77

CHAPTER JOINT VENTURES COLLABORATION

4 AND
SPECIAL PURPOSE VEHICLES
Synopsis
1. Meaning of JointVenture
2. Definition of Joint Venture
3. Stages and Documents for JointVentures
4. Factors to be considered while drafting JVA or SHA or LLPA
5. Essential components of a Joint VentureAgreement
6. LLP Firm as a Joint Venture or Special PurposeVehicle
7. Strategies of JointVenture
8. Formation of JointVentures
9. Restrictions under FDI Policy of Government ofIndia
10. Meaning of Special Purpose Vehicle(SPV)
11. Benefits of Special PurposeVehicle
12. Purpose of Special PurposeVehicle

1. Meaning of JointVenture
A simply dictionary meaning of the word ‘Joint Venture’ is a commercial enterprise undertaken jointly
by two or more parties which otherwise retain their distinct identities.
It is an entity formed between two or more parties to undertake economic activity together. The parties
agree to create a new entity to share in the
 Revenues
 Expenses
 Control of the enterprise.
Joint Ventures are generally created for a single activity or project, and may have a limited time span.
Quick Recap

Meaning & definition of J.V.

Merger Amalgamation Joint Venture

A Ltd. (+) B Ltd. A Ltd. + B Ltd. =AB Ltd. A Ltd. + B Ltd. = AB Ltd.
= Or Or
AB Ltd. A + B = B Ltd. A + B = AB Ltd.

Merger in the form of Maruti, Suzuki, MS

absorption
78 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
Quick Recap

Meaning of JV

Commercial enterprise undertaken jointly by 2 or more

parties

Company + Firms
Which otherwise retain their distinct identities.

In other words

It is an entity formed between 2 or more

parties to undertake economic activity together
by sharing

Revenue Expenditure Control

of a newly formed enterprise

2. Definition of Joint Venture

Joint ventures can be defined as "an enterprise in which two or more investors share ownership and
control over property rights and operation".
Alternatively, we can define a joint venture is an association of two or more individuals or business
entities who combine and pool their respective
 Expertise
 Financial resources
 Skills
 Experience
 Knowledge
in the furtherance of a particular project or undertaking.
Small business entities, which do not individually have the capacity, in terms of resources, finances and
technical know-how can benefit with by forming Joint Venture for pooling of resources, sharing technical
know-how and exploring larger markets for their goods and services.
JVs are also common in the manufacturing, mining, and service industries.
Examples of Joint Venture Companies (PSUs) in India
 Indian Oil Sky tanking Ltd.( between Holders -Ruchi Soya and Indian Oil)
 Ratnagiri Gas & Power Private Limited( between NTPC Ltd and GAIL India Ltd.)
 Mahanagar Gas Ltd.{ BG Group of U.K. and GAIL India Ltd.)
 Petronet LNG Ltd.( between PSU’s, namely, BPCL, GAIL India Ltd., ONGC and IOCL)
Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 79
Quick Recap
Faltu ka gyan

Before 2015 2015 Onwards

JV in the form of Companies only

JV

Company (+) LLP

LLPs may invite foreign

investment

FDI in LLP

JV Specific Purpose

Project

Manufacturing Mining Service

Indian Premier League is a Joint Venture

(Joint Venture is an association of 2 or more individuals or business entities who

Combine & pool their respective resources & expertise)

Resources Expertise Skills Knowledge

Human + Marketing +
Finance

Objective

Furtherance of a particular project

80 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4

Case Study India America (Inc) Japan

A Ltd. + B Inc + C Ltd = ABC Ltd.

10 Year Exp. 15 Year Exp. 20 Year Exp.

Investment 40% 30% 30% India

(1)
Delhi Govt. Tender open

Approval (2) (4)

(3) Application Minimum Experience 5 years
can apply only.
ABC Ltd.

6 Months after COI

(5) Examine The Situation ?

NEW Horizons Ltd. vUOI (1994)

Experience of Shareholders is an Experience of a Company, in case of

Joint Venture.

E.g:- IOCL (+) BPCL (+) ONGC Ltd. = Petronet LNG Ltd. JV in
public sector

Business collaboration:-
Collaboration is when two or more entities work together through idea sharing and thinking to accomplish a
common goal is known as Collaboration.
Collaboration provide solutions, give a strong sense of purpose and also reinforce the objectives of coming
together.
Types of Business Collaboration

Horizontal Collaboration: When the businesses in the same set of functional area agree to collaborate
in a way to improve their competencies is known as Horizontal Collaboration..

Vertical Collaboration: Vertical Collaboration is a collaboration where in the business collaborates

with companies in its supply chain either upward and/or down wards (its suppliers and/or distributors).
Vertical collaboration often allow businesses to minimize risk in the supply chain and obtain lower
prices in exchange for long-term commitment.
Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 81
Intersectional Collaboration: When the Businesses from different functional areas agree to share their
special knowledge for the advancement of all partners in collaboration is known as Intersectional
Collaboration. For example: Manufacturing and Marketing collaborations, Referral rewards, tie-ups.

