Blog Content Overview
- 1 What an ESOP trust is and when a company actually needs one
- 2 The legal basis: Section 67(3)(b), Rule 16, and the Trusts Act
- 3 Step-by-step: how to set up an ESOP trust in India
- 4 Choosing and appointing a trustee
- 5 Doing this in-house versus engaging a trust-formation and trustee-service provider
- 6 What the trust deed must cover
- 7 Funding the trust: the routes and their tax treatment
- 8 Ongoing compliance once the trust is operational
- 9 Cost and timeline for setting up an ESOP trust
- 10 Common mistakes that cost founders time and money
- 11 Treelife’s take: what actually slows this down in practice
- 12 Case study
- 13 FAQs on ESOP Trust Setup in India
An ESOP trust is a separate legal entity created under the Indian Trusts Act, 1882, that a company funds to acquire and hold its own shares on behalf of employees who have not yet exercised their options. Setting one up correctly requires a Rule 16 special resolution, a registered valuer’s report, a trust deed that survives due diligence, a dedicated PAN and bank account, and a trustee who is legally independent of the company’s management. Most founders underestimate this as a documentation exercise when it is closer to setting up a second, smaller regulated entity alongside the company. This guide walks through each step in the order a company actually executes them, with the specific filings, clauses, and costs involved.
How long does it take to set up an ESOP trust in India?
Setting up an ESOP trust typically takes four to eight weeks from board approval to a funded, operational trust bank account. The critical path runs through the Rule 16 special resolution (21 days’ notice for the general meeting), the registered valuer’s report under the Companies (Share Capital and Debentures) Rules, 2014, and opening a PAN-linked bank account in the trust’s name, which most banks process only after the trust deed is registered.
What an ESOP trust is and when a company actually needs one
An ESOP trust sits between the company and its employees. Instead of the company allotting fresh shares directly to each employee on exercise, the company funds a trust, the trust acquires shares (either by fresh allotment or by purchasing shares from existing shareholders), and the trust holds those shares until employees exercise their vested options, at which point the trust transfers shares from its own holding. Until exercise, employees are beneficial owners of the economic value building up in the trust, not registered shareholders; the trustee holds legal title and, in most schemes, exercises any voting rights on the unallocated shares unless the trust deed directs otherwise. This is a narrower structure than the succession-planning ESOP trusts common in the United States, and Indian founders researching the US model should not assume the same tax exemptions or leveraged-buyout mechanics carry over.
Companies typically move to a trust structure at one of three trigger points: a secondary sale where early employees want liquidity alongside an investor round and there is no clean mechanism to route it without an intermediary holding shares first; a buyback programme for vested-but-unexercised options; or a pre-IPO cleanup where the company wants a single, auditable pool of shares rather than scattered individual allotments across hundreds of employees. The trust route requires the company to fund an employee welfare trust under Section 67(3)(b) and Rule 16 of the Companies (Share Capital and Debentures) Rules, 2014, and the trust then holds and transfers shares to employees. A related comparison of when the direct route remains preferable is covered in Treelife’s guide to the direct route versus trust route for ESOPs; this article assumes the trust route has already been chosen and focuses only on execution.
The legal basis: Section 67(3)(b), Rule 16, and the Trusts Act
Three separate laws govern an ESOP trust simultaneously, and a setup that gets any one of them wrong will surface in the first round of investor due diligence.
Companies Act, 2013. Section 67(3)(b) permits a company to provide financial assistance for its employees to acquire fully paid shares through a trust, as an exception to the general prohibition on a company financing the purchase of its own shares. Rule 16 of the Companies (Share Capital and Debentures) Rules, 2014 sets out the operating conditions: the explanatory statement to the general meeting notice must disclose the class of employees for whose benefit the scheme is implemented, the particulars of the trustee in whose favour shares are to be registered, and the particulars of the trust, including the name, address, occupation and nationality of trustees and their relationship with promoters, directors or key managerial personnel.
Indian Trusts Act, 1882. The trust deed itself, and the trustee’s fiduciary duties, are governed by this Act. Registration of the trust deed with the sub-registrar is what gives the trust its legal existence and lets it apply for a PAN.
