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New Regulation on Acquisition of Publicly Listed Company

On July 27, 2018, the Financial Services Authority (Otoritas Jasa Keuangan – “OJK”) of the Republic of Indonesia issued a new OJK Regulation No. 9/POJK.04/2018 on Acquisition of Publicly Listed Companies (“POJK 9/2018”). POJK 9/2018 replaces BAPEPAM-LK Reg. No. IX.H.1 on Acquisition of Publicly Listed Companies (“Reg. IX.H.1”).

Acquisition, as defined by both Reg. IX.H.1 and POJK 9/2018, means an action, either directly or indirectly, that causes a change of controller (“Acquisition”).

As has been the policies in relation to the Acquisition of a publicly listed company, an Acquisition would trigger the obligation of a new controller to conduct what is called a Mandatory Tender Offer (“MTO”). MTO itself is defined under both Reg. IX.H.1 and POJK 9/2018 as offer for the purchase of remaining shares in a publicly listed company that must be conducted by a new controller.

Based on the above definition and policies on MTO, POJK 9/2018 introduces new definition and interpretation on the term “controller”, as well as several new policies in relation to the implementation of the MTO obligation.

♦  DEFINITION AND ASSESSMENT OF “CONTROLLER” IN A PUBLICLY LISTED COMPANY

POJK 9/2018 introduces examples of documents or information that may be used as evidence of control over a publicly listed company. Under Reg. IX.H.1, a controller means a party that directly or indirectly: (a) owns more than 50% of fully paid shares in a publicly listed company; or (b) having the ability to determine, either directly or indirectly, through any means, the management and/or the policy of a publicly listed company (point (a) and (b) herein shall be referred to as “Control”, and the party having Control as “Controller”).

Previously, OJK as the supervising authority for publicly listed company, heavily relies on self-assessment of a prospective Controller, to conduct the proper assessment and disclosure in a proposed Acquisition transaction. This is especially the case if a shares purchase transaction does not reach 50% of fully paid up shares in a publicly listed company. POJK 9/2018 now introduces some assistance for these prospective Controller in determining the “ability to determine, either directly or indirectly, through any means, the management and/or the policy of a publicly listed company”.

Article 2 of POJK 9/2018 provides that Control based on the “ability to determine, either directly or indirectly, through any means, the management and/or the policy of a publicly listed company” may be proven by documentation and/or information that shows a party’s Control over a publicly listed company. In its elucidation of Article 2, POJK 9/2018 stipulates what kind of documents or information that determine a party’s Control over a publicly listed company, as follows:

1. An agreement with other shareholder that shows a possession of more than 50% of the voting rights in the publicly listed company;
2. A document/information that provides the authority of a shareholder to control financial and operation policy of the publicly listed company based on the articles of association or an agreement;
3. A document/information that provides that a shareholder has an authority to appoint or dismiss most members of the BOD and BOC;
4. A document/information that provides that a shareholder has the majority voting rights in the BOD and BOC meetings; and/or
5. A document/information indicating a control over a publicly listed company.

In addition to the above, POJK 9/2018 also provides that if there is a different provision on the criteria of a Controller in other regulations, the criteria of the Controller under POJK 9/2018 would be applicable. This provision relates to other specific regulations governing definition of controlling shareholders in, among others, banking, insurance, and multi-finance industries. This provision, as it appears, seems to address the conflicting definition of “Controller” in financial institutions, which determines that a party is deemed as controlling a financial institution if it holds more than 25% paid-up shares in such institution.

For example, for insurance company, a new shareholder will be deemed as new controller if it owns shares exceeding 25% of fully paid up shares. Consequently, this will require such party to undertake and pass the fit and proper test as the new controller. However, such new controller will only be bound by MTO requirement if it owns more than 50% shares in such insurance company or fulfill the criteria of “Controller” having the ability to determine, either directly or indirectly, through any means, the management and/or the policy of a publicly listed company under POJK 9/2018.