Joint Venture : Two or more businesses form a new company. The new company is its own legal entity,
and its profits are split according to terms spelled out in a formal contract is a Joint Venture.
For example: One party in the joint venture provides technical support and another party provides
manufacturing and marketing arrangements in jointventure.

Equity: A company acquires a minor equity stake in another business in exchange for a monetary
investment. Such exchanges can accompany other types of collaboration and, to a certain extent, agreed-
upon access to decision making. For example: Funding to start-ups on equity basis, equity partnership in
technical know-how.
Various advantages of forming Joint Venture are as follows
1. Risk Sharing
Risk sharing is one of the biggest advantage of forming a Joint Venture, particularly, in those
industries where the cost of product development and likelihood of failure of any particular
product is very high.

2. Economies of Scale
For the industries having high fixed costs, a JV with a larger company can provide the economies
of scale necessary to compete locally or globally and can be an effective way by which two
companies can pool resources and achieve good mass (customer base).

3. Market Access
Forming a JV with the right partner can provide instant access to established, efficient and
effective distribution channels and receptive customer bases.
This is important to a company because creating new distribution channels and identifying new
customer bases can be extremely difficult, time consuming and expensive.

4. Exploring the Global Market

Partnering with foreign company would provide an ease to that Company for penetrating a
foreign market, which can otherwise be difficult both because of a lack of experience in such
market and local barriers to foreign-owned or foreign-controlled companies.

5. Easy acquisition of other entity or business

When a company wants to acquire another, but cannot due to cost, size, or geographical restrictions
or legal barriers, teaming up with a JV Partner can be an attractive option. The JV is substantially
less costly and thus less risky than complete acquisitions, and is sometimes used as a first step to a
complete acquisition with the JV Partner.

6. Cost Efficiency
For a small-scale entity, it is difficult to set up the infrastructure and the machinery required product
development. Joint venture is the perfect solution in the moment of need.
82 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
For example -If a company has a plan for the perfect product, however, due to financial shortage
there is not enough machinery or resources available. At such a time, if another company, which is
equipped, lends a hand in the form of joint venture, by way of resource sharing and cost sharing it
becomes easier to produce.

7. Flexible Nature
The joint venture enterprises provide flexibility,each participant has the freedom to continue with
their individual businesses. The joint venture participants can only interfere within the
participated project.


Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 83
Quick Recap

Advantages of Joint Venture

Risk Sharing Production Failure = JV are best

Cost Probability

Economies of Scale

Benefits of Expansion

Market Access Existing distribution channels

(+)
Receptive Customer base

Exploring Global Market

Maruti(+) Suzuki = MS

Easy Access in Japan New Market in India

Easy Acquisition of other Entity or Business

Licencing requirement
Suzuki India
(+) Cultural Problem (+)
Project Setup
No such problem faced by Suzuki in JV with Maruti

Cost Efficiency

Economies of Scale (+) Economies of Scope

Production under same roof

CO -1 (Technology) (+) CO – 2 (Infrastructure)

Flexible nature

JV New Business - Start

(+)
Continuance of existing businesses with freedom
(+)
Joint Venture participants can intervenes in the participated
project only
84 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
Disadvantages of Joint Venture
Quick Recap
Disadvantages of Joint Venture

1. Restricted flexibility where full concentration is required for JVProject

In times JV participants need to focus on the product of the joint venture and the individual
businesses suffer in the process.
For example-Company A requires technological assets thus in joint venture company B avails the
facility. In the same time, if the company B requires those technical assets then he has to postpone the
individual project for the time being.
Quick Recap
Restricted flexibility

New project (+) Full Concentration

Adversely affect existing entities

2. Lack of equal involvement

An equal involvement from all the Joint Venture partners may not be possible. It is extremely
unlikely for all the companies working together to share the same involvement and
responsibilities.
Quick Recap
Lack of Equal Involvement

A+B = AB

Equal role

3. Cultural Differences
Different cultures and management styles may result in poor co-operation and integration. People
with different beliefs, tastes, and preferences can get in the way big time if left unchecked.
Quick Recap
Cultural Differences

Poor Co-operation

Different believes Different preferences

Different taste
Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 85
4. Extensive Research and planning required
Joint venture can result in a frustrating experience and ultimately a failure if it lacks adequate
planning andresearch.
Quick Recap
Extensive Research & Planning is required

No homework
(+)
Frustrated experience

5. Lack of clear communication

Joint venture involves different companies from different horizons with different goals, there is
often a severe lack of communication between partners.(Tata can never form a JV with Reliance
due to difference in their respective ideologies.)
Quick Recap
Lack of Clear Communication