Income-tax Act, 2025. An ESOP trust is not automatically tax-exempt. It is typically assessed as an association of persons or a specific-purpose trust, and its own income (dividends, interest on cash balances) is taxable in the trust’s hands unless structured with care. This is a common point where founders assume a “welfare” label carries tax exemption; it does not, and the trust deed and funding mechanism need to be drafted with the trust’s own tax position in mind. The Income-tax Act, 2025 replaced the Income-tax Act, 1961 with effect from 1 April 2026 and now governs the current Tax Year 2026-27 onward; the 1961 Act continues to apply only to earlier tax years and to proceedings relating to them, and the trust’s assessment position carries over without a change in substance, since the 2025 Act restructures and renumbers the law rather than altering the underlying tax treatment.
Listed companies only. If the company is listed or preparing for an IPO, the SEBI (Share Based Employee Benefits and Sweat Equity) Regulations, 2021 apply in addition to the Companies Act framework. These regulations were notified on 13 August 2021 and apply to companies seeking to issue sweat equity shares or operating a scheme that is set up, funded, guaranteed, controlled or managed by the company or a group company for the direct or indirect benefit of employees. An Employee Stock Option Scheme under these regulations can itself be operated directly or through a trust. Unlisted companies remain governed instead by Section 62(1)(b) of the Companies Act, 2013 read with Rule 12 of the Companies (Share Capital and Debentures) Rules, 2014. If an unlisted company already runs a trust-based scheme and is preparing for an IPO, that scheme has to be brought into conformity with the SBEB Regulations and ratified by shareholders after listing before any fresh grants are made under it. A September 2025 amendment inserting Regulation 9A now permits founders classified as promoters in the draft red herring prospectus to retain options granted at least one year before the IPO filing, which is directly relevant to a pre-IPO trust cleanup where founder-held options would otherwise have to be surrendered or exercised before listing. For classification purposes, shares held by an employee benefit trust are disclosed as “non-promoter, non-public” shareholding and are excluded from the minimum public shareholding calculation under the Securities Contracts (Regulation) Rules, 1957, which matters for a listed company timing a buyback or secondary sale through the trust close to its minimum public shareholding deadline.
A pending change to watch. The Corporate Laws (Amendment) Bill, 2026, introduced in the Lok Sabha on 23 March 2026 and currently before a Joint Parliamentary Committee, proposes to widen Section 62(1)(b) to cover “such other scheme linked to the value of the share capital of the company,” bringing RSUs, stock appreciation rights and phantom stock formally within the same statutory umbrella as ESOPs. This has not been enacted, and Rule 12 of the Companies (Share Capital and Debentures) Rules, 2014 has not yet been amended to match it, so it does not change how an ESOP trust is set up today; companies running or planning a mixed equity-and-phantom compensation programme alongside a trust should track this Bill rather than assume it is settled law. Separately, a December 2025 SEBI amendment to the SBEB Regulations, effective 2 January 2026, replaced the merchant banker requirement with a registered valuer for sweat equity valuations; it does not change the registered-valuer requirement that already applied to trust share purchases under Rule 16.
Step-by-step: how to set up an ESOP trust in India
1. Board approval and drafting the trust framework. The board first approves the intent to route the existing (or a new) ESOP scheme through a trust, and instructs management to draft the trust deed, identify a proposed trustee, and prepare the Rule 16 disclosures for the shareholder notice.
2. Trust deed drafting. The trust deed sets out the trust’s objects, the trustee’s powers and duties, the funding mechanism, how shares are acquired and released to employees, and what happens on winding up. This is the single most negotiated document in the whole process, covered in detail below.
3. General meeting notice and Rule 16 disclosures. The company issues a notice for a general meeting with at least 21 clear days, attaching an explanatory statement that discloses the class of eligible employees, the trustee’s identity and any relationship to promoters or KMP, the source and quantum of funding, and the maximum shareholding the trust may hold at any time.
4. Special resolution. Shareholders approve the scheme and the trust funding by special resolution (75% of votes cast). For a private company this is procedurally simpler than for a company with external investors, who will typically want board representation or veto rights over the trust’s mandate written into the shareholders’ agreement before they vote.