♦  MANDATORY TENDER OFFER BY AFFILIATE OF THE NEW CONTROLLER

Article 8 of POJK 9/2018 provides new provision that MTO may be carried out by another party appointed by the new Controller (must be a subsidiary of the Controller, at least 50% owned by the Controller, whether directly or indirectly). Further, POJK 9/2018 requires such appointed party to conduct all procedures for the implementation of MTO.

This possibility of appointing subsidiary to carry out MTO is newly introduced in POJK 9/2018 as it was not accommodated in Reg. IX.H.1. This possible appointment-arrangement might ease the new Controller in having to bear the additional costs required to purchase additional shares for all shareholders exercising the option under MTO implementation – which might be difficult to estimate. With this arrangement, the new Controller may allocate such additional costs to be borne by its appointed subsidiary, if it chooses to. In addition, this also accommodate a possibility for a third party (aside from the new Controller and its appointed subsidiary undergoing the MTO) to indirectly participate in acquiring additional shares obtained during MTO process from its shareholding in such subsidiary (e.g. the party which own the remaining 49% of such appointed subsidiary) by providing financing as well as holding certain control over the target company, although indirectly.

♦  QUALIFIED EXEMPTION FOR ACQUISITION OCCURING BASED ON RIGHTS ISSUE

Under the Reg. IX.H.1, MTO is exempted if an Acquisition occurs due to shares obtained as part of actions performed based on Regulation No. IX.D.1 (or the regulation governing Pre-Emptive Rights as now regulated under OJK Regulation No. 32/POJK.04/2015 dated December 22, 2015 on the Capital Increase in Publicly Listed Companies with Pre-Emptive Rights and Regulation No. IX.D.4 (or the regulation governing Issuance of Capital without Pre-Emptive Rights as now regulated under OJK Regulation No. 38/POJK.04/2014 dated December 30, 2014 on Capital Increase in Publicly Listed Companies without Pre-Emptive Rights).

Under POJK 9/2018, an Acquisition resulting from Rights Issue may only be exempted from MTO obligation if:

• The change of control results from the exercise of the pre-emptive rights in accordance with the new Controller’s proportion under such rights issue;
• The change of control results from a capital increase with rights issue in the context of debt restructuring where the company is in financial distress.

Previously under Reg. IX.H.1, any Acquisition resulting from Right Issue is exempted from MTO without any qualification of exemption. With this new qualification under POJK 9/2018, it seems that OJK would like to apply MTO obligation for certain Acquisition resulting from Right Issue – whereas under such corporate action, the new Controller subscribes newly issued shares in addition to its default proportion that results in a change of control.

♦  NO POSSIBLE EXTENSION FOR REFLOAT OBLIGATION

Previously under Reg. IX.H.1, the 2 years re-floating obligation may be extended under several conditions namely:

• Indeks Harga Saham Gabungan (IHSG) falls below 10% for 3 consecutive days;
• The Stock Exchange is closed;
• The trading of shares of the publicly listed company in the Stock Exchange is stopped;
• Natural disasters, wars, fires, which significantly affect the business of the publicly listed company;
• The price of the shares during the sell-down period has never been equals to or more than the price of MTO; and/or
• The new controller has taken an effort to conduct the refloat obligation, but the requirements have not been met.

POJK 9/2018 no longer regulates the possibilities of extending the 2-year period of refloat obligation.

♦  NEW PROVISIONS ON SANCTIONS

Previously, Reg. IX.H.1 provide specific type of sanctions for violations on certain obligations provided therein, including annulment of transaction for failure to conduct MTO.

Under this POJK 9/2018, sanctions are given administratively and given general treatment for any violations of obligation under POJK 9/2018, leaving OJK to determine based on its discretion of which sanctions should be applicable to which violations, namely:

• Written warning;
• Fines;
• Limitation of business activity;
• Suspension of business activity;
• Revocation of business license;
• Cancellation of approval; and/or
• Cancellation of registration.

Copyright © 2018 AKSET. All rights reserved.

by Bonar

New Government Regulation Clarifies Foreign Ownership in Insurance Business Companies

The Indonesian Government has just issued Government Regulation No. 14 of 2018 on Foreign Ownership in Insurance Business Companies (“GR 14/2018”), which entered into force on April 18, 2018. The regulation is a mandate under Article 7 (3) of Law No. 40 of 2014, dated October 14, 2014, on Insurance (the “Insurance Law”). GR 14/2018 provides some important insights relating to the scope, criteria and restrictions on ownership by foreign individuals and legal entities in the insurance business.