Different goals (+) Different perspectives

Thought process

6. Unreliable partners
Because of the separate nature of a joint venture, it is possible that the partners do not devote 100%
of their attention to the project and become unreliable.
Quick Recap
Unreliable Partners

Mr. A (+) Mr. B = JV

Superrich Middle class

10 Lac 10 Lac

Will not give 100% attention

7. Creation of competitor
Another potential disadvantage of a JV is the possibility of the creation of a competitor or a potential
competitor in the form of one’s own joint venture partner. (Suzuki created its own competitor by
forming Maruti Suzuki).
Quick Recap
Creation of Competition

A + B = AB

Same Product (or) Different Product line

86 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
3. Stages and Documents for JointVentures
Finalization of a joint venture goes through many stages and at each stage, the documentation is different.
1. MOU at Familiarization Stage
The first may be called the Familiarization Stage when the two partners generally attempt to know
each other. Generally speaking, Indian companies wish to have a Memorandum of Understanding
(MOU) to define the relationship at the initial stage. The MOU is a brief document without much
legal jargon. The MOU states the duties of both parties and lays down a road map for the future.
2. Contractual Joint Venture at Engagement Phase
The second may be called the engagement phase when there is a level of commitment but still it is
not very firm or long-term. During the engagement phase, a Contractual Joint Venture may be
envisaged. The parties are putting in relatively higher amount of resources at this stage. Hence, it is
customary to have well-drafted legally binding contracts.
3. JV Agreement (Shareholders Agreement or LLPA) at Familiarization Stage
The final stage is when broad understanding has been reached on the terms of the Joint Venture.
At the concluding stage, the parties have developed higher confidence ineach other. So, an equity-
based joint venture is considered.
Hence, the Joint Venture Agreement or Shareholders’ Agreement or LLP Partnership Deed must be
prepared carefully to avoid any confusion.
It is hence, advisable to devote time and attention to the Articles or LLPA, as the case may be and
not depend onthe shelf draft, especially in case of a joint venture company where one of the partners
is a foreign nationalor company.


Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 87
Quick Recap
Stages & Documentations in Joint Venture

Stage 1 FamiliarizationStage

MOU

Brief Rights & Duties Road map for Future

JointVenture Stage 2 Engagement phase

Contractual JV

Contract

Well drafted

Legally binding contract

Stage 3 Final Stage

Company LLP

Share holding (SHA) Limited Liability Partnership

Agreement Agreement

4. Factors to be considered while drafting JVA or SHA or LLPA

The SHA or LLPA is not a document for the government or the courts. It is a working document and
should be drafted with business essentials in focus.
Some of the key issues which must be kept in mind while drafting the SHA or LLPA are summarized
below:
1. The business of the newcompany or LLP.
2. Manner and extent to which resources(Financial, manpower, technology, etc) will be brought in.
3. Provisions relating to allotment and transfer ofshares.
4. Constitution of the Board of Directors or DesignatedPartners.
5. Manner in which decision making will take place whether majority vote or consensus building.
6. Rights, duties and responsibilities of Chairman and MD.
88 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
7. Fixation of responsibility for managing finances, marketing, production,etc.
8. Dividend DistributionPolicy(Mandatory for Top 500 Listed companies by SEBI)
9. Term of office of the directors, the manner of their appointment and changes among them.
10. Valuation methodologyof the company at the time ofseparation.
11. Dispute resolution mechanism.
Quick Recap
Factors (key issues) to be considered white drafting Shareholders Agreement or Limited
Liability Partnership Agreement

Company
New Business Form
LLP
Nature + Name

Manner & Extent of resources to be contributed (Capital Contribution)

Provisions regarding allotment & transfer of shares or interest

Management Constitute

Director Designated Partner

Chairman (+) MD

Substantial powers

Decision making (Majority or Consensus)

BR UBR

Organizational Chart

Marketing Finance production

Dividend Distribution Policy

Valuation of business at the time of separation

Accounting Methodology

Dispute resolution mechanism (Arbitral clause)

Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 89
5. Essential components of a Joint VentureAgreement
In India, there is no legally prescribed format of a Joint Venture Agreement. However, in actual practice,
the Agreement contains the following components:
1. Non- Operative Part
 Description of the nature of the Agreement
 Date of Execution
 Place of Execution
 Full description of Parties to the Agreement
 Recitals i.e.the clear intention of theparties
2. Operative Part
 Name and constitution of the new entity being set up
 Equity investments
 Rules relating to loans by either party
 Activities to be undertaken, role of each party
 Constitution of the Board
 Names of the Chairman and Managing Director and their powers, duties, etc.
 Matters to be decided by consensus
 Managerial remuneration
 Milestones to be reached and plan ofaction
Legal aspects in Operative Part
 Amendments of the JVAgreement
 Duration of the JV
 Termination
 Dispute resolution by amicable consultation or Arbitration mechanism or Alternate form of
DisputeResolution
 Confidentiality and Non-DisclosureAgreement
 Non- compete clause
 Indemnification
 Procedure for execution
3. Formal Part
 Signature of parties
 Attestation by witnesses


