2017-12-27 | 57/SEOJK.04/2017Added · Updated
This regulation mandates that prospective Key Parties of securities companies acting as underwriters or trading intermediaries must undergo a competence and fit and properness assessment by the Financial Services Authority (OJK) before obtaining approval. The assessment covers controlling shareholders, directors, and commissioners, requiring proof of legal capacity, good moral character, financial soundness, and relevant market experience. Specific administrative documentation, including police clearance certificates, financial statements, and organizational charts, must be submitted to demonstrate compliance with integrity and financial capability standards.
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Directors of Securities Companies Acting as Underwriters of Securities Issues and/or Securities Trading Intermediaries At your location.
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CIRCULAR LETTER OF THE FINANCIAL SERVICES AUTHORITY NUMBER 57/SEOJK.04/2017 CONCERNING ASSESSMENT OF COMPETENCE AND FIT AND PROPERNESS FOR PROSPECTIVE KEY PARTIES OF SECURITIES COMPANIES ACTING AS UNDERWRITERS OF SECURITIES ISSUES AND/OR SECURITIES TRADING INTERMEDIARIES
In order to implement the provisions of Article 35 of the Financial Services Authority Regulation Number 27/POJK.03/2016 concerning the Assessment of Competence and Fit and Properness for Key Parties of Financial Service Institutions (State Gazette of the Republic of Indonesia Year 2016 Number 147, Supplement to the State Gazette of the Republic of Indonesia Number 5098), hereinafter referred to as the POJK concerning Competence and Fit and Properness, it is necessary to regulate implementation provisions regarding the assessment of competence and fit and properness for prospective Key Parties of Securities Companies acting as Underwriters of Securities Issues and/or Securities Trading Intermediaries in this Financial Services Authority Circular Letter as follows:
I. GENERAL PROVISIONS
d. Key Party is a party that owns, manages, supervises, and/or has significant influence on LJK. e. Controlling Shareholder, hereinafter abbreviated as PSP, is a legal entity, individual, and/or business group that owns shares or shares equivalent to LJK shares and has the ability to exercise control over LJK. f. Control is an action aimed at influencing the management and/or policy of a company, including LJK, in any way, whether directly or indirectly. g. Board of Directors is a Company Organ authorized and fully responsible for managing the Company for the benefit of the Company, in accordance with the intent and purpose of the Company, and representing the Company, both inside and outside of court, in accordance with the provisions of the Articles of Association. h. Board of Commissioners is a Company Organ tasked with conducting general and/or specific supervision in accordance with the Articles of Association and providing advice to the Board of Directors.
i. General Meeting of Shareholders, hereinafter abbreviated as GMS, is a Company Organ that has authority not granted to the Board of Directors or Board of Commissioners within the limits determined by Law Number 40 of 2007 concerning Limited Liability Companies and/or the Articles of Association.
j. Stock Exchange is a Party that organizes and provides systems and/or facilities to bring together offers to sell and buy Securities from other Parties with the aim of trading Securities among them. k. Clearing and Guarantee Institution is a Party that organizes clearing and guarantee services for the settlement of Stock Exchange Transactions.
l. Depository and Clearing Institution is a Party that conducts Central Custodian activities for Custodian Banks, Securities Companies, and other Parties.
m. Capital Market is activities related to Public Offerings and the trading of Securities, Public Companies related to the Securities they issue, and institutions and professions related to Securities.
Key Parties for Securities Companies acting as Underwriters of Securities Issues and/or Securities Trading Intermediaries include:
a. PSP; b. members of the Board of Directors; and
c. members of the Board of Commissioners.
PSP for Securities Companies acting as Underwriters of Securities Issues and/or Securities Trading Intermediaries are parties that directly or indirectly own:
a. shares of at least 20% (twenty percent) of the shares issued by one Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediaries and having voting rights; or b. shares of less than 20% (twenty percent) of the shares issued by one Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediaries and having voting rights but can be proven to have exercised Control, directly or indirectly, over the Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary.
Control over a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary exists if one of the following conditions is met:
a. having voting rights of more than 20% (twenty percent) either through own share ownership and its affiliates or together with other parties; b. having the right to arrange and determine the financial and operational policies of the Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary based on the Articles of Association or agreements;
c. being able to appoint or dismiss members of the Board of Directors of the Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary; or
d. being able to control the majority of votes in the Board of Directors meeting.