GR 14/2018 regulates foreign investment in (i) insurance companies either operated based on conventional or sharia principles; (ii) reinsurance companies; (iii) insurance/reinsurance brokerage companies; and (iv) insurance loss adjusting companies (collectively referred to as “Insurance Business Companies”). The regulation replaces Government Regulation No. 73 of 1992 on Organizing Insurance Business, introduced on October 30, 1992 as lastly amended by Government Regulation No. 81 of 2008 (“GR 73/1992”). GR 14/2018 confirms there is no changes with caps on foreign ownership of 80% as there were a number of prior discussions exploring possibilities to reduce foreign ownership in insurance sectors. However, specifically for insurance companies, exemptions under GR 73/1992 which allowed local shareholders ownership to dilute is no longer possible.

♦  The Scope of Foreign Ownership in Insurance Business Companies

Consistent with Article 7(1) of the Insurance Law, GR 14/2018 provides that Insurance Business Companies may only be owned by:

1. Indonesian individuals and/or legal entities, which are ultimately (directly or indirectly) wholly owned by Indonesian individuals; or
2. Indonesian individuals and/or legal entities together with foreign individuals or legal entities. Only foreign legal entities having similar insurance business activities or hold a subsidiary engaging in similar insurance business activities is qualified as a foreign shareholder.

With respect to joint investment between Indonesian individuals and/or Indonesian legal entities with foreign parties (“JV Insurance Business Companies”), GR 14/2018 clarifies and provides detailed provisions on foreign ownership requirements in relation to JV Insurance Business Companies.

According to GR 14/2018, foreign individuals are limited to conduct shares participation in Insurance Business Companies through stock exchange. Meanwhile, foreign legal entity may acquire shares of Insurance Business Companies through the following means:

1. direct capital participation in the Insurance Company;
2. transaction on the stock exchange; and/or
3. capital participation in an Indonesian legal entity owning shares in an Insurance Business Company through direct capital participation or through stock exchange.

Please note that the ownership scheme as mentioned in point (c) above clarifies that the use of a foreign investment company (PMA) ultimately owned by a foreign party holding shares ownership in insurance companies will be recognized as a foreign ownership. This is in line with the Insurance Law which currently only recognizes Indonesian legal entities that ultimately is fully-owned by Indonesian individuals to be qualified as a local shareholder. As a background, under the old Insurance law and GR 73/1992, a PMA company ultimately owned by foreign shareholders was qualified as an Indonesian legal entity.  The Indonesian shareholder of an insurance companies could be, i.e., Indonesian legal entities without considering the existence of a foreign element in such Indonesian legal entities such as a PMA company.

♦  Criteria of Foreign Legal Entities

In addition to the requirement being a foreign legal entity that is in the same line of business, or a parent company that has a subsidiary engaged in similar insurance business activities, GR 14/2018 provides additional criteria on foreign legal entities that is permitted to hold shares in Insurance Business Companies, as follows:

1. must have equity at least 5 (five) times to the total direct capital participation at the establishment and at the change of ownership of the said Insurance Business Company; and
2. fulfil other requirements set by the Financial Services Authority (Otoritas Jasa Keuangan or “OJK”) in accordance with prevailing laws and regulations.

Please be informed that foreign legal entities acquiring shares in Insurance Business Companies through (i) stock exchange; or (ii) in Indonesian legal entities owning shares in such companies, are exempted from the above criteria.

♦  Foreign Ownership Restrictions

GR 14/2018 set forth the exact percentage of 80% for ownership limitation in Insurance Business Companies.

However, please note that the 80% cap shall not apply to publicly listed Insurance Business Companies.

Further, GR 14/2018 ensure that if foreign ownership of a non-listed Insurance Business Companies exceeds the 80% cap at the time of the enactment of GR 14/2018, such foreign ownership is grandfathered, provided that, any  future increase on the foreign ownership shall be prohibited.

