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Anandita Basu | Mandatory Dematerialisation For Pvt Co.S

Watch the latest edition of JSA Live, where our Principal Associate, Anindita Basu, discusses the mandatory requirement for private companies to issue securities exclusively in dematerialized form. The objective of this amendment is to ensure transparency, efficiency, and to mitigate the risks of fraud, loss, and theft. It streamlines the share issuance process. Anindita also delves into the compliance requirements associated with this initiative.

Transcript

Earlier, in September, 2018, the Ministry of Corporate Affairs (MCA) notified the Companies (Prospectus and Allotment of Securities) Third Amendment Rules, 2018. As per the amended norms, a new rule 9A was added to the existing rules, requiring every unlisted public company to issue securities only in dematerialised form and facilitate the dematerialisation of all its existing securities in accordance with the provisions of the Depositories Act, 1996 and the regulations thereunder.

Following up on this, MCA announced the PAS amendment on 27th October, 2023 impacting all companies, majorly the private companies by way of the Companies (Prospectus and Allotment of Securities) Second Amendment Rules, 2023 (“PAS Amendment Rules”).

The PAS Amendment Rules encompass two major amendments: (i) with respect to the bearer share warrants under the erstwhile Companies Act, 1956, and (ii) mandatory dematerialisation for all private companies excluding small companies, which will briefly discuss In this session.

New Rule 9B has been inserted by way of the PAS Amendment Rules. It requires mandatory dematerialisation of securities issued by private companies. requiring all private companies other than small companies and govt co.s, to dematerialise their shares before October 1, 2024.

This amendment will ensure better transparency, efficiency, and mitigate fraud, risk of loss and theft. Streamlines the share issuance process.

Accordingly, twin obligations are placed on company & holder of shares. Under the amendment, every private company, which is not a small company, must within a period of 18 months of closure of such financial year: (a) issue the securities only in dematerialised form; and (b) facilitate dematerialisation of all its securities. Companies looking to fundraise / raise capital to note that before making any offer for issue of any securities or buyback of securities or issue of bonus shares or rights offer, they must ensure that, (c) entire holding of securities of its promoters, directors, key managerial personnel has been dematerialised.

Additionally, any security-holder who intends to transfer or subscribe to any securities of the private company, by the way of private placement, bonus or rights issue, need to ensure that all the securities are held in dematerialised form before such transfer or subscription.

Apart from this, compliances applicable to an unlisted public company pertaining to holding shares in demat form are also applicable to private companies. These include –

(a) Applications with depository for dematerialisation of all existing securities and securing ISIN for each type of security;

(b) Informing the existing security holders about the facility of dematerialisation;

To ensure such compliance, ROC now requires filing of return in form PAS-6 with ROC on a half yearly basis within 60 days from conclusion of such half of the financial year, with respect to reconciliation of the share capital of the company; Bring to the notice of the depositories, any difference in issued capital by the company and the capital held in dematerialised form;

Grievances of any security holders are now to be filed with IEPF Authority, which is entitled to initiate any action against a depository or depository participant or RTA or STA, as may be required, after prior consultation with SEBI.

Penalty: There are no specific penal provisions for non-compliance of these provisions and therefore, general penal provisions under section 450 of the Act should apply. Per Section 450, the company and every officer of the company who is in default or such other person shall be liable to a penalty of ten thousand rupees, and in case of a continuing contravention, a further penalty of one thousand rupees for each day after the first during which the contravention continues, capped to two lakh rupees in case of a company and fifty thousand rupees in case of an officer who is in default or any other person.

Tags Dematerialisation, JSA, Leading Law Firm, Leading Lawyers, Securities

The ever-increasing regulatory oversight on AIFs

Please click here to download the Prism as PDF.

Increased regulatory oversight on alternative investment funds (“AIFs”) has been in the news in the recent past. In addition to direct regulatory oversight on the AIFs itself, AIFs are also indirectly impacted by various other statutory and regulatory restrictions or conditions that are applicable to the underlying legal form of the AIF, the investors in the AIF or the investment portfolio of the AIFs.

Some of the recent statutory and regulatory amendments affecting AIFs are discussed below.

Significant beneficial ownership and AIFs

Under the SEBI (Alternative Investment Funds) Regulations, 2012 (the “AIF Regulations”), an AIF can be established or incorporated in the form of a trust or a company or a limited liability partnership (“LLP”) or a body corporate.

After trusts, LLPs have been the most preferred legal form for an AIF, since LLPs are more beneficial from a tax perspective and with lesser compliance requirements than a company.

However, in the recent past, LLPs are also being subjected to additional compliance requirements.

