Financial Services Authority Regulation Number 54/POJK.04/2015 Regarding Voluntary Tender Offers

FINANCIAL SERVICES AUTHORITY REGULATION
NUMBER 54 /POJK.04/2015
REGARDING
VOLUNTARY TENDER OFFERS
BY THE GRACE OF THE ALMIGHTY GOD,
THE COMMISSIONERS OF THE FINANCIAL SERVICES AUTHORITY, Considering:
a. that with the enactment of Law Number 21 of 2011 concerning the Financial Services Authority, since December 31, 2012, the functions, duties, and authority for regulating and supervising financial services activities in the Capital Market sector, including regulations regarding voluntary tender offers, have shifted from the Capital Market Supervisory Agency and Financial Institutions to the Financial Services Authority; b. that in order to provide clarity and certainty regarding regulations concerning voluntary tender offers, regulations on Voluntary Tender Offers issued prior to the establishment of the Financial Services Authority need to be converted into a Financial Services Authority Regulation;
c. that based on the considerations referred to in letters a and b, it is necessary to issue a regulation on Voluntary Tender Offers by establishing a Financial Services Authority Regulation;
FINANCIAL SERVICES AUTHORITY
REPUBLIC OF INDONESIA
COPY

Considering: 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);

DECIDES:
Establish: FINANCIAL SERVICES AUTHORITY REGULATION REGARDING VOLUNTARY TENDER OFFERS.

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

1. Equity-like Securities are shares or Securities that can be exchanged for shares or Securities containing the right to obtain shares.
2. Mass Media are newspapers, magazines, films, television, radio, and other electronic media, or letters, brochures, and other printed materials distributed to more than 100 (one hundred) Parties.
3. Voluntary Tender Offer is an offer made voluntarily by a Party to obtain Equity-like Securities issued by the Target Company through purchase or exchange with other Securities via Mass Media.
4. Voluntary Tender Offer Statement is a document that must be submitted to the Financial Services Authority by the Party making the Voluntary Tender Offer.
5. Public Company is an Emitter that has conducted a Public Offer of Equity-like Securities or is a Public Company.
6. Target Company is a Public Company whose Equity-like Securities are the object of the Voluntary Tender Offer.

Article 2
Transactions in the context of a Voluntary Tender Offer may be conducted both within and outside the Stock Exchange.

CHAPTER II
VOLUNTARY TENDER OFFER STATEMENT
Article 3
A Party intending to conduct a Voluntary Tender Offer must submit a Voluntary Tender Offer Statement to the Financial Services Authority, and send copies to:
a. The Stock Exchange where the Equity-like Securities that are the object of the Voluntary Tender Offer are listed; b. The Target Company; and
c. Other Parties who have announced a Voluntary Tender Offer for Equity-like Securities of the same Target Company whose offer period has not yet expired.

Article 4
The Voluntary Tender Offer Statement as referred to in Article 3 must contain the following:
a. the name and address of the Target Company; b. a complete description of the Equity-like Securities that are the object of the Voluntary Tender Offer, which must at least contain information on:

