A.D. (M.A. Series) Circular No.35 September 30, 1998 RESERVE BANK OF INDIA
EXCHANGE CONTROL DEPARTMENT
CENTRAL OFFICE
MUMBAI 400 001
To,
All Authorised Dealers in Foreign Exchange
Dear Sirs,
General Permission for sale/transfer of underlying shares acquired after conversion of GDRs/ADRs by Non-Residents to Residents In terms of paragraph 10B.10(i) of the Exchange Control Manual (ECM), applications for transfer of shares acquired by non-residents on conversion of Global Depository Receipts (GDRs) or American Depository Receipts (ADRs) of Indian companies are required to be referred to Reserve Bank for confirmation of the transfer as required under Section 19(5) of the Foreign Exchange Regulation Act, 1973 (FERA 1973). For this purpose non-resident investors holding GDRs/ADRs of Indian companies are required to approach the Overseas Depository bank with a request to the Domestic Custodian bank to get the corresponding underlying shares released in favour of the non-resident investors for being sold by the non-residents or for being transferred in the books of the issuing company in the name of the non-residents. Remittance of sale proceeds of the shares sold to residents can be made only after the necessary permission for sale/transfer of shares is granted by Reserve Bank.
2. In order to simplify the procedure for sale/transfer of underlying shares by the GDR/ADR holders, Reserve Bank has issued a Notification No.F.E.R.A. 185/98-RB dated 19th August 1998 under Section 19(6) of FERA 1973 granting exemption from the operation of the provisions of Section 19(5) of FERA 1973, for sale/transfer of shares from non-residents to residents, provided (a) such shares were released by the Indian custodian of a GDR/ADR issue against surrender of GDRs/ADRs by the non-resident concerned and (b) the sale is made on a stock exchange or the shares are offered for sale in terms of an offer made under the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997.
3. As a result of the above mentioned general exemption, it will be in order for authorised dealers to permit remittance of sale proceeds of the underlying shares without approval of Reserve Bank after obtaining and verifying the following documents.
(i) Release Order in original from the Domestic Custodian bank of the GDR/ADR issue.
(ii) Sale note from a SEBI registered broker/merchant banker showing the number of shares transferred and the amount of sale proceeds.
(iii) An Undertaking/Accountant's certificate regarding payment of Income-tax (cf. paragraph 3B.10 of ECM).
4. Authorised dealers may also allow the non-resident transferor to keep the above mentioned shares in their safe custody till the sale of the shares is effected and to open a non-resident non-interest bearing account to collect the sale proceeds of the shares.
5. Authorised dealers should submit a statement giving the name of the company whose shares have been sold, number of shares sold and the amount remitted, to the General Manager, Foreign Investment Division, Exchange Control Department, Reserve Bank of India, Central Office, Mumbai-400 001 within a period of 7 days from the date of effecting the remittance.
6. Authorised dealers may bring the contents of this circular to the notice of their concerned constituents.
7. The following consequential amendments may be carried in the Exchange Control Manual.
Volume I
i) Existing paragraph 10B.10 may be replaced by Slip 1.
Volume II
ii) A new Notification No.F.E.R.A. 185/98-RB dated 19th August 1998 may be added under Section 19(6) in Appendix III as per Slip 2.
8. The directions contained in this circular have been issued under Section 73(3) of the Foreign Exchange Regulation Act, 1973 (46 of 1973) and any contravention or non-observance thereof is subject to the penalties prescribed under the Act.
Yours faithfully,
"KHIZER AHMED"
Chief General Manager
Slip 1
[AD/MA 35/1998] Euro Issues by Indian companies
10B.10 (i) In terms of the Guidelines issued by the Government of India, vide Ministry of Finance Notification No. S-II(25) CCI-II/89/NRI dated 12th November 1993 (as amended), Indian companies are permitted to raise foreign currency resources through issue of Foreign Currency Convertible Bonds (FCCBs) and/or issue of ordinary equity shares through Global Depository Receipts (GDRs) to foreign investors i.e. institutional investors or individuals (including NRIs) residing abroad. Applications for necessary permission should be made to the Government of India, Ministry of Finance, Department of Economic Affairs, New Delhi. After obtaining the necessary approval from the Government, the Indian company should submit an application to the Chief General Manager, Exchange Control Department [ Foreign Investment Division (I) ], Reserve Bank of India, Central Office, Mumbai - 400 001 enclosing a copy of the application made to the Government and the in-principle/final approval granted by the Government, for necessary permission under FERA 1973 for issue/acquisition of shares to/by non-residents, remittance of issue expenses, opening of foreign currency accounts, etc.
