Financial Services Authority Regulation Number 30/POJK.04/2015 on the Report on the Realization of the Use of Funds from Public Offerings

FINANCIAL SERVICES AUTHORITY REGULATION
NUMBER 30/POJK.04/2015
ON
THE REPORT ON THE REALIZATION OF THE USE OF FUNDS FROM PUBLIC OFFERINGS BY THE GRACE OF THE ALMIGHTY GOD THE BOARD OF COMMISSIONERS OF THE FINANCIAL SERVICES AUTHORITY, Considering: that in order to improve the quality of disclosure by Issuers or Public Companies, provide protection to investors regarding the use of funds from Public Offerings, and simplify and align the submission of reports on the realization of the use of funds from Public Offerings with the submission of Financial Reports to the Financial Services Authority, it is necessary to perfect regulations regarding reports on the realization of the use of funds from Public Offerings by establishing a Financial Services Authority Regulation on the Report on the Realization of the Use of Funds from Public Offerings; Recalling: 1. Law Number 8 of 1995 concerning Capital Markets (State Gazette of the Republic of Indonesia Year 1995 Number 64, Supplement to the State Gazette of the Republic of Indonesia Number 3608);
2. Law Number 21 of 2011 concerning the Financial Services Authority (State Gazette of the Republic of Indonesia Year 2011 Number 111, Supplement to the State Gazette of the Republic of Indonesia Number 5253);
FINANCIAL SERVICES AUTHORITY
REPUBLIC OF INDONESIA
COPY

RESOLVES:
Determining: A FINANCIAL SERVICES AUTHORITY REGULATION ON THE REPORT ON THE REALIZATION OF THE USE OF FUNDS FROM PUBLIC OFFERINGS.

CHAPTER I
GENERAL PROVISIONS
Article 1
In this Financial Services Authority Regulation, the following terms are defined as:

1. Report on the Realization of the Use of Funds, hereinafter abbreviated as LRPD, is a report on the realization of the use of funds from Public Offerings submitted by an Issuer whose Registration Statement has become effective.
2. General Meeting of Shareholders, hereinafter abbreviated as GMS, is the organ of a Public Company that has authority not delegated to the Board of Directors or Board of Commissioners as referred to in the Law concerning Limited Liability Companies and/or the articles of association of a Public Company.
3. Public Company is an Issuer that has conducted a Public Offering of Equity Securities or a Public Company.

CHAPTER II
REPORT ON THE REALIZATION OF THE USE OF FUNDS FROM PUBLIC OFFERINGS
Article 2
(1) An Issuer that has conducted a Public Offering is required to submit the LRPD to the Financial Services Authority until all funds from the Public Offering have been realized. (2) An Issuer that has conducted a Public Offering of Debt Securities and/or Sukuk must also submit the LRPD as referred to in paragraph (1) to the Trustee with a copy to the Financial Services Authority. (3) The LRPD as referred to in paragraph (1) and paragraph (2) must be prepared periodically every 6 (six) months with report dates of June 30 and December 31. (4) The LRPD for the first time must be prepared on the nearest report date as referred to in paragraph (3) after the date of delivery of Securities for the Initial Public Offering of shares, Debt Securities and/or Sukuk, or after the date of allocation for capital increase by exercising Preemptive Rights.

Article 3
(1) The LRPD as referred to in Article 2 must be submitted to the Financial Services Authority no later than on the 15 (fifteenth) day of the following month after the report date until all funds from the Public Offering have been realized. (2) In the event that an Issuer has used all funds from the Public Offering before the report date, the Issuer may submit the final LRPD earlier than the submission deadline as referred to in paragraph (1). (3) In the event that the 15 (fifteenth) day as referred to in paragraph (1) falls on a holiday, the LRPD must be submitted no later than 1 (one) working day thereafter.

Article 4
The form and content of the LRPD must be prepared in accordance with the format of the Report on the Realization of the Use of Funds from Public Offerings as contained in the Appendix which is an inseparable part of this Financial Services Authority Regulation.

Article 5
The LRPD must be signed by at least 1 (one) member of the Board of Directors.