For the latter, any increase of paid-up capital (other than the increase of paid-up capital by way of contribution in kind) is subject to the following requirements:

1. at least 20% (twenty percent) of the additional capital must be obtained from Indonesian legal entities (directly or indirectly wholly owned by Indonesian individuals) and/or Indonesian individuals; or
2. at least 20% (twenty percent) of the additional capital must be obtained through an initial public offering (IPO) in Indonesia.

To ensure compliance with GR 14/2018, Insurance Business Companies must identify and submit a report on the foreign ownership and fulfilment of the criteria of foreign legal entities to OJK, the details of the reporting mechanism will be further regulated by OJK in an OJK Regulation.

Non-compliance with GR 14/2018 shall be subject to administrative sanctions, which may take the form of written warnings, limitation of business activities (partial or whole), revocation of the business licenses, and/or an administrative penalty.

Copyright © 2018 AKSET. All rights reserved.

by Bonar

Newsflash on BI Sets Out New E-Money Regulation

On May 4, 2018, the Central Bank of Indonesia (Bank Indonesia - “BI”) finally issued a long-expected regulation regarding electronic money, namely BI Regulation No. 20/6/PBI/2018 on Electronic Money (“BI Reg. 20/2018”). BI Reg. 20/2018 repeals the following BI Regulations:

1. BI Regulation No. 11/12/PBI/2009 dated April 13, 2009 on Electronic Money;
2. BI Regulation No. 16/8/PBI/2014 on the Amendment of BI Regulation No. 11/12/PBI/2009 dated April 8, 2014 on Electronic Money;
3. BI Regulation No. 18/17/PBI/2016 on the Second Amendment of BI Regulation No. 11/12/PBI/2009 dated August 29, 2016 on Electronic Money.

Below are key highlights of this BI Reg. 20/2018.

♦  Definition of E-money

Unlike the previous BI Regulations, BI Reg. 20/2018 defines Electronic Money (“e-money”) as having 3 (three) characteristics instead of 4 (four). An e-money is now defined as a payment instrument which is (i) issued on the basis of the value of money deposited in advance to the issuer, (ii) the value of money is stored electronically in a server or a chip, and (iii) the value of the e-money managed by the issuer shall not be considered as savings as understood under prevailing banking laws. The fourth element which is no longer a characteristic of an e-money under the new regulation is acceptance of multiple merchants (open loop system). We note that the intention of BI Reg. 20/2018 is to regulate closed loop system when it has reached certain threshold.

♦  Closed Loop and Open Loop Systems

BI Reg. 20/2018 now introduces closed loop and open loop systems in greater details. Here are the differences between closed loop and open loop systems, namely:

1. Closed loop system, whereby e-money may only be used as a payment instrument to goods and/or services providers which are the e-money issuer; and
2. Open Loop system, whereby e-money may be used as a payment instrument to goods and/or services providers which are not the e-money issuer.

BI Reg. 20/2018 does not require issuers of closed loop e-money to obtain any license if they have floating funds of less than Rp1,000,000,000 (one billion Rupiah). The previous BI Regulations do not require closed loop e-money to obtain a license from BI.

Please note that open loop e-money system also applies to cases whereby the e-money issuers and goods and/or services providers belong to the same group holding, franchise and online retail networks.

♦  Front-End and Back-End

BI is now dividing parties applying for licenses to become part of the e-money framework in two categories, as follows:

1. Front-end category consists of issuer, acquirer, payment gateway operator, electronic wallet operator and fund transfer operator;
2. Back-end category consists of principals, switching operators, clearing operators and final settlement operators.

The main difference between these two categories are the fact that the front-end category concerns parties which directly gets into contact with customers (customer facing). Meanwhile, the back-end category concerns parties having no direct contact with customers (non-customer facing).

BI Reg. 20/2018 also provides that any entity may own more than one license as long as the licenses are within the same category, for example an entity may hold an issuer license and an acquirer license simultaneously.