(ii) The FCCBs/GDRs issued by Indian companies to non-residents have free convertibility outside India. As regards transfer of shares (on conversion of FCCBs/GDRs into shares) in favour of residents, the non-resident holder of GDRs/ADRs should approach the Overseas Depositroy bank with a reuest to the Domestic Custodian abnk to get the corresponding underlying shares released in favour of the non-resident investor for being sold by the non-resident or for being transferred in the books of the issuing company in the name of the non-resident. Reserve Bank has granted general exemption vide its Notifiaction No. FERA 185/98-RB dated 19th August, 1998 permitting transfer of shares from non residents to residents, provided (a) such shares were releaased by the Indian custodian of a GDR/ADR issue against surrender of GDRs/ADRs by the non-resident concerned and (b) the sale is made on a stock ex change or the shares are offered for sale in terms of an offer made under the Securities and Exchange Board of India (Substantial Acquistion of Shares and Takeover) Regulations, 1977. Authorised dealers may allow remittance of sale proceeds of such underlying shares on verification of the following documents:
(a) Release Order in original from the Domestic Custodian bank of the GDR/ADR issue.
(b) Sale note from a SEBI registered broker/merchant banker showing the number of shares transferred and the amount of sale proceeds.
(c) An undertaking/Accountant's certificate regarding payment of Income-tax (cf.paragraph 3B.10)
Authorised dealers may also allow the non-resident transferor to keep the above mentioned shares in their safe custody till the sale of the shares is effected and to open a non-resident non-interest bearing account to collect the sale proceeds of the shares. A statement giving details such as the name of the company whose shares have been sold, number of shares sold and the amount remitted should be submitted to the General Manager, Foreign Investment Division, Excahnge Control Department, Reserve Bank of India, Central Office, Mumbai 400 001 within a period of 7 days from the date of effecting the remittance.
Note: The above general permission will be applicable for transfer of shares underlying GDRs/ADRs through stock exchange or under an offer made under the Securities and Excahnge Board of India (Substantial Acquistion of Shares and Takeovers) Regulations 1997. All other cases including transfer of shares on conversion of FCCBs into shares in favour of residents will require approval of Reserve Bank.
(iii) In terms of Government guidelines, issue proceeds are required to be kept in foreign currency and can be utilised only for certain purposes such as for meeting the cost of expansion/diversification/acquisition/import of new plants and machinery, repayment of foreign currency loans, etc. as approved by the Government. Pending deployment of funds for approved purposes, the Indian company is allowed to keep the foreign currency funds abroad with foreign banks ( which are rated for short-term obligations as A1 + by Standard & Poor or P1 by Moody's ) or with branches of Indian banks abroad as deposits, or to invest them abroad in treasury bills and other monetary instruments with maturity not exceeding one year. Funds raised through GDRs, FCCBs and ECBs will also be allowed to be invested in rated certificates of deposit abroad. The issue proceeds can also be kept in foreign currency accounts with authorised dealers/public financial institutions in India authorised to deal in foreign exchange. It will accordingly be in order for authorised dealers/public financial institutions to accept foreign currency deposits from Indian companies out of Euro Issue proceeds subject to the following conditions :
a) The foreign currency deposits would carry interest at a rate not exceeding LIBOR for the respective period for which the deposit is accepted.
b) Authorised dealers/public financial institutions with whom the foreign currency deposits are kept should not swap the foreign currency for rupees but use the amounts for on-lending in foreign currency to eligible clients.
c) Authorised dealers may also invest surplus foreign currency out of such Euro Issue proceeds as permitted in paragraph 5B.9 subject to the condition indicated in (b) above.
d) Authorised dealers/public financial institutions accepting the foreign currency deposits would be eligible to charge interest at the rate not exceeding 2.5 per cent over six months LIBOR for lending out of such funds.
e) Authorised dealers will have to comply with the requirements of CRR/SLR as laid down by Reserve Bank from time to time.
f) The deposits can be converted into Indian rupees only as and when expenditure for approved end uses (including upto a maximum of 15% of the proceeds earmarked for general corporate restructuring uses) are incurred by the Indian company.
g) Authorised dealers/public financial institutions accepting such deposits as also the Indian company, as the case may be, should comply with the conditions stipulated by Government of India in their approval letters for such issues.
Slip 2
[ADMA 35/1998] Notification NO. FERA 185/98-RB dated 19th August 1998
Permission for sale/tansfer of shares
Obtained after conversion of GDRs/ADRs by non-residents to residents
In exercise of the powers conferred by sub-section (6) of Section 19 of the Foreign Exchange Regulation Act 1973 (46 of 1973) the Reserve Bank being of the opinion that it is necessary and expedient in the public interest so to do, exexpts from the operation of the provision of sub-section (5) of the said section, transfer of any share underlying GDR/ADR issue of a company registered in India made by a person not resident in India in favour of aperson resident in India or a body corporate incorporated under any law in force in India.
Provided that
(i) such shares were released by the Indian Custodian of the GDR/ADR issue upon surrendering GDRS/ADRs
(ii) such share is sold in the stock market through a member of a recognised stock exchange in India and the sale transaction is effected at the ruling market price as determined on the stock exchange by normal bid and offer method
or
such sahre is offered for sale in terms of an offer made under the Securities and Exchange Board of India (Substantial Acquistion of Shares and Takeovers) regulations, 1997.
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