One recent compliance/disclosure requirement imposed on the LLPs is pursuant to the LLP (Third Amendment) Rules, 2023 and the LLP (Significant Beneficial Owners) Rules, 2023 (“SBO Rules”). As per the SBO Rules, the LLP is required to take necessary steps to find out if any individual qualifies as a ‘significant beneficial owner’ (“SBO”) in relation to the LLP. If such SBO has been identified, then the LLP must cause such individual to make a declaration in Form No. LLP BEN-1.

As per one of the exemptions available under the SBO Rules, the aforesaid requirements will not apply to the extent the contribution in the LLP is held by an investment vehicle registered with SEBI, such as an AIF. Thus, if an AIF is a partner in the LLP, the SBO Rules will not apply in respect of such AIF partner.

However, where the AIF has itself been set up as an LLP, then the SBO Rules will apply in relation to such AIF.

Accordingly,

an AIF (set up as an LLP) is required to issue a notice to a non- individual partner in Form No. LLP BEN-4, seeking information in accordance with sub-section (5) of section 90 of the Companies Act, 2013, if such non-individual partner holds atleast 10% of such AIF’s:
- contribution; or
- voting rights; or
- right to receive or participate in the distributable profits or any other distribution payable in a financial year;
every individual who is a SBO in the AIF, is required to file a declaration in Form No. LLP BEN-1 with the AIF within 90 (ninety) days from the date of commencement of the SBO Rules (i.e., November 9, 2023);
the SBO Rules define a “significant beneficial owner/SBO” as an individual who acting alone or together or through one or more persons or trust, possesses one or more of the following rights or entitlements in the LLP:
- indirectly or together with any direct holdings, not less than 10% of the contribution;
- indirectly or together with any direct holdings, not less than 10% of voting rights in respect of the management or policy decisions in such limited liability partnership;
- right to receive or participate in not less than 10% of the total distributable profits, or any other distribution, in a financial year through indirect holdings alone or together with any direct holdings;
- right to exercise or actually exercises, significant influence or control, in any manner other than through direct-holdings alone;

As per the explanation, if an individual does not hold any right or entitlement indirectly under sub-clauses (i), (ii), (iii) or (iv) above, he will not be considered a SBO. The SBO Rules further define what would be considered as holding any right or entitlement ‘directly’ and what would be considered as holding any right or entitlement ‘indirectly’.

As per the SBO Rules, if an individual (acting alone or together or through one or more persons or trust) is entitled to exercise or actually exercises, significant influence or control, in any manner other than through direct holdings alone, then such individual will be considered to be a SBO.

The term “significant influence” has been defined to mean “the power to participate, directly or indirectly, in the financial and operating policy decisions of the LLP but is not control or joint control of those policies.” (emphasis added)

The SBO Rules mandate filing a declaration in Form No. LLP BEN-1 for individuals who become SBOs or change ownership. The AIF must also file a return in Form No. LLP BEN-2 within 30 (thirty) days of receipt of declaration in Form No. LLP BEN-1, along with prescribed fees. Additionally, the AIF must maintain a register of significant beneficial owners in Form No. LLP BEN-3, open for inspection during business hours.

Until now, it was not common for information of 1 (one) investor to be made accessible to other investors of the AIF.

Further, apart from the sponsors and managers of AIFs, the investors of the AIFs also undergo ‘know your customer’ verification. Given that AIFs are already regulated by SEBI, it is unclear whether applying the SBO Rules to AIFs was needed.

Evergreening and AIFs

The Reserve Bank of India’s recent circular dated December 19, 2023, seeks to restrict evergreening of debt by banks/NBFCs through investments in AIFs. While the intent behind this circular is well received, the implications seem far reaching. For a detailed analysis, please refer to the JSA Prism of December 21, 2023.

Dematerialisation of units issued by AIFs
- In October 2018, dematerialisation of shares of unlisted public companies was mandated. In October 2023, dematerialisation of shares of private companies (that are not small companies) has also been mandated. SEBI, in its consultation paper dated February 3, 2023, proposed dematerialisation of units issued by the AIF. The consultation paper did acknowledge the concerns raised by the Alternative Investment Policy Advisory Committee (“Committee”) in its meeting held on October 11, 2022. While in-principal agreeing with the proposal of dematerialisation of AIF units, the Committee also raised certain concerns such as (i) administrative hassle/ burden for foreign investors to open demat account; and (ii) transferability of AIF units without the knowledge or control of the managers of AIFs.
- The AIF Regulations have been amended and notified on June 15, 2023 to include regulation 10(aa) which requires AIFs to issue units in dematerialised form subject to the conditions specified by SEBI from time to time.
- This was followed by the SEBI circular dated June 21, 2023, which stipulated the dates for dematerialisation of units already issued or to be issued.

