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Master Circular on Direct Investment by Residents in Joint Venture (JV) / Wholly Owned Subsidiary (WOS) Abroad.

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....This circular will stand withdrawn on July 01, 2012 and be replaced by an updated Master Circular on the subject.  Yours faithfully (Dr. Sujatha Elizabeth Prasad) Chief General Manager ============= Document 1 ● भारतीय ESERVE जर्व बैंक - Vo BANK OF PART- SECTION A - GENERAL A.1 INTRODUCTION- A.2 STATUTORY BASIS A.3 PROHIBITIONS INDEX -3 A.4 GENERAL PERMISSION SECTION B - DIRECT INVESTMENT OUTSIDE INDIA B.1 AUTOMATIC ROUTE B.2 INVESTMENT IN UNINCORPORATED ENTITIES OVERSEAS UNDER THE AUTOMATIC ROUTE B.3 METHOD OF FUNDING 10 11 B.4 CAPITALISATION OF EXPORTS AND OTHER DUES 12 B. 5. INVESTMENTS IN FINANCIAL SERVICES SECTOR- 12 B.6 INVESTMENT IN EQUITY OF COMPANIES REGISTERED OVERSEAS / RATED DEBT INSTRUMENTS B.7 APPROVAL OF THE RESERVE BANK B.8 INVESTMENTS IN ENERGY AND NATURAL RESOURCES SECTOR 13 15 15 B.9 OVERSEAS INVESTMENTS BY PROPRIETORSHIP CONCERNS 16 B.10 OVERSEAS INVESTMENT BY REGISTERED TRUST / SOCIETY 17 B.11 POST INVESTMENT CHANGES / ADDITIONAL INVESTMENT IN EXISTING JV/WOS 18 B. 12 RESTRUCTURING OF THE BALANCE SHEET OF THE OVERSEAS ENTITY INVOLVING WRIT....

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.... 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. They are also important drivers of foreign trade through increased exports of plant and machinery and goods and services from India and also a source of foreign exchange earnings by way of dividend earnings, royalty, technical know-how fee and other entitlements on such investments. (2) 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 the rules and simplifying the procedures both for current account as well as capital account transactions. A.2 Statutory basis (1) Section 6 of the Foreign Exchange Management Act, 1999 provides powers to the Reserve Bank to specify, in consultation with the Government of India the classes of permissible capital account transactions and limits up to which foreign 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 tra....

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....-SE resources outside India. General permission is also available to sell the shares so purchased or acquired. Section B - Direct Investment Outside India B.1 Automatic Route (1) In terms of Regulation 6 of the Notification, an Indian party has been permitted to make investment in overseas Joint Ventures (JV) / Wholly Owned Subsidiaries (WOS), not exceeding 400 per cent of the net worth² as on the date of last audited balance sheet of the Indian party, i.e. a company incorporated in India or a body created under an Act of Parliament or a partnership firm registered under the Indian Partnership Act, 1932, making investment in a JV/WOS abroad and includes any other entity in India excluding individuals as may be notified by the Reserve Bank. (2) The ceiling of 400 per cent of net worth will not be applicable where the investment is made out of balances held in Exchange Earners' Foreign Currency account of the Indian party or out of funds raised through ADRs/GDRs. The Indian party should approach an Authorised Dealer Category - I bank with an application in Form ODI (Annex A) and prescribed enclosures / documents for effecting remittances towards such investments.....

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....for creating charge on immovable property and pledge of shares of the Indian parent/group companies in favour of a non-resident entity. Website: www.fema.rbi.org.in 6 Email : [email protected] ● भारतीय ESERVE BANK OF b) c) d) e) f) The Indian party should not be on the Reserve Bank's Exporters' caution list / list of defaulters to the banking system circulated by the Reserve Bank / Credit Information Bureau (India) Ltd. (CIBIL) / or any other credit information company as approved by the Reserve Bank or under investigation by any investigation / enforcement agency or regulatory body. All transactions relating to a JV / WOS should be routed through one branch of an Authorised Dealer bank to be designated by the Indian party. In case of partial / full acquisition of an existing foreign company, where the investment is more than USD 5 million, valuation of the shares of the company shall be made by a Category | 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 Chartered Accountan....

