RBI/2004-05/1 Master Circular No. /1 /2004-05, DT. 01/07/2004
Master Circular - Direct Investment by Residents in Joint Venture (JV)/Wholly Owned Subsidiary(WOS) abroad
Direct investment by residents in Joint Venture (JV) and Wholly Owned Subsidiary (WOS) abroad are being allowed, in terms of clause (a) of sub-section (3) of section 6 of the Foreign Exchange Management Act 1999, (42 of 1999) read with Notification No. GSR 456 (E) dated May 3, 2000 and FEMA Notification 19/RB-2000 dated May 3, 2000 as amended from time to time.
2. This Master Circular consolidates the existing instructions on the subject of “Direct Investment by Residents in Joint Venture (JV)/Wholly Owned Subsidiary (WOS) abroad“ at one place. The list of underlying circulars/ notifications is set out at Annex -1.
3. As recommended by the Committee on Procedures and Performance Audit on Public Services (CPPAPS) (Chairman : Shri S. S. Tarapore) set up by the Reserve Bank, this Master Circular is being issued with a sunset clause of one year. This circular will stand withdrawn on July 1, 2005 and be replaced by an updated Master Circular on the subject.
Yours faithfully,
Grace Koshie
Chief General Manager
Annex -1
Notifications issued
FEMA 40/RB-2001 March 2, 2001,
FEMA 48/ RB 2002 January 1, 2002,
FEMA 49/RB-2002 January 19, 2002,
FEMA 53/RB-2002 March 1,2002
FEMA 55/ RB -2002 March 7, 2002
FEMA 59/ RB-2002 April 24, 2002
FEMA 88/ RB -2002 April 1,2003
List of circulars, which have been consolidated in this Master Circular on
Direct Investment by Residents in Joint Venture (JV)/Wholly Owned Subsidiary (WOS) abroad
| Sl. No. | Circular No. | Date |
| 1. | AP(DIR Series) Circular No.3 | June 22, 2000 |
| 2. | AP(DIR Series) Circular No.13 | September 14, 2000 |
| 3. | AP(DIR Series) Circular No.32 | April 28, 2001 |
| 4. | AP(DIR Series) Circular No.16 | December 15, 2001 |
| 5. | AP(DIR Series) Circular No.18 | December 18, 2001 |
| 6. | AP(DIR Series) Circular No.23 | February 19, 2002 |
| 7. | AP(DIR Series) Circular No.27 | March 2, 2002 |
| 8. | AP(DIR Series) Circular No.43 | April 30, 2002 |
| 9. | AP(DIR Series) Circular No.51 | June 24, 2002 |
| 10. | AP(DIR Series) Circular No. 58 | December 2, 2002 |
| 11. | AP(DIR Series) Circular No. 66 | January 13,2003 |
| 12. | AP (DIR Series) circular No. 68 | January 13,2003 |
| 13. | AP(DIR Series) Circular No. 83 | March 1, 2003 |
| 14. | AP(DIR Series) Circular No. 96 | April 28, 2003 |
| 15. | AP(DIR Series) Circular No. 97 | April 29, 2003 |
| 16. | AP (DIR Series) circular No. 104 | May 31, 2003 |
| 17. | AP (DIR Series) circular No. 107 | June 19,2003 |
| 18. | AP (DIR Series) Circular No.41 | December 6, 2003 |
| 19. | AP (DIR) Series) Circular No.42 | December 6, 2003 |
| 20. | AP (DIR Series) Circular No.47 | December 12, 2003 |
| 21. | AP (DIR Series) Circular No.57 | January 13, 2004 |
| 22. | AP (DIR Series) Circular No.75 | February 23, 2004 |
| 23. | AP (DIR Series) Circular No.90 | May 3, 2004 |
Master Circular - Direct Investment in
Joint Ventures/ Wholly Owned Subsidiaries abroad as on July 01, 2004
PART-I
Section A - General
A.1 Introduction
Overseas investments in Joint Ventures (JV) and Wholly Owned Subsidiaries (WOS) have been recognised as important avenues for promoting global business by Indian entrepreneurs in terms of foreign exchange earnings like dividend, royalty, technical know-how fee and other entitlements on such investments. They are also a major source of increased exports of plant and machinery and goods from India. Joint ventures have also been perceived as a medium of economic cooperation between India and other countries. Transfer of technology and skill, sharing of results of R&D, access to wider global market, promotion of brand image, generation of employment and utilisation of raw materials available in India and in the host country are other significant benefits arising out of such overseas investments.
In keeping with the spirit of liberalisation, which has become the hallmark of economic policy in general, and Foreign Exchange regulations in particular, the Reserve Bank has been progressively relaxing its rules and simplifying the procedures both for current account as well as capital account transactions.
A.2 Statutory basis
Section 6 of the Foreign Exchange Management Act provides powers to the Reserve Bank to specify, in consultation with the Central Government the classes of permissible Capital Account transactions and limits upto which exchange is admissible for such transactions. Section 6(3) of the aforesaid Act provides powers to the Reserve Bank to prohibit, restrict or regulate various transactions referred to in the sub-clauses of that sub-section, by making Regulations.
In exercise of the above powers, the Reserve Bank has issued Foreign Exchange Management (Transfer or issue of any Foreign Security) Regulations, 2000 vide Notification No. FEMA 19/RB- 2000 dated 3rd May 2000 (as amended vide Notification No. FEMA 40/RB-2001 dated 2nd March 2001, FEMA 48/-RB 2002 dated 1st January 2002, FEMA 49/2002-RB dated Jan. 19, 2002, FEMA 53/2002 –RB dated March 1,2002, FEMA 55/ 2002-RB dated March 7, 2002, FEMA 59/ RB-2002 dated 24th April 2002) and FEMA 88/RB-2002 dated April 1, 2003 (hereinafter referred to as ‘the Notification’). The Notification seeks to regulate acquisition and transfer of a foreign security by a person resident in India i.e. investment by Indian entities in overseas joint ventures and wholly owned subsidiaries as also investment by a person resident in India in shares and securities issued outside India.
