Recent changes in venture capital regulation



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RECENT CHANGES IN VENTURE CAPITAL REGULATION


By Vinod Kumar Raina, Company Secretary, New Delhi

Preliminary:

The object of the venture capital financing is to invest in high-risk projects with the anticipation of high returns. The funds are invested in such growing enterprises, where the ideas are there but the conventional funding from banks, financial institutions are not available. This is because that these enterprises do not have collateral to offer. These type of enterprises are usually first generation enterprises.

Venture capitalists generally:


  • Finance new and rapidly growing companies

  • Purchase equity securities

  • Assist in the development of new products or services

  • Add value to the company through active participation

  • Take higher risks with the expectation of higher rewards

  • Have a long-term orientation

Investment in India by Venture capitalists.
Given hereunder is the list of sectors where the investment is usually made by the venture capital companies.


  1. IT and IT-enabled services

  2. Software Products (Mainly Enterprise-focused)

  3. Wireless/Telecom/Semiconductor

  4. Banking

  5. PSU Disinvestments

  6. Media/Entertainment

  7. Bio Technology/Bio Informatics

  8. Pharmaceuticals

  9. Electronic Manufacturing

  10. Retail

In this article the latest changes in venture capital regulations have been given.



Definition of Venture capital:

Definitions in various countries:


India:

Venture capital fund is a fund formed as a trust or a company under the regulations which



  • Has dedicated pool of capital

  • raised in the specified manner and

  • invested in venture capital undertaking

Venture Capital undertaking is domestic company,

  • whose shares are not listed

  • which is in the business for providing services, production or manufacturing of articles which are not in the negative list.

  • Each scheme launched or fund set up by a venture capital fund shall have firm commitment from the investors for contribution or an amount or at least Rupees five crores before the start of operations by the venture capital fund

Negative list covers following activities:

  • Non-banking financial services [excluding those Non – Banking Financial companies which are registered with Reserve Bank of India and have been categorized as Equipment Leasing or Hire Purchase companies.

  • Gold financing [excluding those companies, which are engaged in gold financing for jewellery.

  • Activities not permitted under the Industrial Policy of Government of India

  • Any other activity which may be specified by the SEBI.


UK

Venture capital includes the business of carrying



  • Investing in, advising on investments which are, venture capital investment

  • managing investments which are, arranging transaction in, venture capital investments.

  • Advising on investments or managing investments in relation to portfolios or establishing, operating or winding up collective investment schemes invests only in venture capital investments

  • Any custody activities as related to above.

Venture Capital Investment is investment which at the time of investment is made, is,

  • in a new and developing company

  • in a management buy out or buy-in or

  • Made as means of financing the invitee Company or venture and accompanied by a right of consultation.


Malaysia:

Venture capital company (VCC) and Venture Capital Management Company (VCMC) means a corporation that deals in investments of securities of venture companies and are registered as VCC or VCMC under the guidelines:

Venture company means a company which utilizes seed-capital, start-up and early stage financing and,


  • in relation to VCC is not listed and

  • in relation to VCMC is not listed at the point of first investment by such VCMC.



Taiwan


Venture capital investment enterprise is a Company limited by shares, which,

  • engages in venture capital investment business under the approval of Ministry of Finance,

  • specializes in the investments either in foreign or domestic technological enterprises assist the management and supervision of such enterprise


China

Foreign invested venture capital investment (FIVCEI) means foreign invested enterprise established within the territory of China by foreign investors or foreign investors with Companies and established under Chinese Law.

Venture capital investment means a type of investment activity pursuant to which equity investment are injected mainly into high and new-tech enterprises that have not been publicly listed.
In India earlier the venture capital funding was not allowed in the Real Estate and the Gold Financing.
To redress these issues and the other operational issues Securities and Exchange Board of India (SEBI) set up an Advisory Committee on Venture Capital under the Chairmanship of Dr. Ashok Lahiri, Chief Economic Advisor, Ministry of Finance, Government of India for advising SEBI in matters relating to the development and regulation of venture capital funds industry in the country.

Terms of Reference for Advisory Committee on Venture Capital were -



  1. To advise SEBI on issues related to development of Venture Capital Fund industry.

  2. To advise SEBI on matters relating to regulation of Venture Capital Funds and Foreign Venture Capital Investors.

  3. To advise SEBI on measures required to be taken for changes in legal framework / amendments.

The major recommendations of the committee were:



OPERATIONAL ISSUES



1. Lock-in of shares after listing:

The requirement of lock-in of shares after listing may be removed.