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....d to report such acquisition in form ODI to the AD Bank for submission to the Reserve Bank within a period of 30 days from the date of the transaction. 8 Website: www.fema.rbi.org.in Email : [email protected] ● भारतीय ESERVE रिजर्व - VION BANK OF Note: Investments in Nepal are permitted only in Indian Rupees. Investments in Bhutan are permitted in Indian Rupees as well as in freely convertible currencies. All dues receivable on investments made in freely convertible currencies, as well as their sale / winding up proceeds are required to be repatriated to India in freely convertible currencies only. The automatic route facility is not available for investment in Pakistan. B 1.1 Issue of guarantee by an Indian Party to step down subsidiary of JV /WOS (a) Indian Parties are permitted to issue corporate guarantees on behalf of their first level step down operating JV /WOS set up by their JV / WOS operating as a Special Purpose Vehicle (SPV) under the Automatic Route, subject to the condition that the financial commitment of the Indian Party is within the extant limit for overseas direct investment. I....

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....net worth provided the proposal has been approved by the competent authority and is duly supported by certified copy of the Board resolution approving such investment. Investment in excess of 400 per cent of the net worth of an Indian company shall require prior approval of the Reserve Bank. (3) Indian companies are also permitted to participate in a consortium with other international operators to construct and maintain submarine cable systems on co-ownership basis under the automatic route. Accordingly, AD Category - | banks may allow remittances by Indian companies for overseas direct investment, after ensuring that the Indian company has obtained necessary licence from the Department of Telecommunication, Ministry of Telecommunication & Information Technology, Government of India to establish, install, operate and maintain International Long Distance Services and also by obtaining a certified copy of the Board Resolution approving such investment. Website: www.fema.rbi.org.in 10 Email : [email protected] ● भारतीय ESERVE रिजर्व BANK OF INDIA SER Accordingly, these transactions may be reported by....

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....n the form of shares without entering into Joint Venture Agreements, with prior approval of the Reserve Bank. B. 5. Investments in Financial Services Sector (1) In terms of Regulation 7 of the Notification, an Indian party seeking to make investment in an entity outside India, which is engaged in the financial sector, should fulfill the following additional conditions: (i) be registered with the regulatory authority in India for conducting the financial sector activities; (ii) has earned net profit during the preceding three financial years from the financial services activities; (iii) (iv) has obtained approval from the regulatory authorities concerned both in India and abroad for venturing into such financial sector activity; and has fulfilled the prudential norms relating to capital adequacy as 12 Website: www.fema.rbi.org.in Email : [email protected] ● भारतीय ESERVE जर्व बैंक - VI BANK OF prescribed by the concerned regulatory authority in India. (2) Any additional investment by an existing JV/WOS or its step down subsidiary in the financial services sector is also required ....

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....sued by overseas Mutual Funds or Unit Trusts registered with overseas regulators and investing in (a) aforesaid securities, (b) Real Estate Investment Trusts (REITS) listed on recognized stock exchanges overseas, or (c) unlisted overseas securities (not exceeding 10 per cent of their net assets). (2). A limited number of qualified Indian Mutual Funds, are permitted to invest cumulatively up to USD 1 billion in overseas Exchange Traded Funds as may be permitted by SEBI. (3). Domestic Venture Capital Funds registered with SEBI may invest in equity and equity linked instruments of off-shore Venture Capital Undertakings, subject to an overall limit of USD 500 million. Accordingly, Mutual Funds / Venture Capital 14 Website: www.fema.rbi.org.in Email : [email protected] ● भारतीय रिजर्व ESERVE BANK OF VIGN Funds desirous of availing of this facility may approach SEBI for necessary permission. (4). General permission is available to the above categories of investors for sale of securities so acquired. B.7 Approval of the Reserve Bank (1) Prior approval of the Reserve Bank would be required in all other ....

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....e AD Category - I bank is satisfied that the exporter is KYC (Know Your Customer) compliant and is engaged in the proposed business and meets the requirement as indicated at i) above. Exporter has proven track record i.e. overdue exports do not exceed 10 per cent of the average export realization of preceding three financial years. The exporter has not come under adverse notice of any Government agency like Directorate of Enforcement, CBI and does not appear in the exporters' caution list of the Reserve Bank or in the list of defaulters to the banking system in India. The amount of investment outside India does not exceed 10 per cent of the average export realization of the preceding three financial years or 200 per cent of the net owned funds of the firm, whichever Website: www.fema.rbi.org.in 16 Email : [email protected] ● भारतीय ESERVE जर्व बैंक - VIOL रिजर्व BANK OF is lower. B.10 Overseas investment by Registered Trust / Society Registered Trusts and Societies engaged in manufacturing / educational / hospital sector are allowed to make investment in....