CHAPTER III
USE OF FUNDS FROM PUBLIC OFFERINGS
First Section
Accountability for the Realization of the Use of Funds from Public Offerings by Public Companies
Article 6
(1) A Public Company is required to account for the realization of the use of funds from Public Offerings at every Annual General Meeting of Shareholders until all funds from the Public Offering have been realized. (2) The realization of the use of funds from Public Offerings as referred to in paragraph (1) must be included as one of the agenda items in the Annual General Meeting of Shareholders. (3) The accountability for the realization of the use of funds from Public Offerings as referred to in paragraph (1) must at least disclose:
a. all funds obtained; b. the amount of costs incurred in carrying out the Public Offering;
c. funds that have been realized and their allocation; and
d. remaining funds and the reasons for not being realized.

Article 7
(1) The first accountability for the realization of the use of funds from Public Offerings must be conducted at the nearest Annual General Meeting of Shareholders to be held, even if the realization of use does not cover 1 (one) year after the date of delivery of Securities or after the allocation date. (2) In the event that all funds from the Public Offering have been fully realized, the final accountability for the realization of the use of funds must be submitted at the nearest Annual General Meeting of Shareholders to be held.

Article 8
In the event that a Public Company conducts a Public Offering of shares or Debt Securities that can or must be converted into shares, along with Securities granting the right to purchase shares at a certain time attached to the aforementioned shares or Debt Securities, the Public Company is required to account for the realization of the use of funds from the issuance of shares from the execution of Securities granting the right to purchase shares at the Annual General Meeting of Shareholders until such funds have been fully realized.

Second Section
Changes to the Use of Funds from Public Offerings
Article 9
(1) An Issuer intending to change the use of funds from a Public Offering of shares must:
a. submit the plan and reasons for changing the use of funds from the Public Offering together with the notification of the GMS agenda to the Financial Services Authority; and b. obtain approval from the GMS beforehand. (2) The convening of the GMS as referred to in paragraph (1) must be conducted in accordance with regulations as stipulated in the Financial Services Authority Regulation concerning the Plan and Convening of General Meetings of Shareholders of Public Companies and the articles of association of Public Companies.

Article 10
(1) An Issuer intending to change the use of funds from a Public Offering of Debt Securities or Sukuk must:
a. submit the plan and reasons for changing the use of funds from the Public Offering of Debt Securities or Sukuk to the Financial Services Authority no later than 14 (fourteen) days before the convening of the General Meeting of Holders of Debt Securities or Sukuk; and b. obtain approval from the General Meeting of Holders of Debt Securities or Sukuk. (2) The Issuer must submit the results of the General Meeting of Holders of Debt Securities or Sukuk as referred to in paragraph (1) to the Financial Services Authority no later than 2 (two) working days after the convening of the General Meeting of Holders of Debt Securities or Sukuk.

Article 11
Changes to the use of funds from Public Offerings as referred to in Article 9 and Article 10 include:
a. Material changes to each element of fund use; and/or b. Changes in the location of objects to be purchased from the funds from Public Offerings that have economic impact.

Article 12
The provisions as regulated in Article 11 do not apply to Issuers issuing Debt Securities or Sukuk as long as changes to the use of funds from Public Offerings of Debt Securities or Sukuk are regulated in the Trust Agreement.

Third Section
Placement of Funds from Public Offerings Not Yet Realized
Article 13
In the event that there are funds from Public Offerings not yet realized, the Issuer is required to:
a. place such funds in safe and liquid financial instruments; b. disclose the form and location where such funds are placed;
c. disclose the interest rate or yield obtained; and
d. disclose the existence or non-existence of Affiliation and the nature of the Affiliation between the Issuer and the party where such funds are placed.

Article 14
(1) The placement of funds from Public Offerings not yet realized as referred to in Article 13 letter a must be conducted in the name of the Issuer.
(2) Funds from Public Offerings not yet realized as referred to in Article 13 are prohibited from being used as collateral for debt.

CHAPTER IV
DISCLOSURE OF EMISSION COSTS
Article 15
Issuers are required to disclose the details of costs incurred in carrying out the Public Offering in the LRPD.

CHAPTER V
SANCTION PROVISIONS
Article 16
(1) Without prejudice to criminal provisions in the Capital Markets sector, the Financial Services Authority has the authority to impose administrative sanctions on any party violating the provisions of this Financial Services Authority Regulation, including parties causing the violation, in the form of:
a. written warning; b. fine, namely the obligation to pay a certain amount of money;
c. restriction of business activities;
d. suspension of business activities; e. revocation of business license; f. cancellation of approval; and g. cancellation of registration.
(2) Administrative sanctions as referred to in paragraph (1) letters b, c, d, e, f, or g may be imposed with or without prior imposition of an administrative sanction in the form of a written warning as referred to in paragraph (1) letter a. (3) Administrative sanctions in the form of a fine as referred to in paragraph (1) letter b may be imposed separately or together with the imposition of administrative sanctions as referred to in paragraph (1) letters c, d, e, f, or g.