♦  Minimum Capital

BI Reg. 20/2018 now formally stipulates that non-banks e-money issuers shall fulfill the minimum requirement of paid-up capital of at least Rp3,000,000,000 (three billion Rupiah). While this requirement is not listed in the previous regulations, in practice the minimum capital of at least Rp3,000,000,000 (three billion Rupiah) has been a requirement for quite some time.

Please note that existing non-bank issuers having less than the prescribed capital shall conform with BI Reg. 20/2018 at the latest 6 (six) months after the enactment of this BI Regulation. Moreover, non-bank issuers shall increase the paid-up capital should the floating funds rise as time goes by at the latest in June 2019.

♦  Foreign Ownership

Through BI Reg. 20/2018, BI paves a more stringent requirement for foreigners to own shares in e-money issuers. BI Reg. 20/2018 stipulates that at least 51% (fifty one percent) of all shares must be owned by an Indonesian individuals and/or legal entities while the rest of the shares may be owned by foreigners. The calculation of the foreign ownership portion includes direct ownership or indirect ownership, subject to Bank Indonesia’s assessment.

In its assessment, Bank Indonesia shall consider, among others, track record of the non-bank institutions as well as the shareholders, technology used in operating e-money and scope of e-money usage. It must also be noted that existing issuers of e-money shall also abide by this provision regarding shares ownership.

♦  Controlling Shareholders

BI Reg. 20/2018 defines a controlling shareholder as any party having 25% (twenty five percent) or higher of issued shares with voting rights, or less than 25% (twenty five percent) of issued shares with voting rights and that the relevant shareholder can demonstrate control over the Operator, either directly or indirectly.

BI Reg. 20/2018 also provides that any party may not become controlling shareholders in more than 1 (one) non-bank institutions whereby each of these institutions own the same Payment Services System Operator license. Furthermore, it is also prohibited for any party to become controlling shareholders in more than 1 (one) non-bank institutions in different Payment Services System Operator categories. Meaning a party may only become controlling shareholders in more than 1 (one) non-bank institutions that are within the same Payment Services System Operator category, either the front-end or the back-end category.

Last but not least, pursuant to BI Reg. 20/2018, controlling shareholders, together with members of the Board of Directors and Board of Commissioners from non-bank institutions, may be subject to a fit and proper test conducted by BI.

♦  Representation and Warranties

Another highlight of BI Reg. 20/2018 is that it introduces the requirement for banks or non-bank institutions wishing to hold/maintain e-money license to convey to BI in writing a statement of representation and warranties which among others state that the bank or non-bank institution is not in default, is not subject to any sanction from related authorities, and/or is not involved in any criminal or civil case that can materially affect the continuity of the business activities. The submission of the statement of representation and warranties must be supported by a statement from an independent legal consultant based on legal due diligence results.

♦  Term of E-Money Operator License

BI Reg. 20/2018 reaffirms that licenses for e-money operators are valid for the period of 5 (five) years and the licenses may be extended at the latest 6 (six) months before the licenses expire.

Maximum Amount of Money Stored in E-Money

For unregistered e-money, the maximum amount stored is Rp2,000,000 (two million Rupiah) while registered e-money may hold up to Rp10,000,000 (ten million Rupiah). This means that under the new BI Regulation, the maximum amount stored in unregistered e-money is doubled compared to the provision under BI Circular Letter No. 18/21/DKSP dated September 27, 2016 on the Amendment of BI Circular Letter No. 16/11/DKSP on Electronic Money whereby unregistered e-money amount is capped at Rp1,000,000 (one million Rupiah).

♦  E-Money Features

Previously, registered e-money issuers may opt to offer features such as holder registration, top up, transaction payment, bills payment, fund transfer, cash withdrawal, and distribution of government aid to the public. As for the unregistered e-money issuers, there were less features, which included top up, transaction payment and bills payment.

Under the new BI Reg. 20/2018, the features offered are more limited. Issuers of e-money may provide features such as topping-up, shopping transactions as well as bills payment. More features are only available for open loop and registered e-money issuers, i.e. funds transfer and cash withdrawals.

