and venture capital investments in India. As part of its aim to make the process of investing easier, it introduced reforms that were essential to the growth of the AIF as one of the preferred modes of investment. These reforms include:
- exempting AIFs from a lock-in of shares during an initial public offer (IPO);
- providing additional clarity on the classification of AIFs when it comes to taxation; and
- in cases where the fund manager of the AIF is domestically controlled and owned, allowing the foreign capital received for the AIF to be categorised as domestic capital, which means the AIF does not have to comply with pricing guidelines and sectoral caps under FDI norms when making an investment in Indian companies.
Regulation 3(4) of the AIF Regulations has categorised the types of AIF under which an entity can register and obtain a certificate of registration. A Category I AIF, as categorised by Regulation 3(4)(a) of SEBI AIF Regulations 2012, is for investment in start-ups, early-stage ventures, social ventures, small and medium-sized enterprises (SMEs) and other infrastructure. It mandates that:
- A maximum of 25 per cent of the investible funds can be invested in a single company.
- Category I AIFs of a given subcategory can invest in units of a Category I AIF belonging to the same subcategory.
- Borrowing is not permitted except to meet temporary funding requirements and only for a period of 30 days. Borrowing is allowed for a total of four times in a single year. Borrowing shall not exceed 10 per cent of the investible funds.
- Category I AIFs, along with Category II AIFs, are required to be close-ended, and have a minimum tenure of three years.7
A Category II AIF, according to Regulation 3(4)(b) of SEBI AIF Regulations 2012, includes private equity funds, fund of funds, real estate funds, funds for distressed assets and debt funds and is not covered under a Category I or a Category III AIF. Category II AIFs do not undertake leverage or borrowing other than to meet day-to-day operational requirements. It has the following mandates:
- A maximum of 25 per cent of the investible funds can be invested in a single company.
- The entity must invest in unlisted investee companies or units of other AIFs.
- Borrowing is not permitted except to meet temporary funding requirements and only for a period of 30 days. Borrowing is allowed for a total of four times in a single year. Borrowing shall not exceed 10 per cent of the investible funds.
- The entity may engage itself in hedge funds subject to SEBI guidelines.
- The entity may agree with a merchant banker to subscribe to the unsubscribed portion of the issue or to receive or deliver securities in the process of market making under Chapter XB of the SEBI (Issue of Capital and Disclosure Requirements) Regulations 2018.
- The entity is exempted from the SEBI (Prohibition of Insider Trading) Regulations, 1932 if it invests in companies listed on the SME Exchange or the SME segment of exchange provided, it discloses to the stock exchange in which the relevant investee company has listed any acquisition or dealing in securities within two days and the investment shall be locked in for one year from the date of investment.
A Category III AIF employs diverse or complex trading strategies and may employ leverage, including investment in listed or unlisted derivatives. Category III AIFs can include types of funds like hedge funds and PIPE funds. It mandates that:
- A maximum of 10 per cent of the investible funds can be invested in a single company.
- The entity can invest in securities of listed or unlisted investee companies or derivatives or complex or structured products.
- The entity can deal in goods received in delivery against the physical settlement of commodity derivatives.
- The entity cannot invest in units of fund of funds.
- The entity can engage in leverage or borrow subject to investor approval and subject to the maximum limit as specified by SEBI.
Furthermore, Regulation 13(2) of the AIF Regulations requires that the tenure of closed-ended AIFs shall be set at a minimum of three years for Category I and Category II AIFs.
iv Tax considerations
Pass-through status has been accorded to VCFs registered under the AIF Regulations via Section 10(23FB) of the Income Tax Act 1961. The investor pays tax on any income generated by Category I or Category II AIFs that are not in the nature of ‘profits and gains of the business profession’. Income under ‘profits and gains of the business profession’ is taxed at the fund level and it does not pass through the unit holders.
In addition, Section 194LBB of the Income Tax Act 1961 provides that income payable to an investor of an AIF shall be taxed at 10 per cent. Furthermore, Section 115UB of the Income Tax Act 1961 allows losses incurred by the AIF to be passed through the investors except for business losses. To avail of this, an investor is required to be invested in the fund for a minimum of 12 months.
v Regulations that govern the formation of venture capital funds in India
Pursuant to the AIF Regulations, a VCF is defined as an AIF that invests primarily in unlisted securities of start-ups and early-stage venture capital undertakings. Angel funds come under the purview of VCFs.