Competence and fit and properness assessment is a process to evaluate the fulfillment of competence and fit and properness requirements for prospective Key Parties of Securities Companies acting as Underwriters of Securities Issues and/or Securities Trading Intermediaries.
II. PARTIES REQUIRED TO UNDERGO THE COMPETENCE AND FIT AND PROPERNESS ASSESSMENT PROCESS
Prospective Key Parties for Securities Companies acting as Underwriters of Securities Issues and/or Securities Trading Intermediaries required to undergo the competence and fit and properness assessment process include:
a. prospective PSP; b. prospective members of the Board of Directors; and
c. prospective members of the Board of Commissioners.
Prospective PSP as referred to in item 1 letter a includes:
a. legal entities, individuals, and/or business groups that will make capital contributions, purchase shares, or obtain shares through other forms of transfer of rights over the shares of a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary, so that they will become PSP; b. shareholders of a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary who are not PSP, who will make additional capital contributions, purchase shares, or obtain shares through other forms of transfer of rights over the shares of a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary, resulting in them becoming PSP; or
c. parties deemed by the Financial Services Authority to exercise Control over a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary.
In the event that parties as referred to in item 2 have made capital contributions, purchased shares, or obtained shares through other forms of transfer of rights over shares but have not yet received approval from the Financial Services Authority, such parties are categorized as prospective PSP of a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary.
In the event that prospective PSP of a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary is:
a. a legal entity, the competence and fit and properness assessment of such prospective PSP is conducted on the legal entity concerned and its management, as well as parties deemed by the Financial Services Authority to be PSP, directly or indirectly, from such legal entity; and b. a business group, the competence and fit and properness assessment of such prospective PSP is conducted on the business group concerned and its management, as well as parties deemed by the Financial Services Authority to be PSP, directly or indirectly, from such business group.
The competence and fit and properness assessment of PSP applies to all Securities Companies acting as Underwriters of Securities Issues and/or Securities Trading Intermediaries.
Prospective members of the Board of Directors as referred to in item 1 letter b includes:
a. prospective members of the Board of Directors who will fill or replace the position of Board of Directors members in a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary; or b. Board of Directors members who will fill or replace different Director positions in the same Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary.
Prospective members of the Board of Commissioners as referred to in item 1 letter c includes:
a. prospective members of the Board of Commissioners who will fill or replace the position of Board of Commissioners members in a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary; or b. Board of Commissioners members who will fill or replace different Board of Commissioners positions in the same Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary.
In the event that prospective members of the Board of Directors as referred to in item 6 and/or prospective members of the Board of Commissioners as referred to in item 7 have been appointed in the GMS as Board of Directors members and/or Board of Commissioners members but have not yet received approval from the Financial Services Authority, they are categorized as prospective members of the Board of Directors and/or prospective members of the Board of Commissioners of a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary.
III. FACTORS FOR COMPETENCE AND FIT AND PROPERNESS ASSESSMENT
The competence and fit and properness assessment is conducted to evaluate that prospective Key Parties as referred to in item II item 1 meet the requirements:
a. integrity and financial soundness for prospective PSP; and b. integrity, financial reputation, and competence for prospective members of the Board of Directors and prospective members of the Board of Commissioners.
The competence and fit and properness assessment regarding integrity requirements includes:
a. having legal capacity as referred to in the Civil Code; b. never having committed disgraceful acts, proven by submitting at least:
The competence and fit and properness assessment regarding financial soundness requirements includes:
a. not having non-performing loans and/or financing; b. never having been declared bankrupt and/or never having been a shareholder, Board of Directors member, or Board of Commissioners member who was declared guilty causing a company to be declared bankrupt within the last 5 (five) years before nomination;
c. having financial capabilities that can support the business development of a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary; and
d. having a commitment to take necessary actions if a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary faces financial difficulties.
The competence and fit and properness assessment regarding financial reputation requirements includes:
a. not having non-performing loans and/or financing; and b. never having been declared bankrupt and/or never having been a shareholder, Board of Directors member, or Board of Commissioners member who was declared guilty causing a company to be declared bankrupt within the last 5 (five) years before nomination.