Article 17
In addition to administrative sanctions as referred to in Article 16 paragraph (1), the Financial Services Authority may take specific actions against any party violating the provisions of this Financial Services Authority Regulation.

Article 18
The Financial Services Authority may announce the imposition of administrative sanctions as referred to in Article 16 paragraph (1) and specific actions as referred to in Article 17 to the public.

CHAPTER VI
CLOSING PROVISIONS
Article 19
Provisions in other Capital Markets sector legislation related to the use of funds from Public Offerings remain applicable to Issuers as long as they do not conflict with this Financial Services Authority Regulation.

Article 20
Upon the effective date of this Financial Services Authority Regulation, the Decision of the Head of the Capital Market Supervisory Board Number KEP-27/PM/2003 dated July 17, 2003 concerning the Report on the Realization of the Use of Funds from Public Offerings along with Regulation Number X.K.4 which is its appendix is revoked and declared invalid.

Article 21
This Financial Services Authority Regulation takes effect on April 16, 2016.

In order that everyone knows it, ordering the promulgation of this Financial Services Authority Regulation by placing it in the State Gazette of the Republic of Indonesia.

Determined in Jakarta on December 16, 2015
CHAIRMAN OF THE BOARD OF COMMISSIONERS
FINANCIAL SERVICES AUTHORITY, signed
MULIAMAN D. HADAD

Promulgated in Jakarta on December 22, 2015
MINISTER OF LAW AND HUMAN RIGHTS
REPUBLIC OF INDONESIA, signed
YASONNA H. LAOLY
STATE GAZETTE OF THE REPUBLIC OF INDONESIA YEAR 2015 NUMBER 305 Copy in accordance with the original Legal Director 1 Legal Department signed Sudarmaji

EXPLANATION
OF
FINANCIAL SERVICES AUTHORITY REGULATION
NUMBER 30/POJK.04/2015
ON
THE REPORT ON THE REALIZATION OF THE USE OF FUNDS FROM PUBLIC OFFERINGS

I. GENERAL
Based on Law Number 8 of 1995 concerning Capital Markets, a Public Offering is an activity of offering Securities conducted by an Issuer to sell Securities to the public according to procedures regulated in the Law and its implementing regulations. A Public Offering is one of the activities conducted by an Issuer to obtain funds from public investors. Funds from public investors obtained from a Public Offering can be used by the Issuer to meet various company needs such as expansion, refinancing, and investment. Funds obtained from a Public Offering are expected to support the Issuer's business activities, which ultimately can increase and develop the Issuer's business so that its profits can be enjoyed by public investors. To ensure that every fund obtained by an Issuer from a Public Offering is realized in accordance with the fund use plan stated in the Prospectus, the Capital Market Supervisory Board and Financial Institution as the Capital Markets regulator has established Regulation Number X.K.4, Appendix of the Decision of the Head of the Capital Market Supervisory Board Number Kep-27/PM/2003 dated July 17, 2003 concerning the Report on the Realization of the Use of Funds from Public Offerings. This regulation regulates the Issuer's obligation to submit the Report on the Realization of the Use of Funds ("LRPD") to the Financial Services Authority periodically and to account for the realization of fund use to shareholders at the Annual General Meeting of Shareholders (AGMS). The same report is also submitted to the Trustee for Public Offerings of Debt Securities or Sukuk. The aforementioned regulation also regulates procedures that must be conducted if an Issuer intends to change the use of funds. Considering the development of the Capital Markets industry and in order to improve the quality of disclosure by Issuers or Public Companies, provide protection to investors regarding the use of funds from Public Offerings, and provide clear regulations, simplify and harmonize the submission of reports on the realization of fund use with the submission of Financial Reports to the Financial Services Authority, it is necessary to perfect Regulation Number X.K.4, Appendix of the Decision of the Head of the Capital Market Supervisory Board Number Kep-27/PM/2003 dated July 17, 2003 concerning the Submission of Reports on the Realization of the Use of Funds from Public Offerings, by adding, adjusting, deleting, and simplifying provisions in this Financial Services Authority Regulation.