90 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
Quick Recap
Essential Element of a Joint Venture Agreement

Agreement or Deed

Non-operative part Operative part Formal part

(D2 P2 R) Investment amount
 Nature of Deed (+)  Testimonium (In witness where
 Date & Day Board Composition of ………………….)
 Place (+)  Sign
 Description of Parties Chairperson
 Recital (Intension)  Attestation
(+)
MD  Schedule (Description of
(+) properties)
Managerial remuneration
(+)

Legal aspects

Duration + Amendments + Termination + Dispute + NDA (Non- Disclosure Agreement) +

Non-Compete clause + Indemnification

6. LLP Firm as a Joint Venture or Special PurposeVehicle

 A Limited Liability Partnership (LLP) Firm combines the simplicity of a partnership firm with the
advantage of limited liability as available in the case of acompany.
 Before the passing of The Limited Liability Partnership Act in 2008, a foreign company
intending to participate in tender or some other project in consortium with an Indian company had
only the option of setting up a company (whether private or public) as a Special Purpose Vehicle
(SPV). The disadvantage was that winding up such a company is difficult.
 Foreign companies are not permitted to invest in partnership firms.
 Moreover, consortium members do not want to be saddled (burdened) with unlimited liability as is
the case in a partnership firm under The Indian Partnership Act, 1932.
 Till November 2015, foreign companies were not allowed to invest in any form of structure
except a company but in Nov 2015, Foreign Partners were permitted to enter into JVs in India
in the form of LLP.
 LLP firm as an SPV between a foreign company and an Indian company has the advantage of being
easy to wind up after the purpose is over and the liability of the two partner companies is limited.
Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 91
Quick Recap

LLP as a Special Purpose Vehicle

Or
LLP as a Joint Venture

LLP is now a days best form of business

2008 LLP = Partnership characteristics (+) Benefits of Limited Liability

LLP

Before 2008 2008-2015 Nov, 2015

No LLP LLP FDI is permitted in LLP
+
Domestic business Highly appreciable by Foreign
+ Investors
No FDI was permitted [Rich Corp Services LLP]
A Ltd + B Ltd =AB LLP

(2001) (1995)

Key advantages of using an LLP firm as an SPV as compared to a company are as follows
1. Low cost of incorporation of anLLP.
2. Flexibility of rules of management and governance based on Agreement between the contracting
Partners (Easy Alteration of LLPA).
3. Partners can be companies while management is by Designated Partners who are individuals. By this,
there is separation between ownership and management.
4. Low annual maintenance cost (Minimal Filing Requirements).
5. There may not be any necessity of getting the accounts audited before the project takesoff.
6. An LLP firm does not have to pay Dividend Distribution Tax (DDT) on share of profits transferred
to the Partners, which makes it tax efficient.
7. Voluntary winding of an LLP firm which has no creditors is very easy and can be done without
intervention of any court or tribunal.
8. Investment in LLP Firms is permitted in sectors in which 100% FDI is permitted through
automatic route without any performance linked conditions.
92 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
Quick Recap

Key advantages of using LLP as a Special Purpose Vehicle

Or
Key benefits of creating JV as LLP

Low incorporation cost

MOA or AOA alter (Lengthy Task)

Flexibility
LLPA (Easy alteration)

Designated Partners (management)