The competence and fit and properness assessment regarding competence requirements includes:
a. for prospective members of the Board of Directors is:
IV. IMPLEMENTATION OF COMPETENCE AND FIT AND PROPERNESS ASSESSMENT OF PROSPECTIVE KEY PARTIES
The competence and fit and properness assessment of prospective Key Parties is conducted at the time of:
V. ADMINISTRATIVE REQUIREMENTS FOR PROSPECTIVE KEY PARTIES
Applications for approval to become Key Parties are submitted by:
a. prospective owners, founders, or Board of Directors members, in the event of a business license application for a Securities Company; or b. Board of Directors members of a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary, in the event that the Securities Company has obtained a business license, to the Financial Services Authority accompanied by administrative requirement documents.
Applications for Financial Services Authority approval for prospective PSP of a Securities Company acting as an Underwriter of Securities Issues and/or Securities Trading Intermediary are submitted by the Securities Company to the Financial Services Authority by submitting the following documents:
a. Documents related to the name, data, and information of the prospective PSP, including:
committing a criminal offense within a certain period prior to nomination, as referred to in Article 5 letter b of the OJK Regulation regarding Competence and Propriety Assessment;
having a commitment to comply with legislation and support the policies of the Financial Services Authority by not committing and/or repeating acts and/or actions that cause the individual to be included as a prohibited party to become a Principal Party;
having a commitment to the development of a healthy Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary and a healthy Indonesian Capital Market, specifically supporting the operational development of Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries;
not being included as a party prohibited from becoming a Principal Party;
not having non-performing loans and/or financing;
never having been declared bankrupt and/or never having been a shareholder, member of the Board of Directors, or member of the Board of Commissioners who was declared guilty of causing a company to be declared bankrupt within the last 5 (five) years prior to nomination;
having financial capabilities that can support the business development of Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries; and
having a commitment to undertake necessary measures if Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries face financial difficulties, prepared according to the format of the Statement of Integrity and Financial Feasibility for Prospective Controlling Shareholders as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority;
d. a statement letter from the prospective Controlling Shareholder (PSP) that the source of funds or capital deposits for the ownership of Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries do not originate from loans or financing facilities in any form from other parties and do not originate from and for the purpose of money laundering and terrorism financing, prepared according to the format of the Statement of Source of Funds or Capital Deposits as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority;
e. a statement letter from the prospective Controlling Shareholder (PSP) from the Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary supporting the policies of the Financial Services Authority, prepared according to the format of the Statement Supporting the Policies of the Financial Services Authority as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority;
f. answers to questions according to the format of the question list as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority;
g. a statement letter from the prospective Controlling Shareholder (PSP) stating that all documents submitted to the Financial Services Authority are true and not misleading, prepared according to the format of the Statement of Document Truthfulness and the format of the Statement of Document Truthfulness from the Securities Company as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority; and
h. a statement letter from the prospective Controlling Shareholder (PSP) stating that the prospective Controlling Shareholder of the Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary and its affiliates:
do not hold 20% (twenty percent) or more of shares; and
do not have Control, either directly or indirectly, in the management and/or company policy,
in other Securities Companies that are shareholders of the same Stock Exchange as the Securities Company engaging in business as an Underwriter of Securities Issues or a Securities Brokerage Intermediary where the individual applies for approval from the Financial Services Authority as a Controlling Shareholder (PSP) based on this Circular Letter of the Financial Services Authority.
