Understanding ESOP Trusts in India

Written By:
Vishnu Boorla
July 14, 2023
Understanding ESOP Trusts in India

ESOP Trusts have emerged as a compelling mechanism in India, empowering both companies and employees by fostering a culture of shared ownership and long-term commitment. One of the crucial aspects of ESOP implementation is the establishment of an ESOP Trust. This blog aims to shed light on ESOP Trusts in India, exploring their role, benefits, legal framework, and key considerations for businesses and employees.  

What is an ESOP Trust?

An ESOP Trust is a legal entity established by a company to hold shares on behalf of its employees participating in the ESOP scheme. It acts as a custodian, administering and managing the ESOPs for the benefit of employees. The trust purchases the company's shares either directly from the market or from the primary issuance, ensuring they are held securely and independently.

Ownership Structure

ESOP Trusts facilitate the transfer of shares from the company to employees, allowing them to become shareholders of the company. This promotes a sense of ownership and aligns employees' interests with the company's growth.

Capital Structure

ESOP Trusts help in managing the capital structure of the company by providing a platform for employees to acquire shares without impacting the existing shareholders' equity.

Legal Framework for ESOP Trusts in India:  

The establishment and functioning of ESOP Trusts in India are governed by various legal provisions, including the Companies Act, 2013, and the Securities and Exchange Board of India (Share Based Employee Benefits) Regulations, 2014. These regulations outline the requirements and procedures for creating and operating ESOP Trusts, ensuring transparency and protection for all stakeholders.

Recommended Reading: ESOP Trust- Why, When & How?

Key Considerations for Businesses and Employees  

Trust Governance

It is crucial to establish a robust governance structure for the ESOP Trust, including the appointment of trustees with fiduciary responsibilities. Transparent reporting mechanisms and periodic audits should be in place to maintain compliance.

Funding Mechanisms

The company must allocate adequate funds to the ESOP Trust to purchase shares or meet other obligations as per the ESOP scheme. Careful financial planning is necessary to avoid any financial strain on the business.

Valuation of Shares

Determining the fair value of shares held by the ESOP Trust is essential to ensure fairness and adherence to regulatory guidelines. Companies may engage independent valuers for this purpose.

Communication and Education

Businesses should effectively communicate the details of the ESOP scheme to employees, emphasizing its benefits and potential risks. Clear understanding of the scheme will foster trust and maximize employee participation.

How the ESOP Trust Works

ESOP Trust is like an escrow mechanism, which is a method of issuing shares pursuant to the implementation of the ESOP program. An ESOP Trust is formed and registered specifically for the purpose of implementing the ESOP Plan. The company creates a plan, and it is approved by company members.

At the same time, an ESOP Trust is formed under the Trusts Act of India, 1882 and registered as an intermediary between the company and its employees. When option holders exercise their options, the ESOP trust is responsible for issuing shares to employees. ESOP Trusts offer distinct advantages for both listed and unlisted companies in implementing employee stock ownership plans. While the mechanism is often favoured by listed companies to acquire shares on the secondary market without diluting their existing capital base, it also presents valuable opportunities for unlisted companies looking to incentivize and retain talent.

In the case of listed companies, the ESOP Trust mechanism allows them to acquire shares without affecting their capital structure, providing a flexible and efficient means of rewarding employees. By leveraging the secondary market, listed companies can maintain control over their existing shareholding while still offering employees an opportunity to participate in the company's growth and success.

However, ESOP Trusts also hold significant benefits for unlisted companies. These companies, which are not publicly traded, can establish an ESOP Trust to create a platform for employee ownership, aligning the interests of employees with the long-term growth objectives of the organization.  

ESOP Trust mechanism simplifies employee exit routes for both listed and unlisted companies. When employees exercise their stock options, the trust facilitates an efficient and transparent process for liquidity, ensuring that employees can access the value of their shares with relative ease. This liquidity factor remains consistent irrespective of whether the company is listed or unlisted, enabling employees to realize the benefits of their ownership in a timely manner.

Overall, the ESOP Trust mechanism offers a versatile solution for both listed and unlisted companies in India, catering to their specific needs and facilitating the establishment of employee stock ownership plans that drive employee engagement, retention, and align the interests of employees with the company's long-term growth objectives.

Also Read: ESOP Liquidity Structuring in India

The Important Factors to Consider When Building ESOP Trust

There are several factors that need to be considered before adopting a trust structure. These include, among others:

* To subscribe to shares in the company, the ESOP Trust must be funded by the company.  

