ESOP Opinion

Dear All,

I have given an opinion in connetion with ESOP, i thought of sharing the same with you people. please find below extract of the same.

ESOP – Opinion

Background of the issue:

The Company has come out with a ESOP Scheme 2006 for its employees in the year 2006. The approval of the shareholders in General Meeting has been obtained on 27 ^th March 2007 and first tranches of granting of options was done on 9^th March 2006 to the eligible employees under the ESOP Scheme 2006.

The vesting periods are as follows

1^st year 15%

2^nd year 20%

3^rd year 30%

4^th year 35%

Options granted under the ESOP Scheme 2006 will vest after minimum period of one year from the respective date of grant. Exercise price of the option will be not more than 25% of the market price on the date of grant.

Queries and our Opinion:

Before replying to your queries I would like to bring to your attention that as per SEBI (ESOP and ESPS) Guideline, 1999 Grading of options can be done only after getting approval from the shareholders in General Meeting. But, in your case I observed that you have obtained shareholders approval on 27 ^th March 2007 and Options were granted on 9^th March 2006 before the shareholders approval. It seems to be violating the SEBI (ESOP and ESPS) Guidelines, 1999. It needs to be rectified.

Query No.1

Can Compensation Committee fix up a cut off date say 1 or 2 or 3 months from the completion of the vesting period for employees to exercise their options so that Allotment of the shares can be made in one lot? The intention is facilitate the filing of Form 2 and making application to Exchanges for listing. As otherwise each employee will exercise on different dates, which will hinder the allotment process. Would this amount to restricting employees from exercising their options through out the period of 1 year.

Or

Alternatively, should we hold meetings of the committee every month or quarter and allot shares for the exercises made during that period so that employees can exercise options any time during the year.

My Reply:

Yes we can have a cut off date and this should be mentioned in the grant letter. But this is not a normal practice followed by the Companies.

Whereas option number two is better most of the Companies following this practice. In this case we can fix the minimum number of options to be exercised at a time under the ESOP Scheme, so that the employees can exercise that minimum number of options during that period within the overall exercise period as specified in the ESOP Scheme. If, minimum number of options to be exercised is not fixed under the ESOP Scheme, the compensation committee can fix the minimum number of options to be exercised and intimated the same through the grant notice.

Query No.2

Can an employee carry over the option not exercised by him to the succeeding years and exercise them in full.

My Reply:

Yes an employee can carry over the unexercised options, but it should be exercise within the overall exercise period as specified under the ESOP Scheme, otherwise it will laps.

Query No.3

When can Further options be granted? Can it be given to new eligible employees also?

My Reply:

If further number of options to be issued is within the overall limits fixed in the ESOP Scheme 2006, then the Company can go head and issue the further options. The further options can be granted either to the existing or new eligible employees, it is discretion of the Compensation Committee.

Query No.4.

Should we once again obtain the approval of S/E now, as we had already obtained in – principle approval for the total options as approved by members in general Meeting.

Our Reply:

Again in-Principle approval is not required, if the further number of options to be issued within the limit fixed under the ESOP Scheme 2006 and for which already in principle approval has obtained.

However, where there is increase of options above the limit for which already In-Principle has been obtained and changes in the exercise price of options. In this case as per SEBI (ESOP & ESPS) Guidelines, 1999, the Company needs to obtain shareholders approval and needs to file application to SE's for In-Principle approval for that excess number of options.

Provided that re-pricing of options can be possible only in the case where options become unattractive due to fall in market price of the Company.

Query No.5

The shares allotted will be in demat mode. Hence can employees before the final listing approval trade the shares for these shares are obtained from Stock Exchanges?

My Reply:

Shares allotted under the ESOP Scheme 2006 cannot be traded until the listing of such shares in the stock exchanges where the Companies shares are listed.

Thanks & regards

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Alagar
09884731993