Law annual maintenance cost

Audit is not mandatory

Windup process is easy

Automatic route for foreign investment in Indian LLPs

7. Strategies of Joint Venture

Following are the strategies for forming a successful JointingVenture
Strategies of Joint Venture
1. Identification of prospective JV partners
2. Reliable partners
3. Strong JV relationship
4. Equal contribution
5. Written agreement
6. Limiting scope of JV
7. Defined Business model
8. Flexibility
9. Exit routes
1. Identification of prospective Joint Venture Partner
The prospective partner should be strong in terms of business, technology and resources. One partner
must be able to compliment the other partner specially in those areas where it lacks.
For Example - One entity’s strength is economies of scale and another entity’s strength is strong
marketing and their brand value. Both the entities if formed into JV can compliment each other and
they can have a larger market for their products.
Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 93
2. Reliable Partners
Joint Venturewith weak or untrustworthy partners would definitely lead to failure, however, JV
with strong and trustworthy partner would generate enormous benefits for both the partners and
Joint Venture entity.
3. Development of Strong Joint Venture Relationship
Partners must strive to develop joint venture relationships that are easy to maintain, financially
profitable, intellectually rewarding, and long- lasting.
4. Equal Contribution
Joint Venture Partners must make sure that all the partners have equal contribution in the Joint
Venture entity in terms of skills, intellectual resources, marketing resources, capital etc. Unbalanced
or unequal contributions are never healthy for the success of a Joint Venture entity.
5. Written Agreement
The agreement between two or more parties always be written and must clearly define all the terms,
relates to rights and responsibilities of each partner. The language of the agreement must be simple
and there should be no ambiguity, also there should be no clashing of interest.
6. Limiting the scope of Joint Venture
It is essential that limits and scope of the venture should be defined in the beginning itself. At a later
stage, once the trust amongst the partners is developed, the scope of Joint Venture can be increased
with the mutual consent of all the partners.
7. Well defined business model
The firms in a JV must clearly define the nature of the new venture including
 The proposition to the customer
 The channels and relationship management
 The value chain
 The structure and roles
 Investments
 Income, costs and payments
 Success factors
 The timetable for delivery.
A well-defined business model provides a base for the legal and financial frameworks.
8. Flexibility
The partners in JV should try to be flexible and favour partners who demonstrate the same level of
flexibility.
9. Establishment of Exit Routes
JV Partners much establish clear protocols in the beginning itself for amending or winding the
relation if it fails to meet the expectations or in case there arises any dispute.


94 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
Quick Recap
Strategies of Joint Venture

Identification of prospective partners

Complimentary (+) Reliable (+)Neither weak nor untrustworthy

Development of strong JV relationship

Easy to maintain
(+)
Profitable
(+)
Long lasting

Skill
Equal Contribution Resources
Capital
Efforts

Written Agreement

Simple & Non- ambigious

Limited scope of Joint Venture

Beginning Limited scope

(+)
Future Business expand with unanimous consent

Well defined business model

Management
+ Distribution (+) Customer base
(+) channel
Role play
+
Hierarchy

Model frame

Time (+) Finances

Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 95

Flexibility

Joint Venture partners shall provide independence to each other

Exit route

Resign (+) Retire (+) Windup

8. Formation of JointVentures
Joint Ventures can be formed via two modes/methods:
 Equity JointVenture
 Contractual JointVenture
Quick Recap

Modes for formation of Joint Venture

Equity Joint Venture Contractual Joint Venture

New Business form is A Ltd. (+) B Ltd = Contract

established

For e.q.
Company Partnership Venture
Capital Manufacturer (Mac) US
Fund (AIF)
LLP

Trust Imported
Other modes & marketed by (Mumbai
Firm)

Equity JointVenture
The equity joint venture is an arrangement whereby a separate legal entity is created in accordance with
the agreement of two or more parties.
The parties undertake to provide money or other resources as their contribution to the assets or other
capital of that legal entity. The entity is generally established as a limited liability company and is distinct
from either of the parties which participate in its creation.
The newly created company, thus, becomes the owner of the resources contributed by the parties to the
joint venture arrangement. Each of the parties in turn becomes the owner of the company having equity in
the company.
The parties to a joint venture agreement agree on purposes and functions of the newly created entity, the
proportion of capital contribution by each party and the share of each party in the profits of the company and
on other matters such as its management, operation, duration and termination.
96 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
Generally speaking in an equity based joint venture, the profits and losses of the jointly owned entity are
distributed among the parties according to the ratio of the capital contributions made by them. However, the
division of profits and losses is not the only characteristic of an equity-based joint venture.
Quick Recap

Equity Joint Venture is an arrangement

Where by a separate legal entity is created by two or more parties

To contribute money & other resources

To receive the ownership of the newly formed business

The key characteristics of equity-based joint ventures are as following:

 There is an agreement to either create a new entity or for one of the parties to join into ownership of
an existing entity.
 Shared Ownership by the parties involved.
 Shared management of the jointly owned entity.
 Shared responsibilities regarding capital investment and other financing arrangements.
 Shared profits and losses according to theAgreement.
Quick Recap
Characteristics of Equity based Joint Venture

Ownership Management Contribution Responsibilities P/L

(Not necessarily in of resources
equal proportion)

Agreement

Contractual Joint Venture

The contractual joint venture might be used where the establishment of a separate legal entity is not
needed or the creation of such a separate legal entity is not feasible in view of one or the other reasons. The
two parties do not share ownership of the business entity but each of the two parties exercises some
elements of control in the joint venture.
The contractual joint venture agreement can be entered into in situations where the project involves a
narrow task or a limited activity or is for a limited term or where the laws of the host country do not
permit the ownership of property by foreign citizens.

Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 97
Quick Recap

Contractual Joint Venture

Characteristics

No new entity (+) No share in ownership (+) Mere alignment of

existing ventures

The contractual Joint Venture is used where the creation of new separate legal entity is not
required
(+)
Contractual Joint Venture is suitable where the project involves a narrow task or a limited
small activity
(+)
E.g:- Swiggy & Zomato delivery boys Uber& Ola Car drivers etc.