Regulation 3 of the AIF Regulations mandates that registration is mandatory for AIFs to operate in India. An AIF needs to register as a Category I, a Category II or a Category III AIF.
Exemptions for funds
The exemptions, as provided under the AIF Regulations, are as follows:
- funds can apply to the board for exemptions from strict compliance with the AIF Regulations and the board, upon examination, may grant the entity an exemption or issue instructions as may be deemed appropriate; and
- funds that are registered under the Securities Exchange Board of India (Venture Capital Funds) Regulations 1996 are required to be registered until the existing fund or scheme managed by the fund is wound up.
Marketing a fund
At present, there are no specific regulations regarding marketing funds. Under the AIF Regulations, AIFs can be marketed only through private placement by the issuance of an information memorandum.
vi Disclosure requirements to potential investors
According to the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2018, certain disclosures must be made to potential investors in the prospectus. The latter must:
- include the issuer company’s financial statements;
- contain all material information that is true and adequate to enable the investor to invest – the issuing company shall file a prospectus or letter of offer with SEBI and the Registrar of Companies, through a merchant banker; and
- be accompanied by the agreement with the domestic depository, which certifies that all of the disclosures provided in the prospectus are accurate and correct.
A private placement memorandum (PPM) is a securities disclosure document used in a private offering of securities by a private placement issuer or an investment fund (collectively, the issuer). From an investor’s point of view, the purpose of the PPM is to obtain necessary information about the issuer and its securities, to make an informed decision about whether to purchase the security. The investor wants to know the parameters of investing in the issuer and the potential rights, risks and rewards of its investment. For the issuer, the purpose of the PPM is to provide the necessary disclosures about the risks, strategies, management team, investment criteria and other information about its securities to protect itself and its managers against claims of misstatements or omissions.
i Summary of offering terms
The summary of the terms of the offering is just as its name suggests – a condensed description of the offered terms, including the offering structure, the description of the securities, price, minimum subscription amount, investor qualification standards, disclosure of applicable management fees, withdrawals, placement agent commissions and discussion of the terms from the issuer’s governing documents (e.g., limited partnership agreements and operating agreements).
ii Risk factors
Risk factors are disclosures of the potential risks that investors should consider that could lead to a loss of their investment. Risk factors must be drafted with specificity, tailored for each industry type, and offer a structure and an investment strategy or business plan. The risk factors section is included early in the PPM so that it will be one of the first sections that a potential investor will read.
iii Estimated use of proceeds and expenses disclosures
A vital component of the PPM is the disclosure of how the proceeds of the offering are expected to be used. A private placement issuer includes a use of proceeds section that contains language describing how the offering proceeds will be deployed (item by item) and how much is anticipated to be allocated to each category. The ‘estimated’ use of proceeds is a best-case forecast of how the proceeds will be used.
Different from an offering for a private placement issuer, an investment fund does not include specific estimated use of proceeds but instead includes a discussion of which expenses that investment fund will cover.
One item that should not be estimated but firmly stated is the amount of compensation that any related party will take from the transaction or directly from the proceeds of the offering, whether in the form of salary, fees, consultant payment, purchase or sale of an asset to the issuer (such as intellectual property) or any other direct or indirect compensation paid to a founder or related party from the proceeds.
iv Description of the securities
One of the sections of the PPM requiring the greatest need for a skilled private placement attorney is the description of the securities. In this section, the issuer discloses the attributes of the debt or equity offering. These attributes are prepared in the governing documents of the issuer (e.g., an operating agreement, limited partnership agreement and shareholders’ agreement) or a promissory note (with a debt offering). The description of the securities section describes key terms of the governing document (or promissory note). Thus, it is vital to begin with the operating agreement before preparing the PPM.
v Business and management sections
The business section describes the business of the issuing company. The management section contains biographical and background information about, inter alia, the managers, founders and directors key officers. The most important factor in preparing the business and management sections is to present information that is free from misleading statements and does not overstate accomplishments or opportunities.
vi Other offering documents
The PPM itself does not constitute the ‘offering’. The PPM is nothing more than a disclosure document describing the offering, including its structure, strategies or business plan, risks and management. The offering documents include several supporting documents that should be prepared in conjunction with the PPM. Other documents include the subscription agreement, the investor suitability questionnaire, the issuer’s organisational documents (e.g., an operating agreement, limited partnership agreement and shareholders agreement) and a promissory note (with a debt offering).
