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Swiggy has granted special indemnity to board members representing key investors SoftBank, Accel, and Prosus, shielding them from regulatory risks stemming from violations by the food ordering platform, ahead of its initial public offering.
Directors appointed by the three funds would not be held liable for any failure or lapses in following the rules and the other directors, including the founders, would be fully responsible for such lapses, according to the draft red herring prospectus (DRHP) filed by Swiggy on September 27.
Emails sent to spokespeople for Swiggy, Accel and SoftBank remained unanswered. A spokesperson for Prosus declined to comment.
Why the protection
With many new-age companies increasingly getting entangled in regulatory disputes, many private equity investors are demanding such indemnities from companies, legal experts said.
This is to ensure that the nominee-directors of PE investors don’t face any regulatory proceedings for compliance failure on the part of the company. The development assumes significance, since several rules impose both criminal and civil liabilities on the directors of a company, if rules are violated.
“The company shall indemnify and hold the Accel Director, MIH Director (Prosus) and SoftBank Director harmless from all claims and liabilities to the maximum extent permitted under applicable laws,” said the offer document.
“The company and founders have also agreed that the Accel Director, MIH Director and Softbank Director shall, subject to applicable law, not be considered as officers-in-default of the Company and shall not be liable for any default or failure of the company in the past or in the future, in complying with the provisions of any applicable law,” the offer document said.
According to Swiggy’s offer document, Prosus is eligible to appoint up to two directors, while Accel and Softbank are eligible to nominate one director each. Prosus is the largest pre-IPO shareholder in the company, with a stake of 30.95 percent.
Softbank owns 7.75 percent, while Accel owns a 6.08 percent stake in the company. Cofounders of the company, Sriharsha Majety, Lakshmi Nadan Reddy Obul and Rahul Jaimini, own 6.34 percent, 1.76 percent and 1.14 percent, respectively, of the share capital.
What areas are covered
Legal experts say that the indemnities cover limited scenarios such as violation of the Companies Act. In case of serious violations, such as anti-money laundering rules or foreign exchange management rules, the indemnified board members can be still pulled up by regulatory agencies.
“If there are specific instances where the board member has authorised or approved any scheme that violates rules, he can be pulled up by the regulators. The officer-in-default protection is available only in cases where the said directors have not in any way participated/facilitated the violation,” said a leading corporate lawyer.
Softbank has sought protection earlier as well
This is not the first time that Softbank is seeking assurances from an IPO-bound tech company to indemnify itself and its employees.
Moneycontrol reported on July 21 that ahead of the IPO of Kunal Bahl and Snapdeal-backed SaaS company Unicommerce eSolutions, the Japanese investor had entered into an indemnity contract with Snapdeal's founders—Bahl and Rohit Bansal—to protect itself and its executives from any future liabilities arising out of the responsibilities of being deemed a promoter of Unicommerce.
Softbank sought this indemnity after Sebi’s observations that, given the former's significant shareholding in Unicommerce as well as in Snapdeal, the promoter of Unicommerce, SoftBank, too, should be identified as a promoter of Unicommerce. Subsequently, Unicommerce declared in an addendum that Starfish I Pte. Ltd, a Softbank entity, is the promoter of the company.
According to sources, Softbank has sought a similar indemnity in OYO, too.
In its July 21 report, Moneycontrol reported that while, on paper, SoftBank was declared a promoter, it continues to remain just a financial investor in Unicommerce and thus signed this indemnity agreement to protect its interests as a purely financial investor in the company.