A.3 Prohibitions
Indian parties are prohibited from making investment in a foreign entity engaged in real estate business or banking business.
A.4 General Permission
(i) In terms of Regulation 4 of the Notification, general permission has been granted to residents for purchase/acquisition of securities and sale of shares/securities so acquired -
(a) out of funds held in RFC account; and
(b) as bonus shares on existing holding of foreign currency shares.
(ii) General permission has also been granted to a person resident in India for purchase of securities out of their foreign currency resources outside India as also for sale of securities so acquired.
Section B: Direct Investment outside India
B.1 Automatic Route
In terms of Regulation 6 of the Notification, any Indian party has been permitted to make investment in an overseas joint venture/wholly owned subsidiary by submitting form ODA, duly completed to a designated branch of an authorised dealer, upto 100% of the net worth of the Indian party as on the date of the last audited balance sheet. Such investments in Nepal and Bhutan are permitted only in Indian rupees. However, the automatic route facility is not available for investment in Pakistan.
The above ceiling will include contribution to the capital of the overseas JV/WOS, loan granted to the JV/WOS, and 50% of guarantees issued to or on behalf of the JV/WOS. Such investments are subject to the following conditions:
a) The Indian party may extend loan /guarantee to an overseas concern in which it has equity participation.
b) The Indian party should not be on the Reserve Bank’s caution list or under investigation by the Enforcement Directorate or a defaulter to the banking system in India whose name appears in the defaulter’s list published / circulated by the Reserve Bank/CIBIL.
c) All transactions relating to a joint venture/wholly owned subsidiary should be routed through one branch of an authorised dealer to be designated by the Indian party.
d) In case of partial /full acquisition of an existing foreign company, where the investment is more than USD 5.00 mn, valuation of the shares of the company shall be made by a Category I Merchant Banker registered with SEBI or an investment Banker/Merchant Banker outside India registered with the appropriate regulatory authority in the host country and in all other cases by a CA/ CPA. However, in cases of investment by way of swap of shares, irrespective of the amount, in all cases valuation of the shares will have to be by a Category I Merchant Banker registered with SEBI or an Investment Banker outside India registered with the appropriate regulatory authority in the host country. Approval of FIPB will also be a precondition.
B.2 Method of Funding
Investment in an overseas JV/WOS may be funded out of one or more of the following sources: -
i) Balances held in EEFC account of the Indian party;
ii) Drawal of foreign exchange from an authorised dealer in India including capitalisation of exports upto the extent of 100 per cent of the Indian party’s net worth as on the date of the last audited balance sheet;
iii) Utilisation of proceeds of foreign currency funds raised through ADR/GDR issues.
iv) Swap of shares, subject to the valuation of the shares of the company by a Category I Merchant Bank registered with SEBI or an Investment Banker/Merchant Banker outside India registered with the appropriate regulatory authority in the host country and subject also to the condition that transaction has been approved by FIPB.
v) Utilisation of proceeds of ECBs/FCCBs.
However, when such investments are in the financial sector they will be subject to compliance of Regulation 7 of the Notification ibid.
B.3 Investment out of funds raised through ADR/GDR issues
An Indian party is permitted to make direct investment without any monetary limit out of funds raised through ADRs/GDRs in terms of Regulation No.6 (6) of the Notification.
B.4 Investment under swap or exchange of shares arrangement
In terms of Regulation 8 of the Notification, Indian parties engaged in any activity who have already made an ADR/GDR issue, may acquire shares of foreign companies engaged in the same core activity in exchange of ADRs/GDRs issued to the latter in accordance with the scheme for issue of Foreign Currency Convertible Bonds and Ordinary Shares (through Depository Receipt Mechanism) Scheme 1993, and the guidelines issued thereunder from time to time by the Central Government, subject to compliance with the following conditions:
a. ADRs/GDRs are listed on any stock exchange outside India;
b. such investment by the Indian Party does not exceed the higher of the following amounts, namely:-
i. amount equivalent of US$ 100 mn., or
ii. amount equivalent to 10 times the export earnings of the Indian Party during the preceding financial year as reflected in its audited financial statements. For the purpose of reckoning the limit, the investments already made under Regulation 6 in the same financial year are to be included.
c. the ADR and/or GDR issue for the purpose of acquisition is backed by underlying fresh equity shares issued by the Indian Party;
d. the total holding in the Indian entity by persons resident outside India in the expanded capital base, after the new ADR and/or GDR issue, does not exceed the sectoral cap prescribed under the relevant regulations for such investment;
e. valuation of the shares of the foreign company, shall be
i as per the recommendations of the Investment Banker if the shares are not listed on any stock exchange; or
ii. based on the current market capitalization of the foreign company arrived at on the basis of monthly average price on any stock exchange abroad for the three months preceding the month in which the acquisition is committed and over and above, the premium, if any, as recommended by the Investment Banker in its due diligence report in other cases.
The Indian party is required to report such acquisition in form ODG to the Reserve Bank within a period of 30 days from the date of the transaction.
B. 5 Investment Abroad by a firm in India
Partnership firms registered under the Indian Partnership Act, 1932 engaged in any bonafide business activity and having a good track record are permitted to make investment in overseas JV/WOS abroad by submitting form ODA to a designated branch of an authorised dealer provided such investment does not exceed 100% of the net worth of the firm, subject to the terms and conditions laid down in Regulation 6 of the Notification. Firms wishing to take up financial services activities would however, have to satisfy the additional requirements prescribed in Regulation 7 of the Notification.