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....ay diversify its activities / set up step down subsidiary / alter the shareholding pattern in the overseas entity (subject to compliance of Regulation 7 of the Notification in the case of financial services sector companies). The Indian party should report to the Reserve Bank through the AD Category - I bank, the details of such decisions within 30 days of the approval of those decisions by the competent authority of the JV / WOS concerned in terms of local laws of the host country and include the same in the Annual Performance Report (APR—Part III of form ODI) required to be forwarded to the AD Category-l bank. B. 12 Restructuring of the balance sheet of the overseas entity involving write-off of capital and receivables In order to provide more operational flexibility to the Indian corporates, the Indian promoters who have set up WOS abroad or have at least 51 per cent stake in an Website: www.fema.rbi.org.in 18 Email : [email protected] ● भारतीय ESERVE रिजर्व BANK OF NDIA E overseas JV, may write off capital (equity / preference shares) or other receivables, such as, loans, royalty, techn....

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....ould be submitted by the designated AD category - I bank to the Reserve Bank along with the APR (Part III of Form ODI). (2) Reporting requirements including submission of Annual Performance Report are also applicable for investors in unincorporated entities in the oil sector. B.15 Transfer by way of sale of shares of a JV/WOS 1. An Indian Party without prior approval of the Reserve Bank may transfer by way of sale to another Indian Party which complies with the provisions of Regulation 6 of FEMA Notification 120/RB-2004 dated July 7, 2004 or to a person resident outside India, any share or security held by it in a JV or WOS outside India subject to the following conditions: (i) (ii) (iii) the sale does not result in any write off of the investment made. the sale is effected through a stock exchange where the shares of the overseas JV/ WOS are listed; if the shares are not listed on the stock exchange and the shares are disinvested by a private arrangement, the share price is not less than the value certified by a Chartered Accountant / Certified Public Accountant as the fair value of the shares based on the latest audited financial statements of the JV / WOS; ....

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.... of pledge, the shares held in overseas JV/WOS, to an overseas lender, provided the lender is regulated and supervised as a bank and the total financial commitments of the Indian party remain within the limit stipulated by the Reserve Bank for overseas investments, from time to time. B.18 Hedging of Overseas Direct Investments (1) - Resident entities having overseas direct investments are permitted to hedge the foreign exchange rate risk arising out of such investments. AD Category I banks may enter into forward / option contracts with resident entities who wish to hedge their overseas direct investments (in equity and loan), subject to verification of such exposure. Cancellation of such forward contracts may be permitted by AD Category - I banks and 50 per cent of such cancelled contracts may be allowed to be rebooked. (2) 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 up to the extent of market value as on that date. 22 Website: www.fema.rbi.org.in Email : [email protected] ● भारतà....

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....eme provided (i) the shares were issued in accordance with the Rules / Regulations framed under Foreign Exchange Management Act, 1999, (ii) the shares are being repurchased in terms of the initial offer document, and (iii) an annual return is submitted through the AD Category - I bank giving details of remittances / beneficiaries, etc. In all other cases, 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 Pledge 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 AD Category - I bank / Public Financial Institution. C.3 General permission in certain cases Residents are permitted to acquire a foreign security, if it represents — a) qualification shares for becoming a director of a company outside India provided it does not exceed 1 per cent of the paid up capital of the overseas company and the consideration for the acquisition....

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....er, the Indian party may designate different AD Category - I banks / branches of AD Category - I banks for different JV / WOS outside India. For proper follow up, the AD Category - I bank is required to maintain party-wise record in respect of each JV/ WOS. 2. Investments under Regulation 6 of Notification No. FEMA 120/2004-RB dated July 7, 2004 AD Category - I banks may allow investments up to the permissible limits on receipt of application in form ODI together with form A-2, duly filled in, from the Indian party(ies) making investments in a JV/WOS abroad subject to their complying with the conditions specified in Regulation 6 of Notification FEMA No.120/RB-2004 dated July 7, 2004, as amended from time to time. Investment in financial services should also comply with the norms stipulated at Regulation 7 of the Notification. While forwarding the report of remittance in respect of investment in financial services sector, AD Category – I banks may certify that prior approvals from the Regulatory Authorities concerned in India and abroad have been obtained. Before allowing the remittance, AD Category - I banks are required to 26 Website: www.fema.rbi.org.in ....

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....nt Application. The on-line reporting would be required to be made by the Centralized Unit/Nodal Office of AD Category I banks. The Overseas Investment Application is hosted on the Reserve Bank's Secured Internet Website (SIW) https://secweb.rbi.org.in and a link has been made available for accessing the Application on the main page of the website. AD Category - I banks would be responsible for the validity of the information reported on-line. The application for overseas investment under the approval route would continue to be submitted to the Reserve Bank in physical form as hitherto, in addition to the on-line reporting of Part I as contemplated above, for approval purposes. In case of disinvestment / closure / winding up / voluntary liquidation under the Automatic Route, in terms of A. P. (Dir Series) Circular No. 29 dated March 27, 2006, a report should continue to be submitted by the designated AD Category - I bank, in Part IV of form ODI. In all other cases of disinvestment, an application along with the necessary supporting documents should be submitted to the Reserve Bank as per the existing procedure. 28 Website: www.fema.rbi.org.in Email : [email protected]....