1. the Voluntary Tender Offer price;
2. the implementation time of the Voluntary Tender Offer; and
3. the procedure for the Voluntary Tender Offer;
   c. special requirements and conditions of the Voluntary Tender Offer;
   d. the name of the Stock Exchange where the Equity-like Securities that are the object of the Voluntary Tender Offer are traded; e. the result of the calculation of the Equity-like Securities price; f. the name, address, and nationality of the Party making the Voluntary Tender Offer and its Affiliates in relation to the Voluntary Tender Offer, and information on whether such Party:
4. has been declared bankrupt;
5. has been a member of the Board of Directors or Board of Commissioners who was declared guilty causing a company to be declared bankrupt;
6. has been sentenced for committing crimes in the financial field; or
7. has been ordered by a court or competent authority to stop business activities related to Securities;
   g. an explanation of relationships, contracts, and material transactions with the Target Company or its Affiliates within the last 3 (three) years conducted by the Party making the Voluntary Tender Offer, at least including:
8. sales or purchase contracts;
9. agency relationships; and
10. management relationships;
    h. a statement by the Party making the Voluntary Tender Offer regarding the availability of sufficient funds to complete the Voluntary Tender Offer, supported by an opinion from an Accountant, bank, or Securities Company;
    i. a statement regarding the purpose of the Voluntary Tender Offer and any plans for the Target Company after the Voluntary Tender Offer is completed.
    j. an explanation of the number and percentage of Target Company Securities owned directly or indirectly by the Party making the Voluntary Tender Offer, including options to purchase or rights to obtain dividends or other benefits, and the power to use voting rights in the General Meeting of Shareholders of the Target Company; k. a list of names and addresses of Parties compensated by the Party making the Voluntary Tender Offer to make defenses or recommendations in relation to the offer (if any);
    l. an explanation of approvals or requirements established based on statutory regulations that must be fulfilled in relation to the Voluntary Tender Offer (if any); and
    m. additional information necessary so that the statements in the Voluntary Tender Offer Statement are not misleading.

Article 5
(1) All information contained in the Voluntary Tender Offer Statement as referred to in Article 4 must be announced in at least 2 (two) daily newspapers in Indonesian, one of which has national circulation, on the same date as the submission of the Voluntary Tender Offer Statement to the Financial Services Authority. (2) In addition to the obligation to announce in newspapers as referred to in paragraph (1), information as referred to in Article 4 may also be announced in other Mass Media.

Article 6
A Voluntary Tender Offer cannot be cancelled after the announcement as referred to in Article 5 paragraph (1), unless it obtains approval from the Financial Services Authority.

Article 7
The Voluntary Tender Offer Statement may become effective under the following conditions:
a. based on the passage of time, namely:

1. 15 (fifteen) days since the date the Voluntary Tender Offer Statement was received by the Financial Services Authority in complete form, i.e., meeting all criteria established in this Financial Services Authority Regulation; or
2. 15 (fifteen) days since the date of the last change submitted by the Party making the Voluntary Tender Offer or requested by the Financial Services Authority to be fulfilled; or
   b. based on an effective statement from the Financial Services Authority that there are no further changes and/or additional information required.

Article 8
The Party making the Voluntary Tender Offer must announce corrections and/or additions to the Voluntary Tender Offer Statement no later than 1 (one) working day after the Voluntary Tender Offer Statement becomes effective (if any).

CHAPTER III
STATEMENT OF THE TARGET COMPANY AND OTHER PARTIES IN RELATION TO THE VOLUNTARY TENDER OFFER
Article 9
The Target Company, Affiliates of the Target Company, Parties making a Voluntary Tender Offer for the same Equity-like Securities at the same time, or Parties disclosing information or opinions regarding a Voluntary Tender Offer, may make a written statement to support or object to such Voluntary Tender Offer.

Article 10
In the event that members of the Board of Directors or Board of Commissioners of the Target Company know or have sufficient reason that the information contained in the Voluntary Tender Offer Statement is untrue or misleading, the relevant Target Company must make a written statement.

Article 11
Written statements as referred to in Article 9 and Article 10 must be announced in at least 2 (two) daily newspapers in Indonesian, one of which has national circulation, no later than 10 (ten) working days before the expiration of the Voluntary Tender Offer period.

Article 12
Written statements as referred to in Article 9 and Article 10 must:
a. clearly indicate matters that constitute support or objection and/or rebuttal and their reasons; b. include in such statement the name, address, and relationship with the Party making the Voluntary Tender Offer; and
c. clearly disclose ownership of Equity-like Securities by the relevant Party that is the object of the Voluntary Tender Offer or changes in interest in Equity-like Securities that will occur due to the Voluntary Tender Offer.