Example:-Franchisee relationship is an example of Contractual Joint Venture

AV Classes
(+)
27 Franchise

Franchisee as a Contractual JV
An example of a contractual joint venture is a franchisee relationship.
The key characteristics of such a relationship are:
 Two or more parties have a common intentionof running a business venture.
 Each party will bring some inputs in the form of money or materials.
 Both parties exercise some a certain degree of control on theventure.
 The relationship is not a transaction to transaction relationship but has a character of relatively longer
time duration.

98 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
Quick Recap

Key Characteristics of Franchise Relationship

2 or more parties To run a business Certain degree of

venture control

Same intension Contribution by each Longer term

party

9. Restrictions under FDI Policy of Government ofIndia

Generally speaking, any non-resident entity can set up an equity based joint venture in India.
However, some entities face restrictions under FDI Policy of Government of India. The restrictions are as
follows:
1. Citizen or entity of Pakistan can invest only after approval of Government of India. They cannot
invest in defence, space, atomic energy and sectors prohibited for foreign investment.
2. Citizen or entity of Bangladesh can invest only after approval of Government of India.
However, there are no barred areas as in the case of entities fromPakistan.
3. NRI residents in Nepal and Bhutan as well as citizens of Nepal and Bhutan can invest on
repatriation basis subject to investment coming in free foreign exchange (USD or EURO) through
normal banking channels.
4. A Foreign Portfolio Investor (FPI) can invest only under the Portfolio Investment Scheme which
limits the individual holding of an FPI to 10% of the capital of the company and the aggregate
limit for FPI investment to 24% of the capital of the company.
This aggregate limit of 24% can be increased to the sectoral cap or statutory ceiling, as applicable,
by the Indian Company concerned through a resolution by its Board of Directors followed by a
special resolution to that effect by its GeneralBodyand subject to prior intimation to Reserve Bank of
India. The aggregate FPI investment, in the FDI and Portfolio Investment Scheme, should be within
the above caps.
5. A Foreign Venture Capital Investor (FVCI) duly registered in India may contribute up to
100% of the capital of an Indian Company under the automatic route and may also set up a
domestic asset management company to manage the fund. Such investments are subject to the
relevant regulations and FDI policy including sectoral caps, etc. SEBI registered FVCIs are also
allowed to invest under the FDI Scheme, as non-resident entities, in other companies, subject to FDI
Policy and other regulations.
Every equity based joint venture gives birth to a new entity. Different types of entities are summed up
below:
 Company
 Limited Liability Partnership (LLP) Firm
 Venture Capital Fund
 Trusts
 Other Entities
Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 99
Quick Recap
Prohibited areas
Pakistani = With prior CG Approval (+)
Defence (+) Space (+)
Atomic energy

Bangladeshi With prior CG Approval No Prohibited (Barred)

= (+)
areas

Nepal
FDI
(+) India
Bhutan

Indian Currency (+) Foreign Currency

Repatriate

(4) 5% willing FPI

FPI invest in share (Russia)
(US) (1) Max 10% Shares

RIL
Can do so by
passing SR

(3) Max 4%
FPI (2) Max 10% Shares share FPI (Germany)
(UK)

A Foreign
Group Invest Indian share
B Individual
UK FPI market
Investment Not
C
Allowed
D

Is there any maximum limit even after passing SR?

S
A 10%
10%
SR Pass Limit will Extent to
10%
B RIL maximum FDI limit prescribed in
4% that particular sector
C Natural Gas
(51% FDI is permitted)
100 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
Quick Recap
Foreign Venture Capital Investors (FVCF)

Automatic route
Upto 100% Or
Approval Prior (Sectoral Cap)

Indian Venture (Business)

New Unlisted Risky

Listed subsidiary (SEBI Approval (+) RBI

Government

Sector

Upto 100 Crore More than 100 Crore

100% FDI 51% FDI

10. Meaning of Special Purpose Vehicle(SPV)

 A Special Purpose Vehicle (SPV) or Special Purpose Entities (SPE) areformed for a special purpose.
 Scope of these kind of companies or entities are limited only to those activities which are required
to be performed to attain that specific purpose.
 These entities close their operations once the purpose is attained.
 The operations of these entities are limited to the acquisition and financing of specific assets.
 SPVs are generally a subsidiary company whose obligations are secured even if the parent
company goes bankrupt.
 A SPVs or SPEs may be formed through limited partnerships, trusts, corporations, limited
liability corporations or other entities.
 An SPV or SPE may be designed for independent ownership, management and funding of a company
or as protection of a project from operational or insolvency issues.
 SPVs help companies securitize assets, create joint ventures, isolate corporate assets or perform
other financialtransactions.
Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 101
Quick Recap

Meaning of SPV

Special Purpose Vehicle also know as special Purpose Entity are formed for a special
purpose i.e., an entity is limited only to these activities & will shut down its
operations once its objective has been accomplished.