Subject to the firm being eligible for overseas investment and subject also to the condition that the entire funding for such investment is done by the firm, it will be in order for individual partners to hold shares for and on behalf of the firm in overseas JV/ WOS if the host country regulations or operational requirements warrant such holdings.
B. 6 Investment in Equity of Companies Registered Overseas / Rated Debt Instruments
(i) Corporates
Listed Indian companies are permitted to invest abroad in companies, (a) listed on a recognized stock exchange and (b) which has the share holding of at least 10 per cent in an Indian company listed on a recognized stock exchange in India (as on 1st January of the year of the investment). They are also permitted to invest in rated bonds / fixed income securities of such companies. Such investments shall not exceed 25per cent of the Indian company’s net worth as on the date of latest audited balance sheet.
(ii) Individuals
Resident individuals are permitted to invest in equity and in rated bonds/fixed income securities of overseas companies indicated at (i) above without any monetary limit.
(iii) Investment by Mutual Funds
Mutual Funds are permitted to invest in ADRs/GDRs of the Indian companies, rated debt instruments, and also invest in equity of overseas companies indicated at (i) above within an overall cap USD 1 billion. Accordingly, Mutual Funds desirous of availing of this facility may approach SEBI for necessary permission in the matter. General permission is available to the above categories of investors for sale of securities so acquired.
B.7 Approval of the Reserve Bank
In all other cases of direct investment abroad which are not covered under the previous paragraphs, the prior approval of the Reserve Bank would be required. For this purpose, applications together with documents should be made in
a) Form ODB if the investment is for acquiring shares of foreign company engaged in the same core activity in exchange of ADR/GDRs issued to the latter in excess of USD 100 mn or ten times the export earnings (whichever is higher)/for acquisition of shares of a company outside India, in lieu of fees due to it for professional services rendered to the said company.
b) Form ODI in all other cases.
Reserve Bank, inter alia, would take into account the following factors while considering such applications:
a) Prima facie viability of the Joint Venture/Wholly Owned Subsidiary outside India;
b) Contribution to external trade and other benefits which will accrue to India through such investment;
c) Financial position and business track record of the Indian Party and the foreign entity;
d) Expertise and experience of the Indian Party in the same or related line of activity of the Joint Venture or Wholly Owned Subsidiary outside India.
B.8 Investment in the Financial Services Sector
In terms of Regulation 7 of the Notification, an Indian party seeking to make investment in an entity engaged in the financial sector should also fulfill the following additional conditions:
(i) be registered with the appropriate regulatory authority in India for conducting the financial sector activities;
(ii) earned net profit during the preceding three financial years from the financial services activities;
(iii) has obtained approval for investment in financial sector activities abroad from concerned regulatory authorities in India and abroad; and
(iv) fulfilled the prudential norms relating to capital adequacy as prescribed by the concerned regulatory authority in India
B.9 Capitalisation of exports and other dues
a) Indian parties are also permitted to capitalise the payments due from the foreign entity towards exports made to it, fees, royalties or any other entitlements due from the foreign entity for supplying technical know-how, consultancy, managerial and other services within the ceilings applicable. Export proceeds remaining unrealised beyond a period of six months from the date of export will require the prior approval of the Reserve Bank before capitalisation.
b) Indian software exporters are permitted to receive 25 per cent of the value of their exports to an overseas software company in the form of shares without entering into Joint Venture Agreements, with the approval of the Reserve Bank.
B.10 Post investment changes/additional investment in existing JV/WOS
A JV/WOS set up by the Indian party as per the Regulations may diversify its activities / set up step down subsidiary alter the shareholding pattern in the overseas entity subject to the Indian party reporting to the Reserve Bank, the details of such decisions taken by the JV/WOS within 30 days of the approval of those decisions by the competent authority concerned of such JV/WOS in terms of local laws of the host country, and, include the same in the Annual Performance Report required to be forwarded annually to the Reserve Bank.
B.11 Acquisition of a foreign company through bidding or tender procedure
An Indian party may remit earnest money deposit or issue a bid bond guarantee for acquisition of a foreign company through bidding and tender procedure and also make subsequent remittances through an authorised dealer in accordance with the provisions of Regulation 14 of the Notification.
B.12 Obligations of Indian Party
An Indian party which has made direct investment abroad is under obligation to (a) receive shares certificate or any other document as an evidence of investment, (b) repatriate to India the dues receivable from foreign entity and (c) submit the documents/Annual Performance Report to the Reserve Bank, in accordance with the provisions specified in Regulation 15 of the Notification.
B.13 Transfer by way of sale of shares of a JV/WOS
An Indian party may transfer by way of sale to another Indian party, which complies with the provisions of Regulation 6/Regulation 17B of the FEMA Notification 19/RB-2000 dated May 3, 2000 or to a person resident outside India, any share or security held by it in a joint venture or wholly owned subsidiary outside India subject to the conditions and reporting requirements indicated in A-9 of Part II of this circular.
Indian listed companies are however, permitted to disinvest in a JV/WOS abroad even in cases where such disinvestment may result in a write-off of the capital invested to the extent of 10% of their previous year’s export realisation.
An Indian party, which does not satisfy the conditions laid down, and proposals which seek "write off" of the investment, shall have to apply to the Reserve Bank for prior permission.
B.14 Pledge of Shares
An Indian party may pledge the shares of JV/WOS to an authorised dealer or a financial institution in India for availing of any credit facility for itself or for the JV/WOS abroad in terms of Regulation 17 of the Notification.
B.15 Hedging of Overseas Direct Investments
Resident entities having overseas direct investments are permitted to hedge the exchange risk arising out of such investments. Authorised Dealers may enter into forward/option contracts with residents who wish to hedge their overseas direct investments (in equity and loan), subject to verification of such exposure and provided further that the contracts are completed by delivery or rolled over on the due date.
