An advocacy group IndiaTech representing some of the most high profile entrepreneurs have made a submission to the ministry of corporate affairs [MCA] and the markets regulator Securities Exchange Board of India [SEBI] for allowing a dual-class share structure with differential voting rights for founder-promoters of start-ups to encourage country’s most valuable companies to get listed on the domestic stock exchanges instead of overseas exchanges such as Nasdaq and New York Stock Exchange [NYSE].
At present, the Companies Act [2013] permits firms having consistent track record of distributable profits for three years to issue shares with differential voting rights [DVR] subject to a cap of 26% of the total share capital. The lobby group wants the MCA to dispense with this caveat. Alternatively, the ministry may consider allowing companies meeting certain revenue threshold to issue shares with DVR without having to specifically meet the profitability criteria.
IndiaTech has also asked for increasing the current cap on shares with differential rights from existing 26% to at least 51% of a company’s post-issue paid-up equity share capital. It has also sought conversion of ordinary shares into equity shares carrying DVR and equity shares with DVR into ordinary shares.
The proposal is intended to enable the promoters continue with overriding control over the company even after other ‘strategic’ and ‘financial’ investors have invested heavily in the company – albeit as equity capital – leading to increase in their shareholding and corresponding reduction in former’s stake. The provision for DVR seeks to nullify this outcome. A share having differential right bestows on its holder greater voting power than available to an ordinary share. As a result, even with lower share in the total equity capital, the promoter will be able to hold on to the driver’s seat.
The major beneficiaries of this idea are expected to be the so called ‘unicorns’ – an acronym for start-ups which attain a market capitalization of over US$ 1 billion.
Unambiguously, the proposal has been crafted to secure a preferential treatment for the promoters of the startup. It is not only contrary to the sound principles of corporate functioning and corporate democracy but also, inherently flawed.
First, a fundamental tenet underlying the functioning of an entity – specifically a widely held and listed company – is that the voting power of an investor has to be proportional to his investment or the shares held by him/her in it. This applies as much to the promoter as to any other investor. Yet, any attempt to give disproportionate voting power to the promoter/investor which can only be at the cost of other investors will be ‘unfair’ and ‘discriminatory’.
Second, when other investors bring in funds [albeit as equity] resulting in expansion of the capital base, even though, the shareholding of the promoter in total equity reduces, the latter gains due to increase in in profitability and higher value of his shares. The promoter can’t have the cake and eat it too i.e. it enjoys the gains – consequent to investment by others – and yet continue to remain in the driver’s seat in so far as the management and control goes.
Third, in some cases, the promoter either exit or sells a portion of his shares or at huge premium raking in a mullah [for instance, in Flipkart one of the co-promoters sold his stake making billions of dollars]. In such a scenario, he has to necessarily get reconciled to reduced or no control over the company.
Fourth, what makes one presume that the promoter alone is best positioned to run the affairs of the company in a manner so as to achieve the stated objectives including maintaining its health and growth. There is no reason to think that other strategic investors who come to have majority stake won’t run the firm in sync with these objectives. The overriding need to protect their investment requires that there is no compromise with these basics.
Even so, nothing prevents strategic investors to vest the promoter with necessary powers to continue running the company. This can be done through required understanding among shareholders and passage of requisite resolution authorizing the promoter to run the show. There is no need for a legislative amendment granting DVRs.
In its obsession to ensure that the control remains with the promoter, come what may, the advocacy group wants the regulators to even dispense with the profitability track record criteria [or replace it by the revenue threshold]. This is bizarre. It means that even when the promoter pushes the company into loss continuously and reduced to a minority shareholder, he should have the eternal right to remain in command for running its affairs.
In the same vein, it wants to have the flexibility of conversion of ordinary shares into equity shares carrying DVR and equity shares with DVR into ordinary shares. This is done with an aim to enable all existing promoters to get into the drivers’ seat wherever, the majority shares have slipped into hands of other investors.
Letting the promoters have shares up to 26% with DVRs – already allowed under the Companies Act [2013] – is bad enough. To raise the cap to 51% as demanded by the advocacy group, would substantially aggravate the imbalance. This could be counter-productive as faced with denial of voting rights in sync with their investment, investors will be disinclined to invest in startups.
To sum up, the idea floated by high profile entrepreneurs is flawed. The government should dismiss it with the contempt it deserves. There are better ways of giving support to the startups.