Further, recognizing the possibility of unauthorized transfer of dematerialised units, SEBI, in its circular dated June 21, 2023, has clarified that the terms of transfer of AIF units held by an investor will continue to be governed by the terms of fund documents. However, the transfer restrictions under the fund documents may not be adequate, and the managers of AIFs may consider putting in place adequate mechanisms that restrict unauthorized transfer of units.

A subsequent SEBI circular dated December 11, 2023, specifies process and stipulates timelines to be followed for crediting the existing units or new units that are to be issued, in demat form, in cases where investors are yet to provide their demat account details to AIFs and also in cases where investors have provided their demat account details to AIFs. The circular inter alia provides as under:
- Units already issued by schemes of AIFs to existing investors who have not provided their demat account details, are required to be credited to a separate demat account named “Aggregate Escrow Demat Account”. This account is permitted for the sole purpose of holding demat units of AIFs on behalf of investors. New units to be issued in demat form must be allotted to such investors and credited to the Aggregate Escrow Demat Account. As and when such investors provide their demat account details to the AIF, their units held in Aggregate Escrow Demat Account should be transferred to the respective investors’ demat accounts within 5 working days. No transfer of units of AIFs from/within Aggregate Escrow Demat Account will be allowed, except as above.
- The last date for completion of credit of demat units to (x) demat accounts of investors who have provided demat account details, and (y) Aggregate Escrow Demat Account, for those who have not provided demat account details is January 31, 2024 for schemes with corpus ≥ INR 500 crore (Indian Rupees five hundred crore) (as on October 31, 2023) and May 10, 2024 for schemes with corpus < INR 500 crore (Indian Rupees five hundred crore) (as on October 31, 2023).
- Units of AIFs held in the Aggregate Escrow Demat Account can be redeemed. The proceeds can be distributed to respective investors’ bank accounts with full audit trail of such transaction.
- The AIF industry and depositories are required to adopt implementation standards formulated for compliance with the circular, by the recently set up Standard Setting Forum for AIFs (“SFA”), along with the 2 (two) depositories jointly, in consultation with SEBI. Such standards will include formats for information to be maintained by managers of AIFs with respect to holdings and transactions in the Aggregate Escrow Demat Account and reporting thereof to depositories and custodians. In this regard, CDSL Central Depository Services (India) Limited and the National Securities Depository Limited have already issued instructions in relation to opening of the Aggregate Escrow Demat Account in the month of December 2023.
- Managers of AIFs are required to adhere to such implementation standards. Such standards are required to be published on websites of the depositories and the industry associations which are part of the SFA, i.e., Indian Venture and Alternate Capital Association (IVCA), PEVC CFO Association and Trustee Association of India, within 45 (forty five) days of issuance of the aforesaid circular.

As per the aforementioned circulars, all existing and new investments in AIFs must be held in dematerialised form.

While demat of securities and units may not be a cumbersome process, opening of demat accounts by investors, especially by foreign investors or non-resident Indians can be time-consuming.

The process/implementation standards issued from time to time with respect to the Aggregate Escrow Demat Account and related matters should provide some relief and direction to the AIF industry.

Dematerialisation of investments held by AIFs
- In its meeting held on November 25, 2023, SEBI required AIFs to hold their investments in dematerialised form. SEBI has inter alia approved the following amendments to be made to the SEBI (Alternative Investment Funds) Regulations, 2012 (the amendments are still to be made):
  - Any fresh investment made by an AIF after September 2024 must be held in dematerialised form.
  - The existing investments made by AIFs made prior to September 2024 have been exempted from the aforesaid requirement, except in the following cases:

- - - Where the investee company has been mandated under applicable law to facilitate dematerialisation of its securities.

Given that all private companies (that are not small companies as per the audited financial statements of the period ended March 31, 2023) are also required to dematerialise their securities by September 2024, most of the existing investments made by the AIFs are likely to not benefit from this exemption.

- - - Where the AIF, on its own, or along with other SEBI registered intermediaries/entities which are mandated to hold their investment in dematerialised form, has control in the investee company.
The exemption will also apply to:
- Liquidation schemes of AIFs.
- Schemes of an AIF whose tenure (not including permissible extension of tenure) ends within 1 (one) year from the date of this requirement is notified.
- Schemes of an AIF which are in extended tenure as on the date this requirement is notified.