II. ARTICLE BY ARTICLE
Article 1
Sufficiently clear.

Article 2
Paragraph (1)
A Public Offering is an activity of offering Securities conducted by an Issuer to sell Securities to the public as referred to in the Law concerning Capital Markets.

Paragraph (2)
Sufficiently clear.

Paragraph (3)
Sufficiently clear.

Paragraph (4)
What is meant by "LRPD for the first time" is that the LRPD must be submitted to the Financial Services Authority and/or Trustee for the first time after the Public Offering. What is meant by "date of delivery of Securities" is the date of delivery of Securities as referred to in Capital Markets sector legislation regulating the Procedures for Registration in the Context of Public Offerings. What is meant by "allocation date" is the allocation date as referred to in the Financial Services Authority Regulation concerning Capital Increase of Public Companies by Exercising Preemptive Rights. Debt Securities include convertible bonds.

Article 3
Paragraph (1)
Sufficiently clear.

Paragraph (2)
Example of submitting the final LRPD earlier:
The funds from the Public Offering of PT A have been fully realized on August 25, 2015. PT A can submit the final LRPD on September 2, 2015.

Paragraph (3)
Sufficiently clear.

Article 4
Sufficiently clear.

Article 5
Sufficiently clear.

Article 6
Sufficiently clear.

Article 7
Paragraph (1)
What is meant by "date of delivery of Securities" is the date of delivery of Securities as referred to in Capital Markets sector legislation regulating the Procedures for Registration in the Context of Public Offerings. What is meant by "allocation date" is the allocation date as referred to in the Financial Services Authority Regulation concerning Capital Increase of Public Companies by Exercising Preemptive Rights.

Paragraph (2)
Sufficiently clear.

Article 8
Sufficiently clear.

Article 9
Sufficiently clear.

Article 10
Paragraph (1)
The convening of the General Meeting of Holders of Debt Securities or Sukuk is subject to Capital Markets sector legislation regulating General Provisions and Trust Agreements for Debt Securities. At the time of the effectiveness of this Financial Services Authority Regulation, Capital Markets sector legislation regulating General Provisions and Trust Agreements for Debt Securities is Regulation Number VI.C.4, Appendix of the Decision of the Head of the Capital Market Supervisory Board and Financial Institution Number: KEP-412/BL/2010 dated September 6, 2010 concerning General Provisions and Trust Agreements for Debt Securities.

Paragraph (2)
The Issuer submits the results of the General Meeting of Holders of Debt Securities or Sukuk based on the results of the General Meeting of Holders of Debt Securities or Sukuk submitted by the Trustee.

Article 11
What is meant by "material change" is:
a. a change to one element of fund use where the amount of change is 20% (twenty percent) or more of the total Public Offering; and/or b. a change in fund use that differs from the fund use plan in the prospectus or the result of the General Meeting of Shareholders, even if its value is below 20% (twenty percent) of the total Public Offering.

Article 12
Sufficiently clear.

Article 13
Letter a
Examples of safe and liquid financial instruments such as Government Bonds and time deposits.

Letter b
Sufficiently clear.

Letter c
Sufficiently clear.

Letter d
Sufficiently clear.

Article 14
Sufficiently clear.

Article 15
The costs mentioned include among others:
a. Underwriting fee; b. Public Offering management fee;
c. Selling fee;
d. Capital Markets Supporting Professional Services fee; e. Capital Markets Supporting Institution Services fee; f. Financial advisory fee; g. Registration fee; and/or h. Other costs as long as they have been disclosed in the Prospectus.

Article 16
Sufficiently clear.

Article 17
What is meant by "specific actions" includes among others:
a. postponement of granting an effective statement, for example, an effective statement for a merger or consolidation; and b. postponement of granting a statement from the Financial Services Authority that there are no further responses to documents submitted to the Financial Services Authority in the context of capital increase by exercising Preemptive Rights of Public Companies.

Article 18
Sufficiently clear.

Article 19
Sufficiently clear.

Article 20
Sufficiently clear.

Article 21
Sufficiently clear.

SUPPLEMENT TO THE STATE GAZETTE OF THE REPUBLIC OF INDONESIA NUMBER 5779