challenges in entry for pes in india & investment abroad · challenges in entry for pes in...
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Challenges in Entry for PEs in India
& Investment Abroad
- Anup P. Shah
1st February 2013
2 Days‟ Real Estate Summit
Hotel J.W. Marriott
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Challenges in Entry for PEs in India
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© PRAVIN P. SHAH &
ASSOCIATES, CAs 3
Types of PE
Seed Investors – start-up
Angel Investors – early / start-up stage
VC Funds – second stage
Private Equity – Growth stage / pre-IPO
PIPE – Private Investment in Public Equity
aka Preferential Issue to PEs
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© PRAVIN P. SHAH &
ASSOCIATES, CAs 4
Veto Rights
Veto Rights / Affirmative Vote
Fundamental Issues on which PE‟s
consent is a must
Most contentious clause
PEs want Veto on almost all matters
Should be clearly spelt out rather than
leaving it broad and vague
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Restrictions on Transfer
© PRAVIN P. SHAH & CO. 5
Restrictive Covenants in Articles
Valid against Co. only if part of Articles, else
remains a Private Contract
-
Whether Valid in a Public Listed / Unlisted Co.?
No pre-emptive rights allowed in Public Cos.
Pre-emptive rights possible in Public Cos.
Position under New Cos. Bill
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FDI & Instruments
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Relevant Regulations
Consolidated FDI Policy – DIPP, Ministry of Commerce
FEMA Regulations –
Mode of Investments
+ Reporting
AP Dir Circulars –
RBI‟s changes
from time to time
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Who Can Invest?
• Any Foreign Co. / LLP / EntityNon-resident
Entity
• Provided not on RBI’s Watch List
• Can invest under FDI with RBI / FIPB approval
Erstwhile OCBs
• Can invest under PIS or FDI Route
• Company must bifurcate the twoFIIs
• Can invest under FVCI Route in a VCF or under FDI route in a Company. Segregate FVCI & FDIFVCIs
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Entities for FDI
Company – Private / Public
Firm –RBI
Route for Rep. basis
LLPs –Only on
FIPB Route
Trusts –Must be
SEBI Regd. VCF
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FDI / PE Instruments
Equity
Voting NVR
Hybrid
CCD CCPS
Warrants
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Instruments
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Equity Shares
Consideration must be for Cash
All other cases – FIPB approval
Issue Price of FDI Shares
Listed Cos.
Unlisted Cos.
Must be issued within 180 days of funds
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Equity Shares
DCF Valuation
No Guidelines specified
Discretion to Valuer in selection of:
No. of Years‟ Forecast
Discount Rate / WACC
Growth Rate
Method of Calculation of Terminal Value / Perpetuity
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CCDs
Quasi-equity Instruments
Subject to ECB restrictions?
Cap on Rate of Interest?
All-in-cost ceilings like ECBs?
Tax Deduction benefits to Investee Co.
Can be redeemed / bought back by Co.?
Time limit for conversion into Equity?
8 years reasonable?
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CCDs
CFDIP
Issue Price or Conversion Formula to be specified
upfront at time of issue
Price @ Conversion Date > FMV @ Issue Date
FMV = DCF OR Preferential issue Pricing under ICDR
Earlier Issue Price was required
Flexibility in Earn-out Formula Deals
Beneficial for PE / VCF Deals
Co. gets higher Value if performance good
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NVR Shares
Issue of NVR Shares possible?
When Useful?
If Public Company?
Examples
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Preference Shares
Part of Sectoral Caps Only if CCPS
If RPS / OCPS – treated as ECBs
Must be converted within a reasonable
timeframe
Plain redemption / buyback possible?
Max. Dividend Rate
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Others
Issue of
Warrants?
Partly Paid-up Shares
Flip-flop in Policy
Recent Reports - Proposal
Paid-up portion - a part of Capital
25% paid-up upfront
Balance within 12 months
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FDI in LLPs
FDI allowed in LLPs:
Only with FIPB Approval and in sectors where Auto
Route FDI is allowed
Not in sectors where FDI requires FIPB approval
Not in sectors linked with performance conditions:
Real Estate
Downstream Invst. not possible from LLP
FIPB approval reqd. for:
Conversion of Co. with FDI into LLP
Is conversion of a RE Co. allowed? FIPB
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FDI in LLPs
FDI allowed in LLPs:
FIIs / FVCIs cannot invest in LLPs
Indian Co. with FDI can make a downstream in LLP
Both Co. & LLP must be in auto-route sectors
Both must not be in performance related sectors
Thus, no downstream in RE/ NBFC
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Total FDI
Direct FDI
FDI from Overseas in Indian Co.