Appointment of custodian

Previously, only Category I and II AIFs with a corpus of more than INR 500 crore (Indian Rupees five hundred crore) and Category III AIFs were required to appoint a custodian. However, in its meeting held on November 25, 2023, SEBI has mandated that all AIFs must appoint a custodian. In this regard, SEBI has permitted an associate of manager or sponsor of the AIF to act as a custodian, subject to conditions that are similar to those prescribed under the SEBI (Mutual Funds) Regulations, 1996 in relation to appointment of a related party of sponsor of a mutual fund as its custodian.

Conclusion

Some of these measures are aimed at digitization and strengthening investor protection, which are welcome. However, it is hoped that such measures do not add to the ever-increasing operational costs of the AIFs, which ultimately get passed on to the investors.

Further, as discussed in our update of December 21, 2023, there is an urgent need to revisit the circular issued on December 19, 2023, in connection with evergreening as it has several unintended consequences and imposes an onerous compliance burden on fund managers.

This Prism has been prepared by:

Aashit Shah
Partner

Arrchana A Panchall
Partner

For more details, please contact [email protected]

Tags AIFs, Banking and Finance, Investment Funds, JSA, JSA Prism, Leading Law Firm, Leading Lawyers, Legal Updates

Snitch Apparels’ Fundraise from SWC Global and IvyCap Ventures

JSA advised Snitch Apparels Private Limited (Snitch Apparels) and its Founder, for Snitch Apparels’ Series A fundraise round. The Series A round was co-led by incoming investors SWC Global and IvyCap Ventures.

Snitch Apparels is a manufacturer and omnichannel seller of products in all apparel (including accessories) categories and fashion categories for men, under the ‘Snitch’ brand. SWC Global is an affiliate of a leading multi-billion venture capital firm based in Asia, which is invested in some of Asia’s leading companies. IvyCap Ventures is one of India’s leading venture capital funds, investing across sectors in early to growth stage start-ups.

Our Transaction Team Comprised Partner – Rishabh Gupta, Senior Associate – Akshath Mithal, Associate – Vaibhavi Shaunak and Ritwika Pati.

Tags JSA, Leading Law Firm, Leading Lawyers, Manufacturing, Series A fundraise, Venture Capital Funds

JSA advises Casa2Stays in its Series C funding round

JSA represented FabHotels and TravelPlus (operating under the entity Casa2 Stays Private Limited) in its Series C fundraise of INR 1,280 million from Panthera Growth Partners and Accel. FabHotels is one of India’s leading budget hotel brands and TravelPlus is a business travel and expense management platform.

JSA advised on all aspects of this transaction starting from structuring, drafting, negotiating and finalizing the transaction documents, assistance with satisfaction of the conditions precedent as well as closing/post-closing actions and other related activities. JSA also advised the client on several other incidental and ancillary aspects of the transaction such as, facilitating promoter liquidity through a secondary transaction and overseeing various other corporate actions related to this transaction.

Incoming investor Panthera Growth Partners was represented by Shardul Amarchand Mangaldas, Accel was advised by their in-house legal team while existing investor Goldman Sachs was represented by Trilegal.

Our Transaction Team Comprised Partner – Kartik Jain, Senior Associate – Debottam Chattopadhyay, Junior Associate – Anmol Mahajan, and Company Secretary – Alisha Chawla.

Our Tax Team Comprised Partner – Kumarmanglam Vijay, Associate – Shiv Singhal.

Tags Hospitality, JSA, Leading Law Firm, Leading Lawyers, Private Equity, Series C fundraise

Dematerialization of shares: Mandatory for private companies

Private companies (other than a ‘small company’) are required to take steps towards dematerialization of all its securities with effect from 27 October 2023. The requirement applies to fresh issuance of securities and securities already issued by the relevant private company. This is the latest diktat from the Ministry of Corporate Affairs, which notified the ‘Companies (Prospectus and Allotment of Securities) Second Amendment Rules, 2023’ (the “Amendment Rules”) on 27 October 2023 (the “Notification Date”).

Among other things, the Amendment Rules have inserted a new rule, i.e., Rule 9B, to the Companies (Prospectus and Allotment of Securities) Rules, 2014. The new Rule 9B and what it means to private companies has been examined below:

Within eighteen (18) months from the close of a “financial year” (the “Cut-off Date”), every private company other than a “small company” that intends to issue securities must issue securities only in a dematerialized form. Further, every private company must “facilitate” the conversion of securities held in physical form into a dematerialized form. Such efforts must be undertaken with immediate effect. “Financial Year” for the purpose of Rule 9B means a financial year ending on or after 31 March 2023, in respect of which audited financial statements are available.

