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ACQUISITION/TAKE OVER INDONESIA PUBLIC COMPANY (Pengabilalihan/Akusisi Perusahaan Terbuka)

14 Jun

On 31 May 2011, Head of Capital Market and Financial Institution Supervisory Agency (“Bapepam“) has issued Decree No.KEP-264/BL/2011 on Takeovers of Public Company (“Decree“) including the exhibit, Regulation No.IX.H.1 to amend previous regulation No.IX.H.1 (“Regulation“) which was enacted through Bapepam-LK Decree No.Kep-259/BL/2008.

DEFINITION (Article 1 of the Regulation)

Pursuant Article 1 (a) of the Regulation, Listed Company means the Issuing Company (Issuer/emiten) who has made ​​a Public Offering of Equity Securities or Public Companies.

Pursuant Article 1 (a) of the Regulation, Controlling Public Company is a Party who owns more than 50% (fifty percent) from all shares are fully paid, or the Party that has authority to determine, either directly or indirectly, in any manner the management and/or policy of the Public Company (“Controller“).

Pursuant to Article 1 letter (d) of Regulation, Takeover is an act either directly or indirectly, that change the control of a company. Whereas Article 1(e) of Regulation defines a Mandatory Tender Offer as an offer to purchase the remaining shares of a public company, which shall be made by the new Controller.

Pursuant to Article 1 (b) Organized Groups that are parties to plan, agreement, or the decision to work together to achieve certain goals.

NEGOTIATION IN THE FRAMEWORK OF ACQUISITION/TAKEOVER (Article 2 of the Regulation)

Under its regulation the negotiation in the framework of acquisition/takeover is not obligated to announce, however in the event the candidate of new Controller has intends to announce the acquisition, therefore following requirements shall be comply:

  1. Announcement and Notification

    Plan of acquisition and the progress of the transaction shall be deliver to target company, Bapepam & LK, stock exchange where the target company shares was listed and shall be announce in minimum 1 (one) Indonesia dally newspaper, having national. Progress of acquisition shall be announce maximum 2 (two) working days after the progress;

  1. Announcement and Notification

    Requirements

    The Announcement and notification shall be completed with following requirements:

  1. name of the Target Company and the approximation number of shares will be taking over;
  2. Identify of Candidate of Company Controller (address, phone and fax number, type of business sector, purpose of takeover/acquisition);
  3. Amount of shares has owned by the Candidate of Company Controller (if any);
  4. Plan, consensus, or decision of cooperation between the Organized Groups in relation with public company acquisition/takeover;
  5. Method and negotiation process of acquisition/takeover;
  6. Material of negotiation;

ACQUISITION/TAKEOVER OF PUBLIC COMPANY;

Candidate of Company Controller Obligations.

In the event of Public Company acquisition/takeover, the Candidate of Company Controller shall complete following requirements:

  1. Announcement and notification:

    The Candidate of Company Controller shall announce the acquisition/takeover and shall deliver notification to Bapepam & LK at least 1 (one) days after the acquisition ((i) number of shares has been taking over and the total amount of shares, (ii) Identify of new controller, (iii) statement letter in the event the new controller is the Organized Group (if);

  1. Mandatory Tender Offer:

Pursuant to Article 1 (e) of Regulation, Mandatory Tender Offer is an offer to purchase the remaining shares of Public Company (target company) which shall be done by the new controller. After the takeover/acquisition, the new controller shall make a mandatory tender offer to purchase the remaining shares of the Target Company except for following conditions:

  1. remaining shares from the shareholders which conducted takeover/acquisition transaction with new controller;
  2. shares that owned by other shareholders which have offered by the new controller, with same terms and conditions;
  3. other parties that in the same time conducting Mandatory Tender or Voluntary Tender Over upon the same Public Company shares;
  4. shares that owned by Principal Shareholders;
  5. shares that owned by the other Controller Company in the same Public Company;

Implementation of Mandatory Tender Offer (Article 4 of Regulation)

Requirements Information on Mandatory Tender Offer

The New Public Company Controller that conducting Mandatory Tender Offer in the framework of disclosure information shall stated information as following ((i) number of shares has been taking over and the total amount of shares, (ii) Identify of new controller, (iii) statement letter of Organized Group (if any); (iv) information of Public Company (target company), (v) price of shares and the calculation, (vi) period of Tender offer, (v) settlement method, (vi) mechanism of purchasing; and (vii) explanation regarding the obligations from government through regulations in relation with Mandatory Tender Offer, (viii) list of consultant related with the transaction, (ix) claim in relation with the relevant takeover/acquisition, (x) additional information if necessary.

Procedures of Mandatory Tender Offer:

  1. to deliver text disclosure information announcement in the framework of Mandatory Tender Offer and its supporting documents to Bapepam & LK and the Public Company (target company), no later than 2 (two) working days after the takeover announcement);
  2. In the event Bapepam & LK request additional information and/or announcement amendment. The New Controller of Public Company shall amend and or adding information that has been announced and re-announce it. The announcement amendment shall be deliver to Bapepam & LK within a period of 5 (five) working days;
  3. Announced the disclosure of information in the framework of the Mandatory Tender Offer in a daily newspaper having national circulation no later than 2 (two) working days after receipt of a letter from Bapepam & LK that stating that the new controller to announce the disclosure of information in the framework of the Mandatory Tender Offer;
  4. the Mandatory Tender Offer is conduced in the period of 30 (thirty) days starting one day after the announcement;
  5. deliver the money/Completed transactions Mandatory Tender Offer, no later than 12 (twelve) days after the bidding period as mention in point 4 above is completed; and
  6. deliver Mandatory Tender Offer report to Bapepam & LK no later than 5 (five) working days after the end of settlement transactions referred in point 5 above.

3.    General Meeting of Shareholder (“GMOS”) Approval

In the event the takeover/acquisition is conducted by Public Company, such Candidate of Company Controller is not obligated to granting approval from GMOS, except its provisions is regulated by other prevailing regulation for certain business of Public Company.

4.    Affiliation and Conflict of Interest Transaction

In the event takeover/acquisition transaction is fulfilling in affiliation and conflict of interest transactions, the takeover/acquisition transaction shall comply with Regulation No. IX.E.1.

5.    PURCHASE PRICE

Purchase price of public listed company that taking over from Mandatory Tender Over is calculated pursuant following provisions:

The Shares Listed in Stock Exchange on Trading (Directly)     

in event the takeover/acquisition is conducted directly on the Company’s shares are listed and traded on the Stock Exchange, the lowest share purchase price shall be determinate from the highest following conditions: (i) The average price of the highest daily trading price on the Stock Exchange for 90 (ninety) days before the takeover/acquisition announcement or prior to the announcement of the negotiation (if announces negotiations); or (ii) Acquisition price that has been made. The takeover/acquisition is determined pursuant to the highest price;

The Shares Listed in Stock Exchange Non-Trading – (Directly)

In the event the takeover/acquisition is conducted directly on the Company’s shares listed and traded on the Stock Exchange, however for 90 (ninety) days or more before the takeover/acquisition announcement or prior to the announcement of the negotiations, suspended or not traded in Stock Exchange, the lowest share purchase price shall be determinate from the highest price of following conditions: (i) The average price of the highest daily trading price on the Stock Exchange within 12 (twelve) months counting backwards from the last trading day or trading days suspended; or (ii) Acquisition price that has been made.

Non-Listed Public Company Share’s (Directly)

In the event the takeover/acquisition is conducted directly on the Public Company’s shares non-listed and non-traded on the Stock Exchange, the lowest share purchase price shall be determinate from the highest price of following conditions: (a) purchase price has that has been conducted, and (ii) fair price determinate by the adjuster.

The Shares Listed in Stock Exchange on Trading (Indirect)

in event the takeover/acquisition is conducted indirectly on the Company’s shares are listed and traded on the Stock Exchange, the lowest share purchase price shall be determinate from the highest following conditions: (i) purchase price before the announcement of takeover/acquisition, or (ii) before the announcement of negotiation.

The Shares Listed in Stock Exchange Non-Trading – (Indirectly)

In the event the takeover/acquisition is conducted indirectly on the Company’s shares listed and traded on the Stock Exchange, however for 90 (ninety) days or more before the takeover/acquisition announcement or prior to the announcement of the negotiations, suspended or not traded in Stock Exchange, the lowest share purchase price shall be determinate from the highest price of following conditions: (i) The average price of the highest daily trading price on the Stock Exchange within 12 (twelve) months counting backwards from the last trading day or trading days suspended.

Non-Listed Public Company Share’s (Indirectly)

In the event the takeover/acquisition is conducted indirectly on the Public Company’s shares non-listed and non-traded on the Stock Exchange, the lowest share purchase price shall be determinate from fair price determinate by the adjuster.

In the event the Candidate of Company Controller announce the negotiations and the commencement of the implementation of Mandatory Tender Offer exceeds the limit of 180 (one hundred and eighty) days from the announcement of negotiations, the pricing period of the Mandatory Tender Offer referred to in letter C point 1 (The Shares Listed in Stock Exchange on Trading (Directly) and letter C point 4 (The Shares Listed in Stock Exchange on Trading (Indirect) the period is change

to follow the implementation of the Mandatory Tender Offer.

In the event that the exercise price referred above lower than the exercise price referred to in item 1 letter C ((The Shares Listed in Stock Exchange on Trading (Indirect)) and Letter C point 4 (The Shares Listed in Stock Exchange on Trading (Indirect)) , the price of the Mandatory Tender Offer shall using the exercise price referred to in letter c point 1 (The Shares Listed in Stock Exchange on Trading (Directly)) and Letter C point 4 (The Shares Listed in Stock Exchange on Trading (Indirect))

The Candidate of Company Controller is prohibited to determinate different restrictions and requirements based on classification or position of the Party became the shareholder, except if there are certain distinctions rights or benefits attached to the shares.

OBLIGATION TO TRANSFER SHARES

Article 5

EXCEPTION OF THIS REGULATION

Article 6

CLOSING PROVISION

Article 7

TRANSITIONAL PROVISIONS

Pursuant to Article 2, companies that completed a takeover prior to enactment of the Decree must transfer shares in accordance with the Regulation of the Decree. Item 5 (a) stipulates that certain acquisitions that result in a controlling shareholder having control of 80% of the publicly listed company paid-in capital, is obliged to transfer 20% of the target company to the public, and there must be at least 300 shareholders within 2 years of the tender offer.

AK

 
 

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One response to “ACQUISITION/TAKE OVER INDONESIA PUBLIC COMPANY (Pengabilalihan/Akusisi Perusahaan Terbuka)

  1. andyrf

    July 1, 2011 at 4:53 am

    mau tanya dimana saya bisa download peraturan di atas dalam versi english? terima kasih

     

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