a. a list of names and data of prospective members of the Board of Directors and/or prospective members of the Board of Commissioners, including:
a) job title;
b) reasons for leaving or resigning (if any); and
c) a brief description of job duties and responsibilities;
a photocopy of the highest formal education diploma;
a photocopy of the individual license as a representative of the Securities Company for prospective members of the Board of Directors;
documents showing that prospective members of the Board of Directors have at least 2 (two) years of experience and expertise in the Capital Market and/or financial sector in managerial positions in companies operating in the Capital Market and/or financial services sector;
documents showing that prospective members of the Board of Commissioners have adequate and relevant expertise in the Capital Market for their position and/or have at least 2 (two) years of experience in companies operating in the Capital Market and/or financial services sector;
a photocopy of a valid Identity Card (KTP) or passport; and
two (2) recent color photographs sized 4x6 cm with a red background;
b. a statement letter from prospective members of the Board of Directors and/or prospective members of the Board of Commissioners of Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries stating that the following requirements are met:
having the legal capacity to perform legal acts as referred to in the Civil Code;
never having committed disgraceful acts, proven by submitting at least:
a) a Police Record Certificate (SKCK) where the period from the date of issuance until submission to the Financial Services Authority is not more than 6 (six) months or according to the validity period given by the Police if less than 6 (six) months; or
b) if prospective members of the Board of Directors and/or prospective members of the Board of Commissioners are foreign citizens, documents showing that the individual has never committed disgraceful acts, proven among others by a Police Clearance from their home country and the country where the individual resides if the individual does not reside in their home country;
having good character and morality, at least shown by a behavior of complying with applicable regulations, including never being sentenced for proven criminal offenses within a certain period prior to nomination, as referred to in Article 5 letter b of the OJK Regulation regarding Competence and Propriety Assessment;
having a commitment to comply with legislation and support the policies of the Financial Services Authority by not committing and/or repeating acts and/or actions that cause the individual to be included as a prohibited party to become a Principal Party;
having a commitment to the development of a healthy Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary and a healthy Indonesian Capital Market, specifically supporting the operational development of Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries;
not being included as a party prohibited from becoming a Principal Party;
not having non-performing loans and/or financing; and
never having been declared bankrupt and/or never having been a shareholder, member of the Board of Directors, or member of the Board of Commissioners who was declared guilty of causing a company to be declared bankrupt within the last 5 (five) years prior to nomination,
prepared according to the format of the Statement of Integrity and Financial Reputation for Prospective Members of the Board of Directors and/or Prospective Members of the Board of Commissioners as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority;
c. a statement letter from prospective members of the Board of Directors stating that the Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary is fully responsible legally and financially for all actions taken on behalf of the company by members of the Board of Directors, representatives of the Securities Company, employees, and other parties working for the company, prepared according to the format of the Statement of Full Legal and Financial Responsibility as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority;
d. a statement letter:
from prospective members of the Board of Directors stating that the individual does not work in any position at other companies or institutions during their tenure as a member of the Board of Directors of the Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary, except as a member of the Board of Commissioners of the Stock Exchange, Clearing and Guarantee Institution, or Custody and Settlement Institution; and/or
from prospective members of the Board of Commissioners stating that the individual does not work in any position at other Securities Companies, including as a member of the Board of Commissioners or member of the Board of Directors,
prepared according to the format of the Statement of No Concurrent Positions as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority;
e. a statement letter from prospective members of the Board of Directors and/or prospective members of the Board of Commissioners stating that the individual has or does not have a family relationship up to the second degree with members of the Board of Directors or members of the Board of Commissioners in the Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary concerned, prepared according to the format of the Statement of No Family Relationship in the Concerned Securities Company as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority;
f. a statement letter from prospective members of the Board of Directors and/or prospective members of the Board of Commissioners stating that the individual has or does not have a family relationship up to the second degree with members of the Board of Directors or members of the Board of Commissioners in other Securities Companies or Issuers listed on the Stock Exchange, prepared according to the format of the Statement of No Family Relationship in Other Securities Companies as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority;
g. a statement letter from employees who have individual licenses as representatives of the Securities Company stating that the individual does not hold concurrent positions at other Securities Companies, prepared according to the format of the Statement of No Concurrent Positions at Other Securities Companies as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority;
h. a statement letter from prospective members of the Board of Directors and/or prospective members of the Board of Commissioners from the Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary supporting the policies of the Financial Services Authority, prepared according to the format of the Statement Supporting the Policies of the Financial Services Authority as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority;
i. answers to questions according to the format of the Question List as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority;
j. a statement letter from prospective members of the Board of Directors and/or prospective members of the Board of Commissioners stating that all documents submitted to the Financial Services Authority are true and not misleading, prepared according to the format of the Statement of Document Truthfulness and the format of the Statement of Document Truthfulness from the Securities Company as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority; and
k. a certificate regarding:
the name of prospective members of the Board of Directors and/or prospective members of the Board of Commissioners; and
the duties and functions that will be the responsibility of prospective members of the Board of Directors and/or prospective members of the Board of Commissioners.