Please click here to read the full article by Ajay G Prasad, published in Lexology.

Tags Amendment Rules, JSA, Leading Law Firm, Leading Lawyers, Merger and Acquisition, Notification Date

Private Equity 2023

New Advances in Private Equity and Venture Capital Investments in India

Overview

India has established itself as one of the largest hubs for start-ups, with a thriving ecosystem comprising of private equity and venture capital investors, incubators and various intermediaries. Indian start-ups received a large share of global private equity and venture capital investments, and the volumes and size of such investments are only expected to increase. This paper aims to highlight the trends in the PE/VC sector and some of the key issues faced by private equity and venture capital investors and startups in structuring investments in India.

Please click here to read the full publication by Manvinder Singh, published in Chambers and Partners.

Tags JSA, Leading Law Firm, Leading Lawyers, Private Equity, trends, Venture Capitals

Purchase Price Adjustment Mechanisms | Shraddha Krishnan Dash

Watch our latest edition of JSA Live, where partner Shraddha Krishnan Dash discusses two key mechanisms for determining the purchase price in M&A deals: the locked box method and the closing accounts adjustment method.

In the locked box approach, the price is fixed based on past financial statements, while in the closing accounts adjustment method, a tentative price is set and adjusted based on actual financials at closing. The former offers price certainty but shifts risk to the buyer, while the latter provides a more accurate financial picture.

Shraddha concludes that in the end, the choice depends on buyer profile, accounting practices, and market conditions.

Tags Corporate, JSA, Leading Law Firm, Leading Lawyers, Mergers and Acquisitions, Private Equity

JSA Newsletter | Private Equity and Funds | July 2023

Please click here to download the Prism as PDF.

Introduction

This newsletter highlights the Private Equity (“PE”)/ Venture Capital (“VC”) investment trends and thriving sectors in India for the period January 2023 to June 2023. It broadly captures the regulatory developments in Alternative Investment Funds (“AIFs”), Real Estate Investment Funds (“REITs”), Infrastructure Investment Funds (“InvITs”), Venture Capital Funds (“VCFs”), Foreign Venture Capital Investors (“FVCIs”) and Foreign Portfolio Investors (“FPI”) space that shape the investment activities in India.

2023 Outlook

The trends show that PE/ VC funds are cautious of investing in India due to various factors, such as high valuation and implementation of ESG[1] parameters and corporate governance challenges with Indian corporates, especially start-ups including some of the unicorns. This declining trend is not limited to the Indian landscape, but also extends to other global economies. A fragile American banking system, unstable Europe and the geopolitical uncertainty with China and Russia are pushing global funds to be wary of major investments globally. The advent of 2023 registered a year-to-year decline in the value of PE/ VC investment deals. The decline majorly impacted Indian start-ups as they continue to experience a ‘funding winter’ and recorded a 71% decline in investments in comparison with last year.

Sectors such as technology, e-commerce, education and media and entertainment that once dominated the investment space were not warmly received, whereas new sectors such as real estate and infrastructure are thriving due to the push given to them by the Government of India (“GoI”). In the Union Budget of 2023-24, the Finance Minister announced measures to improve infrastructure with emphasis on further development of sustainable cities to strengthen this sector’s demand and supply side. To facilitate this, an “Urban Infrastructure Development Fund” is proposed to be set up to fund urban infrastructure in Tier 2 and Tier 3 cities.

Technology, IT/ ITES[2] and fintech start-ups are analyzing the impact of ChatGTP and other AI driven initiatives. These sectors are expected to witness consolidation as companies with high burn rates strive to raise funds and will look forward to sell/ merge with their well-funded peers for non-cash consideration, primarily through stock swap. As per the 2023 investment management outlook survey[3], many active portfolio managers are leaning towards investing in AI, data analytics and data labelling. Such investments could help managers in alpha generation providing them with superior risk-adjusted returns to index investing.

Regulatory Developments

The regulatory bodies in India are periodically reviewing the regulatory framework, to boost investor confidence and bring transparency in the Indian investment and business environment. Some of the key regulatory developments for the period January 2023 to June 2023 are:

