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The SEBI (Alternative Investment Funds) Regulations, 2012 has been enacted to provide the various procedures and compliances that are associated with alternative investment funds in India.

Brief History of the Rules

The Securities and Exchange Board of India (SEBI) has created the SEBI (Alternative Investment Funds) Regulations, 2012 by the powers granted under Section 30 read with Section 11 and Section 12 of the SEBI Act, 1992.

List of Amendments

SEBI (Alternative Investment Funds) (Amendment) Regulations, 2013
SEBI (Real Estate Investment Trusts) Regulations, 2014
SEBI (Alternative Investment Funds) (Amendment) Regulations, 2015
SEBI (Alternative Investment Funds) (Amendment) Regulations, 2016
SEBI (Alternative Investment Funds) (Amendment) Regulations, 2018
SEBI (Alternative Investment Funds) (Amendment) Regulations, 2019

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SEBI (Alternative Investment Funds) Regulations, 2012

Table of Contents

1. Important Definitions

Alternative Investment Fund means any fund established or incorporated in India in the form of a trust or a company or a limited liability partnership or a body corporate-

Which is a privately pooled investment vehicle which collects funds from investors, whether Indian or foreign, for investing it in accordance with a defined investment policy for the benefit of its investors.
Which is not covered under the SEBI (Mutual Funds) Regulations, 1996, SEBI (Collective Investment Schemes) Regulations, 1999 or any other regulations of the Board to regulate fund management activities.

(Provided that family trusts set up for the benefit of relatives as defined under the Companies Act, 2013, Employee Stock Option Plan Trusts set up under the SEBI (Share Based Employee Benefits) Regulations, 2014 or as permitted under Companies Act, 2013, employee welfare trusts or gratuity trusts set up for the benefit of employees, holding companies as defined under the Companies Act, 2013, other special purpose vehicles not established by fund managers, including securitization trusts, regulated under a specific regulatory framework, funds managed by securitisation company or reconstruction company which is registered with the Reserve Bank of India under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and any such pool of funds which is directly regulated by any other regulator in India are not to be treated as Alternative Investment Funds under these regulations).

Angel Fund means a sub- category of Venture Capital Fund under Category I Alternative Investment Fund that raises funds from angel investors and invests in accordance with the provisions of this Chapter.

Angel Investor means any person who proposes to invest in an angel fund and satisfies one of the following conditions-

An individual investor who has net tangible assets of at least INR 2 crores excluding value of his principal residence, and who has early stage investment experience or has experience as a serial entrepreneur or is a senior management professional with at least 10 years of experience.
A body corporate with a net worth of at least INR 10 crores.
An Alternative Investment Fund registered under these regulations or a Venture Capital Fund registered under the SEBI (Venture Capital Funds) Regulations, 1996.

Associate means a company or a limited liability partnership or a body corporate in which a director or trustee or partner or sponsor or manager of the Alternative Investment Fund or a director or partner of the manager or sponsor holds, either individually or collectively, more than 15% of its paid-up equity share capital or partnership interest, as the case may be.

Change in Control in relation to a company or body corporate means-

If its shares are listed on any recognized stock exchange, change in control has the same meaning as assigned under SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011
In any other case, change in the controlling interest or change in legal form (It is noteworthy that controlling interest in this context means an interest, whether direct or indirect, to the extent of more than 50% of voting rights or interest).

Corpus means the total amount of funds committed by investors to the Alternative Investment Fund by way of a written contract or any such document as on a particular date.

Custodian means a person who has been granted a certificate of registration to carry on the business of custodian under the SEBI (Custodian) Regulations, 1996.

Debt Fund means an Alternative Investment Fund which invests primarily in debt or debt securities of listed or unlisted investee companies according to the stated objectives of the Fund.

Equity Linked Instruments includes instruments convertible into equity shares or share warrants, preference shares, debentures compulsorily or optionally convertible into equity.

Hedge Fund means an Alternative Investment Fund which employs diverse or complex trading strategies and invests and trades in securities having diverse risks or complex products including listed and unlisted derivatives.

