Alerts & Updates 24th Jan 2024

Direct listing outside India – Government notifies IFSC (GIFT City) as permissible jurisdiction, and NSE IFSC and India INX as permissible international exchanges

Authors

Manendra Singh Partner | Mumbai

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  • Post the notification of Section 5 of the Companies (Amendment) Act, 2020, with effect from October 30, 2023, the Government has now notified the related foreign exchange laws for enabling direct listing outside India. And, to kickstart, the Government has started with notifying International Financial Services Centre in India (GIFT City) – India International Exchange (India INX), NSE International Exchange (NSEIX) as permissible international exchanges.

    Following are the critical pointers to note:

    • Foreign Exchange Management (Non-debt Instruments) Rules, 2019 (NDI Rules) have been amended to incorporate the changes;
    • A new chapter and new schedule (scheme) has been incorporated to deal with direct listing of equity shares of companies incorporated in India on International Exchanges;
  • What is allowed?
    • A public Indian company may issue equity shares or offer equity shares of existing shareholders, subject to various conditions.
    • Such issue or offer of equity shares of existing shareholders shall be subject to prohibited activities, and sectoral caps prescribed in paragraph 2 and 3 of Schedule I to the NDI Rules (this covers the automatic/ government route and sectoral conditionalities, etc.).
    • The public Indian company shall ensure that the aggregate of equity shares which may be issued or offered in a permissible jurisdiction, along with equity shares already held in India by persons resident outside India, shall not exceed the limit on foreign holding under the Schedule I to the NDI Rules.
    • Such equity shares shall be in dematerialised form and rank pari passu with equity shares listed on a recognised stock exchange in India.
    • Prior Government approval, wherever applicable, shall be obtained.
    • Public Indian companies having their equity shares listed on International Exchange shall ensure that the voting rights on such equity shares shall be exercised directly by the permissible holder or through their custodian pursuant to voting instruction only from such permissible holder.
    • The public Indian company may also enter into necessary arrangements with Indian Depository and Foreign Depository, to ensure compliance with various applicable laws, such as this Scheme, the Securities Contracts (Regulation) Act,1956, the Securities and Exchange Board of India Act, 1992, the Depositories Act, 1996, the Foreign Exchange Management Act,1999, the Prevention of Money-laundering Act, 2002 or the Companies Act, 2013.
  • Who are permissible holders, and are there any restrictions?
    • Permissible holder is a holder of equity shares of the Company which are listed on International Exchange, including its beneficial owner.
    • Permissible holder is not a person resident in India.
    • A permissible holder may purchase or sell equity shares of a public Indian company which is listed or to be listed on an International Exchange.
    • A permissible holder may purchase or sell equity shares of an Indian company listed on an international exchange subject to limit specified for foreign portfolio investment under the NDI Rules.
    • Persons from countries sharing land borders with India: A holder who is a citizen of a country which shares a land border with India, or an entity incorporated in such a country, or an entity whose beneficial owner is from such a country, can hold equity shares of such public Indian company only with the approval of the Central Government.
  • What are the eligibility conditions?

    Following conditionalities have been prescribed:

    Issuer / Issuance Certain conditionalities
    A public Indian company may issue equity shares on International Exchange Public Indian company, any of its promoters, promoter group or directors or selling shareholders are not debarred from accessing the capital market by the appropriate regulator* None of the promoters or directors of the public Indian company is a promoter or director of any other Indian company which is debarred from accessing the capital market by the appropriate regulator * Public Indian company or any of its promoters or directors is not a wilful defaulter. Public Indian company is not under inspection or investigation under the provisions of the Companies Act,

    2013.

    None of its promoters or directors is a fugitive economic offender.
    Existing holders of the public Indian company shall be eligible to offer shares Public Indian company or the holder offering equity shares are not debarred from accessing the capital

    market by the appropriate regulator*

    None of the promoters or directors of the public Indian company is a promoter or director of any other Indian

    company, listed or otherwise, which is debarred from accessing the capital market by the appropriate regulator*

    Public Indian company or the holder offering equity shares is not a wilful defaulter. – Same as above – None of the promoters or directors of the public Indian company or the holder offering equity shares is a fugitive

    economic offender.

    A listed Indian company may issue equity shares on International Exchange; or the existing shareholders may offer equity shares in such exchange. Subject to compliance with the conditions and other requirements as per the norms notified by the SEBI from time to time.
    A public unlisted Indian company may issue equity shares on International Exchange; or the existing shareholders may offer equity shares in such exchange Subject to compliance with the conditions and other requirements as per the norms notified by the MCA from time to time.

    These debarments shall not apply to the persons or entities mentioned therein, who were debarred in the past by the Government or the appropriate regulator and the period of debarment is already over as on the date of listing of its equity shares on the International Exchange(s).

  • What will be the pricing for such listing?
    • Where such issuance is by listed companies: Not less than the price applicable to a corresponding mode of issuance of such equity shares to domestic investors under the applicable laws.
    • Where such issuance is by public unlisted companies: In case of initial listing of equity shares by a public unlisted Indian company on the International Exchange, the price of issue or transfer of equity shares shall be determined by a book- building process as permitted by the said International Exchange and shall not be less than the fair market value under applicable rules or regulations under the Foreign Exchange Management Act, 1999. Subsequent issuance or transfer of shares for the purpose of listing additional shares post initial listing would be based on applicable pricing norms of the International Exchange and the permissible jurisdiction.

    The aforementioned changes have been notified vide the Foreign Exchange Management (Non-debt Instruments) Amendment Rules, 2024, and is effective from January 24, 2024 (available here).

  • ELP Comments

    Post MCA’s notification, this notification by Ministry of Finance has paved the way for implementation of direct listing outside India. As expected, IFSC – GIFT City has been notified as permissible jurisdiction and the exchanges operating therein are notified as international exchanges. The traction that GIFT City garners for companies will help the Government as test case to move to other jurisdictions in future, if they deem fit. MCA/SEBI now, may notify certain ancillary procedural rules, and it will be interesting to see how the industry reacts to this move.

  • We trust you will find this an interesting read. For any queries or comments on this update, please feel free to contact us at insights@elp-in.com or write to our authors:

    Manendra Singh, Partner – ManendraSingh@elp-in.com ;
    Ambareen Khatri, Associate – AmbareenKhatri@elp-in.com

Disclaimer: The information contained in this document is intended for informational purposes only and does not constitute legal opinion or advice. This document is not intended to address the circumstances of any individual or corporate body. Readers should not act on the information provided herein without appropriate professional advice after a thorough examination of the facts and circumstances of a situation. There can be no assurance that the judicial/quasi-judicial authorities may not take a position contrary to the views mentioned herein.