Section 389 — Registration of Foreign Company Prospectus with ROC
# Section 389 — Registration of Foreign Company Prospectus
## Core Obligation
Before a prospectus offering securities of a foreign company can be issued, circulated or distributed in India, registration with the Registrar of Companies is mandatory.
## Three-Pronged Requirement (Sec 389(1))
### 1. Certified Copy Delivered to ROC
A copy of the prospectus must be:
Certified by the chairperson + 2 other directors of the foreign company, AND
Indicate it was approved by resolution of the managing body.
Delivered for registration to the Registrar before issue/circulation/distribution in India.
### 2. Statement on Face of Prospectus
The prospectus must state on its face that a copy has been so delivered.
### 3. Consents & Documents Endorsed/Attached
Any consent required under Section 388 (expert's consent) and prescribed documents must be endorsed on or attached to the copy.
## Rule 11 — Documents to be Annexed (Companies (Registration of Foreign Companies) Rules, 2014)
#
Document
(a)
Consent of any expert required under Section 388
(b)
Copy of contract for appointment of MD or Manager (or memorandum giving full particulars if not in writing)
(c)
Copy of any material contract NOT in ordinary course of business, entered within preceding 2 years
(d)
Copy of underwriting agreement
(e)
Copy of power of attorney, if prospectus is signed through an authorized agent of directors
## Mnemonic — "C-M-M-U-P"
Consent of expert
MD/Manager appointment contract
Material contracts (last 2 years, non-ordinary)
Underwriting agreement
Power of attorney
Worked example
### Example 1
Example 1: A Mauritius company plans to issue a prospectus in India on 15 June. It delivers the certified copy to the ROC on 16 June (after issue). — Result: Violation — delivery must happen BEFORE issue/circulation/distribution.
### Example 2
Example 2: A foreign company entered into a brand-licensing contract (non-ordinary course) 18 months ago. While registering its prospectus, it does not annex this contract. — Result: Violation of Rule 11(c) — material contracts within preceding 2 years (non-ordinary) must be annexed.
### Example 3
Example 3: The prospectus is certified by only the Chairperson and one other director. — Result: Defective — Section 389(1) requires chairperson + TWO other directors (total three signatures).
⚠️ Common exam mistakes
Certifying with only the chairperson — Section 389 requires chairperson AND two other directors.
Forgetting the 'face of prospectus' declaration that a copy has been delivered to ROC.
Failing to attach material contracts within the 2-year look-back period (Rule 11(c)).
Confusing 'preceding 2 years' window — it's not the financial year but the 2 years preceding the prospectus issue.
Missing the underwriting agreement annexure even when underwriting is in place.
Bare-Act text Section 389 / Rule 11 · Companies Act, 2013 read with Rule 11, Companies (Registration of Foreign Companies) Rules, 2014 · click to expand
Section 389(1): No person shall issue, circulate or distribute in India any prospectus offering for subscription in securities of a company incorporated or to be incorporated outside India... unless before the issue, circulation or distribution of the prospectus in India, a copy thereof certified by the chairperson of the company and two other directors of the company as having been approved by resolution of the managing body has been delivered for registration to the Registrar and the prospectus states on the face of it that a copy has been so delivered, and there is endorsed on or attached to the copy, any consent to the issue of the prospectus required by section 388 and such documents as may be prescribed.