Infrastructure Fund means an Alternative Investment Fund which invests primarily in unlisted securities or partnership interest or listed debt or securitized debt instruments of investee companies or special purpose vehicles engaged in or formed for the purpose of operating, developing or holding infrastructure projects.

Investee Company means any company, special purpose vehicle or limited liability partnership or body corporate or real estate investment trust or infrastructure investment trust in which an Alternative Investment Fund makes an investment.

Investible Funds means corpus of the Alternative Investment Fund net of estimated expenditure for administration and management of the fund.

Manager means any person or entity who is appointed by the Alternative Investment Fund to manage its investments by whatever name called and may also be the same as the sponsor of the Fund.

Private Equity Fund means an Alternative Investment Fund which invests primarily in equity or equity linked instruments or partnership interests of investee companies according to the stated objective of the fund.

Social Venture means a trust, society or company or venture capital undertaking or limited liability partnership formed with the purpose of promoting social welfare or solving social problems or providing social benefits and includes-

Public charitable trusts registered with the Charity Commissioner
Societies registered for charitable purposes or for promotion of science, literature, or fine arts
Company registered under section 8 of the Companies Act, 2013
Micro finance institutions.

Social Venture Fund means an Alternative Investment Fund which invests primarily in securities or units of social ventures and which satisfies social performance norms laid down by the fund and whose investors may agree to receive restricted or muted returns.

Sponsor means any person or persons who set up the Alternative Investment Fund and includes a promoter in case of a company and designated partner in case of a limited liability partnership.

Unit means beneficial interest of the investors in the Alternative Investment Fund or a scheme of the Alternative Investment Fund and shall include shares or partnership interests.

Venture Capital Fund means an Alternative Investment Fund which invests primarily in unlisted securities of start-ups, emerging or early-stage venture capital undertakings mainly involved in new products, new services, technology or intellectual property right based activities or a new business model and also includes an angel fund.

Venture Capital Undertaking means a domestic company which is not listed on a recognised stock exchange in India at the time of making investment and which is engaged in the business for providing services, production or manufacture of article or things and does not include following activities or sectors-

Non-banking financial companies
Gold financing
Activities not permitted under industrial policy of Government of India
Any other activity which may be specified by the Board in consultation with the Government of India from time to time.

2. Procedure for Registration of Alternative Investment Funds

2.1 Registration of Alternative Investment Funds

No entity or person is entitled to act as an Alternative Investment Fund unless it obtains a certificate of registration from the Board. However, if an existing fund falls within the definition of Alternative Investment Fund and is not registered with the Board because it existed since before the implementation of these rules, then it may continue for a period of 6 months within which such entity or person will have to obtain the certificate of registration. In special cases, the Board is also empowered to extend this period up to a period of 12 months.
It is provided under these rules that funds registered as venture capital under the SEBI (Venture Capital Funds) Regulations, 1996 will continue to be regulated under it till the fund is wound up and that it is not entitled to launch any new scheme after the enactment of these rules.
The rules provide the categories of Alternative Investment Funds in which an entity or person can seek registration.
Category I Alternative Investment Funds invest in start-up or early stage ventures or social ventures or small and medium enterprises or infrastructure or other sectors or areas which the government or regulators consider as socially or economically desirable and includes venture capital funds, small and medium enterprises funds, social venture funds, infrastructure funds and such other Alternative Investment Funds as specified. For this category, Alternative Investment Funds which are generally perceived to have positive spillover effects on economy and for which the Board or Government of India or other regulators in India might consider providing incentives or concessions have to be included and such funds which are formed as trusts or companies have to be construed as venture capital company or venture capital fund as specified under the Income Tax Act, 1961.
Category II Alternative Investment Funds do not fall in Category I and III and do not undertake leverage or borrowing other than to meet day-to- day operational requirements as permitted in these regulations. For this category, Alternative Investment Funds such as private equity funds or debt funds for which no specific incentives or concessions are given by the government or any other regulator are included.
Category III Alternative Investment Funds employ diverse or complex trading strategies and may employ leverage including through investment in listed or unlisted derivatives. For this category, Alternative Investment Funds such as hedge funds or funds which trade with a view to make short term returns or such other funds which are open ended and for which no specific incentives or concessions are given by the government or any other regulator are included.
An application for grant of certificate has to be made for any of the categories as specified in Form A and has to be accompanied by a non-refundable application fee.
The Board has to take into account requirements as specified in these regulations for the purpose of considering grant of registration.
Without prejudice to the powers of the Board to take any action under the Act or regulations, the certificate of registration is valid till the Alternative Investment Fund is wound up.
The Board may, in the interest of the investors, issue directions with regard to the transfer of records, documents or securities or disposal of investments relating to its activities as an Alternative Investment Fund.
The Board may, in order to protect the interests of investors, appoint any person to take charge of records, documents, securities and for this purpose, also determine the terms and conditions of such an appointment.