If a hedge becomes naked in part or full owing to shrinking of the market value of the overseas direct investment, the hedge may continue to the original maturity. Rollovers on the due date are permitted upto the extent of market value as on that date.
SECTION C: Investment in Foreign Securities other than by way of Direct Investment
C.1 Permission for purchase/acquisition of foreign securities in certain cases
General permission has been granted to a person resident in India who is an individual -
a) to acquire foreign securities as a gift from any person resident outside India; or
b) to acquire shares under Cashless Employees Stock Option Scheme issued by a company outside India, provided it does not involve any remittance from India, or
c) to acquire shares by way of inheritance from a person whether resident in or outside India;
d) to purchase equity shares offered by a foreign company if he is an employee or a director of an Indian office or branch of a foreign company or of a subsidiary in India of a foreign company or an Indian company in which foreign equity holding is not less than 51 per cent Authorised dealers are permitted to allow remittances for purchase of shares by eligible persons under this provision.
e) In all other cases, which are not covered by general or special permission, approval of the Reserve Bank is required to be obtained before acquisition of a foreign security.
C.2 Transfer of a foreign security by a person resident in India
The shares acquired by persons resident in India in accordance with the provisions of Foreign Exchange Management Act, 1999 or Rules or Regulations made thereunder are allowed to be pledged for obtaining credit facilities in India from an authorised dealer.
C.3 General permission in certain cases
Residents are permitted to acquire foreign securities, if it represents –
a) qualification shares
for becoming a director of a company outside India provided it does not exceed 1% of the paid up capital of the overseas company and the consideration for the acquisition does not exceed USD 20,000/- in a calendar year.
b) rights shares
provided that the right shares are being issued by virtue of holding shares in accordance with the provisions of law for the time being in force.
c) purchase of shares
of a JV/WOS abroad of the Indian promoter company by the employees/directors of Indian promoter company which is engaged in the field of software where the consideration for purchase does not exceed US 10,000 or its equivalent per employee in a block of five calendar years; the shares so acquired do not exceed 5% of the paid-up capital of the Joint Venture or Wholly Owned Subsidiary outside India; and after allotment of such shares, the percentage of shares held by the Indian promoter company, together with shares allotted to its employees is not less than the percentage of shares held by the Indian promoter company prior to such allotment.
d) purchase of foreign securities under ADR/GDR linked stock option schemes by resident employees of Indian software companies including working directors provided purchase consideration does not exceed US$ 50,000 or its equivalent in a block of five calendar years.
PART II
Operational Instructions to Authorised DealersA.1 Designated branches
Authorised dealers may designate select branches at different centers to undertake foreign exchange transactions in connection with overseas direct investment under Regulation 6 or 17B of the Notification.
Investments under Regulations 6 and 17B
Authorised dealers may allow investments upto the permissible limits on receipt of application in form ODA together with form A-2, duly filled in, from the Indian party/parties making investments in a JV/WOS abroad subject to their complying with the conditions specified in Regulation 6 or 17B of Notification FEMA No.19/RB-2000 dated 3rd May 2000 as applicable. Investment in financial services should however comply with additional norms stipulated at Regulation 7 ibid. While forwarding report of remittance in respect of investment in Financial Sector authorised dealers may certify that approval from Regulatory authorities in India and abroad have been obtained. Before allowing the remittance authorised dealers are required to ensure that the necessary documents, as prescribed in form ODA, have been submitted. Form ODA and other documents need not be submitted to the Reserve Bank.
A.2 General procedural instructions
(i) Immediately after effecting the remittance, the authorised dealers are required to forward a report on remittance in the revised form ODR, in duplicate (format enclosed) to the Chief General Manager, Foreign Exchange Department, Overseas Investment Division, 3rd floor, Amar Building., Mumbai - 400 001. Authorised Dealers may ensure that the remittances on account of investments by Partnership firm are reported with the superscription “Remittance by partnership firm under Regulation 17B”, in form ODR. In cases where the investment is being made jointly by more than one Indian party, form ODA is required to be signed jointly by all the investing parties and submitted to the designated branch of the Authorised Dealer. Authorised dealer may forward to the Reserve Bank a consolidated form ODR indicating details of each party. The same procedure may be followed where the investment is made out of the proceeds of ADR/GDR issues of Indian party in terms of Regulation 6(6) of the Notification.
(ii) Clause (vi) of sub-regulation (2) of Regulation 6 provides that all transactions relating to investment in a JV/WOS are to be routed through only one designated branch of an authorised dealer designated by the Indian party. For proper follow-up, the authorised dealers are required to maintain party-wise record in respect of each JV/WOS separately.
(iii) Authorised Dealers may allow remittance towards loan to the JV/WOS and/or issue guarantee to/on behalf of the JV/WOS abroad after ensuring that the Indian party has a equity stake in the JV/WOS.
A.3 Investments under Regulation 11
In terms of Regulation 11, Indian parties are permitted to make direct investment in JV/WOS abroad by way of capitalisation of exports or other dues/entitlements like royalties, technical know-how fees, consultancy fees, etc. In such cases also, the Indian party is required to submit details of the capitalisation in form ODA to the designated branch of authorised dealer. Such investments by way of capitalisation are also to be reckoned while computing the cap of 100 per cent prescribed in terms of Regulation 6. Further, in cases where the export proceeds are being capitalised in accordance with the provisions of Regulation 11, the authorised dealers are required to obtain a custom certified copy of the invoice as required under Regulation 12(2) and forward it to the Reserve Bank together with revised form ODR. Capitalisation of export proceeds or other entitlements, which are overdue, would require prior approval of the Reserve Bank for which the Indian parties should file an application in form ODI to the Reserve Bank for consideration.