Indirect FDI
FDI routed via an Indian Co.
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Indirect FDI
FDI via Indian Cos
Owned & Controlled by Resident Indian Citizens =
Domestic Investment not counted as FDI
Owned & Controlled by NRs = Indirect FDI
Ownership
More than 50% of Voting Power
Control
Power to appoint Majority of BoD
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Indirect FDI
FDI in
Real
Estate
Indco
Indco‟s
Invst.in
SPV
Indirect FDI in SPV Does SPV
need to be
FDI
compliant?
49% 51% Nil – Indco is O&C by Indians
75% 26% 26% - Indco is O&C by NRs so entire
Downstream is Indirect FDI
51% 75% 75% - Indco is O&C by NRs so entire
Downstream is Indirect FDI
60% 100% 60% - Downstream in SPV is a mirror
image of Indco
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FDI in Real Estate
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FDI in Real Estate
General Prohibitions
Real Estate Business
Construction of Farm House
Trading in Transferable Development Rights (TDRs)
„Real Estate Business‟:
Meaning
Assignment of Development Agreements?
Leasing?
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FDI in Real Estate – Guidelines
100% FDI allowed under Automatic Route subject to
conditions in Construction & Development Projects
Projects Permitted
Housing
Commercial Premises
Resorts
Educational Institutions
Recreational Facilities
City & Regional Level Infrastructure
Townships
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Conditions
Minimum Area
Serviced Housing Plots – 10 hectares/25 acres
Built-up area: 50,000 sq. mtrs. or 5,38,200 s.ft.
Combination Project – Any one of above 2
conditions
What is „built-up area‟?
What is included and what is excluded in it?
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Conditions
Investment – Minimum Capitalisation
In case of WOS – US $10M
In case of JV – US $ 5M
FDI in a JV in 99:1 between Foreign & Indian
Partner – What should be the min. capital?
RBI‟s Recent Proposal for min. Foreign Stake in JV
Securities Premium included in Min. Cap?
Whether Preference Shares included?
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Conditions
Funds to be brought within 6 months of
commencement of business
What is Commencement of Business?
Would it be date when Co. buys land as its SIT
Would it be date of approval by Local Authority?
What if delay in getting Min. Cap.?
6 mts. Time for Min. Capitalisation of $ 10 mn. not
relaxed for a WOS
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Conditions
Original Investment locked-in for 3 years
Lock-in from receipt of each Tranche or
Completion of Min. Cap.
~ whichever is later
50% project must be developed in 5 years
from date of obtaining all statutory clearances
RBI‟s view both conditions are cumulative & No EXIT
What is developed ~ Must be LIVABLE / OC obtained
50% completion of Project in 5 years also a condition for
repatriation in addition to 3 years lock-in?
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Conditions
Lock-in of Initial Investment
Can Foreign Investor sell to another NR within 3
years?
No outflow /remittance from Co.
Is lock-in on Investor or on Investment?
Can Foreign Investor sell to Domestic Investor
within 3 years?
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Conditions
Lock-in of Initial Investment
Can Mauritian Co. / Cypriot Co. which has made
FDI be sold before 3 years?
Transfer of Foreign Investor offshore
FIPB‟s View
NR-NR transfer allowed within 3 years for Foreign
Investor in RE Co. pursuant to Group
Reorganisation of Investor?
FIPB‟s View
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Conditions
Investor cannot sell „Undeveloped Plots‟
„Undeveloped Plots‟ means road, water supply, street
lighting, drainage, sewerage, etc. not made available
Developer to provide infrastructure and obtain CC
before disposing serviced housing plots
All Conditions should be mandatorily fulfilled
Min. Capitalisation / Min. Area / Lock-in NA to
Education Sector & Old Age Homes
Earlier Exit ?
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FDI in Real Estate – Issues
Whether Agricultural Land can be acquired for
developing serviced housing plots?
If FDI & non-FDI compliant projects, can Co. get
FDI?
FIPB planning to monitor end-use of funds on a
Qtly basis
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FDI in Real Estate – Issues
Whether Service Provider to Developer needs to
comply with conditions of P.Note?
Is RE Consultancy, Valuation, Property
Management = RE Business?
Is FDI allowed in this activity?
Logic?
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Structuring of PE Investments
Mauritian Co.
Real Estate SPV
Cypriot Co. Singaporean Co.
India
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Structuring of PE Investments
Azadi Bachao Andolan (SC)
Treaty Shopping is Valid
To claim DTAA benefits
PO Box Office & Professional Directors with TRC?
Substantial Presence?
What if DTAA does not contain a LOB Clause?
Singapore better than Mauritius / Cyprus?
