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- Restrictions on Investment Structures Commonly Used by Investors in Early Stage Companies:Investors frequently cite a lack of options for structuring their investments, particularly in early-stage companies. We recommend loosening restrictions on lending (including interest rates), considering long-term options to open the debt markets, allowing other entity types (such as a PLC) to issue preferred shares, and providing greater flexibility for small equipment leases.
- Enforceability of Investment Agreements:Oftentimes, investors are nervous that their investment agreements (such as a share purchase agreement or shareholders’ agreement) will not be enforceable. We suggest clearly stating in the law that all investment agreements will be separately enforceable, in addition to companies’ memorandums and articles of association, and clearly outlining any witness or other authentication requirements for such agreements.
- Frequent Regulatory Modifications:Investors express some concern that regulations will be modified unexpectedly or without explanation. To alleviate this concern, we suggest providing additional notice periods for regulatory changes so that investors can plan accordingly and seeking public commentary before final laws are published.
- Delays and Uncertainty in the Process of Registering Capital:Various agencies play a role in registering foreign investments, including the EIC, NBE, MOTI and DARA. Officials at each agency sometimes provide conflicting guidance and the number of agencies can cause delays and uncertainty as to whether an investment will be reliably approved. We recommend enhancing the training of government officials responsible for registering foreign investments, streamlining the number of agencies involved, and restricting notaries’ duties to ensuring the authenticity of documents (rather than performing substantive reviews).
- Repatriating Capital:Investors often fear that they will encounter significant administrative delays when trying to convert currency and repatriate capital. To ease these concerns, we recommend that the NBE publishes its track record of paying remittances and, if possible, provide a platform through which investors can track their place in the queue to repatriate dividends or capital.
- Sector Restrictions on Foreign Investors:We recommend opening up additional sectors to foreign investment. Rather than having a list of defined sectors in which foreign investors can invest, we recommend a narrow list of prohibited sectors, leaving all other sectors open to foreign investment. Certain sectors could first be opened through investment by a joint venture between foreign and domestic investors, to allow for a gradual opening of the sector.
- Treatment of Local Companies with Foreign Minority Shareholders as “International Companies”:Foreign investors often take a minority equity interest in a local company, in an effort to help that company compete with international players. However, we understand some companies have lost certain privileges they had as a local business due to these minority investments. We recommend abolishing any policy that favors 100% locally-owned companies over local companies which merely have a foreign minority shareholder, so as not to harm these companies and undercut the growth that the foreign investment is intending to facilitate.
- Registration of Title:Providing for title registration at the municipal level can oftentimes cause delays in the operation of a company’s business, if the local office is closed or unavailable for any reason. We recommend providing for an alternative to municipal registration in an effort to alleviate delays.