CHAPTER IV
PRICE OF EQUITY-LIKE SECURITIES THAT ARE THE OBJECT OF THE VOLUNTARY TENDER OFFER
Article 13
For objects of Voluntary Tender Offer in the form of shares and/or warrants, the Voluntary Tender Offer price for shares and/or warrants, unless otherwise determined by the Financial Services Authority, must be higher than the following prices:
a. the highest Voluntary Tender Offer price previously submitted by the same Party within 180 (one hundred eighty) days before the announcement as referred to in Article 5 paragraph (1); b. the average price of the highest daily trading prices on the Stock Exchange during the last 90 (ninety) days before the announcement as referred to in Article 5 paragraph (1), in the event that the Voluntary Tender Offer is conducted for shares and/or warrants of a Target Company listed and traded on the Stock Exchange;
c. the average price of the highest daily trading prices on the Stock Exchange within the last 12 (twelve) months calculated backwards from the last trading day of the relevant shares, in the event that shares and/or warrants of the Target Company are not traded on the Stock Exchange during the last 90 (ninety) days before the announcement as referred to in Article 5 paragraph (1); or
d. the fair price determined by an Appraiser, in the event that the Voluntary Tender Offer is conducted for shares and/or warrants of a Target Company not listed on the Stock Exchange.

Article 14
In the event that the object of the Voluntary Tender Offer is debt securities that can be exchanged for shares, the Voluntary Tender Offer price must be higher than the price of such Securities established at the time of issuance.

Article 15
The Party making the Voluntary Tender Offer may change the Voluntary Tender Offer price, provided that such price change is not lower than the announced price.

Article 16
Price changes as referred to in Article 15 may only be conducted before the Voluntary Tender Offer Statement becomes effective.

CHAPTER V
IMPLEMENTATION OF THE VOLUNTARY TENDER OFFER
Article 17
(1) The Voluntary Tender Offer period must start no later than 2 (two) working days after the Voluntary Tender Offer Statement becomes effective.
(2) The Voluntary Tender Offer period is at least 30 (thirty) days and may be extended to a maximum of 90 (ninety) days, unless otherwise approved by the Financial Services Authority.

Article 18
Voluntary Tender Offer transactions must be completed no later than 12 (twelve) days after the offer period ends, through the delivery of money or delivery of Securities as the exchange.

Article 19
In the event that special requirements or conditions established in the Voluntary Tender Offer are not met, the offered Securities must be returned no later than 12 (twelve) days after the offer period ends.

Article 20
In the event that the Voluntary Tender Offer is cancelled, the offered Securities must be returned no later than 12 (twelve) days after the cancellation.

Article 21
In the event that the Voluntary Tender Offer is conducted through the exchange of Target Company Securities with other Securities, the Party making the Voluntary Tender Offer must provide the option to receive such other Securities or money in the amount as referred to in Article 13 or Article 14.

Article 22
(1) With regard to the limitation of the Voluntary Tender Offer period as referred to in Article 17 paragraph (2), each extension of the Voluntary Tender Offer period must be conducted for at least 15 (fifteen) days and announced 2 (two) days before the extension period begins. (2) The announcement as referred to in paragraph (1) must be contained in 2 (two) daily newspapers in Indonesian, one of which has national circulation, and must state the number of offered Securities received up to the start of the extension period.

Article 23
In the event that the number of Equity-like Securities offered for sale or exchange exceeds the number of Equity-like Securities established in the Voluntary Tender Offer, the Party conducting the Voluntary Tender Offer must conduct proportional allocation proportional to the participation of each Party selling or exchanging in such Voluntary Tender Offer, taking into account the trading units applicable on the Stock Exchange without fractions.

Article 24
The Party making the Voluntary Tender Offer must appoint an Accountant to conduct a special examination regarding the fairness of the allocation implementation and must submit the report to the Financial Services Authority within 30 (thirty) working days since the date the allocation ends.

Article 25
Parties intending to sell Equity-like Securities in relation to the Voluntary Tender Offer must deliver such Securities to the Custodian appointed by the Party making the Voluntary Tender Offer and may withdraw such Securities at any time before the Voluntary Tender Offer ends.