2.2 Eligibility Criteria of Alternative Investment Fund for Registration Certificate

The Memorandum of Association in case of a company, or the Trust Deed in case of a Trust, or the Partnership Deed in case of a limited liability partnership has to permit it to carry on the activity of an Alternative Investment Fund.
The applicant needs to be prohibited by its memorandum and articles of association or trust deed or partnership deed from making an invitation to the public to subscribe to its securities.
In case the applicant is a Trust, the instrument of trust has to be in the form of a deed and has to be duly registered under the provisions of the Registration Act, 1908.
In case the applicant is a limited liability partnership, the partnership has to be duly incorporated and the partnership deed has to be duly filed with the Registrar under the provisions of the Limited Liability Partnership Act, 2008.
In case the applicant is a body corporate, it has to be set up or established under the laws of the Central or State Legislature and has to be permitted to carry on the activities of an Alternative Investment Fund.
The applicant, Sponsor and Manager have to be fit and proper persons based on the criteria specified in Schedule II of the SEBI (Intermediaries) Regulations, 2008.
The key investment team of the Manager of Alternative Investment Fund has to have adequate experience, with at least one key personnel having not less than 5 years experience in advising or managing pools of capital or in fund or asset or wealth or portfolio management or in the business of buying, selling and dealing of securities or other financial assets and has relevant professional qualification.
The Manager or Sponsor has to have the necessary infrastructure and manpower to effectively discharge its activities.
The applicant has to have clearly described at the time of registration, the investment objective, the targeted investors, proposed corpus, investment style or strategy and proposed tenure of the fund or scheme.
Details of whether the applicant or any entity established by the Sponsor or Manager has earlier been refused registration by the Board have to be clearly furnished.

2.3 Procedure for Grant of Certificate

The Board may grant a certificate under any specific category of Alternative Investment Fund, if it is satisfied that the applicant fulfills the requirements as specified in these regulations.
The Board has to grant a certificate of registration in Form B on receipt of the registration fee. The registration may be granted with such conditions as may be deemed appropriate by the Board.
An Alternative Investment Fund that has been granted in-principle approval may accept commitments from investors but cannot accept any monies till it is granted registration.

2.4 Procedure where Registration is Refused

After considering an application made, if the Board is of the opinion that a certificate should not be granted, it may reject the application after giving the applicant a reasonable opportunity of being heard.
The decision of the Board to reject the application has to be communicated to the applicant within 30 days.
Where an application for a certificate is rejected by the Board, the applicant has to cease to carry on any activity as an Alternative Investment Fund (Provided that nothing contained in these regulations can affect the liability of the applicant towards its existing investors under law or agreement).