The purpose of the fund needs to be specified in the memorandum of association in the case of a company, the trust deed in the case of a trust or the partnership deed in the case of an LLP. Regulation 9 of the AIF Regulations states that investment funds need to mention investment strategy, investment purpose and investment methodology in their placement memorandum to the investors. It further provides that any change should only be made with the consent of at least two-thirds of the unit holders by the value of their investment in the fund.
Investment by the fund in an ancillary business is possible if the investment information is provided in the placement memorandum or if at least two-thirds of the unit holders provide their consent for the investment.
Key regulatory changes regarding fund management that were introduced by SEBI in 2022 are outlined as follows.
- Change of sponsor or manager: in the event of a change in the sponsor or manager, or a change in control of the AIF, prior approval from SEBI is required. The AIF must obtain approval from SEBI and pay a fee equivalent to the registration fee applicable to the respective category or sub-category of the AIF. This fee should not be passed on to the investors. If there is a simultaneous change in control and a change of manager or sponsor, a single regulatory fee is to be levied. The fee must be paid within 15 days of effecting the proposed change, and the SEBI approval obtained for such changes is valid for six months.8
- Limit on overseas investments: AIFs are subject to an overall limit of US$1.5 billion for overseas investments. Before making any overseas investment, AIFs need to file an application with SEBI for allocation of the overseas investment limit.9
- Calculation of tenure: tenure of an AIF scheme is calculated from the date of its first closing. AIFs have the flexibility to modify the tenure of a close-ended scheme before declaring its first close.10
- Ring-fencing of schemes: the sponsor or manager of an AIF must ensure scheme-wise segregation of bank accounts and securities accounts. This requirement ensures that each scheme operates as a separate investment vehicle, preventing the assets and liabilities of one scheme from affecting another scheme or its investors.11
- Closing of large value funds (LVFs): the first close of LVFs should be declared within 12 months from the date of AIF registration or the filing of the private placement memorandum (PPM) of the scheme with SEBI, whichever is later.12
- Priority distribution proceeds: SEBI has identified an issue regarding the sharing of losses by different classes of investors in AIFs. SEBI is currently examining this matter in collaboration with the Alternative Investment Policy Advisory Committee, AIF industry groups and other stakeholders. Meanwhile, AIF schemes following a priority distribution model are required to refrain from accepting new commitments or making investments in new investee companies until SEBI has finalised its position.13
These regulatory changes aim to enhance transparency, investor protection and the overall functioning of the fund.
Raising capital by start-ups
Bootstrapping and bank financing may not be viable alternatives for many entrepreneurs because initial capital requirements prior to profitability are beyond the founders’ financial capacity. Therefore, most start-ups opt for investment through venture capital entities as it significantly eases the financial burden on the start-ups and allows them to focus on their actual work. At the outset, a start-up generally relies upon the funds of the founders and investors who provide funds at the very early stage of the start-up (seed funding). The AIF Regulations in India establish the concept of angel investors. An angel investor can be an individual, a body corporate or a registered AIF. As the start-up grows, it raises funds through a series of investments based on its market position and needs, categorised as Seed or Pre-Series A, Series A, Series B and Series C investments. Obtaining venture capital offers numerous opportunities to an entrepreneur. It also improves a start-up’s creditworthiness as it adds to its net worth.
Angel funding as a source of financing is attractive as it is a simple and quick source of seed capital. Angels typically do not seek an active role in the business, board representation or any other special shareholder right.
Series A funding is used by start-ups to optimise product offerings and user base by creating business models that generate long-term profit. The important factor focused on this stage is the scale of operations and users. Usually, early-stage venture capital firms with a high risk appetite are seen investing in this round of funding. At this stage, the idea has moved from a proof-of-concept and has hit the market and shown some levels of traction.
Series B funding is the second round wherein the focus is on taking the business to the next level in terms of scaling and expansion. Private equity investors and venture capitalists contribute to the capital of a business when certain predetermined milestones are achieved. The cost of funding at this stage is higher compared to Series A funding.