5. Trust deed execution and registration. Once the resolution passes, the trust deed is executed by the settlor (usually the company) and the trustee(s), stamped according to the applicable state stamp duty, and registered with the jurisdictional sub-registrar under the Indian Trusts Act, 1882.
6. PAN and bank account. The registered trust deed lets the trust apply for its own Permanent Account Number and open a dedicated current account. Most banks require the registered deed, trustee KYC, and a board resolution authorising the account before onboarding, which is frequently the slowest step in practice.
7. Registered valuer’s report. Where the company’s shares are not listed on a recognised stock exchange, the price at which shares are purchased by or for the trust must be based on a valuation by a registered valuer. This report is commissioned before the trust makes its first share purchase or before the company allots fresh shares to the trust.
8. Funding the trust and first share acquisition. The company transfers funds (as a loan, contribution, or guarantee, discussed below) and the trust either subscribes to a fresh allotment from the company or purchases shares from existing shareholders through a share purchase agreement, at the valuer-determined price.
9. Filings with the Registrar of Companies. Form MGT-14 is filed for the special resolution, and Form PAS-3 is filed for any fresh allotment of shares to the trust, each within the statutory 30-day window. Separately, the company must maintain a Register of Employee Stock Options in Form SH-6 under Rule 12(10) of the Companies (Share Capital and Debentures) Rules, 2014, recording every grant, vesting, exercise and lapse. This is not an ROC e-form filing; it is kept at the registered office or a board-approved place and produced on inspection or in due diligence, and it is frequently the first document an investor’s counsel asks for once a trust-routed scheme is in place.
Choosing and appointing a trustee
The trustee holds legal title to the shares and exercises voting rights on them until employees exercise, which makes trustee selection a governance decision, not an administrative one.
| Trustee type | Typical fit | Key consideration |
|---|---|---|
| Independent professional trustee firm | Companies planning a secondary sale or pre-IPO cleanup where investors want an arm’s length holder | Adds an annual trustee fee but removes founder control disputes from due diligence |
| Individual directors as trustees | Very early-stage or family-run companies with a simple, single-round ESOP pool | Investors and auditors increasingly flag director-trustees as a related-party structure requiring closer disclosure |
| Corporate trustee (a group company or a purpose-created entity) | Larger groups running trusts across multiple subsidiaries | Requires its own board, its own compliance calendar, and clean related-party documentation |
Rule 16 does not bar a director from acting as trustee, but the explanatory statement must disclose the trustee’s relationship to promoters, directors and key managerial personnel, and an investor conducting diligence will read a founder-controlled trustee as a governance risk in exactly the secondary-sale or M&A scenario that usually triggers the move to a trust in the first place. Debenture trustee disqualification criteria under the same Rules are a useful proxy for what most legal teams now apply informally to ESOP trustees too: a person should not be appointed if they are a promoter, director, key managerial personnel or employee of the company or its holding, subsidiary or associate company, are indebted to the company, or have a pecuniary relationship with the company exceeding 2% of its gross turnover or ₹50 lakhs, whichever is lower, in the preceding two financial years.
Doing this in-house versus engaging a trust-formation and trustee-service provider
Once the decision to set up a trust is made, a second decision follows immediately: whether to run the deed drafting, trustee appointment and ongoing administration in-house through the company’s own legal and finance teams, or to engage a firm that provides trust-formation and professional trustee services as a package.
Should a company set up an ESOP trust in-house or use a professional service provider?
An in-house setup works when the company has legal counsel already on retainer, a simple single-round scheme, and no immediate secondary sale or listing on the horizon. A professional trust-formation and trustee-service provider is worth the added fee when the company needs an independent trustee investors will accept without renegotiation, when the trust will run recurring buyback or exercise cycles that benefit from dedicated administration, or when the company’s own team has no bandwidth to own the trust’s annual audit and filing calendar on top of the company’s own compliance load.
Several equity-management platforms and professional trustee firms now offer ESOP trust formation bundled with ongoing trustee and administration services, positioning this as a cost-and-governance trade-off against building it in-house. The trade-off is genuine and worth weighing on three points:
| Consideration | In-house setup | Professional trustee-service provider |
|---|---|---|
| Upfront cost | Lower; limited to legal fees and the valuer’s report | Higher; includes a formation fee plus an annual trustee retainer |
| Investor perception at diligence | Depends entirely on who is appointed trustee; a director-trustee invites questions | An independent, named professional trustee is typically accepted without further negotiation |
| Ongoing administration load | Sits with the company’s finance and legal team alongside their existing workload | Carried by the provider, including the annual audit coordination and the SH-6 and related-party disclosure trail |
Whichever route is chosen, the underlying legal requirements, the Rule 16 resolution, the registered valuation, the trust deed’s clauses on funding and release, and the annual compliance calendar, do not change. A provider changes who executes and administers the structure, not what the structure has to satisfy under the Companies Act, the Indian Trusts Act, or the Income-tax Act, 2025.
What the trust deed must cover
A trust deed drafted from a generic template is the most common cause of delay when investors’ counsel reviews it during a funding round. At minimum, the deed should specify:
- The trust’s objects, limited strictly to acquiring, holding and transferring the company’s shares for the benefit of eligible employees
- The trustee’s appointment, removal, and replacement mechanism, and quorum for trustee decisions if there is more than one trustee
- The funding mechanism (loan, contribution or guarantee) and repayment terms if funded by loan
- How shares are acquired: fresh allotment, secondary purchase, or both, and the valuation basis for each
- Voting rights on unallocated shares held by the trust and who directs the trustee’s vote
- The release mechanism on employee exercise, including timelines and documentation
- A buyback or repurchase clause covering what happens to allocated but unexercised shares when an employee exits before full vesting, and the company’s right to repurchase
- Treatment of unallocated shares or surplus funds on winding up of the scheme or the trust
- Indemnity and liability limits for the trustee acting in good faith
Funding the trust: the routes and their tax treatment
The company must put money or shares into the trust before it can acquire anything, and the funding route chosen has direct tax consequences for both the company and the trust.
Interest-bearing loan. The company lends money to the trust, typically at a nominal or market rate, and the trust repays the loan out of proceeds when employees exercise and pay the exercise price. This is the most common structure because it keeps the arrangement on the company’s books as a receivable rather than an expense, and the interest income is taxable in the company’s hands in the ordinary course.
Interest-free loan or contribution. Some companies fund the trust as an interest-free loan or an outright contribution. An interest-free loan can attract scrutiny on notional interest income and transfer pricing-style questions if the company has related-party lenders; a contribution is effectively a gift and is typically not tax-deductible as a business expense for the company unless it can be shown to be wholly and exclusively for the purpose of the business, which is fact-specific and worth confirming with a tax opinion before the funding resolution is passed.
Corporate guarantee for third-party borrowing (the leveraged ESOP structure). For larger trusts, particularly those buying out a significant secondary block, the company can guarantee a bank loan to the trust rather than funding it directly. This keeps the funding off the company’s own balance sheet as a direct outflow but creates a contingent liability that must be disclosed in the company’s financial statements and, for a company with external investors, typically requires board and investor consent under the shareholders’ agreement. Where the trust borrows to acquire shares upfront and repays the loan over time out of company contributions and employee exercise proceeds, the arrangement is commonly called a leveraged ESOP; the shares are gradually released to employees as the loan amortises, rather than the trust holding the full block debt-free from day one.
NBFC-financed purchase. Rather than the company lending directly, a non-banking financial company can extend a structured loan to the trust to fund the share purchase, with the company’s guarantee or the shares themselves as security. This is more common for larger, listed-company trusts running buyback or secondary programmes at scale, since it keeps the funding relationship at arm’s length from the company’s own balance sheet, but it adds a third party’s credit process and documentation timeline to the setup, and the loan terms need the same board and related-party scrutiny as a company-funded loan would.
In every route, any loan or funding arrangement between the company and a trust it controls is treated as a related-party transaction. An ESOP trust set up and controlled by the company is typically a related party for the purposes of Section 188 of the Companies Act, 2013, since the company is accustomed to direct its actions, and funding arrangements with the trust should be routed through the same board approval and disclosure process as any other related-party transaction.
Get your ESOP trust funding structured correctly from the start. Let’s Talk
Ongoing compliance once the trust is operational
Setup is the first cost, not the only one. Once live, an ESOP trust carries its own annual compliance calendar, separate from the company’s:
- A dedicated set of trust accounts, prepared and audited annually, independent of the company’s own statutory audit
- The trust’s own income tax return, since it is a distinct assessee for the shares and any income it holds
- Board disclosure each year on the scheme’s operation, including shares held by the trust, shares allotted to employees during the year, and any unallocated balance
- Re-valuation by a registered valuer each time the trust acquires or transfers shares at a price not already fixed by a recent valuation
- Related-party transaction disclosure in the board’s report and Form AOC-2 for any funding, loan renewal, or guarantee involving the trust
- For a listed company, disclosure of trust-held shares and scheme operation under the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015, in addition to the SBEB Regulations, since trust holdings and grant activity feed directly into the company’s periodic shareholding disclosures
Using the trust as the vehicle for a buyback or a structured secondary liquidity programme adds a further layer: each round needs its own registered valuation, a funding flow into the trust timed to the buyback window, and a reconciliation of the trust’s post-buyback holding against the company’s cap table before the next board or investor disclosure, since a mismatch between trust-held shares and the cap table is one of the more common findings when a company runs several liquidity events through the same trust without reconciling after each one.
Diligence teams treat the ESOP trust deed as a standing document to be produced in every funding round from that point forward. The ESOP trust deed, where a trust structure is used, is one of the specific items investors’ due diligence checklists ask for, alongside the underlying scheme document and individual grant letters. A trust with missing annual accounts or an unresolved related-party filing is a recurring finding in pre-Series C due diligence.
Cost and timeline for setting up an ESOP trust
Typical setup costs cover trust deed drafting and registration, a registered valuer’s report, and legal fees for the special resolution and scheme documentation, while running costs add a separate bank account, annual accounts, an independent audit, and the trust’s own income tax return each year, on top of whatever the company already spends administering the direct route scheme. As a working benchmark:
| Cost head | What it covers | Typical timing |
|---|---|---|
| Trust deed drafting and registration | Legal drafting, stamp duty (state-specific), sub-registrar filing | Weeks 1 to 3 |
| Registered valuer’s report | Fair market value of shares for the trust’s acquisition | Weeks 2 to 4 |
| Special resolution and RoC filings | Notice drafting, Form MGT-14, Form PAS-3 on allotment | Weeks 1 to 5 |
| Annual running cost | Trust audit, income tax return, bank account maintenance | Ongoing, every financial year |
Setup typically runs four to eight weeks end to end, covering trust deed drafting and registration under the Indian Trusts Act, 1882, the special resolution process under Rule 16, obtaining the trust’s PAN and bank account, and commissioning the registered valuer’s report, assuming no unresolved cap table or shareholder approval issues.
Common mistakes that cost founders time and money
Choosing a founder or director as trustee without flagging it to investors first. This is legal under Rule 16 but reads as a governance gap the moment external investors run diligence. It routinely gets revisited mid-negotiation, adding weeks to a deal that already has a long-stop date. Disclose the trustee’s identity and relationship to the board upfront and offer to replace with an independent trustee if a secondary sale or funding round is imminent.
Underestimating the bank account timeline. Trust deed registration is often the fastest step; opening the dedicated bank account is frequently the slowest, because banks apply enhanced KYC to newly registered trusts. Start the bank conversation in parallel with deed registration, not after it.
Funding the trust without a tax opinion on the funding route. An interest-free contribution that looks administratively simpler can create an unexpected tax cost if it is not deductible as a business expense, or if the trust’s own income on undeployed funds is not anticipated. Confirm the funding structure’s tax treatment before the resolution, not after the money moves.
Treating the trust deed as a template exercise. A deed copied from a precedent without addressing the release mechanism, voting direction, and winding-up treatment specific to the company’s cap table is the single most common source of redlines from investor counsel in the next funding round.