Introduction to SPV

SPV or SPE
(+)
Special Purpose
(+)
Limited Activities
(+)
Object Accomplished
(+)
Windup
(+)
Generally subsidiary company
(+)
Formed as company & LLP & trust
(+)
Protection from Insolvency

Conclusion - SPV is an entity which has distinct identity from its promoters or sponsors or constituents
or shareholders.
For Example- Smart City Project
 Smart Cities Mission Project of the Ministry of Housing & Urban Affairs, Government of India at the
City level will be done by a Special Purpose Vehicle (SPV) created for the purpose.
 The SPV will plan, appraise, approve, release funds, implement, manage, operate, monitor and
evaluate the Smart City development projects.
 Each smart city will have a SPV which will be headed by a full time CEO and have nominees of
Central Government, State Government and ULB on its Board.
 The SPV will be a limited company incorporated under the Companies Act, 2013 at thecity-level.


102 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
Quick Recap
Special Purpose Vehicle (SPV)
or
Special Purpose Entity (SPE)

Funds AV Hotel
Public Chandigarh
Company -1

A D
B C

No Connection between both Companies

Funds AV Hotel
Public Jaipur
Company -2

P S
Q R Modi Government

Smart City

SPV

150 Smart Cities

150 Companies

Factoring (SPV)

100 cr A

Bank - 1 Loan
B
(1)
C
80 crore
(4) (5)
120 crore

Bank – 2
(2) Setup SPV
(Factor)

(3) 100 Crore

80 Crore
Bonds
X Z
Y
Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 103
Quick Recap
Special Purpose Vehicle (SPV)

(3) Funds transfer

Newly Incorporated (1)

Company Banker [SPV-1]

(2)
(3) Industrial Revenue
Funds Bonds

Public

How is an SPV established?

 SPV must have promoter(s) or sponsor(s),like a company
 Parent company creates SPV, to isolate or securitize assets in in a separate company
that is often kept off the balance sheet.
 It may be created in order to undertake risky project, while protecting the parent
company from the most risk if its failure.
 It is formed to keep distance from parent company,the performance of the new entity as
spvll not affect the parent company or original entity.
 SPV is formed generally as a subsidiary company.
 A good SPV should be able to stand on its feet, independent of the sponsoring
company.
 Unfortunately, this does not happen inpractice.
 SPV is created as a separate company with its own balance sheet.

SPV as preferred vehicle for funds raising by Infrastructure sector :

 The funds requirement for Infra structure sector are huge.

 There are different organisations, like the Infrastructure Development Finance Company (IDFC),
Power Finance Corporation (PFC), Indian Rail Finance Corporation (IRFC) etc., which are engaged
in raising funds for development of infrastructure sector projects for the sectors they are involved in.
 The proposed SPV, which is likely to be a government company, will add to the availability of long-
term funds for infrastructure sector projects.
 The implementation of the Smart Cities Mission at the City level done by a Special Purpose Vehicle
(SPV) created for the purpose.
 The SPV plan, appraise, approve, release funds, implement, manage, operate, monitor and evaluate
the Smart City development projects.
 The execution of projects may be done through joint ventures, subsidiaries, Public-Private
Partnership (PPP), turnkey contracts, etc
104 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
11. Benefits of Special Purpose Vehicle
1. Ownership of Assets
An SPV allows the ownership of a single asset by multiple parties and allows for ease of transfer
between parties.
2. Minimum Statutory Requirement
Depending on the choice of jurisdiction, it is relatively cheap and easy to set up anSPV.
3. Clarity of documentation
It is easy to limit certain activities or to prohibit unauthorised transactions within the
SPVdocumentation.
4. Tax benefits
SPVs are often used to make a transaction tax efficient by choosing the most favourable tax residence
for the vehicle. SPVs are method of financial engineering schemes which have as their main goal, the
avoidance of tax. Some countries have different tax rates for capital gains and gains from property
sales.
5. Legal protection
The sponsor may limit legal liability in the event that the underlying projectfails.
6. Accounting Reasons
 Debts raised through SPV are not reflected in the balance sheet of the sponsor.
 It reflects a pleasant picture and enhances the debt raising ability of the sponsor.
 Losses incurred by SPV are not shown in the balance sheet of the sponsor, so it helps to maintain
the healthy picture of the sponsor in the eyes of its stakeholders.
7. Separation of the risk and capital between Sponsor Entity and its SPV
As a result, the SPV and the sponsoring company are protected against risks like insolvency,
which may arise during the course ofoperation.
8. Securitization of Assets
The SPV also allows securitization of assets without disturbing the managerial relationship. Under
the arrangement, any predictable income stream generated by secured assets can be securitized.
Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 105
Quick Recap