In the event that there are prospective members of the Board of Directors and/or prospective members of the Board of Commissioners of Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries who are foreign workers, the applicant must comply with the regulations of the Minister in charge of labor affairs.
In the event that applications for approval for prospective Controlling Shareholders (PSP), prospective members of the Board of Directors, and prospective members of the Board of Commissioners are submitted at the same time as the application for the license of the Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary, the documents and application for approval for prospective Controlling Shareholders (PSP), prospective members of the Board of Directors, and prospective members of the Board of Commissioners become one unit with the documents and license application of the Securities Company.
In the event that prospective Principal Parties are foreign legal entities or foreign citizens, documents related to the foreign legal entity or foreign citizen submitted in the context of the application for approval for prospective Principal Parties must be submitted in Indonesian translated by a sworn translator, and accompanied by documents in the language of the respective country.
In the event that, in the opinion of the Financial Services Authority, it is deemed necessary, prospective Principal Parties must submit supporting documents for the administrative requirement documents as stipulated in item 2 and item 3.
VI. SUBMISSION OF ADMINISTRATIVE REQUIREMENT DOCUMENTS
Before submitting an application for approval to become a Principal Party, Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries must first prepare a list of administrative requirement fulfillment (compliance checklist) according to the format of the List of Administrative Requirement Fulfillment (compliance checklist) as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority.
The list of administrative requirement fulfillment (compliance checklist) submitted to the Financial Services Authority is prepared and signed by:
a. prospective owners, founders, members of the Board of Directors, or authorized officials in the case of business license applications for Securities Companies; or
b. members of the Board of Directors overseeing the compliance function or officials responsible for the compliance function, in the case where the Securities Company has obtained a business license.
a. are complete and correct in number and format and the substance of the administrative requirement documents submitted is in accordance with the requirements stipulated in this Circular Letter of the Financial Services Authority; and
b. state that the administrative requirements in the form of "statements" and "fill-in lists" are correctly filled out and signed by the individuals submitted.
The submission of the list of administrative requirement fulfillment (compliance checklist) uses the form of the list of administrative requirement fulfillment (compliance checklist) as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority.
The list of administrative requirement fulfillment (compliance checklist) is submitted to the Financial Services Authority simultaneously with the submission of administrative requirement documents for prospective Principal Parties.
In the event that there is no member of the Board of Directors overseeing the compliance function or an official responsible for the compliance function, or if the member of the Board of Directors overseeing the compliance function or the official responsible for the compliance function cannot perform their duties, the list of administrative requirement fulfillment (compliance checklist) is signed by a substitute official as determined in the standard operating procedures of the Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary.
In the event that the member of the Board of Directors overseeing the compliance function or the official responsible for the compliance function has a conflict of interest with the Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary, the list of administrative requirement fulfillment (compliance checklist) is signed by a substitute official as determined in the standard operating procedures of the Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary.
VII. PROCEDURES FOR COMPETENCE AND PROPRIETY ASSESSMENT
The procedures for competence and propriety assessment for prospective Principal Parties of Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries are conducted through administrative assessment.
In the context of administrative assessment for prospective Controlling Shareholders (PSP), prospective Controlling Shareholders (PSP) must conduct a presentation or exposition at least regarding:
a. the prospective Controlling Shareholder's (PSP) plans for the development of Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries for at least 3 (three) years ahead from the time the prospective Controlling Shareholder (PSP) obtains approval from the Financial Services Authority as a Controlling Shareholder (PSP); and
b. the prospective Controlling Shareholder's (PSP) strategy for Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries if the concerned Securities Company experiences liquidity or solvency difficulties.
a. a legal entity, the presentation or exposition can be conducted by the legal entity itself or the controller or ultimate shareholder; or
b. a business group, the presentation or exposition can be conducted by the business group, the controller, or the ultimate shareholder.
In the event that ultimate shareholders are the government of another country, and the law in that country does not allow the ultimate shareholders to provide data and documents, the Financial Services Authority designates other ultimate shareholders that are directly controlled by the government of that other country, based on valid supporting documents, as a substitute for the government of that other country's ultimate shareholders.
