India: Liquidation Preference

Last Updated: 18 September 2014
Article by MNK Law Offices

One of the mechanisms employed to hedge investment risks in a private equity transaction is that of a liquidation preference. Extensive time is spent on structuring the liquidation preference while negotiating such investments. The meaning of a liquidation preference right is that when a "liquidation event" is triggered, the investor is entitled to receive an amount equal to or a multiple of its investment in preference over other shareholders. Such multiple could be double or more of the amount of the original investment. Waterfall provisions in an investment agreement provide for, the sequence in which different classes of shares have a preference. For example, Series A shareholders may be entitled to 3x their investment at liquidation and the holders of Series A shares shall have a first claim over the Series B shares, whose holders are entitled to 2x of their investment amount at liquidation.

It is recommended that preference shares be used as the instrument for the purpose of invoking a right of liquidation preference.

Under the Companies Act, 2013 and the surviving provisions of the Companies Act, 1956 ("Act"), share capital of a company is categorized into preference and equity shares. Preference shares are that part of a company's share capital which carry a preferential right to be paid dividend at a fixed rate or amount and repayment of capital in case of winding-up of the company. Hence under the Act, preference shareholders carry with them an inherent right of preferred distribution in the liquidation of a company.

Most investors include a participating liquidation preference that grants the investor a right to receive its funds in a liquidation event, with the balance of the proceeds being shared ratably amongst the holders of the equity shares and preference shares. In a non-participating liquidation preference, the preference holder will be entitled to receive its predetermined returns (as discussed above), but shall not be entitled to receive any portion of the surplus proceeds to be distributed to the equity shareholders. Preference shares are always deemed to be non-participating, unless stated otherwise by the articles of association.

In practice, an event of liquidation is not limited to "winding up", under the Act. It usually includes any merger, consolidation of the company in which its shareholders do not retain a majority of the voting power in the surviving entity, sale of all- or substantially all- of the company's assets and any other transaction constituting a change of control or even an initial public offer. This article examines the enforceability of liquidation preference provisions in the case of a winding up under the Act.

Winding up proceedings can be initiated through an application made to the court or in pursuance of a shareholders' resolution for voluntary winding up. The priority of repayment in the course of winding up is statutorily prescribed, such that shareholders may be repaid only after all outstanding liabilities of the company have been discharged. While the Act does not specifically provide that the liquidator or the court would be guided by the articles of association in winding up proceedings, it is recommended that the agreement on liquidation preference be incorporated in the articles of association of a company for the reasons below.

In case of a winding up by the court, the Act lays down that the liquidator shall, in the administration and distribution of the assets of the company, have regard to the directions that may be given by the resolution of the creditors or contributories (shareholders) at any general meeting, or by the committee of inspection that is formed under the mandate of the court (with the former overriding the latter in case of conflict). Further, the Act provides that the court has the power to adjust the rights of the contributories among themselves and distribute any surplus among the persons entitled thereto. Similarly, in a voluntary winding up, the Act states that subject to the sequence of payments, the assets shall be used to satisfy its liabilities pari passu and thereafter, unless the articles of association of the company otherwise provide, be distributed among the members according to their rights and interests in the company.

It would, therefore, be prudent to include provisions pertaining to the liquidation preference in the articles of association.

With respect to premium paid by shareholders, the Act states that the premium received on preference shares is represented in the securities premium account. In Deputy Commissioner of Income Tax Vs Maipo India Limited, it was observed that on a winding up, the surplus monies in the securities premium account were to be returned to the shareholders as capital.

It is possible to have various classes of shares carrying differential rights to receive liquidation proceeds. The Act specifically allows for different classes of equity shares. However, companies are required to comply with the conditions contained in the Companies (Share Capital and Debentures) Rules, 2014 which include, among others, having a consistent track record of distributable profits for the last 3 years. To encapsulate, the provisions relating to liquidation preference must be incorporated in the articles of association. Once enshrined in the articles, the liquidator would be guided by the rights of the shareholders set out there in accordance with the winding up provisions of the Act. It is also recommended to use preference shares to seek specific statutory protection accorded to them in the event of a winding up.

In our experience, we have generally seen that both the promoters and the investors negotiate aggressively on the liquidation preference provision. However, there are no reported cases of such a provision actually being used to exit and provide a return to an investor in a winding up.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.