India: Shareholders

If you've ever drafted a shareholders' agreement, you'll recognise a familiar clause. It lists reserved matters, ensures that certain decisions require approval from a specific investor's nominee, and quietly assumes that the day it will be tested will never arrive. At Tata Sons, that day has arrived

An exit clause may look complete because it specifies a date, a return and a payment formula. It may nevertheless be unworkable if, when performance falls due, the proposed exit cannot lawfully be implemented or a third-party approval halts such exit that the documents do not adequately address. The problem is not confined to any particular instrument, way of drafting or transaction structure. Unless the documents identify and allocate those constraints when the exit is negotiated, structured investments, deferred consideration, earn-outs, put and call arrangements, third-party dependent exits and consent-dependent distributions can turn a promised commercial outcome into a performance dispute.

Compulsory convertible debenture (“CCDs”) occupies a unique and increasingly contentious space in corporate law and allied fields of practice. These instruments are structured to start as debentures as was fundamentally contemplated under in the language of Section 71 of the Companies Act 2013 (“Companies Act”) which treats Debentures as ‘debt’.