Tax incentives in the Union Budget 2023

Tax incentives are provided to foreign investment funds for relocating to International Financial Services Centre as an AIF. An example is the exemption on the capital gains arising from the transfer of shares/ units held by the shareholder/ unitholder of such foreign fund in consideration of shares/ units of the relocated AIF. The timeline to avail the benefit from such incentive is extended from March 31, 2023 to March 31, 2025.
A pass-through status is provided to InvITs and REITs (“Business Trusts”) in respect of certain specified incomes such as interest, dividend and rental income (in case of REITs) received from special purpose vehicles (Indian companies in which a Trust holds the controlling interest or prescribed percentage). Any sum received by a unit holder (including on the redemption of units to the extent receipts exceed the cost of unit), will be taxed which is (a) not in the nature of exempted income in the hands of a Business Trust (i.e., interest, dividends and rental income), and (b) not chargeable to tax in the hands of a Business Trust.
At the time of distribution of income in the nature of interest and dividends to non-resident unit holders, Business Trusts are obligated to withhold income tax at 5%/ 10%, depending on the nature of income. Previously, a certificate allowing a lower tax rate, or no deduction of tax could not be obtained for such payments. However, it is now allowed the issuance of a certificate withholding a tax certificate that permits lower or no tax withholding on such payments.

Angel tax on non-resident investments

The Finance Act 2023 has expanded the scope of the angel tax provision to include the issuance of shares to non-residents from the financial year 2023-24. Previously, this tax was charged only on the issuance of shares to persons resident in India. This is charged in the hands of the company (not being a ‘company in which the public are substantially interested’) receiving the consideration under the head of ‘Income from Other Sources’ on the amount of consideration received by it that is in excess of the ‘fair market value’ of the shares issued. This will have a significant impact on inbound investments in India. The GoI has also released the draft rules for valuation of shares for domestic and foreign investors. To read more, click here

AIFs

Transaction in corporate bonds through request for quote (“RFQ”) platform– AIFs must undertake at least 10% of their total secondary market trades in corporate bonds by value in a month by placing/ seeking quotes on the RFQ platform. All transactions in corporate bonds wherein AIF(s) is on both sides of the trade will be executed via the RFQ platform in ‘one-to-one’ mode. However, any transaction entered by an AIF in corporate bonds in ‘one-to-many’ mode which gets executed with another AIF, will be counted in ‘one-to-many’ mode and not in ‘one-to-one’ mode.
Direct Plan for schemes and trail model for distribution commission– It is specified that for investors who have on-boarded AIFs/ schemes of AIFs from May 1, 2023:
1. schemes of AIFs will have an option of ‘Direct Plan’ for investors, which will not entail any distribution fee/ placement fee;
2. AIFs must disclose any distribution fee/ placement fee, to the investors of the AIF/ scheme of the AIF at the time of on-boarding;
3. Category I AIFs and Category II AIFs may pay upto one-third of the total distribution fee/ placement fee to the distributors on upfront basis, and the remaining fee must be paid on an equal trail basis over the tenure of the fund; and
4. Category III AIFs must charge any distribution fee/ placement fee to investors only on an equal trail basis over the tenure of the fund and no upfront distribution fee/ placement fee can be charged, directly or indirectly. Any distribution fee/ placement fee paid will be only from the management fee received by the managers of such Category III AIFs.
Guidelines for excluding an investor from an investment of AIFs– An AIF may excuse its investor from participating in a particular investment in the following circumstances:
1. if the investor, based on the opinion of a legal professional/ legal advisor, confirms that its participation in the investment opportunity would be in violation of an applicable law or regulation;
2. if the investor, as part of the contribution agreement or any other agreement signed with the AIF, had disclosed to the manager that, the investor’s participation in such investment opportunity would be in contravention to the investor’s internal policy;
3. if the manager of the AIF is satisfied that the participation of such investor in the investment opportunity would lead to the scheme of the AIF being in violation of applicable law or regulation or would result in material adverse effect on the scheme of the AIF; and
4. if the investor of an AIF is also an AIF or any other investment vehicle, such investor may be partially excused or excluded from participation in an investment opportunity, to the extent of the contribution of the said fund/ investment vehicle’s underlying investors who are to be excused or excluded from such investment opportunity.
Credit Default Swaps (“CDS”)– The key conditions applicable to AIFs for dealing in CDS are as follows:
1. Category I AIFs and Category II AIFs may buy CDS on underlying investment in debt securities only for the purpose of hedging;
2. Category III AIFs may buy CDS for the purpose of hedging or otherwise within permissible leverage as specified in the Securities and Exchange Board of India (“SEBI”) circular dated July 29, 2013;
3. Category III AIFs may sell CDS subject to the condition that effective leverage undertaken is within the permissible limits as specified in SEBI circular dated July 29, 2013; and
4. Category II AIFs and Category III AIFs may sell CDS by earmarking unencumbered Government bonds/ Treasury bills equal to the amount of the said CDS exposure.
Introduction of the Corporate Debt Market Development Fund– A new category of AIF called Corporate Debt Market Development Fund (“CDMDF”) is introduced. The CDMDF will act as a backstop facility for purchase of investment grade corporate debt securities to instill confidence amongst the participants in the corporate bond market during times of stress and to generally enhance secondary market liquidity.
Issue of units in dematerialized form– It is now mandatory for AIFs to issue units in dematerialized form subject to the conditions specified by SEBI.
Approval of investors for buying or selling investments– The amendment has introduced additional conditions which will need to be complied with by AIFs while buying or selling investments.
1. AIFs will require the approval of 75% of the investors by value of their investment in the AIF, to invest in:
  1. associates; or
  2. units of AIFs managed or sponsored by its manager, sponsor, or associates of its manager or sponsor.
2. The approval of 75% of the investors by value of their investment in the scheme of the AIF is required to buy or sell investments, from or to:
  1. associates; or
  2. schemes of AIFs managed or sponsored by its manager, sponsor or associates of its manager or sponsor; or
  3. an investor who has committed to invest at least 50% of the corpus of the scheme of the AIF.