Series C funding is the third injection of capital, which is usually available to successful businesses so that investors can see higher returns by continuing to scale fast and wide. This round represents stabilising lines of credit obtained from investors who believe in the start-up’s growth story.
i Types of securities issued
Generally, investors opt for compulsorily convertible preference shares as they provide the requisite protection to investors in terms of liquidity. They give the flexibility to the investor to convert the current preference shares into equity after a company has achieved a predetermined goal. For example, if a company is liquidated, any assets remaining after meeting debt obligations must be distributed to preference shareholders and then to equity shareholders. Investors holding preference shares will require a liquidation preference in an amount at least equivalent to their original amount plus all accrued and unpaid dividends.
ii The legality of crowdfunding in India
Equity crowdfunding is illegal as per Section 42 of the Indian Companies Act, which mandates that an offer of securities can only be made to a maximum of 50 individuals and if it is made to more than that it will be considered a public offer and provisions related to public offers will apply. SEBI has stated that digital equity crowdfunding is unauthorised, unregulated and illegal. Donation or reward-based crowdfunding can be used by start-ups as it does not involve the issuance of securities. SEBI, through an order dated 3 March 2023, penalised a company for collecting funds through an online crowdfunding platform, Tyke. SEBI held that the company had violated Section 42 of the Companies Act and ordered it to pay 400,000 rupees as a penalty.14
iii Investment agreements
An investment agreement or business investment agreement is a contract to formalise a transaction between an investor and a company whereby the investor acquires an ownership interest in a company in exchange for an investment of some kind.
There are different types of investment agreements available both to VCFs and start-ups.
The most common investor agreements are as follows:
- share purchase agreement;
- share option agreement;
- convertible debt agreement;
- restricted share agreement; and
- deferred compensation.
In India, parties generally sign a share subscription and shareholders’ agreement.
The key terms in investment agreements used for investment funds or start-up companies, or both, are as follows.
As the investment agreement deals with the subscription for shares by the investors in return for the investment monies, the investment agreement should bind all investors participating, including any separate funds that are investing.
It is usual to have a provision requiring any transferee or new allottee of shares to enter into a deed of adherence, which has the effect of treating the new shareholder as if he or she were an original party to the investment agreement and therefore bound by the provisions of the agreement.
It is common for companies that are still in the phase of technological development, such as those in the life sciences sector, to have milestone-based payouts. Each tranche can be measured against the achievement of agreed milestones. It is also common for investors to be able to waive milestones or other completion conditions if these are not achieved.
Completion conditions – initial tranche
The investors will stipulate that certain conditions must be satisfied before the initial tranche of the investment can proceed to completion. The investment agreement will stipulate that the proceeds of the investment (whether on the initial or subsequent tranches) must be used for achieving the agreed milestones and the realisation of the agreed business plan or budget.
Subsequent tranche completion mechanics
These are the actions that need to be taken on the completion of the subsequent tranches of investment, such as the issuance of shares.
Warranties are representations made by the warrantors (usually the founders and the company) that certain statements relating to the company are true and accurate at the completion date. Although the investors will have carried out due diligence on the company and, under common law, would have a right to sue the founders for misrepresentation if the information provided was inaccurate, the investors will prefer such statements to be expressly included in the contract. In India, representation and warranties insurance (R&W insurance) is available, which can be used to cover financial implications arising from the breach of representation and warranties. R&W insurance policies are obligated to make payments only when a specified amount is borne by the parties (i.e., if the specified amount is 1 million rupees for insurance coverage of 10 million rupees, then the policy will release the amount of 10 million rupees when loss of 1 million rupees has been incurred by the parties to the transaction). With respect to founders, before making any warranty, they should be aware of the customary and business-related warranty prevalent in their respective industries. It will also need to be determined whether the warranties should be joint or several.
Investor consent regime
Investors will want a contractual right to prevent shareholders from making key decisions without their consent. This applies to management decisions and shareholder decisions, such as:
- varying the rights attached to the shares;
- issuing or granting options over the company’s securities;
- adopting new articles of association;
- removing or appointing a director;
- making a material change, such as the business of the company;
- acquiring any shares or other securities;
- making any changes in the service agreements;
- entering into unbudgeted capital expenditure exceeding a certain amount;
- entering into any litigation;
- incorporating a new subsidiary; and
- disposing of any assets (in particular intellectual property) of the company other than in the ordinary course of business.