A.4 Allotment of Unique Identification Number
On receipt of the form ODR from the authorised dealer, the Reserve Bank will allot an unique identification number to each JV or WOS abroad, which is required to be quoted in all the future correspondence by the Authorised Dealer or the Indian party with the Reserve Bank. Authorised Dealers may allow additional investment in an existing overseas concern set up by an Indian party, in terms of Regulation 6 or 17B only after the Reserve Bank has allotted necessary identification number to the overseas project.
A.5 Investment by way of share swap
In the case of investment by way of share swap, Authorised Dealers are additionally required to submit to the Reserve Bank the details of transactions such as number of shares received/allotted, premium paid/received, brokerage paid/received etc., and also confirmation to the effect that the inward leg of transaction has been approved by FIPB and the valuation has been done as per laid-down procedure and that the overseas company’s shares are issued/transferred in the name of the Indian investing company. Authorised Dealers may also obtain from the applicants an undertaking to the effect that future sale/transfer of shares so acquired by Non-Residents in the Indian company shall be in accordance with the provisions of Notification No. FEMA 20/2000-RB dated May 3, 2000 as amended from time to time.
A.6 Investments under Regulation 9
In terms of Regulation 9, in certain cases investment in JV/WOS requires prior approval of the Reserve Bank. Authorised Dealers may allow remittances under these specific approvals granted by Reserve Bank and report the same to the Chief General Manager, Foreign Exchange Department, Central Office, Overseas Investment Division, Amar Building, 3rd floor, Mumbai 400 001 in the form ODR.
A.7 Investments by Partnership firms under Regulation 17A
In terms of Regulation 17A, partnership firms not eligible under Regulation 17B may make overseas investment by obtaining the specific approval of the Reserve Bank. Authorised Dealer may allow remittances for overseas investments by registered partnership firms in accordance with such approvals granted by the Reserve Bank and report the same to the Chief General Manager, Foreign Exchange Department, Central Office, Overseas Investment Division, Amar Building, 3rd floor, Mumbai 400 001 in form ODR with a superscription “Remittance by partnership firm under Regulation 17A”.
A.8 Remittance towards Earnest Money Deposit or Issue of Bid Bond Guarantee
(i) In terms of Regulation 14 of the Notification Authorised Dealers may, on being approached by an Indian party which is eligible for investment under Regulation 6, allow remittance towards Earnest Money Deposit (EMD) to the extent eligible after obtaining Form A2 duly filled in or may issue bid bond guarantee on their behalf for participation in bidding or tender procedure for acquisition of a company incorporated outside India. On winning the bid, Authorised Dealers may remit the acquisition value after obtaining Form A2 duly filled in and report such remittance (including the amount initially remitted towards EMD) to the Chief General Manager, Foreign Exchange Department, Central Office, Overseas Investment Division, Amar Building, 3rd floor, Mumbai 400 001 in form ODR. Authorised Dealers while permitting remittance towards EMD should advise the Indian party that in case they are not successful in the bid, they should ensure that the amount remitted is repatriated in accordance with Foreign Exchange Management (Realisation, Repatriation & Surrender of Foreign Exchange) Regulations, 2000 (cf. Notification No. FEMA 9/2000-RB dated 3rd May 2000).
(ii) In cases where an Indian party, after being successful in the bid/tender decides not to proceed further with the investment, Authorised Dealers should submit details of remittance allowed towards EMD/invoked bid bond guarantee in form ODR to the Chief General Manager, Foreign Exchange Department, Central Office, Overseas Investment Division, Amar Building, 3rd floor, Mumbai 400 001.
(iii) In case the Indian party is successful in the bid, but the terms and conditions of acquisition of a company outside India are not in conformity with the provisions of Regulations in Part 1 of different from those for which Approval under sub-regulation (3) was obtained, the Indian party should obtain approval from the Reserve by submitting form ODI.
A.9 Transfer by way of sales of shares of a JV/WOS outside India
I Terms and conditions governing transfer by way of sale of shares of a JV/WOS outside India:
(i) the sale is to be effected through a stock exchange where the shares of the overseas joint venture or wholly owned subsidiary are listed;
(ii) if the shares are not listed on the stock exchange, and the disinvestment is by private arrangement, the sale price of the share is not less than the value certified by a Chartered Accountant/Certified Public Accountant/Category I Merchant Bank registered with SEBI;
(iii) the Indian promoter does not have any outstanding dues by way of dividend, technical knowhow fees, royalty, consultancy, commission or other entitlements, and/or export proceeds from the joint venture or wholly owned subsidiary;
(iv) the overseas concern has been in operation for a least one full year and the annual performance report together with the audited accounts for that year has been submitted to the Reserve Bank;
(v) the Indian party is not under investigation by CBI/ED/SEBI/IRDA or any other regulatory authority in India;
Sale proceeds of shares/securities shall be repatriated to India immediately on receipt thereof and in any case not later than 90 days from the date of sale of the shares/securities.
II. Authorised Dealers may obtain following documents in order to process an application for disinvestment from an Indian party having JV/WOS abroad (these documents may be retained with the Authorised Dealer and not forwarded to RBI.)
(i) Latest Annual Performance Report on the working of the JV/WOS including financial statements.
(ii) Certified true copy of the Board Resolution approving the disinvestment and indicating the amount of disinvestment approved.
(iii) Letter of offer from the purchaser.
(iv) Consent letter from the partners in case of disinvestment of share in a JV abroad.
(v) Valuation certificate.
(vi ) Certificate from a Chartered Accountant certifying that no dues are outstanding to the Indian party or indicating the details of dues, if any, from the JV/WOS to the Indian party.
III. Authorised Dealers will forward only a report regarding disinvestment to the Regional Office of the Reserve, inter alia, should indicate the following :-
(i) Identification Number.
(ii) Name of Indian company.
(iii) Name of the country and amount of investment approved.
(iv) Amount of disinvestment.
(v) Date of repatriation of the disinvestment proceeds.
(vi) Certificate that all documents as above have been obtained.