However, the investor specified under para (c) above who has committed to investing at least 50% of the corpus of the scheme of the AIF and is buying or selling the investment, from or to, the AIF, will be excluded from the voting process.

Valuation of investment– AIF’s will have to carry out valuation of their investments in accordance with the manner specified by SEBI from time to time. The manager of the AIF must ensure that the AIF appoints an independent valuer who satisfies the criteria specified by SEBI from time to time. The manager and the key management personnel of the manager must ensure that the independent valuer computes and carries out valuation of the investments of the scheme of the AIF in the manner specified by SEBI.
Appointment of compliance officer– As per the amendments, the manager of each AIF is required to appoint a compliance officer for the AIF. The compliance officer is responsible for monitoring compliance of the AIF with the provisions of the SEBI Act, 1992, rules, regulations, notifications, circulars, guidelines, instructions or any other directives issued by SEBI. The compliance officer is required to immediately and independently report any non-compliance observed by him to SEBI, as soon as possible but no later than 7 (seven) working days from the date of observing such non-compliance.

FPIs

Streamlined boarding process of FPIs– Designated Depository Participants (“DDPs”) may grant FPI registration to the applicant on the basis of scanned copies of the executed Common Application Form (“CAF”) and the certified supporting documents and payment of the applicable fees. They are required to update the CAF module as per the standard process for issuance of Permanent Account Number (“PAN”) card. Post PAN allotment, the scanned copies of the applicant’s certified Know Your Client (“KYC”) documents must be uploaded on the KYC Registration Agencies by the DDP/ custodian. Only upon receipt and verification of the physical documents by the DDP/ custodian, the custodian will make an application to the clearing corporation for the allotment of a custodial participant code to the FPI and carry out necessary steps for enabling the FPI to transact in the Indian securities markets. FPIs may use digital signatures for the purpose of execution of CAF and other registration related documents, in accordance with the provisions of the Information Technology Act, 2000.
Disclosure of information to SEBI– FPIs are required to inform SEBI and DDPs, within 7 (seven) working days, if there is:
1. information or particulars previously submitted to SEBI or DDP found to be false or misleading, in any material respect;
2. material change in the information including any direct or indirect change in its structure or ownership or control or investor group previously furnished by him to SEBI or DDP; and
3. penalty, pending litigation or proceedings, findings of inspections or investigations for which action may have been taken or is in the process of being taken by an overseas regulator against

REITs and InvITs

Dematerialized form of securities– InvITs/ REITs are required to hold the securities of holding companies and special purpose vehicles only in dematerialized form. In case the existing securities holdings are in physical form, the managers of the InvITs/ REITs are directed to dematerialize the same on or before June 30, 2023. This move aims to facilitate transparency and doing business.
Appointment of auditors and woman director– The investment manager/ manager of the InvIT/ REIT must appoint a woman independent director on the board of the investment manager/ manager, establish a vigil mechanism, submit the compliance reports and appoint an individual or a firm as the auditor. The investment manager/ manager cannot appoint or re-appoint an auditor (a) in the case of an individual, for more than 1 (one) term of 5 (five) consecutive years; and (b) in the case of an audit firm, for more than 2 (two) terms of 5 (five) consecutive years. The auditors must undertake a limited review of the audit of all the entities or companies whose accounts are to be consolidated with the accounts of the InvIT/ REIT.
Applicability of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (“LODR Regulations”)– Certain provisions of the LODR Regulations, such as constituting an audit committee, nomination and renumeration committee, risk management committee and stakeholders relationship committee, employees obligations including senior management and obligations in respect of independent directors, are made applicable to InvITs and REITs.
Leverage calculation– It has been clarified that overnight mutual funds, characterized by investments in overnight securities and with maturity of 1 (one) day, will be considered cash and cash equivalents; and the amount of cash and cash equivalent will be excluded from the value of the REIT/ InvIT assets.
Definition of “change in control”– The definition of ‘change in control’ is amended to include the right to appoint a majority of the directors or control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly. This may be through the authority shareholding or management rights or shareholders agreements or voting agreement.