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Structuring of PE Investments
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Factor Mauritius Cyprus Singapore
Interest under DTAA
Domestic Tax Rate
Credit for DDT
Underlying Tax Credit for
Dividends
Capital Gains Tax
LoB in DTAA
Perception
Ranking
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Top 10 FDI Jurisdictions (2000-12)
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PIS by FIIs
Can FIIs purchase shares of Listed RE Cos.
Under PIS – DLF/Unitech / Oberoi?
What if Listed Cos. have non-FDI compliant
projects?
Any limit?
Can FIIs buy under IPO?
Conditions for RE FDI applicable?
What about Pre-IPO Placements?
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PIPE – PE in a Listed Co.
If PIPE of 25% or more in a Listed Co.
by Preferential Issue
Additional Factors to be Considered :
Special Resolution - s. 81(1A) of Cos. Act
Pricing as per SEBI Preferential Issue G/L
1 year lock-in from allotment
Open Offer under Takeover Regs.
26% of total post-issue shares
Pricing of Offer as per SEBI Takeover Regs.
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PIPE of 15%+
Open Offer for min. 26% by PE Triggered on Date of Board Resolution
approving Preferential Issue not EGM Notice
Diageo - UB
If Foreign PE, then prior permission of RBInot reqd.
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FDI in Hotels & Hospitals
100% FDI under Auto Route in Hotels & Tourism
Hotels includes:
Restaurants
Beach Resorts
Other Tourist Complexes
Convention centres, seminar units
100% FDI under Auto. Route also allowed in Hospitals
RE Conditions applicable to Hotels & Hospitals? RBI‟s Proposal?
What if Mixed Use Projects?
DIPP Proposal?
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FDI in Industrial Parks
100% FDI allowed under the Automatic Route
FDI in Setting up of IPs and also in Established IPs
STPs, IT Parks, Bio-tech parks, etc
RE Conditions applicable?
Conditions for FDI
Minimum 10 Units and No Single Unit > 50% of allocable area
Minimum 66% of the total allocable area for Industrial Activity
Tax Benefits under Industrial Park Scheme, 2008
Difference between IPS 2008 and Circular 1/2011
Which is more liberal
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FDI in SEZs
100% FDI allowed under the Automatic Route in
Development of :
SEZs
Free Trade Warehousing Zones
RE Conditions Applicable?
Conditions of SEZ Act should be fulfilled
What about Transfer of Shares of an SEZ Developer?
Recent Stand of BoA
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Challenges in Investment Abroad
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Liberalised Remittance Scheme
Scheme of RBI
For Resident Individuals
Foreign citizens Resident in India?
Minors?
US $200,000 equivalent / FY
Any permissible Capital or Current A/c Transaction
Opening Bank A/c, Acquiring Real Estate
Only US$ or any Foreign Currency equivalent
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Country Negative List
Prohibited Countries?
Mauritius, Pakistan, Bhutan & Nepal
FATF Non co-operative
Iran, North Korea
What about following countries which appear in the List
of “High-risk and Non co-operative” of FATF?
Thailand?
Sri Lanka
Cuba
Indonesia
Turkey
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Sources
Out of owned funds?
Borrow and Invest?
Banks can lend for LRS?
Application-cum-Declaration Form
Rental Income / Capital gains earned on assets
held abroad under LRS can be retained abroad and
reinvested
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Buying Property Through a Co.
Set-up Co. Abroad & Acquire Property in Co.?
Would RBI permit setting up of a Co. under LRS?
Can Resident buy out shares of an Existing Co. for a
price equal to Property value?
Can Resident buy Initial Capital of an Existing Co. and
Invest balance under a Rights Issue?
Can Co. borrow abroad for buying a Mortgaged
Property?
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Practical Situations
R & NRI relative jointly buy a house abroad
Resident sends $200,000 & Balance by NRI Relative
2 Resident Brothers
4 members in each Brother‟s Family
Flat at Chelsea, London - $30,00,000 / £19,00,000
Can remit $15 lakhs of Purchase price by March
2013 and balance $15 lakhs in April 2013
Flat would be jointly owned by 8 co-owners
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Practical Situations
Can Resident sell House / Asset in India and
invest in HP abroad?
Can he claim benefit u/ss. 54 / 54F?
Is Benefit available for Houses abroad?
Yes ~ S.54
No ~ S.54F
Recent decision disallowed u/s. 54F distinguishing the
earlier 2 favourable decisions since they were under s.54
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Other Considerations
Stamp Duty
Can be as high as 10% in Singapore
Agent‟s Fees
Property Transaction Fees
Foreign Lawyer
Inheritance Tax / Estate Duty
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