Valid supporting documents as referred to in item 4 must at least include documents containing the appointment of the legal entity controlled by the foreign government as the ultimate shareholder and documents confirming that the law of that country prohibits the government concerned from providing data and documents.
Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries must first conduct a self-assessment of prospective members of the Board of Directors and/or prospective members of the Board of Commissioners before submitting them to the Financial Services Authority, prepared according to the format of the Self-Assessment of Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority.
The self-assessment of prospective members of the Board of Directors and/or prospective members of the Board of Commissioners is conducted regarding the fulfillment of integrity, financial reputation, and competence requirements as regulated in item III item 2, item 4, and item 5.
The self-assessment as referred to in item 6 is prepared and signed by:
a. prospective owners, founders, members of the Board of Directors, or authorized officials in the case of business license applications for Securities Companies engaging in business as Underwriters of Securities Issues and/or Securities Brokerage Intermediaries; or
b. members of the Board of Directors overseeing the compliance function or officials responsible for the compliance function, in the case where the Securities Company has obtained a business license.
The results of the self-assessment as referred to in item 7 must be submitted to the Financial Services Authority at the time of submitting prospective members of the Board of Directors and/or prospective members of the Board of Commissioners.
In the event that there is no member of the Board of Directors overseeing the compliance function or an official responsible for the compliance function, or if the member of the Board of Directors overseeing the compliance function or the official responsible for the compliance function cannot perform their duties, the self-assessment is signed by a substitute official as determined in the standard operating procedures of the Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary.
In the event that the member of the Board of Directors overseeing the compliance function or the official responsible for the compliance function has a conflict of interest with the Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary, the self-assessment is signed by a substitute official as determined in the standard operating procedures of the Securities Company engaging in business as an Underwriter of Securities Issues and/or a Securities Brokerage Intermediary.
The submission of the self-assessment is prepared according to the Self-Assessment form as contained in the Appendix which is an integral part of this Circular Letter of the Financial Services Authority.
In the event that the administrative requirement documents for the application for approval of prospective Principal Parties submitted do not comply with item VI item 3, the Financial Services Authority issues a notification letter to the applicant stating that the application does not yet meet document requirements, at the latest 30 (thirty) working days since the application was received by the Financial Services Authority.
The applicant must fulfill the document requirements as referred to in item 13 at the latest 30 (thirty) working days from the date of the notification letter.
Applicants who do not fulfill the document requirements within 30 (thirty) working days from the date of the notification letter as referred to in item 14 are considered to have canceled the application.
In the context of administrative assessment for prospective members of the Board of Directors and/or prospective members of the Board of Commissioners, the Financial Services Authority may conduct clarification with the concerned individuals in person if:
a. the submitted individual has negative data or information obtained by the Financial Services Authority;
b. the submitted individual does not yet have relevant experience in the Indonesian Capital Market considering the...
Position, size, complexity, and/or issues
Securities companies engaging in business activities as Underwriters of Securities and/or Securities Brokerage Intermediaries where the individual will be proposed, with criteria as set forth in the table below:
Experience in the Market
Capital
Position Proposed at Securities Companies Engaging in Business Activities as Underwriters of Securities and/or Securities Brokerage Intermediaries Remarks
Director
Director
Compliance Officer or
Overseeing Compliance Function
Managing Director
Commissioner
Chief Commissioner
Independent Commissioner
Director
T
1
K
K
T
K
K
T
1
1: Not clarified, except for:
Director
Compliance Officer or
Overseeing Compliance Function
T
K
K
T
K
K
Managing Director
T
1
K
K
T
1
K
K
Commissioner
K
1
K
K
T
1
K
1: Clarified, except for:
having previously held a position as a member of the Board of Directors or Board of Commissioners of a Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary.
Chief Commissioner
K
1
K
K
T
1
K
K
Independent Commissioner
K
1
K
K
T
1
K
K
No Experience
K
The term "no experience" refers to having no experience as a Director, Compliance Officer or overseeing compliance function, Managing Director, Commissioner, Chief Commissioner, or Independent Commissioner.
c. The proposed candidate was previously not approved by the Financial Services Authority due to not meeting competency requirements in the competence and propriety assessment prior to the nomination.