Road Ahead

From January 2023, SEBI is engaged in consultation with the various stakeholders to improve the governance, operation, and registration provisions for REITs, InvITs, AIFs, FVCIs, and VCFs. Some of the anticipated amendments are listed below:

AIFs

To address the concerns of the priority distribution model (“PDA”) in the AIF schemes, SEBI is considering introducing prorata and paripassu rights of the investors. It is proposed that:
1. while making investment, the rights of each investor may be required to be maintained prorata to their commitment to the scheme;
2. while distributing the proceeds of the investment, the rights of each investor may be maintained on pro rate to the investment made in the investee company;
3. the ongoing PDA-based scheme may continue without new commitments and investments; and
4. differential rights, other than the hurdle rate of return, performance linked fee/ additional return and management fees, which can affect the rights of other investors cannot be granted and all investors will be required to be treated equally in AIFs.
To ensure that AIFs do not hold their certificate of registration indefinitely, without any intention of carrying out the activity of an AIF, it is proposed that the AIF may pay a renewal fee equal to 50% of its applicable registration fee for the subsequent block of 5 (five) years from the date of grant of their registration, within 3 (three) months of expiry. Existing AIFs who have completed 5 (five) years from the date of grant of certificate of registration are required to pay renewal fee equal to 50% of its applicable registration fee.
AIFs, other than those having 50% or more contribution from a single investor or investors belonging to the same group, may be entitled to avail benefits designated for qualified institutional buyers (“QIBs”).

FPIs

SEBI is contemplating additional disclosures for FPIs to safeguard the minimum public shareholding requirement and compliance with the provisions of Press Note 3 of 2020, which prescribed that an entity of a country that shares land border with India, or where the beneficial owner of an investment into India is situated in or is a citizen of any such country, can invest only under the Government approval route.

REITs/InvITs

Affirming that a strong and independent board of directors of the manager/ investment manager of a REIT/ InvIT is important, SEBI proposes:

a unitholder holding a minimum of 10% of units, will be entitled to nomination rights, i.e., for every 10% held, the unitholder will be entitled to nominate one director on the board of the manager/ investment manager of the REIT/ InvIT;
formation of the unitholders council with members nominated by the unitholders holding minimum 10% of units, with the aim of making it mandatory for the manager/ investment manager of the REIT/ InvIT to constitute such a Unitholders Council;
making the stewardship code, which is currently applicable to mutual funds and all categories of AIFs, applicable to the entities having representation on the board of directors of the manager/ investment manager of the REIT/ InvIT and/ or the Unitholders Council;
having at least one “sponsor” (sponsor is defined as a person who sets up the REIT/ InvIT and is designated as such at the time of application for registration) throughout the life of the REIT/ InvIT ensuring that the said sponsor holds a certain percentage of units in the REITs/ InvITs on a perpetual basis.

FVCIs

While filing the registration application, FVCIs may be permitted to avail the services of DDPs for obtaining a certificate of registration. The requirement of PAN and demat account can be pre-requisites for the purpose of registration of FVCIs. Form A can be aligned with the common application form used for FPIs.
It is proposed to align the eligibility criteria of FVCIs with FPIs.
FVCIs may soon be required to hold the instruments/ securities of their investments only in dematerialized form.
To ensure that FVCIs do not hold their certificate of registration indefinitely, without any intention to carry out the activity of an FVCI, it is proposed that an FVCI may pay a renewal fee of USD 2500 (US Dollars two thousand five hundred) if it wishes to continue with its registration for the subsequent block of 5 (five) years.
FVCIs, who are other than corporate bodies and family offices, may be designated as QIBs.

VCFs

VCFs, other than those having 50% or more contribution from a single investor or investors belonging to the same group, may be entitled to avail benefits designated for QIBs.

Conclusion

While the regulatory landscape in India continues to evolve promoting the ease of doing business, the microeconomic factors and global trends have been uncertain, thereby impacting investments in India. With the decline in funding due to the ‘funding winter’, the valuation of start-ups has corrected and led to market consolidation by acquiring start-ups with high capital burn out.

This Newsletter has been prepared by: