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Monday, May 9, 2016

Mergers & Acquisitions in Indonesia – The Basic

mergers & acquisition in Indonesia
Mergers and acquisitions (M&A) in Indonesia sometimes could be simple but they also have the potential to involve complex regulations and approvals. Generally, mergers and acquisitions in Indonesia are governed by:
  1. Law No. 40 year 2007 on Limited Liability Company (the “Company Law”) and its implementing regulation. 
  2. Law No. 5 year 1999 on Prohibition of Monopoly and Unfair Business Competition (“Anti-Monopoly Law”) and its implementing regulation. 
  3. Law No. 25 year 2007 on Capital Investment and its implementing regulation (if the mergers and acquisitions involve foreign investment). 
  4. Law No. 8 year 1995 on Capital Markets, and regulations from Financial Services Authority (Otoritas Jasa KeuanganOJK) (if the mergers and acquisitions involve public listed company). 
  5. Law No. 13 year 2003 on Manpower (“Labor Law”). 
  6. Tax laws and regulations. 
  7. Industry-specific laws and regulations, particularly in regulated industries such as banking, insurance, plantation, mining, and telecommunications.

MERGERS

Company Law defines a merger as a legal act of one or more companies to merge with another company a
nd the merging company's status as a legal entity shall be ceased.

The general procedures concerning the merger of companies as provided under the Company Law are as follows:
  1. The Boards of Directors of the merging and surviving companies should prepare a merger proposal.
  2. The merger proposal then must be approved by the Board of Commissioners and Shareholders of each of the merging companies.
  3. Each of the merging companies, no later than 30 days prior to the call for a General Meeting of Shareholders (“GMS”), must:
    • announce a summary of the merger proposal in one Indonesian national newspaper (the said announcement should also contain a notification that any relevant party may obtain the merger proposal in the company’s office, as of the announcement date to the date of the GMS); and
    • announce the merger in writing to the employees of each company.
  4. After the announcement in the newspaper, creditors of each merging companies are entitled to submit an objection to each of the merging companies within 14 days from the announcement. The merger cannot be completed until the objection from the creditors is resolved.
  5. Execution of GMS to approve the merger proposal.
  6. The merger proposal which has been approved by the GMS then must be restated into a Deed of Merger drawn up by a public notary.
  7. Obtain Ministry of Law and Human Rights approval or notification regarding the amendments to the Articles of Association of the surviving Company (as the case may be).
  8. In the event the Merger is not followed with the amendment of articles of association, the copy of Deed of Merger shall be submitted to the Minister to be registered in the Company Registry.
  9. The surviving company shall announce the result of the merger in one national newspaper or more, within the latest period of 30 (thirty) days as of the effective date of the merger.

ACQUISITIONS

Company Law defines shares acquisition as a legal act of a legal entity or individual to acquire a company’s shares, whether existing or newly issued, which may result in a change of control to such company.

I. General procedures for an acquisition of existing shares conducted through the Board of Directors of the target company or acquisition of new shares:
  1. The Boards of Directors of the target company and the acquiring company must prepare an acquisition proposal.
  2. The acquisition proposal then must be approved by the Board of Commissioners and Shareholders of each of the target company and the acquiring company.
  3. The target company and the acquiring company, no later than 30 days before to the call for a General Meeting of Shareholders (“GMS”), must:
    • announce the acquisition proposal summary in one Indonesian national newspaper (the announcement shall also contain a notification that any relevant party could obtain the acquisition proposal in the company’s office, as of the announcement date to the date of the GMS); and
    • announce the acquisition in writing to the employees of each company.
  4. Following the announcement in the newspaper, creditors of the target company and the acquiring company may submit an objection to each company respectively within 14 days after the announcement. The acquisition cannot be completed until the objection from the creditors is resolved.
  5. Execution of GMS to approve the acquisition plan.
  6. The acquisition plan which has been approved by the GMS then must be restated into a Deed of Acquisition drawn up by a public notary.
  7. Obtain Ministry of Law and Human Rights approval or notification regarding the amendments to the Articles of Association of the acquired company (as the case may be).
  8. The acquired company shall announce the result of the acquisition in one national newspaper or more, within the latest period of 30 (thirty) days as of the effective date of the acquisition.
II. General procedures for an acquisition of existing shares conducted directly by the shareholders (the most commonly used – without the need for an acquisition proposal):
  1. The target company and the acquiring company, no later than 30 days prior to the call for a General Meeting of Shareholders (“GMS”), must:
    • announce the acquisition summary in one Indonesian national newspaper; and
    • announce the acquisition in writing to the employees of each company.
  2. Following the announcement in the newspaper, creditors of the target company and the acquiring company are entitled to submit an objection to each company respectively within 14 days after the announcement. The acquisition cannot be completed until the objection of the creditors is resolved.
  3. Execution of GMS to approve the acquisition.
  4. Execution of Shares Sales and Purchase Agreement.
  5. The GMS then must be restated into a Deed of Acquisition drawn up by a public notary.
  6. Obtain Ministry of Law and Human Rights approval or notification regarding the amendments to the Articles of Association of the acquired company (as the case may be).
  7. The acquired company shall announce the result of the acquisition in one national newspaper or more, within the latest period of 30 (thirty) days as of the effective date of the acquisition.

GOVERNMENT APPROVALS 

I. Investment Coordinating Board (Badan Koordinasi Penanaman Modal – “BKPM”) 

If there is a change concerning 
shareholders composition in a foreign investment company or if a foreign company is going to acquire shares in a local Indonesian company, therefore, approval is required from BKPM.  

Please note that not all business fields are ‘open’ to foreign investment. Under the Presidential Regulation No. 39 of 2014 (the "Negative List") (and may, at the time of writing, be revised again) business fields of a foreign investment company could be either fully closed to investment or ‘conditionally open’ (meaning that the business fields are subject to limitation of foreign ownership or require special arrangements and approvals).

Business fields which are not stipulated in the Negative List are, in theory, considered to be completely open to investment by foreigners (can be owned 100% by foreigners). However, we consider that it would be prudent to re-confirm this with BKPM.

II. Financial Services Authority (Otoritas Jasa Keuangan – “OJK”)

If mergers and acquisitions involve public listed company, insurance company, bank, finance company or any other company which is, by law, under the supervision of the OJK, therefore, 
approval is required from the OJK

If a company is, by law, under the supervision of the OJK, and such company‘s shareholder involves foreign investment, therefore, BKPM approval is not required.

III. Ministry of Law and Human Rights.

Limited liability companies wishing to amend or modify their articles of association must notify or obtain approval from the Ministry of Law and Human Rights (depending on the amendments made).

Please note that all GMS or shareholders resolution must be restated into a notary deed within 30 days of the shareholders resolution date and be filed with the Ministry of Law and Human Rights within a further period of 30 days (otherwise, the GMS or shareholders resolution is deemed to be invalid by virtue of the Company Law).

IV. Other Government Agencies

Approvals or recommendation from the industry regulatory body or local government may also be needed, depending on the nature of the company's business, e.g., telecommunications, broadcasting, plantation, mining, oil & gas.

EMPLOYMENT ISSUES

The Labor Law provides that employees have a choice of which employer they work for, therefore, if the merger and/or acquisition results in the change of control in the target company, the employees will be entitled to choose whether to continue his or her employment with the "new" employer or request for a termination and receive a severance package from the company. The components of the severance package are severance payment, long service payment, and compensation rights payment, which amounts are regulated under the Labor Law or the Company Regulation or the Collective Labor Agreement. 

Please note that article 61 (3) of Labor Law provides: “In the event of a transfer of ownership of an enterprise, the new entrepreneur [who now owns the enterprise] shall bear the responsibility of fulfilling the entitlements of the worker affected by the transfer unless otherwise stated in the transfer agreement, which must not reduce the entitlements of the worker”.

ANTI-MONOPOLY & UNFAIR BUSINESS COMPETITION ISSUES 

In Indonesia, the government agency that supervises and regulates anti-monopoly & unfair business competition matters is called the Business Competition Supervisory Commission (Komisi Pengawas Persaingan Usaha or “KPPU”).

Notification to KPPU concerning merger or acquisition is compulsory when the transaction is not conducted between affiliated companies and the value of assets or the value of sales of the companies involving in the merger or acquisition exceeds a certain amount.

The before mentioned notification must be submitted to the KPPU within 30 days of the effective date of such transaction. Failing to comply with this requirement may result in a sanction of an administrative fine.

The parties who are going to perform the merger or acquisition could conduct a pre-consultation with the KPPU prior to performing the transaction if the transaction is complex and may potentially result in breach of the Anti-Monopoly Law and its implementing regulations.


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