By Lucy Rana and Vibhuti Vasisth
COVID-19 has adversely impacted the overall investment sector. While businesses across all sectors can sense the repercussions of COVID-19, start-ups have particularly been one of the most vulnerable, and in fact, are facing various formidable challenges both, from a business as well as from an operations’ perspective. Most start-ups have witnessed a decline in supply and or demand, except for those start-ups that are engaged in the supply and, or delivery of ‘essential services’, educational technology, gaming or streaming services. Notwithstanding the above, glitches in the supply chain network have either way presented challenges for all start-ups. However, the start-up ecosystem has been continuously striving to adapt to the present situation as flexibly as possible, by focussing on the need to innovate and diversify their business techniques and its operations.
In the past couple of years, the start-up ecosystem in India has emerged as a reckoning force, largely attributable to the efforts of the stakeholders, and the initiatives implemented by the government to facilitate the growth of the start-ups. Investments in start-ups have dramatically surged to $14.5 billion in 2019 from the previously $550 million in 2010.
Notes and guidance issued for Start-ups
A note titled as Coronavirus: The Black Swan of 2020, was issued by the Sequoia Capital addressing its portfolio company founders and CEOs, highlighting the need to be ‘adaptable’ so as to survive the downturn.The note highlighted the need of questioning every assumption about one’s business pertaining to cash-flows, fund-raising, marketing, sales forecast, capital spending etc.
Likewise, a group consisting of ten leading venture capitalists have issued a guide titled as Best Practices for Founders in the wake of Covid-19’ which provides for guidance on various aspects related to start-ups, including among others, fund-raising, restructuring, business continuity plans, re-designing business processes, and so on. The guide further prescribes that the priorities of a company should be in the following order – “first employee safety, second business continuity, and third, liquidity and runway a key.” The guide also stipulates the need to keep abreast of government directions and advises to seek legal assistance when necessary.
COVID-19’s impact on Start-ups
It is suggestive that the value of investments in India have fallen to $0.33 billion in March 2020 from $1.73 billion in March 2019, which indicates a fall of nearly 81.1%.There has been a total fall of 50% in the number of companies funded – presently, 69 firms in March 2020, in contrast to 136 firms in March, 2019. Further sources suggest that sometime between mid-February, 2020 & end of March, 2020, a number of investors have also pulled back from closing current funding rounds. Thus, one of the major challenges faced by the start-ups has now become sourcing funds, which has resulted in cash flow issues, for many.
The lock-down has not only impacted the daily business operations, but it has also forced a good-many start-ups into preparing for contingency plans to limit workforce and to cut down employee salaries. Various start-up founders have also taken pay-cuts to limit the losses faced.
COVID-19 Start-up Assistance Scheme
- After recognising the numerous financial and operational challenges faced by start-ups, the Small Industries Development Bank of India (“SIDBI”), which also operates as an implementing agency for the ‘Fund of Funds’ for start-ups, has promulgated a ‘COVID-19 Start-up Assistance Scheme’ (hereinafter “the Scheme”) which is intended to provide assistance to certain eligible start-ups that have successfully demonstrated the ability to implement innovative measures so as to ensure business continuity amidst the COVID-19 crisis, and has also ensured employee safety as also financial stability.
- at least 50 employees;
- a positive net worth;
- received funding through SEBI registered alternate investment funds or VC/PE/Angel funds that invest in start-ups;
- a minimum turnover between INR 20-60 crores ( for the Financial year 2019 and Financial year 2020);
- been incorporated for less than ten years; and meets the requirement of the promoters and, or founders of the start-up having invested their own capital in the businesses.
- The Ministry of Corporate Affairs (“MCA”) has also provided temporary relaxations to all corporates for compliances under the Companies Act, 2013. These include among others: (i) waiver of additional fees on late filings made with the MCA; (ii) relaxations pertaining to the holding of board meetings with physical presence of directors; (iii) extension of the prescribed interval period between board meetings; and (iv) relaxation of the ‘minimum residency’ requirement of a director. Please read here out detailed coverage on the temporary relaxations introduced by the SEBI and MCA.
Eligibility criteria under the Scheme includes the following start-ups that have:
As per the scheme, the start-ups that were EBITDA positive in December, 2019 or, project a positive EBITDA for the quarter ending June, 2020 would also be included.
Furthermore, under the Scheme, working capital loans of up to INR 2 crores at an interest rate of 10.5% would be provided to eligible start-ups for a period extendable to 36 months.
Responses received from Start-ups:
Various start-ups have requested the SIDBI to review the Scheme by easing the eligibility criteria as initially prescribed, and to provide for further relaxations. Requests have also been made to SIDBI requesting to expedite the transfer of funds from the ‘Funds of Funds’ to support the start-ups in these pressing times.
Additionally, to ensure liquidity, certain demands relating to the facilitation investment by large corporates into start-ups as part of the corporate social responsibility initiatives, have also been made.
Furthermore, vide a notification dated March 24, 2020, the Ministry has also increased the threshold for default for initiating corporate insolvency INR 1 crore (from INR 1 Lakh). The Reserve Bank of India (“RBI”) has also drawn up a ‘COVID-19 regulatory package’ which is intended at reducing the burden of debt-servicing and aims at easing working-capital requirements, pursuant to which lending institutions would be permitted to grant a moratorium of three-months (i.e. from March to May) on payments of instalments on loans, that are outstanding as of March 1, 2020. Further, various timelines including the ones for filing of certain income tax and GST returns have been extended.