It is often a requirement that, when it brings an institutional investor on board, management has to produce management accounts, audited accounts, and financial models and budgets for the upcoming financial years, which they have to deliver to investors before certain dates. This can be burdensome for management to produce. In addition, investors are likely to want access, on request, to the accounts of the company for inspection.
In most cases, investors are likely to want an entrenched right to appoint a director and a majority, if not all, of the directors appointed by the investors must be present for there to be a quorum of any meeting of the board to allow the business to proceed. Founders may also have an entrenched right to appoint a director. In some cases, investors may look for ‘observer rights’ so that they have the right to send non-directors to sit in and observe board meetings and to receive board papers, but not to vote. While board representation is to be expected, it can prove unwieldy if a company has gone through several rounds of investment with new institutions collecting new board members at each round.
The purpose of restrictive covenants or non-competes is to prevent the founders from competing with the business of the company while, and when they cease to be, involved with the company. Typically, restrictive covenants will be found in the service agreement as well as the investment agreement. However, restrictive covenants in the investment agreement are generally more enforceable than those in the service agreement, as the founders are giving the covenants as shareholders (not employees) in part consideration for the investment.
There may be a provision in the investment agreement that states the parties’ intention to work towards an exit. Additionally, share transfer restrictions play an important role in structuring exits and controlling the capital structure of a company. While a private limited company may impose any kind of transfer restrictions on its shares, the shares of a public limited company are statutorily freely transferable. However, in the spirit of giving primacy to contractual covenants among parties, Section 58(2) of the Companies Act 2013 provides that any contract between parties (shareholders) in respect of the transfer of securities shall be enforceable as a contract. This should be considered when choosing the right vehicle for a start-up.
There will be a provision in the agreement to ensure that its parties will keep all confidential information confidential. Normally, an investor is expressly allowed to disclose information to, among other individuals, its employees, members and participants.
The company usually pays for investors’ reasonable legal and due diligence fees, or a proportion of such fees, and its costs, which may include those of the founders.
An IPO is the typical exit mechanism used by VCFs in India. Access to the IPO market is easy due to the proactive approach of SEBI. It has also been observed that smaller start-ups are being acquired by larger companies. In recent years, activity in the M&A market has been growing. The successful IPO of Zomato, an online food-delivery company, on the stock market on 14 July 2021 could be a test case for a host of emerging tech companies in the late stage of PE-driven growth wanting to go public. It is likely that start-ups will continue to outperform broader markets over the next several years.
The current regulatory framework of India is not supportive of the special purpose acquisition company (SPAC) structure. For instance, the Companies Act 2013 authorises the Registrar of Companies to strike off the names of companies that do not commence
operation within one year of incorporation. SPACs typically take two years to identify a target and perform due diligence. If SPACs are to be made functional in India, enabling provisions will have to be inserted into the Companies Act.
SPACs are also not permissible under the SEBI Act. The eligibility criteria for a public listing require a company to have net tangible assets of at least 30 million rupees in the preceding three years, minimum average consolidated pre-tax operating profits of 150 million rupees during any three of the last five years and a net worth of at least 10 million rupees in each of the last three years. The absence of operational profits and net tangible assets would prevent SPACs from making an IPO in India.
The venture capital landscape in 2022 witnessed notable shifts in the following sectors.
- Consumer tech deal momentum softened across several segments, including ed tech, online food delivery, B2C commerce and D2C brands. For instance, in the ed tech sector particularly, there was a notable decrease in both the total investment amount and the number of transactions throughout the year. This decline highlights the growing concerns and challenges faced by the sector, primarily revolving around doubts regarding the sustainability of digital learning models post pandemic covid-19.
- Health tech companies witnessed a significant investment decline of 55 per cent yearly, amounting to US$1.4 billion. A substantial drop in late-stage investments, which decreased from US$2.4 billion in 2021 to US$606 million in 2022, has affected the momentum of the health tech industry, which took off post pandemic covid-19.
- Software as a service (SaaS) experienced steady deal momentum, building upon a strong foundation from 2021. This growth was fuelled by increased asset depth, demonstrated revenue growth and the adoption of EBITDA-positive business models.