2. Investment in listed companies:

The minimum limit of investment in unlisted companies may be reduced from 75 per cent, as present, to 66.67 per cent. The remaining portion of 33.33 per cent or less may be permitted to be invested in listed securities. The aforesaid limit of investment shall be achieved by the end of the life cycle of a fund. A life cycle of more than 10 years will

have to be justified by the fund and subject to careful examination by SEBI. Wherever such investments trigger the takeover code, all requirements of the code will have to be fulfilled by the VCF/FVCI and no exemption from the clauses may be provided. However, where as a result of investments made under mandatory requirement of takeover code, investment restrictions are breached, the same may not be considered as a violation of SEBI (VCF/FVCI) Regulations.
3. Type of instruments of investment:

Some kind of hybrid instruments which are optionally convertible into equity may be permitted as a class of investment instruments under the 66.67 per cent (now recommended) portion of the investible funds.


4. Special Purpose Vehicles (SPV):

SPVs which are mandated for promotion/investment of a Venture Capital Undertaking (VCU) may be permitted up to a maximum of 33.33 per cent portion of investible funds.


5. Investment in Non Banking Financial Services:

VCFs/FVCIs may be permitted to invest in NBFC in equipment leasing and hire purchase.


6. Investment in Real Estate:

VCFs/FVCIs may be permitted to invest in real estate.


7. Investment in Gold Financing:

Gold financing may be removed from negative list for VCF/FVCI. However, such financing should be restricted to gold financing for jewelry alone and not pure trade and speculation in gold.


ISSUES RELATING TO VENTURE CAPITAL FUNDS
1. Investment in offshore VCUs:

VCF may be permitted to invest in offshore VCUs. RBI may be requested to periodically announce the overall limit for investment by the VCFs and inform SEBI accordingly.


2. Flexibility to distribute in-specie:

The in-specie distribution of assets may be permitted at any time, as per the preference of investor(s).


ISSUES RELATING TO FOREIGN VENTURE CAPITAL INVESTORS:
1. Appointment of custodians:

The appointment of custodian by FVCI may be continued to facilitate the maintenance of records and a smooth transition when the VCU’s shares get listed.


2. Investment Limits:

The restriction of not investing more than 25 per cent of the investible funds of a FVCI in a single VCU may be removed.


TAX RELATED ISSUES
1. Section 10(23 FB):

If clause (c) of Explanation I of Section 10(23FB) is deleted, no further amendments to this Section will be required whenever SEBI changes the definition of ‘Venture Capital Undertaking’. After deletion of this clause, all VCFs which are formed as trust/company duly registered with SEBI would be eligible for exemption under Section 10(23FB).

Alternatively, the definition of ‘Venture Capital Undertaking’ under clause (c) of Explanation I of Section 10(23FB) may be aligned with definition of ‘Venture Capital Undertaking’ as defined under SEBI Regulations.
2. Exits:

For the sake of clarity and for the removal of ambiguity, a suitable clarification may be issued through a Central Board of Direct Taxes (CBDT) circular. Alternatively, in line with Explanation 2 under section 10(23FB), Explanation 3 may be added providing that VCFs would continue to enjoy tax exemption even after they receive foreign securities in lieu of domestic securities held by them in a ‘Venture Capital Undertaking’.


3. Section 115U:

For the sake of clarity and uniformity, a suitable illustration may be issued through a CBDT circular.


FOREIGN EXCHANGE CONTROL RELATED ISSUES
Wholly owned Indian subsidiaries of FVCIs registered with SEBI may be exempted from the minimum capitalization requirement of an Indian company.
Majority of these recommendations have been accepted by SEBI and others have been send to Reserve Bank of India for their recommendations.
Conclusion:

The changes in the venture capital regulation will have a positive impact on investment by venture capitalists. In 2003 India was ranked fifth in the Asia pacific region with investment of $774.01 million in 42 companies. Japan topped the list with investment of $7297.71 millions in 77 companies.


Venture capital investments in India has been increasing over the period.

Private equity and venture capital firms invested about $1.5 bln in 125 Indian companies during 2005. The 2005 Indian VC activity represented a slight decrease from 2004 when 129 companies raised $1.6 bln. A total of 63 out of the 125 companies closed rounds of over $10 mln. The Venture capital investment will definitely get the boost as the investment has now been allowed in Real Estate and Gold Financing and certain other restrictions have been eased with.








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