Missing the annual compliance calendar after setup. Founders who focus entirely on getting the trust operational often treat it as a one-time project and miss that it now needs its own audit, its own return, and its own related-party disclosures every year. Build the trust’s compliance calendar into the company’s existing statutory calendar from day one, not as an afterthought when the next audit season arrives.
Treelife’s take: what actually slows this down in practice
In the ESOP trust setup engagements we have run at Treelife, the step that most often derails a timeline is not the legal drafting, it is sequencing the registered valuer’s report against the bank account opening. Companies frequently commission the valuation only after the trust deed is registered, on the assumption that the valuer needs the trust’s PAN to issue the report. It does not: the valuation can run in parallel with deed registration since Rule 16 requires the valuation to price the share transaction, not to exist as a trust-specific document. Running these two steps in parallel instead of in sequence is routinely the difference between a five-week and an eight-week setup.
The second pattern is specific to companies that are also mid-negotiation on a funding round when they start the trust setup. Investors’ counsel will almost always ask for veto or consent rights over the trustee’s mandate, typically drafted into the shareholders’ agreement rather than the trust deed itself, before they sign off on the round. If the trust deed and the SHA amendment are drafted by two different teams without cross-checking, the two documents contradict each other on who directs the trustee’s vote, which is a finding that surfaces during the next diligence cycle and has to be unwound retroactively.
Read next: Treelife’s guide to direct route versus trust route for ESOPs if the decision to move to a trust has not yet been finalised.
Case study
Situation: A Series C SaaS company based in Bengaluru, with roughly 40 employees holding vested options, had a lead investor for its next round conditional on five early employees receiving partial secondary liquidity.
Challenge: The company had no trust structure, a 6-week long-stop date on the term sheet, and a founder who had assumed he could serve as trustee.
What Treelife did: We drafted the trust deed with an independent professional trustee, ran the registered valuation in parallel with deed registration, and coordinated the SHA amendment on trustee consent rights directly with investor counsel to avoid a second drafting round.
Outcome: The trust was registered, funded and operational in five weeks, inside the long-stop date, with the secondary sale closing without a trustee-related redline in the final SHA.
Set up your ESOP trust correctly the first time. Talk to Treelife’s ESOP structuring team about trust deed drafting, trustee appointment, and valuation coordination for your next round.
FAQs on ESOP Trust Setup in India
Q: Can a private company set up an ESOP trust without shareholder approval?
A: No. Rule 16 requires a special resolution passed by shareholders in a general meeting before the company can fund a trust to purchase or subscribe for its shares on behalf of employees, regardless of company size.
Q: What is the minimum number of trustees required?
A: The Indian Trusts Act, 1882 does not prescribe a minimum, and a single trustee is legally valid, though most companies preparing for external funding appoint two or more, or a corporate trustee, to avoid single-point governance risk.
Q: Is the ESOP trust’s income taxable?
A: Yes. The trust is a distinct assessee and its own income, such as interest on undeployed funds or dividends on shares it holds, is taxable in the trust’s hands under the Income-tax Act, 2025 (the current law from Tax Year 2026-27 onward, replacing the Income-tax Act, 1961), unless the funding and holding structure is specifically designed to avoid a taxable event, which requires a tax opinion at the drafting stage.
Q: How much does it cost to set up and run an ESOP trust in India?
A: Setup costs cover trust deed drafting and registration, a registered valuer’s report, and legal fees for the special resolution and scheme documentation, while running costs add a separate bank account, annual accounts, an independent audit, and the trust’s own income tax return each year. Exact figures vary by state stamp duty and the complexity of the cap table, and should be confirmed with an advisor before budgeting.
Q: Does an ESOP trust need its own GST registration?
A: Generally not, since the trust is not typically engaged in a taxable supply of goods or services in the ordinary course; this should be confirmed against the specific activities the trust undertakes beyond holding and transferring shares.
Q: Can the trust buy shares from existing shareholders instead of the company allotting fresh shares?
A: Yes. The trust can either subscribe to a fresh allotment from the company or purchase shares from existing shareholders under a share purchase agreement, both at a price based on a registered valuer’s report where the company is unlisted.