Article 26
(1) With regard to the provisions regulated in Article 17 paragraph (2), changes to Voluntary Tender Offer requirements may only be conducted no later than 15 (fifteen) days before the Voluntary Tender Offer ends. (2) Changes as referred to in paragraph (1) must be announced in 2 (two) daily newspapers in Indonesian, one of which has national circulation, and submitted to the parties as referred to in Article 3 at the same time as the announcement.

Article 27
The Party making the Voluntary Tender Offer is prohibited from buying or selling Equity-like Securities that are currently being offered during the 15 (fifteen) days before the issuance of the announcement as referred to in Article 5 until the Voluntary Tender Offer period ends.

Article 28
(1) Voluntary Tender Offer Forms may only be distributed after the Voluntary Tender Offer Statement becomes effective.
(2) Voluntary Tender Offer Forms as referred to in paragraph (1) must contain a statement that the Party offering Equity-like Securities has received and read the Voluntary Tender Offer Statement.

Article 29
During the Voluntary Tender Offer period, the Party making the Voluntary Tender Offer may make a re-announcement of the Voluntary Tender Offer Statement submitted to the Financial Services Authority.

Article 30
The Target Company is prohibited from conducting transactions that are solely implemented with the aim of hindering changes in the control of the relevant Target Company as a result of the implementation of the Voluntary Tender Offer during the period from the announcement as referred to in Article 5 until the Voluntary Tender Offer period ends.

Article 31
The Party making the Voluntary Tender Offer and its Affiliates must keep the Voluntary Tender Offer plan confidential before the announcement as referred to in Article 5.

Article 32
The Party making the Voluntary Tender Offer is prohibited from setting different restrictions and requirements based on the classification or status of Parties who are holders of Equity-like Securities, unless there are differences in rights or benefits attached to such Equity-like Securities.

Article 33
The Party making the Voluntary Tender Offer may make plans regarding the continuity or change of company management and employees after the Voluntary Tender Offer, provided that such matters are not requirements of the Voluntary Tender Offer, and are fully disclosed in the Voluntary Tender Offer Statement.

CHAPTER VI
REPORTING OF VOLUNTARY TENDER OFFER RESULTS
Article 34
The Party making the Voluntary Tender Offer must report the results of such Voluntary Tender Offer to the Financial Services Authority no later than 10 (ten) working days since the date the Voluntary Tender Offer completion ends.

CHAPTER VII
OTHER PROVISIONS
Article 35
Proof of advertisements issued as referred to in Article 5 paragraph (1), Article 11, Article 22 paragraph (2), and Article 26 paragraph (2) must be submitted to the Financial Services Authority no later than 2 (two) working days after such advertisements are published in newspapers.

CHAPTER VIII
SANCTION PROVISIONS
Article 36
(1) Without prejudice to criminal provisions in the Capital Market field, the Financial Services Authority has the authority to impose sanctions on every Party that violates the provisions of this Financial Services Authority Regulation, including parties who cause the violation to occur, 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 administrative sanctions in the form of written warnings as referred to in paragraph (1) letter a. (3) Administrative sanctions in the form of fines 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 37
In addition to administrative sanctions as referred to in Article 36 paragraph (1), the Financial Services Authority may take certain actions against every Party that violates the provisions of this Financial Services Authority Regulation.

Article 38
The Financial Services Authority may announce the imposition of administrative sanctions as referred to in Article 36 paragraph (1) and certain actions as referred to in Article 37 to the public.

CHAPTER IX
CLOSING PROVISIONS
Article 39
At the time this Financial Services Authority Regulation takes effect, the Decision of the Chairman of the Capital Market Supervisory Agency and Financial Institutions Number: KEP-263/BL/2011 dated May 31, 2011 concerning Voluntary Tender Offers along with Regulation Number IX.F.1 which is its appendix, is revoked and declared invalid.

Article 40
This Financial Services Authority Regulation takes effect on the date of enactment.