- Indian fintech sustained its momentum, driven by a series of substantial deals that were focused on lending and fintech infrastructure players, resulting in the emergence of four unicorns in the first half of 2022.
- Encouraging signs were evident in emerging sectors, such as electric vehicles, agri tech and deep tech. Significant interest was observed in areas such as space technology, generative artificial intelligence, and climate and clean tech, indicating potential growth opportunities.
- Interest in ed tech in India, after a considerably long period of euphoria, saw a substantial decline as interest in agri tech and gaming noticed a growing interest.
- A 39 per cent increase in the sale of industrial robots in 2018 to 4,771 units has put India on the global map. Now India occupies the 11th position in terms of annual installations of industrial robots after France, Mexico and Spain. Similar to phones and computers, prices of robots will continue to be reduced. For example, the mega IPO of ideaForge Technology (drone manufacturer) has received a stellar response in this regard.
With the introduction of the Open Network for Digital Commerce (ONDC), the government aims to not only empower sellers, including those in remote areas, by bringing them into the e-commerce ecosystem and enabling digitisation, but also transform the landscape into a more inclusive, accessible and user-centric experience. Recognising the potential impact of ONDC, leading institutional investors such as SoftBank and Sequoia India have advised their portfolio start-ups to join the initiative.15 These investment firms have been engaging with ONDC executives to gain a deeper understanding of the implications for India’s e-commerce landscape, which is expected to grow from US$150 billion to US$170 billion by 2027, as reported by a Bain & Company Report.16 The Indian government has recently brought in a revised Digital Personal Data Protection Bill (DPDP Bill) 2022, with the objective of resolving the privacy concern that was raised in the previous iteration of the bill, leading to the withdrawal of the bill by the government. The government also plans to release the first draft of the Digital India Act, which will replace the existing regulation of the Information Technology Act. It is being drafted with the objective of resolving cyber disputes, timely delivery of remedies in cases of breach and creating cyber jurisprudence. The government has hinted that it will assist in regulating the activities of big tech companies and will be adequate to deal with emerging technologies, such as ChatGPT. The policy direction values technology as it sees the immerse contribution that technology, innovation and entrepreneurs are bringing to the world and within India.
On the basis of BSE data, 2022 witnessed a total of 88 IPOs, with 36 launched on the main board and the remaining on the SME segment. With this, India secured the third position globally in terms of the number of IPOs. However, the funds raised through IPOs nearly halved to approximately 594.12 billion rupees on the main board compared to the previous year’s figure of around 1020 billion rupees. New-age tech start-ups that got listed in 2022, namely Delhivery, DroneAcharya and Tracxn Technologies, collectively raised a modest 58.43 billion rupees through IPOs.
However, Q4 2022 emerged as the most active quarter in terms of the number of IPO deals with 18 IPOs launched and 10 Draft Red-Herring Prospectus filings, offering a promising end to the year.17
Despite the persistent risks associated with key variables from 2022, the impact of risks on prices and investor sentiment has largely been absorbed. While the fundraising winter may persist for some time, the IPO market is expected to witness increased activity in 2023, given the presence of several Draft Red Herring Prospectuses (DRHPs) in the pipeline and the need for venture capital investors to pursue exit opportunities.
In line with the ongoing downward trend, during the first quarter of 2023, Indian start-ups experienced a slump in fundraising, with a total of US$2.1 billion raised. This marked a considerable 77 per cent decline compared to the US$9.1 billion raised during the corresponding period in 2022. Particularly, late-stage funding experienced a substantial drop of 79 per cent, when compared to Q1CY22. Early-stage funding also witnessed a decline of 68 per cent, with US$844 million raised during the same period.18
However, in March 2023, there was a notable 54 per cent increase in early stage funding, rising from US$777 million in February 2023 to US$1.2 billion in March 2023. This increase provides some optimism and suggests potential recovery and renewed investor interest in Indian start-ups.
Additionally, there is reason for optimism in 2023 due to the projected growth of the Indian economy. It is anticipated to expand by 6 per cent in FY24, making it the world’s fastest-growing major economy. This positive outlook for the economy further contributes to the overall optimism surrounding the prospects for 2023.