ODA
DIRECT INVESTMENT IN JOINT VENTURE(JV)/WHOLLY OWNED SUBSIDIARY (WOS) ABROAD UNDER AUTOMATIC ROUTE
To
| (Name and address of the authorised dealer) | For use by RBI only |
| Date of receipt: | Inward No. |
| | Identification No, | | | | | | | | | | | | | |
[All amounts in Foreign Currency (FC) and Indian Rupees (INR), should be in thousand only)
I. GENERAL
| Nature and category of the investment [Please tick(? )the appropriate box] : |
| A. Fresh Proposal | B. Supplementary Proposal |
| (i)Participation in JV abroad | | (a)(i)Enhancement of equity in existing JV/ WOS abroad | |
| (ii)Contribution in WOS | | (ii) Grant/enhancement of loan in existing JV/WOS | |
| (iii)Full/partial* take over of an existing foreign concern | | (iii) Extension/enhancement of guarantee | |
| (iv)Acquisition of a company overseas through bidding or tender procedure | | (iv)Others (Please specify) | |
(*Strike out whichever is not applicable)II - PARICULARS OF INDIAN PARTY
(a)Name and Address of the Indian party
Tel. No.
Fax No.
Email ID | |
| |
| |
| (b)Date of incorporation | (c) Status* |
*(a)Public Ltd.Company (1), (b) Private Limited Company (2)
(c)Public Sector Undertaking (3), (d) Others (4) (Please specify) |
| (d)Name of the Industrial House/ Group to which the Indian party belongs | |
| (e)(i)Existing line of activity of the Indian party (Please tick the appropriate box) | (ii)Brief particulars of the products manufactured/goods traded/services rendered |
| Manufacturing | | |
| Trading | | |
| Financial Services | | |
| Non-Financial Services | | |
| Others (please specify) | | |
(f) Years of experience in the existing line of activity
(g) Financial details for the last three years (Amount in INR)
| Financial Year ending | Domestic sales/turnover | Foreign exchange earnings from exports (excluding equity exports to existing JV/WOS) | Foreign exchange earnings (other than exports) | Net profit/ (Loss) | Paid-up capital | Net worth |
| (1) | (2) | (3) | (4) | (5) | (6) | (7) |
| | | | | | | |
| | | | | | | |
| | | | | | | |
(h) Particulars of EEFC Account (Amount in FCY)
| Account No. | Balance as on | Name of the Bank/Branch |
| | | |
(i)Particulars of ADR/GDR funds raised (applicable only where the proposed investment is funded
fully/partly out of ADR/GDR funds (Amount in FCY)
| (i) Date of issue | | (iv)Amount utilised so far | |
| (ii) Amount issued | | (v)Out of (ii) above, amount utilised for overseas investments | |
| (iii)Issue Price | | (vi)Balance available (Please indicate where the funds have been parked) | |
III - PARTICULARS OF THE FOREIGN PARTNER / CONCERN
| (a)Date of incorporation : | | | | | | | | |
| D | D | M | M | Y | Y | Y | Y |
(b) Name / Address of the foreign partner/concern
Tel. No
Fax No.
Email ID | |
| |
| |
| |
| |
| (c) Years of experience in the proposed field of collaboration : |
| (d) Financial details during the last three years : |
(Amount in FCY)
| Accounting year ending | Sales/ turnover | Net fixed assets | Net Profits/ (loss) | Paid-up capital | Net worth | Dividend (%) |
| (1) | (2) | (3) | (4) | (5) | (6) | (7) |
| | | | | | | |
IV. Particulars of JV/WOS
(i) Line of activity of the proposed JV/WOS
(Please tick the appropriate box) | (ii)Brief particulars of the products manufactured/goods traded/services rendered |
| (a) Manufacturing |
| (b) Trading |
| (c) Financial Services |
| (d) Non-financial services |
| (e) Others (Please specify) |
| (iii) Location (country) of the proposed JV/WOS : |
| (iv)Time-frame for project implementation of the project : |
| (v)Accounting year followed in host country : |
| V. Financial Package | (Amount in FCY) |
| (a) Estimated cost of the project - |
of which
(i) Cost of capital equipment | |
| (ii) Cost of land | |
| (iii) Cost of civil works | |
| (iv) Cost of misc. fixed assets | |
| (v) Preliminary & pre-operative expenses | |
| (vi) Contingencies | |
| (viii) Others ( Please specify ) | |
| Total* | |
| (b)Equity share capital of the JV/WOS | |
| (i) By the Indian party | % to total equity | (ii) By foreign collaborator | % to total equity |
*Where the investment is for partial/full take over of an existing foreign concern, the total cost of acquisition may be furnished. A certificate from a chartered Accountant about reasonableness of the acquisition price should be enclosed.