Benefits

Ownership of Less documentation Clarity of documentation

Assets or Tax benefits
Lesser legal formalities

At the time of
1 asset = Public As a part of global incorporation of SPV a
ownership Many a times automatic route expansion different new document is created
(+) is provided by government for SPV’s are setup in (LLPA trust deed, MOA,
Ease of new setup where as the different countries to AOA) which may limit its
Transfer expansion of existing gain taxation benefits activities & can also
company required licensing & as the tax rates in one prohibit some
other approvals making the country may differ unauthorized alteration
process or procedure complex from another country

Minimum Statutory requirement

Example:- If a company has been
incorporate in India then an Income Tax
liability is 30% & if willing to expand its
It is cheaper & easier to setup a new operations in dubai, it is advisable to setup
company as SPV instead of expanding new independent company in dubai to avail
the existing company is the benefits of lower taxation

Legal Protection Accounting reasons Separation of risk Securitization of

(Limited between sponsor entity Assets
Liability) & special purpose entity

The liability of SPV

The sponsors as well shall be the sole liability SPV allows the
as members may limit of SPV & shall not affect securitization of assets
their liabilities to the the financial position of Both SPV & Sponsoring without affecting the
failure of underlying sponsor Company are protected managerial relationship
projects only against the risk of (+)
operational inefficiency By creation of SPV &
& insolvency transfer the assets, SPV
can easily protect such
project from entire
business of sponsor
Example:- The debt raised by SPV or company
its losses shall not be reflected in
balance sheet of sponsor company
helping the sponsor company to
maintain its healthy picture in the eyes
of stakeholders
106 Joint Ventures Collaboration and Special Purpose Vehicles Chap. 4
12. Purpose of Special PurposeVehicle
 The main purpose of a Special Purpose Vehicle is to allow the parent company to make highly
leveraged or speculative investments without endangering the entire company.
 If the SPV goes bankrupt, it will not affect the parent company.
 SPVs are created by a parent company to implement large-scale projects and operations of an SPV
are legally limited to specific assets.
 SPVS are also formed by banks and financial institution for Securitisation. The total assets of banks
or financial institution mainly comprise of loans and receivables along with their future cash flow to a
separate entity, which may be formed for a specific purpose. The SPV is allowed to raise debt
which will be backed by these receivables and their future cash flows.
 The difference between the incomes received from these receivables and cost of servicing that debt
will be profit or earning of the SPV.
 By securitization through SPV the risk involved in this activity is separated from the general business
of thebank.
Quick Recap

Purpose of Special Purpose Vehicle

Risky investments by Parent Basic purpose for setting up SPV

Company in the name of SPV
without endangering the entire
company
(+) The business form of SPV is especially used by
Bankrupt of SPV bankers & financial institutions, to outsource its
≠ recovery of bad assets by transferring its NPA in the
Bankruptcy of Parent Company name of SPV
(+)
By forming the SPV the bankers have segregated their
recovery procedure from their core banking activities
(+)
Income of such SPV (RC or SC) received from sale of
assets (acquired from Bankers & Financial
Institutions) after deduction of debt servicing cost will
be considered as the profit or earning of such SPV

Tax Benefit (Win – Win Strategy for both SPV and its Sponsor Company)
 Indirect acquisition of assets - SPVs can be used for acquiring assets indirectly for the purpose of tax
saving.
 In this method, the sponsor takes the assets on lease from its SPV. Expenses incurred as rent, is
allowed as a deduction to sponsor for income tax purpose.
 On the other hand, the SPV acquires the asset through raising debt, the interest on which is a
deductible expense for tax purpose. This way the same asset can be used to claim deduction by both,
which results in saving of tax.
Chap. 4 Joint Ventures Collaboration and Special Purpose Vehicles 107

Difference Between a SPV and a Company

Special Purpose vehicle Company
SPV is special purpose vehicle Company is a general Purpose vehicle
SPV are mostly formed to raise funds from market, it is Company may do many things which are
formed for any lawful purpose. mentioned in MOA or permitted by companies
act-2013
SPV is generally formed as subsidiary company, however, Company can be formed in any form either as
can be formed as partnership, LLP, Trust. public company, private company, OPC or as
LLP.
SPV is an artificial company, like company Company is also an artificial person
SPV is formed to accomplish object, i.e, for short period, Company has perpetual succession
after accomplishing goal company may be wound up.
The MOA of the SPV is narrow The MOA of the company is wide.
SPV’s scope of operation is limited and focused. Company’s scope of operation is not limited
,but within it’s MOA.
SPV can sue other company and can be sued by other Company can sue and can be sued by other
company. company.
SPV is formed to perform limited activities Company is formed to perform as per its object
clause.