VIII. RESULTS OF COMPETENCE AND PROPRIETY ASSESSMENT
The Financial Services Authority determines the results of the competence and propriety assessment as follows:
a. approved; or b. not approved.
The timeframe for determining the results of the competence and propriety assessment as referred to in item 1 is at most 30 (thirty) working days after all application documents are received in complete form.
In the event that the competence and propriety assessment of a proposed Principal Party is conducted at the time of the application for establishment license of a Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary, the Financial Services Authority provides the determination of the results of the competence and propriety assessment within a timeframe in accordance with regulations governing the granting of establishment licenses for Securities Companies engaging in business activities as Underwriters of Securities and/or Securities Brokerage Intermediaries.
Proposed Principal Parties approved by the Financial Services Authority as referred to in item 1 letter a are declared to meet the requirements to become Principal Parties at the Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary that submitted the nomination.
Proposed Principal Parties other than proposed Principal Shareholders who are not approved as referred to in item 1 letter b may be proposed again to the Financial Services Authority at the earliest 6 (six) months from the date of the non-approval determination by the Financial Services Authority.
In the event that a proposed Principal Party other than a proposed Principal Shareholder is not approved as referred to in item 5 due to competency requirements, the said candidate may be proposed before 6 (six) months at:
a. a different position field at a position of the same level or lower at the same Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary; b. a position at a Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary of the same type that has a lower size and complexity as referred to in the table in item VII item 16 letter b; or
c. a position at a different Financial Services Institution.
The results of the competence and propriety assessment as referred to in item 1 are communicated in writing by the Financial Services Authority to the Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary.
The results of the competence and propriety assessment for proposed Principal Parties in the business license application as a Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary become one part of the granting or rejection of the business license application for the Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary by the Financial Services Authority.
In addition to notifying the Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary, the Financial Services Authority may notify the results of the competence and propriety assessment to other interested parties in the implementation of the functions, duties, and authorities of the Financial Services Authority or as mandated by legislation.
Proposed members of the Board of Directors or proposed members of the Board of Commissioners approved by the Financial Services Authority must be appointed by the General Meeting of Shareholders (GMS) within a maximum period of 3 (three) months from the date of approval by the Financial Services Authority.
Approval from the Financial Services Authority becomes invalid if, by the end of the timeframe referred to in item 10, the proposed members of the Board of Directors and/or proposed members of the Board of Commissioners have not been appointed by the GMS.
Individuals who have been appointed by the GMS as members of the Board of Directors or members of the Board of Commissioners of a Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary, but:
a. have not been declared to meet integrity, financial reputation, and competency requirements in the form of approval from the Financial Services Authority; or b. are declared not to meet the requirements in letter a by the Financial Services Authority, are prohibited from taking legal actions as members of the Board of Directors or members of the Board of Commissioners of the Securities Company.
Proposed members of the Board of Directors and/or proposed members of the Board of Commissioners who are not approved by the Financial Services Authority but have received approval and been appointed as members of the Board of Directors or members of the Board of Commissioners of a Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary in accordance with the GMS decision, the Securities Company must convene a GMS to cancel the appointment of the individual within a maximum period of 3 (three) months from the date of the non-approval determination by the Financial Services Authority.
Securities Companies engaging in business activities as Underwriters of Securities and/or Securities Brokerage Intermediaries must submit to the Financial Services Authority the results of the GMS regarding the appointment or cancellation of appointment of members of the Board of Directors and/or members of the Board of Commissioners at the latest 7 (seven) working days after the date of the GMS convening, accompanied by a summary of the minutes or the GMS minutes.
Approval from the Financial Services Authority over an application for Principal Shareholder (PSP) changes within a period of 3 (three) months from the date of said approval becomes void automatically if there are no changes to the PSP as requested by the Securities Company.
Securities Companies must submit reports of PSP changes to the Financial Services Authority with the following provisions:
a. at the latest 7 (seven) working days after a PSP change occurs, accompanied by the latest list of shareholders; or b. at the latest 7 (seven) working days from the voiding of the Financial Services Authority approval application as referred to in item 15, accompanied by the latest list of shareholders.