| (c) Debt Finance (Amount in FCY) |
| | Amount | Period | Rate of Interest |
| TL* | WC ** | TL | WC | TL | WC |
| (i) By Indian Party | | | | | | |
| (ii) By the Foreign Partner | | | | | | |
| (iii) By banks/FIs in India | | | | | | |
| (iv) By banks/FIs abroad | | | | | | |
| Total | | | | | | |
| * TL = Term Loan ** WC = Working Capital |
| [V(a) should tally with the sum of equity and term loan as given at (b) and (c)) above (Amount in FCY) |
| (d)Guarantees/other contingent liabilities | Amount | Period | Remittance
towards invoked
guarantee |
| (i) By Indian Party | | | | |
| (ii) By Foreign Partner | | | | |
| (iii) By banks/FIs in India | | | | |
| (iv) By banks abroad | | | | |
| VI. Method of Contribution by Indian Party | (Amount in FCY) |
| (i) Foreign Exchange from the Market | |
| (ii) Out of EEFC Balances | |
| (iii) Out of ADR/ GDR Proceeds | |
| (iv) Capitalisation of Export proceeds | |
| (v) Capitalisation of other dues (please specify) | |
| VII.Profitability Projections of the overseas JV/WOS (Amount in FCY) Years of operation |
| | 1 | 2 | 3 | 4 | 5 | Total |
| (a)Gross sales/turnover | | | | | | |
| (b)Net Profit(Loss) | | | | | | |
| (c)Dividend | | | | | | |
| (d)Net worth | | | | | | |
| VIII. Projected repatriable entitlements, if any (Amount in FCY) |
| Years of operation |
| | 1 | 2. | 3 | 4 | 5 | TOTAL |
(a) Dividend
(b) Others (Please specify)
TOTAL | | | | | | |
| IX.Projected non-equity exports (Amount in INR) |
| | Years of Operation |
| 1 | 2 | 3 | 4 | 5 | TOTAL |
| FOB Value | | | | | | |
DECLARATIONWe hereby certify that (i) the information furnished above are true and correct,
(ii) all the legal and other formalities in India and the host country for the above investment have been/will be complied with,
(iii) the amount of investment by way of equity/loan and 50% of the guarantee, either out of market purchase of foreign exchange or the balances held in the EEFC account, utilisation of ADR/GDR proceeds, capitalisation of exports/other entitlements is within the limit of US$ 100.00 mn. on an annual basis, as per extant regulations and
(iv) no investigations by Directorate of Enforcement are pending against us and (v) our name is not in the Exporters’ Caution List of the Reserve Bank. /list of defaulters to the Banking system circulated by the RBI, or under investigation by the Enforcement Directorate/ SEBI/IRDA etc.
___________________________
Place: ___________
(Signature of authorised official)Date : ___________
Stamp/SealName:--------------------------------
Designation---------------------------List of enclosures :
Certificate by the Statutory Auditors of the Indian partyIt is certified that the terms and conditions contained in FEMA Notification 19/RB-2000 dated May 3, 2000 as amended from time to time( Foreign Exchange Management (Transfer & Issue of Foreign Securities) Regulations, 2000 )have been complied with by the Indian party in respect of the investment under report. In particular, it is further certified that- (i)the investment is not in real estate oriented or banking business, and (ii)* the amount of foreign exchange proposed to be purchased for remittance towards the investment together with remittances already made and exports and other dues capitalised for investment abroad during the current financial year under the Automatic Route is/will be within 100 % of the net worth of the Indian party as on the date of last audited balance sheet, (iii)**that the Indian party has (a) has made net profits during preceding three years, (b) has fulfilled the prudential norms of capital adequacy as prescribed by the concerned regulatory authority; (c) has been registered with the appropriate regulatory authority in India and (d) has obtained approval for investment in financial sector activities abroad from the concerned regulatory authorities in India and abroad (vi)*** proceeds of ADR/GDR being used for the investment is within 100 % of the amount raised abroad by way of ADR/GDR issues.
*Applicable if investment in part or full is funded out of purchase of foreign exchange from market and/or capitalisation of exports & other dues.
**Applicable only in cases where the investment is in the financial services sector (e.g. insurance, mutual fund , asset management, etc.)
***Applicable where investment is funded, in part or full, out of ADR/GDR proceeds.
Instructions for filling up the Form ODA1. This form, in duplicate, should be submitted to the authorised dealer for the purpose of making remittance.
2.The form should be complete in all respects and accompanied by
(i) certificate from the statutory auditors in the format given in the form and
(ii) certified copy of the resolution of the Board of Directors approving the investment.
In respect of supplementary proposals involving additional equity, loan or guarantee, the particulars furnished in form ODA submitted earlier in respect of the same JV/WOS need not be insisted upon; however, revised particulars of the repatriable entitlements etc., to the extent applicable, may only be obtained.
3.Where there is more than one Indian party making investment in the same JV/WOS overseas, form ODA should be obtained by all the Indian parties jointly along with a certificate(s) from other ADs, if remittances are effected by the latter.
4.In case where the Indian party is successful in the bid for overseas acquisitions for which it has already made remittance towards Earnest Money Deposit or issued bid bond guarantee, under a bidding or tender procedure, while effecting the final remittance towards such acquisition, a report in the form ODA may be obtained
ODB
Application for issue of ADRs/GDRs on back to back basis for overseas acquisitions| i) | Name and address of the Indian Company | : |
| ii) | Status of Indian Company [public limited company, private limited company, public sector undertaking or others (please specify)] | : |
| iii) | Name of the Industrial Group/House to which the applicant company belongs | : |
| iv) | Date of incorporation | : |
| v) | Existing line(s) of activity (activities) | : |
| vi) | Financial particulars of the Indian company for the last three years. | : |
(Rs.in crores)
| Financial year ended | Domestic Sales | Forex earnings by way of exports | Forex earnings (other than export of goods/services) | Net Profits/ (Loss) | Paid up capital | Net worth |
| (1) | (2) | (3) | (4) | (5) | (6) | (7) |
| ________ | _______ | _________ | _________ | _______ | ________ | ________ |
| ________ | _______ | _________ | _________ | _______ | ________ | ________ |
| ________ | _______ | _________ | _________ | _______ | ________ | ________ |
vii) Particulars of the existing overseas JV/WOS set up/acquired by the applicant company and its operational details for the last three years.
(Amount in foreign currency / million)
| Name of the overseas concern and its location | Approval No. issued by RBI | Name of foreign Currency | Amount of Investment |
| Equity | Loan | Guarantee |
| (1) | (2) | (3) | (4) | (5) | (6) |
| _______________ | ____________ | _____________ | _______ | ____ | _______ |
| _______________ | ____________ | _____________ | _______ | ____ | _______ |
| _______________ | ____________ | _____________ | _______ | ____ | _______ |
| Average annual turnover | Amount repatriated to India | Profit(loss) during the last year | Net worth as per the last balance sheet |
| Dividend | Other entitlements | Exports realised |
| (7) | (8) | (9) | (10) | (11) | (12) |
| ________ | ________ | ________ | _____ | ___________ | _______________ |
| ________ | ________ | ________ | _____ | ___________ | _______________ |
| ________ | ________ | ________ | _____ | ___________ | _______________ |
| ________ | ________ | ________ | _____ | ___________ | _______________ |
viii) Amount of blanket approval limit being sought for and the justification therefor.
