2. STARTUP X
IMPLICATIONS
Any India – Delaware flip involves, at the very least, the following considerations:
Foreign Exchange Management Act
• The FEMA controls the entire structuring process and restricts the manner in which a flip can be structured
and in some cases, may even restrict the post flip head office’s activities.
Intellectual Property Owned by the Indian Company
• The Intellectual Property must be transferred to the parent company (for obvious reasons) either by
assignment or license or by an acquisition of controlling interest in the company that owns the IP.
Indian Tax Laws
• The transfer of shares, purchase of shares and transfer of intellectual property must be completed in a tax
efficient manner.
3. STARTUP X
IMPLICATIONS
US Law Considerations
• US and Delaware law will guide the kind and nature of shares and shareholding rights.
• If this is a Venture Capital deal, rights of investors should be determined in accordance with NVCA
standards.
US Tax Considerations
• A variety of US tax considerations need to be carefully parsed, while determining the optimal structure for
a flip.
• Of critical importance is the general resistance to “gifts” – an integral component of many India –
Singapore flips.
4. STARTUP X
STANDARD FLIP OUT OF INDIA
DELAWARE
HOLDING COMPANY
NEW INDIA
COMPANY
RESIDENT
SHAREHOLDERS
NON-RESIDENT
SHAREHOLDERS
US COMPANY
This structure is one of the few – and more popularly used ones - that are available for the proposed re-
structuring that is to be undertaken.
5. STARTUP X
STEP 1: Incorporation of a Delaware Holding Company
NON-RESIDENT
SHAREHOLDERS OF
INDIAN COMPANY
DELAWARE
HOLDING COMPANY
MECHANICS
A Delaware holding company (“Delaware Holding
Company”) can be set up by non-resident
shareholders of the Indian Company with nominal
share capital.
Non-resident shareholders can acquire shares of
the Delaware Holding Company for a nominal
consideration
6. STARTUP X
STEP 1.1: Resident Shareholders Acquire Shares
A resident shareholder can acquire shares of the Delaware Holding Company through different routes.
Some of the popular ones are discussed below.
Through funds acquired or earned outside
India when the person was a person
resident outside India under FEMA.
Through the Liberalized Remittance
Scheme, wherein resident individuals can
remit up to USD 2.5 M abroad for certain
transactions
IMPLICATION. Remitting money under the LRS
may attract round tripping concerns if the
resident individuals’ money is remitted back to
India.
Further, the Delaware HQ may be subject to
restrictions in respect of future actions.
This must be weighed against the potential tax
liability of a “gift” under applicable law.
OR
7. STARTUP X
STEP 2: Transfer of US Company to Delaware Holding
Company
INDIAN COMPANY
DELAWARE
HOLDING COMPANY
DELAWARE
COMPANY
US COMPANY
TRANSFER OF SHARES
MECHANICS
The Indian Company transfers its shareholding in
the US Company to the Delaware Holding
Company.
Transfer will be subject to Pricing Guidelines and
compliance with the FEMA.
Transfer will require US Tax advice.
8. STARTUP X
STEP 2: Transfer of Delaware Company to Delaware
Holding Company (Contd.)
STRUCTURE OF DELAWARE HOLDING COMPANYSTRUCTURE OF INDIAN COMPANY
INDIAN COMPANY
RESIDENT
SHAREHOLDERS
NON-RESIDENT
SHAREHOLDERS
RESIDENT
SHAREHOLDERS
NON-RESIDENT
SHAREHOLDERS
DELAWARE HOLDING
COMPANY
US COMPANY
9. STARTUP X
STEP 3: Setting Up New India Subsidiary
DELAWARE
HOLDING COMPANY
NEW INDIAN
COMPANY
The Delaware Holding Company sets
up a new Indian entity with a nominal
share capital.
DELAWARE HOLDING
COMPANY
RESIDENT
SHAREHOLDERS
NON-RESIDENT
SHAREHOLDERS
US COMPANY
NEW INDIAN
COMPANY
STRUCTURE OF DELAWARE HOLDING COMPANY
10. STARTUP X
STEP 4: Non-Resident Shareholders Participate in Share
Swap
NON-RESIDENT
SHAREHOLDERS
INDIAN COMPANY
DELAWARE
HOLDING COMPANY
SWAP OF SHARES
Non-resident shareholders of the Indian
Company transfer their shares in the Indian
Company to the Delaware Holding Company in
exchange of shares of the Delaware Holding
Company
STRUCTURE OF INDIAN COMPANY POST SWAP
DELAWARE HOLDING
COMPANY
RESIDENT
SHAREHOLDERS
INDIAN COMPANY
RESIDENT
SHAREHOLDERS
NON-RESIDENT
SHAREHOLDERS
DELAWARE
HOLDING COMPANY
STRUCTURE OF DELAWARE HOLDING COMPANY POST SWAP
11. STARTUP X
STEP 5: Merger of Indian Entities
DELAWARE HOLDING
COMPANY
NON-RESIDENT
SHAREHOLDERS
RESIDENT
SHAREHOLDERS
INDIAN COMPANY
NEW INDIAN
COMPANY
100%
MERGE
ISSUE SHARES
STRUCTURE OF NEW INDIAN COMPANY
NON-RESIDENT
SHAREHOLDERS
RESIDENT
SHAREHOLDERS
DELAWARE
HOLDING COMPANY
NEW INDIAN
COMPANY
Note: This is an optional step. Instead of a merger of the two Indian
entitles, a slump sale of the Indian Company to the New Indian
Company may be considered as well.
RPS
RPS
RPS: Redeemable Preference Shares