Proposed Principal Shareholders who are not approved by the Financial Services Authority due to not meeting integrity requirements but already hold shares in the Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary that submitted the nomination:
a. must transfer all their share ownership in the respective Underwriter of Securities and/or Securities Brokerage Intermediary within a maximum period of 1 (one) year from the date of non-approval determination and must not exercise Control; and b. shareholder rights (the right to attend, quorum calculation, voting, in the GMS, and the right to receive distributed dividends) are not recognized.
Proposed Principal Shareholders who are not approved by the Financial Services Authority due to not meeting financial viability requirements but already hold shares in the Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary that submitted the nomination:
a. must transfer a portion of their share ownership in the Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary so that the number of shares they hold returns to the initial amount before the share addition that caused them to become a Principal Shareholder, and must not exercise Control; b. shareholder rights (the right to attend, quorum calculation, voting, in the GMS, and the right to receive distributed dividends) are only recognized up to the amount of shares held initially before the share addition that caused them to become a Principal Shareholder; and
c. the transfer of share ownership as referred to in letter a must be carried out at the latest 1 (one) year from the date of non-approval determination.
In the event that a proposed Principal Shareholder already holds shares in a Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary, where the proposed Principal Shareholder was previously not a shareholder of the Securities Company submitting the nomination, but is not approved by the Financial Services Authority due to not meeting financial viability requirements:
a. must transfer a portion of their share ownership in the Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary so that the number of shares they hold corresponds to their financial capability; b. shareholder rights (the right to attend, quorum calculation, voting, in the GMS, and the right to receive distributed dividends) are only recognized up to the amount of shares corresponding to their financial capability; and
c. the transfer of share ownership as referred to in letter a must be carried out at the latest 1 (one) year from the date of non-approval determination.
In the event that a proposed Principal Shareholder does not transfer share ownership within the timeframe referred to in item 18 letter c and item 19 letter c, shareholder rights are not recognized until the individual carries out the transfer of share ownership.
The transfer of share ownership as referred to in items 17, 18, and 19 above may be carried out through donation or sale to parties other than those having family relationships up to the second degree, including:
a. biological/step/adopted parents; b. biological/step/adopted siblings along with their husbands or wives;
c. biological/step/adopted children;
d. biological/step/adopted grandparents; e. biological/step/adopted grandchildren; f. biological/step/adopted siblings of parents along with their husbands or wives; g. husbands/wives; h. parents-in-law;
i. in-laws;
j. husbands/wives of biological/step/adopted children; k. grandparents of husbands/wives;
l. husbands/wives of biological/step/adopted grandchildren; and
m. biological/step/adopted siblings of husbands/wives along with their husbands or wives, including to the business group of the proposed Principal Shareholder who was not approved.
IX. DELIVERY ADDRESS
Application letters along with documents as referred to in items V and VI are submitted to the Head of the Capital Market Supervision Department 2A, Financial Services Authority, with a copy to the Director of Securities Institution Supervision.
X. OTHER PROVISIONS
Securities Companies engaging in business activities as Underwriters of Securities and/or Securities Brokerage Intermediaries must include explanations regarding Principal Shareholder status in:
a. the list of shareholders of the Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary; and b. the Annual Financial Report of the Securities Company engaging in business activities as an Underwriter of Securities and/or Securities Brokerage Intermediary.
XI. TRANSITIONAL PROVISIONS
Applications for approval from the Financial Services Authority for proposed Principal Shareholders, proposed members of the Board of Directors, and proposed members of the Board of Commissioners of Securities Companies engaging in business activities as Underwriters of Securities and/or Securities Brokerage Intermediaries that have been submitted by applicants to the Financial Services Authority prior to the effectiveness of this Financial Services Authority Circular, shall be resolved with the following provisions:
a. in the event that the administrative requirement documents submitted for the application are complete and the candidate:
XII. CLOSING PROVISIONS
This Financial Services Authority Circular takes effect on the date of determination.
Determined in Jakarta on December 27, 2017
EXECUTIVE HEAD
CAPITAL MARKET SUPERVISOR, signature
HOESEN
This copy is in accordance with the original
Legal Director
Legal Department signature
Yuliana
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Source: Otoritas Jasa Keuangan (Financial Services Authority) — original document · Summary generated with machine assistance and reviewed before publication; the authoritative text is the regulator's original document. How RegAlert works
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