(Please see the instructions)
ix) If the applicant company or its sister concern/promoters/directors are under Exporters’ Caution List of the Reserve Bank or their affairs are under investigation by Directorate of Enforcement/other law enforcing agencies, the brief particulars thereof and the present position may be indicated here.
DeclarationIt is hereby certified that the information furnished above is true and correct. It is further certified that all the legal and other regulations/requirements in India and the host country of acquisitions will be complied with when the transactions for the acquisitions are put through after obtaining necessary approval from the Reserve Bank.
Place ______________ _ ___________________________________
________________________________________________________Signature of the authorised official
Date ___________________________________________________ Name _________________________
________________________________________________________Designation ____________________
Stamp/
SealList of enclosures:
1__________________________________________ 4
2__________________________________________ 5
3__________________________________________ 6
Instructions for filling up the form ODB1. The form complete in all respects should be submitted in triplicate to the Chief General Manager, Reserve Bank of India, Foreign Exchange Department, Central Office, Overseas Investment Department, Amar Building, Mumbai-400 001.
2. For foreign currency SWIFT codes may be used.
3. If any specific acquisition deal has been negotiated, the details thereof including the name of the overseas company being acquired, its performance for the last three years, share exchange ratio, acquisition price, valuation report
4. A brief write-up incorporating, inter alia, the tentative business plan of overseas acquisitions, country of location of such foreign companies and their line of activity and financial and operational particulars, rough estimates of acquisition cost and the basis thereof, likely benefits to the applicant company and the country from such acquisitions, such as, synergy between operations, dividend and other inflows, access to technology, incremental exports, etc. should be enclosed to this form. The information furnished will be kept confidential.
5. A note indicating likely benefits to the acquiring company may also be furnished as an Annexure.
ODG
Report on overseas acquisition made under the ADR/GDR Stock Swap Scheme
For Office Use.
Date of Receipt:
Approval No.:
ccccccccccccc |
I. General| a) Name and address of the Indian Company | : ______________________
______________________
______________________
______________________ |
| b) Date of Incorporation | cccccccc
D D M M Y Y Y Y |
| c) Line(s) of activity (activities) | : ______________________
______________________
______________________ |
| d) Financial details of the Indian company for the last three years :- |
(Rs. in crores)
| Financial year ended | Domestic sales | Forex Exchange earnings from exports | Forex earnings (other than export of goods/ services) | Paid up capital | Net Profit/ (Loss) | Net-worth |
| (1) | (2) | (3) | (4) | (5) | (6) | (7) |
| _________ | ________ | ________ | _______ | ______ | ______ | ______ |
| _________ | ________ | ________ | _______ | ______ | ______ | ______ |
| _________ | ________ | ________ | _______ | ______ | ______ | ______ |
| II. Details of ADRs/GDRs issued on Stock Swap basis for the acquisition under report: | |
| a) Number and Amount of ADRs/GDRs issued for the purpose | |
| b) (i) Name of the stock exchange on which the ADRs/GDRs are listed | |
| (ii) Name of the Issue Manager | |
| c) Number of underlying share of the Indian company for each ADR/GDR issue | |
| d) (i) Acquisition price per share of the overseas (acquired) company | |
| (ii) Price of share recommended by the Investment Banker | |
| e) Price of each underlying share and ADR/GDR of the Indian company (acquiring company) | |
| f) Basis of valuation of price of the share of the Indian company | |
| g) Share Exchange Ratio (Share price of the acquired company/ share price of the acquiring company) | |
| III. Details of the foreign (acquired) company | |
| a) Name and address of the company | : ______________________
______________________
______________________
______________________ |
| b) Name(s) and address of the share holders of the acquiring company offering the shares in exchange | ______________________
______________________
______________________
______________________ |
| c) Line(s) of activity (activities) of the company | ______________________
______________________
______________________ |
| d) Financial particulars of the company for the last 3 years | |
(Amount in Foreign Currency/million)
| Accounting year ended | Name of Foreign Currency | Gross Sales/Turnover | Net Profit/(Loss) | Paid up capital | Net-worth |
| (1) | (2) | (3) | (4) | (5) | (6) |
| _________ | ________ | ________ | _______ | ______ | ______ |
| _________ | ________ | ________ | _______ | ______ | ______ |
| _________ | ________ | ________ | _______ | ______ | ______ |
iv) Post-acquisition equity structure of Indian company (acquiring company) and foreign company (acquired company)
(a) Indian Company
(%of non-resident holding to total equity) | (b) Foreign Company
(% of Indian holding to total equity) |
| Pre acquisition | Post acquisition | Pre acquisition | Post acquisition |
| ______________ | ______________ | ______________ | ______________
|
v) Cumulative position of ADRs/GDRs issued for
overseas acquisitions under the scheme
(Amount in Foreign Currency/million)
| Sr.No. | Date of Issue | Amount of Issue | Issue price per ADR/GDR | Amount outstanding | Name of the foreign company acquired | Date of report to RBI in form ODG |
| (1) | (2) | (3) | (4) | (5) | (6) | (7) |
| 1. | _____ | ________ | _________ | _________ | _________ | _________ |
| 2. | _____ | ________ | _________ | _________ | _________ | _________ |
| 3. | _____ | ________ | _________ | _________ | _________ | _________ |
vi) Any other information relevant to the acquisition under report