Q: What happens to unallocated shares in the trust if an employee’s options lapse?
A: The trust deed should specify this; commonly, lapsed or unallocated shares are held for reallocation to future grants under the same or a successor scheme, subject to shareholder approval on winding up or reallocation.
Q: Do foreign employees or NRI founders raise any additional issues for an ESOP trust?
A: If the trust or the underlying scheme extends to employees outside India, Foreign Exchange Management Act, 1999 reporting obligations may apply to the company depending on how shares are issued or transferred to those employees; this needs a separate FEMA review alongside the trust setup.
Q: Can promoters or independent directors be beneficiaries of the ESOP trust?
A: For unlisted companies, eligibility follows the “permanent employee” definition under Rule 12 of the Companies (Share Capital and Debentures) Rules, 2014, which generally excludes promoters and independent directors from the scheme the trust services, consistent with the restriction on who can receive ESOPs directly.
Q: How does a loan to the trust get treated under related-party transaction rules?
A: An ESOP trust set up and controlled by the company is typically treated as a related party, so any loan or funding arrangement should go through the same board approval and disclosure process as other related-party transactions under Section 188 of the Companies Act, 2013.
Q: Does converting from the direct route to the trust route affect existing option grants?
A: Existing grants under the direct route are not automatically transferred into the trust; the company typically decides whether new grants going forward route through the trust while existing unexercised options continue on the original terms, or negotiates a transition, which should be documented clearly to avoid disputes at exercise.
Q: What documents does an investor’s due diligence team ask for on the trust?
A: Investor diligence checklists typically ask for the ESOP trust deed where a trust structure is used, alongside the scheme document, individual grant letters, and the cap table reflecting outstanding, exercised and lapsed options.
Q: Is a listed company’s ESOP trust governed differently from an unlisted company’s?
A: Yes. A listed company’s scheme falls under the SEBI (Share Based Employee Benefits and Sweat Equity) Regulations, 2021 and the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 in addition to the Companies Act framework, while an unlisted company’s trust is governed by Section 67(3)(b) and Rule 16 alone.
Q: Does a merger, acquisition, or restructuring require the trust deed to be updated?
A: Yes. A change in the company’s structure, such as a merger, an acquisition, or a scheme of arrangement, typically requires amending the trust deed to reflect the new entity, its cap table, and any revised scheme terms, and the amendment itself needs the same board and, where the deed requires it, shareholder approval as the original deed.
Regulatory references
- Section 67(3)(b), Companies Act, 2013
- Rule 16, Companies (Share Capital and Debentures) Rules, 2014
- Rule 12, Companies (Share Capital and Debentures) Rules, 2014
- Rule 12(10), Companies (Share Capital and Debentures) Rules, 2014 (Form SH-6, Register of Employee Stock Options)
- Section 188, Companies Act, 2013 (related-party transactions)
- Indian Trusts Act, 1882
- Securities and Exchange Board of India (Share Based Employee Benefits and Sweat Equity) Regulations, 2021 (listed companies only)
- Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 (listed companies only)
- Securities Contracts (Regulation) Rules, 1957 (minimum public shareholding treatment of trust-held shares, listed companies only)
- Income-tax Act, 2025 (trust assessment as association of persons; applies from Tax Year 2026-27, replacing the Income-tax Act, 1961, which continues to govern earlier tax years)
- Foreign Exchange Management Act, 1999 (where the scheme extends to employees outside India)
We Are Problem Solvers. And Take Accountability.
Related Posts
Direct Route vs Trust Route for ESOP in India: Structure, Tax, Compliance
An Employee Stock Option Plan in India can be run in one of two ways: the company grants and allots...
Learn More
ESOP Pool Size Calculation: Benchmark, Formula, Examples
An ESOP pool is the block of fully diluted equity a company sets aside for current and future employee stock...
Learn More
Drone & UAS Business Setup in India: DGCA, UIN, Permissions
A drone manufacturer or operator in India does not register once. The business itself is registered with the Registrar of...
Learn More© 2026 Treelife Ventures Services Private Limited. All Rights Reserved.