3. Investment Conditions and Restrictions

All Alternative Investment Funds have to state their investment strategy, investment purpose and investment methodology in its placement memorandum to the investors.
Any material alteration to the fund strategy has to be made with the consent of at least two- thirds of unit holders by value of their investment in the Alternative Investment Fund.
Investment in all categories of Alternative Investment Funds are subject to the conditions that the Alternative Investment Fund may raise funds from any investor whether Indian, foreign or non-resident Indians by way of issue of units, each scheme of the Alternative Investment Fund has to at least have corpus of INR 20 crores, the Alternative Investment Fund cannot accept from an investor, an investment of value less than INR 1 crore unless they are employees or directors of the Alternative Investment Fund or employees or directors of the Manager, where the minimum value of investment can be INR 25 lakhs, the Manager or Sponsor should have a continuing interest in the Alternative Investment Fund of not less than 2.5% of the corpus or INR 5 crores, whichever is lower, in the form of investment in the Alternative Investment Fund and such interest shall not be through the waiver of management fees (Provided that for Category III Alternative Investment Fund, the continuing interest has to be not less than 5% of the corpus or INR 10 crores, whichever is lower, the Manager or Sponsor has to disclose their investment in the Alternative Investment Fund to the investors of the Alternative Investment Fund, no scheme of the Alternative Investment Fund can have more than 1,000 investors and the fund cannot solicit or collect funds except by way of private placement.
Alternative Investment Funds have to raise funds through private placement by issue of information memorandum or placement memorandum, by whatever name called. Such information or placement memorandum has to contain all material information about the Alternative Investment Fund and the Manager, background of key investment team of the Manager, targeted investors, fees and all other expenses proposed to be charged, tenure of the Alternative Investment Fund or scheme, conditions or limits on redemption, investment strategy, risk management tools and parameters employed, key service providers, conflict of interest and procedures to identify and address them, disciplinary history, the terms and conditions on which the Manager offers investment services, its affiliations with other intermediaries, manner of winding up of the Alternative Investment Fund or the scheme and such other information as may be necessary for the investor to take an informed decision on whether to invest in the Alternative Investment Fund.
Category I and II Alternative Investment Fund or schemes launched by such funds have a minimum tenure of 3years. Category III Alternative Investment Fund may be open ended or close ended.
Extension of the tenure of the close ended Alternative Investment Fund may be permitted up to 2 years subject to approval of two-thirds of the unit holders by value of their investment in the Alternative Investment Fund. In the absence of consent of unit holders, the Alternative Investment Fund has to fully liquidate within 1 year following expiration of the fund tenure or extended tenure.
Units of close ended Alternative Investment Fund may be listed on stock exchange subject to a minimum tradable lot of INR 1 crore.
Alternative Investment Fund may invest in securities of companies incorporated outside India subject to such conditions or guidelines that may be stipulated or issued by the Reserve Bank of India and the Board from time to time.
Co-investment in an investee company by a Manager or Sponsor cannot be on terms more favourable than those offered to the Alternative Investment Fund. Category I and II Alternative Investment Funds cannot invest more than 25% of the investable funds in one investee company. Category III Alternative Investment Fund cannot invest more than 10% of the investable funds in one investee company.
Alternative Investment Fund cannot invest in associates except with the approval of 75% of investors by value of their investment in the Alternative Investment Fund.

