OJK Eases Up on Annual Report Obligation and General Meeting of Shareholders
As the Coronavirus Disease (“COVID-19”) represents an unprecedented challenge to business operations and compliance requirements, and to minimize the spread requires limitation to public meetings and gatherings, the Indonesian Financial Services Authority (“OJK”) responsively issued 2 (two) letters, namely: OJK Circular Letter No. S-88/D.04/2020 dated March 16, 2020 on the Handling and Controlling of the COVID-19 (“OJK Letter 88/2020”) and OJK Circular Letter No. S-92/D.04/2020 dated March 18, 2020 on the Relaxation on the Report Obligation and the Implementation of General Meeting of Shareholders (“GMS”) (such letter, “OJK Letter 92/2020”).
- Guidance for Capital Market Industry Players
The OJK Letter 88/2020 provides a set of guidance for capital market industry players on their daily operational activities considering the outbreak of COVID-19 as to minimize the spread of such virus in Indonesia.
This guidance covers as follows:
- Daily operational must be adjusted as to minimize face-to-face communication, without hindering any services to the public, by maximizing indirect communication facilities. Notification of this adjustment must be made to the employees, customers, and business partners through mass media and other normal communication means.
- Procedures and guidelines on working from home policies must be immediately determined, based on the applicable laws and regulations, government-issued guidelines, company regulation, or other common practice. This working from home policy must be implemented in such a way that it does not obstructs the provision of service.
- Improve the sanitary level on workplace and customer service facilities.
- Suspend all business travels within the territory of Republic of Indonesia, especially to the regions with confirmed case of COVID-19, based on the most-updated data and information from the Ministry of Health.
- Meetings and other events to be carried out through video conference, webinar, email and/or Whatsapp group.
- Obligations to render services to the public must still be carried out, such as, among others: settlement on securities transactions, custodian services, customer service for collective investment contract, services to potential issuer or public company, securities administration, reporting to OJK, and public announcements.
- Letters communication to OJK can be submitted via email to the Executive Head of Capital Market Supervisory: email@example.com (cc: firstname.lastname@example.org and email@example.com).
- Annual Report Submission
As stipulated under OJK Regulation No. 29/POJK.04/2016 on Annual Report of Issuer or Public Company, publicly listed companies must submit an annual report (along with, among others, audited annual financial statement) to OJK at the latest by the end of the 4th month after the end of financial year.
With the issuance of the OJK Letter 92/2020, OJK extends the deadline for publicly listed companies for annual financial statement report and annual report submission for 2 (two) months after the original deadline.
This extension also applies for: (i) the evaluation report of Audit Committee on the performance of rendering audit service on annual historical financial information of issuers and publicly listed companies and (ii) annual financial statement of other capital market industry players such as, among others, IDX, KSEI, KPEI, Securities Companies, Securities Administration Bureau, Mutual Funds, and Collective Investment Contracts in the form of Real Estate Investment Trust and Assets-Backed Securities.
- Implementation of the Annual General Meeting of Shareholders
Extension of AGMS period
OJK Regulation No. 32/POJK.04/2014 on the Planning and Performance of General Meeting of Shareholders of Public Companies (“OJK Regulation 32/2014”) requires publicly listed companies to carry out AGMS at the latest by 6 (six) months after the end of the financial year.
With the issuance of OJK Letter 92/2020, OJK extends such deadline by 2 (two) months.
Implementation of E-GMS
With the issuance of OJK Letter 92/2020, OJK allows publicly listed companies to hold a GMS – whether annual GMS or other GMS (i.e. to discuss material transactions, transaction with conflict of interest) – using a mechanism of electronic proxy by using e-GMS system as currently being prepared by the Indonesia Central Securities Depository (Kustodian Sentral Efek Indonesia – “KSEI”).
As a follow up to OJK Letter 92/2020, on March 24, 2020, KSEI through a video conference with relevant stakeholders demonstrated the implementation of e-proxy and e-voting in a system called ‘eASY®‘, in relation the proposed implementation of e-GMS (the “Platform”).
Below is the brief summary of the process of e-GMS through the Platform:
- GMS Announcement
GMS announcement will be carried out through the Platform by sending an announcement (along with the supporting document, and the link to the document and information on the GMS) by blasting emails to the registered recipients as determined by relevant publicly listed company and KSEI.
According to KSEI, there will be a validation period of 14 (fourteen) days from the date of GMS announcement to the date of the GMS invitation – although it will be not implemented during the early stage.
Detailed information that must be completed are as follows: (a) type of meeting (i.e., AGMS/EGMS); (b) meeting date; (c) date of invitation; (d) record date; (e) start meeting hour; (f) end meeting hour; (g) address; (h) country; (i) province; (j) name of the notary, etc.
- GMS Invitation
GMS invitation will be carried out by sending a notification to the shareholders through the Platform and relevant publicly listed company shall upload the agenda(s) of the GMS. The agenda must be made in 2 (two) languages, namely Indonesian and English language. The supporting document as well as the link to the document and information on the GMS can be attached to the GMS announcement.
Through the Platform, the publicly listed company can blast e-mails to the list of shareholders as determined by the said publicly listed company and KSEI.
According to KSEI, there will be a validation period of 21 (twenty-one) days from the date of GMS invitation to the date of GMS– although it will be not implemented during the early stage.
Physical GMS will still be held – attended by the appointed BAE and shareholders or their Proxies (to be defined below).
The quorum for attendance and voting will be calculated by those who are attending the GMS physically and via video conference (with prior registration through the Platform).
Simultaneously with the physical GMS, the GMS can be started when the publicly listed company clicks the ‘e-meeting call’ button on the Platform. On the screen, the parties can see, among others, the GMS agenda and its discussion, live streaming screen, and a chat room. The participants or the proxies can accept or reject the agenda of GMS by clicking ‘accept’, ‘reject’, or ‘abstain’ button on each agenda. These data then will be stored by the KSEI database, these data will be processed not later than d+1 from the meeting date at 12 noon.
For this e-GMS system, the shareholders may appoint proxies as follows:
Shareholders can provide power of attorney to individual proxy who has been registered in the AKSes facility (electronic information access facility maintain by KSEI). If the individual proxy does not have the access to the AKSes facility, the relevant shareholder can input e-mail addresses, and an e-mail notification will be automatically sent to the individual proxy requesting to create a user ID at AKSes.
- Independent Proxy
Shareholders may appoint the Independent Proxy as its proxy for the e-GMS. The Independent Proxy is the BAE as appointed by the relevant publicly listed company at the latest prior to the GMS invitation.
- Account Holder Proxy
Shareholders may appoint its account holder (Custodian or Securities Companies) as its proxy for the e-GMS. The appointed account holder will register the vote to the KSEI database on the Platform by d-1 from the meeting date at 12 noon.
Lastly, KSEI also prepares to issue a decree of KSEI’s directors regarding the implementation of the ‘eASY® system which will be expected to be released within this week. The first e-GMS using the ‘eASY® system will be held on May 13, 2020.
March 26, 2020
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- March 26, 2020