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....export proceeds or other entitlements, which are overdue, would require prior approval of the Reserve Bank for which the Indian parties should make an application in form ODI to the Reserve Bank for consideration. 5. Allotment of Unique Identification Number (UIN) The Unique Identification Number allotted to each JV or WOS abroad, is required to be quoted in all correspondence with the Reserve Bank. AD Category – I banks may allow additional investment in an existing overseas concern set up by an Indian party, in terms of Regulation 6 only after the Reserve Bank has allotted necessary Unique Identification Number to the overseas project. 6. Investment by way of share swap In the case of investment by way of share swap, AD Category - I banks 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 the laid-down procedure and that the overseas company's shares are issued / transferred in the name of ....

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.... 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), as amended from time to time - 31 Website: www.fema.rbi.org.in Email : [email protected] ● भारतीय ESERVE & VIGN रिजर्व OF IN BANK O (ii) (iii) In cases where an Indian party, after being successful in the bid / tender decides not to proceed further with the investment, AD banks should submit full details of remittance allowed towards EMD / invoked bid bond guarantee, to the Chief General Manager, Foreign Exchange Department, Central Office, Overseas Investment Division, Amar Building, 5th floor, Mumbai 400 001. 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 I, or different from those for which approval under sub-regulation (3) was obtained, the Indian entity shou....

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.... VII below]. (VII) Financial particulars of the Indian Party for the last 3 years (Amt. in Rs. 000s) Particulars Year 1 31-3- Year 2 31-3 Year 3 31-3 Foreign exchange earnings (excluding equity exports to JV/WOS) Net profit Paid-up Capital Net worth of (a) Indian Party (b) Group Company@ @ In terms of Explanation to Regulation 6 (3) of Notification No. FEMA 120/ RB-2004 dated July 7, 2004 (VIII) Particulars of existing Joint Ventures (JV) and Wholly Owned Subsidiaries (WOS) already in operation or under implementation, of the Indian party and its group concerns: Sr. Name of Indian Party No. 1. 2. 3. Unique Identification Number allotted by Reserve Bank (IX) Whether the proposed investment is (Tick the appropriate box) * (a) New Project (b) Existing Project* (Please furnish the details in Section B) (Please furnish the details in Section C) Acquisition of stake in an already existing JV/WOS overseas promoted by an Indian party. 34 Website: www.fema.rbi.org.in Email : [email protected] ● भारतीय ESERVE रिजर्व INDIA-SEE BANK OF Section B: Details of Investment in New Project For....

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....) Funds contributed in the form of equity/ preference equity/ shareholder's loans by foreign investors v) Securitisation vi) Any other mode (please specify) Total Amount VI. Guarantees/ Other Non fund based Commitments Note* Financial Commitment as defined in FEMA 120/RB-2004 dated July 7, 2004 Sec 2(f)- Financial Commitment means amount of Direct Investment by way of contribution to equity, loan and 100 per cent of the amount of guarantee issued by Indian Party to or on behalf of its overseas Joint Venture company or Wholly Owned Subsidiary. 37 Website: www.fema.rbi.org.in Email : [email protected] ● भारतीय SERVE जर्व बैंक - VIO BANK OF Section E: Declaration by the Indian Party I (a) Whether the applicant party (ies), its promoters, directors, etc., are under investigations by any investigative/enforcement agency or regulatory body. If yes, the brief details thereof, including present stage of investigation/ adjudication / manner of disposal of the case. (b) Whether the promoter Indian party(ies) is(are) presently on Exporters' Caution List of Reserve Bank for non-realization of e....

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....nsurance, mutual fund, asset management, etc.). # Applicable where investment is funded through ECB/FCCB balances. (Signature of the Statutory Auditor of the Company) Name of the firm, Stamp and Registration number 39 Website: www.fema.rbi.org.in Email : [email protected] ● भारतीय ESERVE रिजर्व BANK OF VIGN PART II REPORTING OF REMITTANCES For office use only Date of Receipt Inward No. In case investment is in the existing JV/WOS, please indicate Unique Identification No. already allotted: No. (I) Name of Indian Company: (II) Is there any change in Company name since last reporting? (Y/N) If yes, specify Old Company Name DETAILS OF CURRENT REMITTANCES EFFECTED (Amount in 000's of FCY) Code of Reporting AD foreign currency**: (a) From EEFC A/c. Equity Loan Guarantee (Invoked) Date of Remittance (b) By Market Purchases Equity Loan Guarantee (Invoked) Date of Remittance (c) From the ADR/GDR funds Equity Loan Guarantee (Invoked) Date of Remittance (d) By Swap of Shares Equity Loan Guarantee (Invoked) Date of Swap XXXX 40 Website: www.fema.rbi.org.in Email : [email protected].....