3.1 Conditions for Category I Alternative Investment Funds

Category I Alternative Investment Fund has to invest in investee companies or venture capital undertakings or in special purpose vehicles or in limited liability partnerships or in units of other Alternative Investment Funds as specified in these regulations.
Category I Alternative Investment Funds cannot borrow funds directly or indirectly or engage in any leverage except for meeting temporary funding requirements for not more than 30 days, on not more than 4 occasions in a year and not more than 10% of the investable funds.
In venture capital funds at least two-thirds of the investable funds have to be invested in unlisted equity shares or equity linked instruments of a venture capital undertaking or in companies listed or proposed to be listed on a small and medium enterprises exchange or small and medium enterprises segment of an exchange.
In venture capital funds, not more than one-third of the investable funds have to be invested in subscription to initial public offer of a venture capital undertaking whose shares are proposed to be listed and in debt or debt instrument of a venture capital undertaking in which the fund has already made an investment by way of equity or contribution towards partnership interest, preferential allotment including through qualified institutional placement of equity shares or equity linked instruments of a listed company subject to lock in period of 1 year, equity shares or equity linked instruments of a financially weak company or a sick industrial company whose shares are listed and special purpose vehicles which are created by the fund for the purpose of facilitating or promoting investment in accordance with these regulations. Such funds may enter into an agreement with merchant bankers to subscribe to the unsubscribed portion of the issue or to receive or deliver securities in the process of market making under the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009. Such funds are exempt from provisions of SEBI (Prohibition of Insider Trading) Regulations, 1992 in respect of investment in companies listed on small and medium enterprises exchange or small and medium enterprises segment of an exchange pursuant to due diligence of such companies subject to the conditions that the fund has to disclose any acquisition or dealing in securities pursuant to such due-diligence, within 2 working days of such acquisition or dealing, to the stock exchanges where the investee company is listed and such investment has to be locked in for a period of 1 year from the date of investment.
In case of small and medium enterprises, at least 75% of the investable funds have to be invested in unlisted securities or partnership interest of venture capital undertakings or investee companies which are small and medium enterprises or in companies listed or proposed to be listed on small and medium enterprises exchange or small and medium enterprises segment of an exchange.
In case of small and medium enterprises such funds may enter into an agreement with merchant bankers to subscribe to the unsubscribed portion of the issue or to receive or deliver securities in the process of market making under the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009.
In case of small and medium enterprises such funds are to be exempt from provisions of the SEBI (Prohibition of Insider Trading) Regulations, 1992 in respect of investment in companies listed on small and medium enterprises exchange or small and medium enterprises segment of an exchange pursuant to due diligence of such companies subject to the conditions that the fund has to disclose any acquisition or dealing in securities pursuant to such due-diligence, within 2 working days of such acquisition or dealing, to the stock exchanges where the investee company is listed and such investment has to be locked in for a period of 1 year from the date of investment.
In case of social venture funds at least 75% of the investable funds have to be invested in unlisted securities or partnership interest of social ventures.
In case of social venture funds such funds may give grants to social ventures, provided that appropriate disclosure is made in the placement memorandum. Such funds may accept muted returns for their investors, i.e., they may accept returns on their investments which may be lower than prevailing returns for similar investments.
In case of infrastructure funds, at least 75% of the investable funds have to be invested in unlisted securities or units or partnership interests of venture capital undertaking or investee companies or special purpose vehicles, which are engaged in or formed for the purpose of operating, developing or holding infrastructure projects. Such funds may also invest in listed securitized debt instruments or listed debt securities of investee companies or special purpose vehicles, which are engaged in or formed for the purpose of operating, developing or holding infrastructure projects.

3.2 Conditions for Category II Alternative Investment Funds

Category II Alternative Investment Funds have to invest primarily in unlisted investee companies or in units of other Alternative Investment Funds as may be specified in the placement memorandum.
Fund of Category II Alternative Investment Funds may invest in units of Category I or Category II Alternative Investment Funds (Provided that they can only invest in such units and cannot invest in units of other Fund of Funds).
Category II Alternative Investment Funds may not borrow funds directly or indirectly and cannot engage in leverage except for meeting temporary funding requirements for not more than 30 days, not more than 4 occasions in a year and not more than 10% of the investable funds.
Category II Alternative Investment Funds may engage in hedging, subject to guidelines as specified by the Board from time to time.
Category II Alternative Investment Funds may enter into an agreement with merchant bankers to subscribe to the unsubscribed portion of the issue or to receive or deliver securities in the process of market making under the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009.
Category II Alternative Investment Funds are exempt from Regulation 3 and 3A of SEBI (Prohibition of Insider Trading) Regulations, 1992 in respect of investment in companies listed on small and medium enterprises exchange or small and medium enterprises segment of an exchange pursuant to due diligence of such companies subject to the conditions that the fund has to disclose any acquisition or dealing in securities pursuant to such due- diligence, within 2 working days of such acquisition or dealing, to the stock exchanges where the investee company is listed and such investment will have to be locked in for a period of 1 year from the date of investment.