♦  Transitional Provisions

There are several transitional provisions that need to be taken into account, among others:

1. open loop e-money issuers with floating funds of less than Rp1,000,000,000 (one billion Rupiah) or closed loop e-money issuers with floating funds of Rp1,000,000,000 (one billion Rupiah) or more, shall apply for a license to BI no more than 6 (six) months after the enactment of this BI Regulation;
2. parties having obtained more than 1 (one) license when BI Reg. 20/2018 comes into effect and are operating in two different categories (front-end and back-end), shall conform to this BI Regulation only if such Parties intend to apply for a new license to BI;
3. banks or non-bank institutions that are in the process of obtaining licenses as Operators after the enactment of this BI Regulation shall abide by all licensing requirements as stipulated under the new BI Regulation;
4. Operators which have obtained licenses prior to the enactment of this BI Regulation shall submit its representation and warranties letter at the latest 6 (six) months after this BI Regulation comes into effect;
5. the validity of licenses issued to Operators prior to the entry into force of this BI Regulation shall remain no more than 5 (five) years since the enactment of this BI Regulation;
6. the provision regarding the composition of domestic shares ownership shall also be complied with by existing issuers already obtaining licenses prior to the coming into force of this BI Regulation provided that such issuers amended its shares ownership which caused a change in its foreign ownership shares;
7. provisions regarding controlling shareholders under this BI Regulation shall be fulfilled by existing controlling shareholders in Operators holding licenses from BI, or parties that are still applying for licenses and subsequently will obtain licenses as Operators from BI, if they change the shares ownership of the Operators.

Copyright © 2018 AKSET. All rights reserved.

by Bonar

Rules on Tax Holiday Updated

As boosting investment is a priority for the Government of Indonesia, the Minister of Finance (“MOF”) recently issued MOF Regulation No. 35/PMK.010/2018 dated April 4, 2018 on Granting of Corporate Income Tax Reduction Allowance (the “New Regulation”). The New Regulation revokes MOF Regulation No. 159/PMK/10/2015 dated August 18, 2015 on Granting of Corporate Income Tax Reduction Allowance, as amended by MOF Regulation No. 103/PMK.010/2016 dated June 30, 2016 (collectively, the “Previous Regulation”).

The New Regulation exempt new businesses in 17 “pioneer industries” from paying corporate income tax (or known as “tax holiday”) while the Previous Regulation only provided tax holiday for 8 industries. Pioneer industries are defined as those that create added value, introduce advance technology, as well as has strategic value for the national economy. Among such industries are transportation, telecommunications, robotic components, oil and gas refinery, train engines, medical devices, pharmaceutical raw materials, power plant machinery, and processing of metals and agricultural products.

♦  Enhanced Tax Holiday Allowance

Under the Previous Regulation, the rate of the tax holiday was from 10% - 100%.  The New Regulation offers a single 100% tax holiday rate. This means that newly established companies will not have to pay any corporate income taxes for a period depending on the scale of their investment.

Previously, only companies that invest at least Rp1,000,000,000,000 were able to qualify for tax holiday, and the tax holiday granted for a maximum period of 15 years.

♦  Criteria to Obtain a Tax Holiday

A company that wish to apply for a tax holiday must fulfill the following criteria:

1. It is classified as a pioneer industry;
2. It is new capital investment;
3. It has new minimum capital investment of Rp500,000,000,000;
4. It has a debt to equity ratio of not more than 4:1;
5. It does not have any pending tax holiday application, and the MOF never refused any tax holiday application request submitted by the company; and
6. It is an Indonesian legal entity.

In addition, if the shareholders of the company are Indonesian individuals and/or entities, they must obtain a tax clearance letter from the Directorate General of Taxation (“DGT”) in order to prove that such shareholders have fulfilled their respective tax obligations.

♦  Tax Holiday Application

An application for a tax holiday must be submitted to the Capital Investment Coordinating Board (Badan Koordinasi Penanaman Modal or “BKPM”).

Once the application is submitted and has been examined by BKPM, BKPM will forward the application and its recommendation to the MOF for further review.  The MOF shall issue its decree on tax holiday application within five days after the receipt of a complete and correct application.

April 9, 2018

Copyright © 2018 AKSET. All rights reserved.

by Bonar