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.... ended business of (v)Others** (Please specify) *(Represent part of the profits of the JV/WOS which is retained and reinvested in the JV/WOS). ** (Royalties, technical know-how fees, consultancy fees, etc.) 42 Website: www.fema.rbi.org.in Email : [email protected] ● भारतीय ESERVE रिजर्व BANK OF VI. Investment in step down subsidiaries since last reporting Country Name of JV/WOS Amount of Investment Place: Date : Name:- Designation--- (Signature of authorised official) Stamp/Seal (Signature of the Statutory Auditor of the Company) Name of the firm, Stamp and Registration number Signature of the Authorised Official of the bank: Name: Designation: 43 Website: www.fema.rbi.org.in Email : [email protected] ● भारतीय ESERVE रिजर्व BANK OF NDIA SE PART IV Report on Closure / Disinvestment / Voluntary Liquidation /Winding Up of JV/WOS (To be submitted by the designated AD Category -| bank (All Amounts in FCY, in thousands) Name and Address of the AD Category - I bank: AD Code: Unique Identification Number allotted by th....

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....AD. Part III is the Annual Performance Report, which contains brief particulars of the performance of the overseas entity and Part IV is to be used at the time of disinvestment/liquidation/winding up. Section D of Part I is critical, since information regarding ownership structure and financing pattern have been included here. In addition to details of remittance from India, Part I must report full details of funding through SPVs / subsidiaries overseas, share of foreign partners, etc. (1) Part I (barring Section C) of the form is required to be filled up by the Indian party seeking to invest in JV / WOS overseas either under Automatic Route or Approval Route and submitted to the designated AD Category – I bank. Part I (Sections C and D) is required to be submitted, whenever the initial capital or financing structure of the JV / WOS reported to the Reserve Bank at the time of the initial remittance / approval undergoes changes by way of expansion, merger, infusion of additional capital, etc. (2) Under Automatic Route, in case of new proposals, immediately after effecting remittance, the designated AD Category - I bank should forward Part I of the form along w....

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.... under, if the application is made for partial / full takeover of an existing foreign concern:- (i) A copy of the certificate of incorporation of the foreign concern; (ii) Latest Annual Accounts, i.e. the Balance Sheet and Profit and Loss Account of the foreign concern along with Directors' Report; and (iii) A copy of the share valuation certificate from: â–¶a Category | Merchant Banker registered with SEBI, or, an Investment Banker / Merchant Banker registered with the appropriate regulatory authority in the host country, where the investment is more than USD 5 million (US Dollars Five million), and in all other cases, by a Chartered Accountant or a Certified Public Accountant. (d) A certified copy of the Resolution of the Board of Directors of the Indian party/ies approving the proposed investment. 47 Website: www.fema.rbi.org.in Email : [email protected] ● भारतीय SERVE & Bas VIGN रिजर्व BANK OF (e) Where investment is in the financial services sector, a certificate from a Statutory Auditor / Chartered Accountant to the effect that the Indian Party : (i) has earned net profits during the pr....

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....e year ended March (to be submitted on the letterhead of the company through their AD bank) We, (Indian company) hereby declare that: a) (foreign company) has repurchased ..... shares issued to our employees under ESOP Scheme during the year, (i) Number of shares allotted (ii) Number of employees/directors who sold shares (iii) Amount of remittance (inward) in the Indian company, is not less than 51% and b) effective holding of the foreign company M/s as on March 31, c) the information furnished above is true and correct to the best of our knowledge and belief. Signature of the Authorised Official Name Designation Date To, The Chief General Manager Reserve Bank of India Foreign Exchange Department, Overseas Investment Division, Central Office, Amar Bldg., 5th Floor, Sir. P.M. Road, Fort, Mumbai 400 001. : 50 Website: www.fema.rbi.org.in Email : [email protected] ● भारतीय ESERVE जर्व बैंक - VIO BANK OF Appendix List of Circulars/Notifications consolidated in the Master Circular Direct Investment in Joint Ventures/ Wholly Owned Subsidiaries Abroad Notifications Sl. No....