3.3 Conditions for Category III Alternative Investment Funds

Category III Alternative Investment Funds may invest in securities of listed or unlisted investee companies or derivatives or complex or structured products.
Category III Alternative Investment Funds may deal in goods received in delivery against physical settlement of commodity derivatives.
Fund of Category III Alternative Investment Funds may invest in units of Category I or Category II Alternative Investment Funds (Provided that they invest solely in such units and do not invest in units of other Fund of Funds.
Category III Alternative Investment Funds may engage in leverage or borrow subject to consent from the investors in the fund and subject to a maximum limit, as may be specified by the Board (Provided that such funds have to disclose information regarding the overall level of leverage employed, the level of leverage arising from borrowing of cash, the level of leverage arising from position held in derivatives or in any complex product and the main source of leverage in their fund to the investors and to the Board periodically, as may be specified by the Board.
Category III Alternative Investment Funds have to be regulated through issuance of directions regarding areas such as operational standards, conduct of business rules, prudential requirements, restrictions on redemption and conflict of interest as may be specified by the Board.

4. Angel Funds

An applicant may apply for registration as an angel fund in accordance with the provisions of these regulations.
An Alternative Investment Fund already registered under these regulations, which has not made any investments, may apply for conversion of its category into an angel fund under the provisions of these regulations and these regulations will apply as they apply to a fresh registration.
Angel funds can only raise funds by way of issue of units to angel investors. An angel fund has to have a corpus of at least INR 5 crores.
Angel funds have to accept up to a maximum period of 5 years, an investment of not less than INR 25 lakhs from an angel investor. An angel fund has to raise funds through private placement by issue of information memorandum or placement memorandum, by whatever name called (Provided that the provisions of the Companies Act, 2013 apply to the Angel Fund, if it is formed as a company.

4.1 Conditions for Investment by Angel Funds

Angel funds have to invest in venture capital undertakings which: complies with the criteria regarding the age of the venture capital undertaking/startup issued by the Department of Industrial Policy and Promotion under the Ministry of Commerce and Industry, Government of India vide Notification no. G.S.R. 180(E) dated February 17, 2016 or such other policy made in this regard which may be in force, have a turnover of less than INR 25 crores, are not promoted or sponsored by or related to an industrial group whose group turnover exceeds INR 300 crores and are not companies with family connection with any of the angel investors who are investing in the company.
Investment by an angel fund in any venture capital undertaking cannot be less than INR 25 lakhs and cannot exceed INR 10 crores.
Investment by an angel fund in the venture capital undertaking has to be locked-in for a period of 1 year.
Angel funds cannot invest in associates. Angel funds cannot invest more than 25% of the total investments under all its schemes in one venture capital undertaking (Provided that the compliance to this sub-regulation has to be ensured by the angel fund at the end of its tenure).
An angel fund may also invest in the securities of companies incorporated outside India subject to such conditions or guidelines that may be stipulated or issued by the Reserve Bank of India and the Board from time to time.

5. General Obligations of Alternative Investment Fund

All Alternative Investment Funds have to review policies and procedures, and their implementation, on a regular basis, or as a result of business developments, to ensure their continued appropriateness.
The Sponsor or Manager of Alternative Investment Fund has to appoint a custodian registered with the Board for safekeeping of securities if the corpus of the Alternative Investment Fund is more than INR 500 crores (Provided that the Sponsor or Manager of a Category III Alternative Investment Fund has to appoint such custodian irrespective of the size of corpus of the Alternative Investment Fund).
The custodian appointed by Category III Alternative Investment Fund has to keep custody of securities and goods received in delivery against physical settlement of commodity derivatives.
All Alternative Investment Funds have to inform the Board in case of any change in the Sponsor, Manager or designated partners or any other material change from the information provided by the Alternative Investment Fund at the time of application for registration.
In case of change in control of the Alternative Investment Fund, Sponsor or Manager, prior approval from the Board has to be taken by the Alternative Investment Fund.
The books of accounts of the Alternative Investment Fund have to be audited annually by a qualified auditor.

6. Powers of SEBI under the Rules

Power to grant certificate of registration to Alternative Investment Fund.
Power to refuse certificate of registration to Alternative Investment Fund.
Power to call for information
Power to call for furnishing of records of an Alternative Investment Fund.
Power to inspect books of accounts, records, documents, complaints and related matters.
Power to issue notice before inspection.
Power to require submission of report.
Power to take action as per the provisions of SEBI (Intermediaries) Regulations, 2008.
Power to issue clarifications.
Power to delegate powers.

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