* The funding plan must be approved by a special resolution of the General Assembly.  

* Publicly traded companies must be purchased on a recognized stock exchange.

* For unlisted companies, shares purchased by trusts are valued by independent registered appraisers.

Representation of the ESOP Trust process (for unlisted companies):

Establishing the ESOP Trust:

The unlisted company sets up an ESOP Trust, typically as a separate legal entity or a trust, governed by the Indian Trusts Act, 1882. The company contributes funds or shares to the ESOP Trust, which will be utilized to acquire and hold shares of the company on behalf of the employees.

Designing the ESOP Scheme:

The company formulates an ESOP scheme outlining the terms, conditions, and eligibility criteria for employee participation. The scheme specifies the number of shares or stock options allocated to employees, vesting schedules, exercise prices, and other relevant provisions.

Granting ESOPs to Employees:

The company's board of directors approves the grant of ESOPs to eligible employees based on the ESOP scheme. Employees are informed about the grant and provided with an ESOP Grant Letter, which details the number of ESOPs granted and the terms and conditions.

Allocation of Shares to the ESOP Trust:

The ESOP Trust, acting on behalf of the employees, enters into a Purchase Agreement with the company. The Purchase Agreement enables the ESOP Trust to acquire the allocated shares from the company, either through a direct purchase or as a part of a fresh issuance.

Holding and Administration of Shares:

The ESOP Trust holds the shares on behalf of the employees and maintains records of the allocated shares and vested/unvested ESOPs. The trust may appoint trustees or administrators responsible for the administration and governance of the ESOPs.

Vesting and Exercise of ESOPs:

As per the vesting schedule defined in the ESOP scheme, employees gradually become eligible to exercise their ESOPs. Once vested, employees can exercise their ESOPs by paying the exercise price determined at the time of grant and acquiring shares from the ESOP Trust.

Liquidity Events:

When a liquidity event occurs, such as secondary share sale or a buyback by the company, or an acquisition or an IPO (Initial Public Offering), employees can sell their vested shares. The ESOP Trust facilitates the sale of shares, either directly to the company or in the market, and distributes the proceeds to the eligible employees.

Compliance and Reporting:

The ESOP Trust ensures compliance with relevant laws, regulations, and accounting standards. It prepares and maintains necessary records, reports, and disclosures related to the ESOPs, adhering to the requirements of the Companies Act, Securities and Exchange Board of India (SEBI), and other regulatory bodies.

It's important to note that the specific steps and requirements may vary based on the company's structure, the ESOP scheme, and applicable regulations. Therefore, it is advisable to seek guidance from legal and financial professionals familiar with Indian laws and regulations when establishing and implementing an ESOP Trust for an unlisted company in India.

It is also important to clarify who can act as trustee of the ESOP trust. There are certain prohibitions on directors, key executives and their relatives, and persons economically holding 10% or more of her paid-up share capital, from acting as trustees. as a trustee. In the case of a listed company, additional conditions and conformance are applied based on SEBI regulations regarding secondary acquisitions, value of acquired shares, reasons for convening general meetings, voting rights, etc.

ESOP trust paths are more complex and require compliance with regulatory requirements such as: B. ESOP Trust Registration, ESOP Trust PAN Registration, Execution of ESOP Trust Deed, etc.


ESOP Trusts play a pivotal role in implementing successful employee stock ownership plans in India. By offering ownership, incentivizing employees, providing tax benefits, and managing the capital structure, ESOP Trusts create a win-win situation for both businesses and employees. However, it is crucial for companies to establish and operate the trust in accordance with the legal framework while ensuring transparency and effective governance. With careful planning and execution, ESOP Trusts can unlock employee wealth and contribute to the long-term growth and success of organizations in India.

Vishnu Boorla

A seasoned professional with over 20 years of experience in the software industry, now making significant strides in the fintech realm. Passionate about transforming ideas into impactful products that drive growth and value. Leading the product at Qapita Marketplace, specializing in liquidity programs for ESOPs and early-stage investor transactions in private companies. Pioneered and successfully rolled out marketplace products facilitating secondary transactions for private entities. Always enthusiastic and willing to share and help develop ideas. Natural leader who communicates excellently from developer to board level. Fintech Innovation | Product Strategy | Liquidity Programs | Secondary Transactions | Team Leadership | Geospatial Specialist |

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