In order that everyone knows it, ordering the enactment of this Financial Services Authority Regulation by placing it in the State Gazette of the Republic of Indonesia.
Established in Jakarta on December 23, 2015
CHAIRMAN OF THE COMMISSIONERS
FINANCIAL SERVICES AUTHORITY, signed
MULIAMAN D. HADAD
Enacted in Jakarta on December 29, 2015
MINISTER OF LAW AND HUMAN RIGHTS
REPUBLIC OF INDONESIA, signed
YASONNA H. LAOLY
STATE GAZETTE OF THE REPUBLIC OF INDONESIA YEAR 2015 NUMBER 405 Copy matches the original Director of Law 1 Department of Law signed Sudarmaji

EXPLANATION
OF
FINANCIAL SERVICES AUTHORITY REGULATION
NUMBER 54 /POJK.04/2015
REGARDING
VOLUNTARY TENDER OFFERS

I. GENERAL
That since December 31, 2012, the functions, duties, and authority for regulating and supervising financial services activities in the Capital Market, Insurance, Pension Funds, Financing Institutions, and Other Financial Service Institutions sectors have shifted from the Minister of Finance and the Capital Market Supervisory Agency and Financial Institutions to the Financial Services Authority. In relation to the above, it is necessary to reorganize the structure of existing Regulations, particularly those related to the Capital Market sector, by converting Bapepam and LK Regulations related to the Capital Market sector into Financial Services Authority Regulations. The reorganization is conducted so that there are Financial Services Authority Regulations related to the Capital Market sector that are consistent with Financial Services Authority Regulations in other sectors. Based on the background and aspects mentioned, it is necessary to convert Bapepam and LK Regulations, namely Regulation Number IX.F.1, Appendix of the Decision of the Chairman of the Capital Market Supervisory Agency Number: Kep-263/BL/2011 concerning Voluntary Tender Offers dated May 31, 2003.

II. ARTICLE BY ARTICLE
Article 1
Sufficiently clear.
Article 2
What is meant by "Transactions outside the Stock Exchange" are transactions conducted directly between buyers and sellers.
Article 3
Sufficiently clear.
Article 4
Letter a
Sufficiently clear.
Letter b
Sufficiently clear.
Letter c
Sufficiently clear.
Letter d
Sufficiently clear.
Letter e
Sufficiently clear.
Letter f
Sufficiently clear.
Letter g
Sufficiently clear.
Letter h
Accountant is an Accountant as referred to in the Capital Markets Law.
Letter i
Examples of purposes and plans for the Target Company after the Voluntary Tender Offer is completed include plans to change the capital structure, dividend policy, or change management. Letter j Sufficiently clear. Letter k Sufficiently clear. Letter l Sufficiently clear. Letter m Sufficiently clear.
Article 5
Sufficiently clear.
Article 6
Sufficiently clear.
Article 7
Sufficiently clear.
Article 8
Sufficiently clear.
Article 9
Sufficiently clear.
Article 10
Sufficiently clear.
Article 11
Sufficiently clear.
Article 12
Sufficiently clear.
Article 13
Sufficiently clear.
Article 14
Sufficiently clear.
Article 15
Sufficiently clear.
Article 16
Sufficiently clear.
Article 17
Sufficiently clear.
Article 18
Sufficiently clear.
Article 19
Sufficiently clear.
Article 20
Sufficiently clear.
Article 21
Sufficiently clear.
Article 22
Sufficiently clear.
Article 23
Sufficiently clear.
Article 24
Accountant is an Accountant as referred to in the Capital Markets Law.
Article 25
Sufficiently clear.
Article 26
Sufficiently clear.
Article 27
Sufficiently clear.
Article 28
Sufficiently clear.
Article 29
Sufficiently clear.
Article 30
Sufficiently clear.
Article 31
Sufficiently clear.
Article 32
Sufficiently clear.
Article 33
Sufficiently clear.
Article 34
Sufficiently clear.
Article 35
Sufficiently clear.
Article 36
Sufficiently clear.
Article 37
Sufficiently clear.
Article 38
Sufficiently clear.
Article 39
Sufficiently clear.
Article 40
Sufficiently clear.
SUPPLEMENT TO THE STATE GAZETTE OF THE REPUBLIC OF INDONESIA NUMBER 5823