The various relaxations that have been introduced by the regulatory bodies are aimed at easing the financial burden of corporate houses, including the start-ups and to facilitate the day-to-day business operations.
Responses received from Start-ups:
The stakeholders of the start-up community in a letter dated March 30, 2020, addressing the Finance Ministry, have requested the government to provide for further benefits to start-ups including, among others:
- reimbursement of (at least) 50% of the salary bills and contract wages paid by start-ups from the month of April to September 2020;
- establishing unique credit models, that can provide loans with a low interest rate against the GST/IT refunds;
- deferral of interest payments along with access to quick short-term loan plans and schemes; and
- provisions of expedited refunds for the IT/GST returns that have been filed.
The future of Start-ups: what to expect?
Given the global scale pandemic and the uncertain economic situations spurred by it, there is a strong likelihood that fundraising for start-ups would become a significant challenge in the future, since various investors may choose to focus their future fund deployments only on the existing portfolio companies, in order to ensure that they are able to tide over the present global crisis.
Furthermore, the various restrictions that have been imposed by the Department for Promotion of Industry and Internal Trade (“DPIIT”) on April 17, 2020, vide a Press Note (being 3 of 2020, hereinafter the “Press Note”), would also delay or rather, dis-incentivise a large number of strategic and financial investments from China, some of them such as from the Alibaba Group, the Tencent Holdings, Fosun etc. from investing in the Indian start-ups, even though there has existed a long-standing professional relationship between these investors and the Indian start-ups. Pursuant to the release of the Press Note, fresh funding from new investors, and additional funding from the existing investors would be requiring prior approval from the Government of India.
Traditionally, India has been heavily reliant on foreign direct investment (“FDI”) to fund and sustain growth opportunities. An assessment of the impact of the Press Note would be particularly crucial, especially in the post-pandemic era, where open and free markets would be significant towards ensuring a steady investment flow and job creation. While it is stated that the Press Note has been formulated so as to prevent opportunistic takeovers/acquisitions, it would be interesting and critical to examine the notifications issued thereunder, in order to assess the extent of scrutiny now involved for Chinese companies investing in India, and also whether any carve outs would be applicable in the scenario.
Start-ups are likely to witness heavy negotiations on deal valuations since the new investors may now demand bargains or discounts in the value, which may result in potential delays in the deal execution and closing. Investors may also adopt a more cautious approach towards funding and would also insist on thorough diligence (both commercial as well as legal) of the subject start-ups’ business prospects, including any/all contingency plans implemented during the COVID-19, so as to ascertain sustainability of the start-up in the longer-run.
Consideration and Comments
While the regulatory measures (as mentioned in the preceding paragraphs) have been introduced, they may temporarily assist the start-ups to deal with ‘business continuity plans and issues’ and limit expenses arising on account of certain statutory breaches, stakeholders within the industry have strongly demanded ‘fiscal’ support, in the sense, access to cash-flows and capital. The Scheme does alleviate various and concerns amongst start-ups and the stringent eligibility criteria might result in exclusion of a large segment of start-ups from the market.
Certain countries such as the United Kingdom and France have announced a relief package for start-ups, which includes various measures such as establishing funds to invest in start-ups as well as providing loans/financial assistance to the start-ups. India is also contemplating to implement a comprehensive and a more formal relief scheme that would provide access to capital, while also establishing an effective monitoring system to assess the utilisation of the funds. Start-ups play an important role since they not only encourage innovation among the home-grown entrepreneurs but also generate employment opportunities. Given the vast potential, established by the start-ups, a swift and running action by the concerned regulatory authorities would be crucial in shaping the future of our Country’s start-up bionetwork.
This update is intended to provide an overview of the relevant-applicable legal framework, however, since the subject matter pertains to an evolving issue, the author strongly recommends to seek specific legal advice relevant to your business scenario before implementing any of the definitive measures mentioned herein above.
 Peerzada Abrar, “Indian start-ups raised a record $14.5 bn in 1185 funding rounds this year”, Business Standard, at: https://www.business-standard.com/article/companies/indian-start-ups-raised-a-record-14-5-bn-in-1185-funding-rounds-this-year-119122700061_1.html
 “Coronavirus: The Black Swan of 2020”, at: https://www.sequoiacap.com/article/coronavirus-the-black-swan-of-2020/, (March 2020), Last Accessed on: April 21, 2020.
 Best Practices for Founders in the wake of COVID-19”, at: https://www.notion.so/Best-Practices-for-Founders-in-the-wake-of-COVID-19-54f0c0db17064e6f9e5dd456d9cb26de, (April 2020) Last Accessed on: April 21, 2020
 “Startups face slump in sales for the first time amid lockdown”, Livemint, Available at: https://www.livemint.com/companies/start-ups/startups-face-slump-in-sales-for-the-first-time-amid-lockdown-11585937417458.html,
 “Covid-19 Effect: Indian Unicorns, Tech Startups Resort To Layoffs And Pay Cuts For Survival”, Inc42, Available at: https://inc42.com/buzz/covid-19-effect-indian-unicorns-tech-startups-on-cost-cutting-spree/
 “UK Government rolls out £1.25 billion startup support package”, Finextra, Available at: https://www.finextra.com/newsarticle/35652/uk-government-rolls-out-125-billion-startup-support-package, (April 2020) Last Accessed on: April 22, 2020; Chris O’Brien, “France creates $4.3 billion coronavirus relief program to save struggling startups”, Venturebeat, Available at: https://venturebeat.com/2020/03/25/france-creates-4-3-billion-coronavirus-relief-program-to-save-struggling-startups/