Financial Services Authority Regulation Number 6/POJK.04/2020 Concerning the Public Offering of Indonesian Depositary Receipts

COPY
FINANCIAL SERVICES AUTHORITY REGULATION
REPUBLIC OF INDONESIA
NUMBER 6 /POJK.04/2020
CONCERNING
PUBLIC OFFERING OF INDONESIAN DEPOSITARY RECEIPTS BY THE GRACE OF GOD THE ALMIGHTY, THE COMMISSIONERS OF THE FINANCIAL SERVICES AUTHORITY, Considering:
a. that with the transfer of functions, duties, and authority for the regulation and supervision of financial services activities in the capital market sector, including the public offering of Indonesian Depositary Receipts, from the Capital Market and Financial Institution Supervisory Agency to the Financial Services Authority; b. that to provide clarity and certainty regarding the public offering of Indonesian Depositary Receipts, existing regulations in the capital market sector concerning the public offering of Indonesian Depositary Receipts issued prior to the establishment of the Financial Services Authority need to be changed into a Financial Services Authority Regulation;
c. that based on the considerations referred to in letters a and b, it is necessary to establish a Financial Services Authority Regulation concerning the Public Offering of Indonesian Depositary Receipts;

FINANCIAL SERVICES AUTHORITY
REPUBLIC OF INDONESIA

Recalling: 1. Law Number 8 of 1995 concerning the Capital Market (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);

DECIDING:
Establishing: FINANCIAL SERVICES AUTHORITY REGULATION CONCERNING THE PUBLIC OFFERING OF INDONESIAN DEPOSITARY RECEIPTS.

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

1. Securities are negotiable instruments, namely debt acknowledgment instruments, commercial paper, shares, bonds, debt certificates, Investment Unit shares of collective investment contracts, futures contracts over Securities, and every derivative of Securities.

2. Underlying Securities are Securities deposited with a Custodian Bank that serve as the basis for the issuance of Indonesian Depositary Receipts.

3. Public Offering is the activity of offering Securities conducted by an Issuer to sell Securities to the public based on procedures regulated in the Law concerning the Capital Market and its implementing regulations.

4. Custodian Bank is a general bank that has obtained approval from the Financial Services Authority as a custodian.

5. Indonesian Depositary Receipt or Indonesian Depositary Receipt, hereinafter referred to as Indonesian Depositary Receipt, is a Security that grants rights to its holders over the Underlying Securities deposited collectively with a Custodian Bank.

6. Equivalent Jurisdiction is the legal system of another country which, in its legislation, including regulations in the capital market sector, contains provisions regarding protection of the interests of investors investing in a type of Security, which in principle aligns with provisions regarding protection of the interests of investors investing in similar Securities according to capital market legislation in Indonesia.

7. Issuer is the Party conducting the Public Offering.

8. Registration Statement is a document that must be submitted to the Financial Services Authority by the Issuer in the context of a Public Offering or a Public Company.

9. Prospectus is any written information related to the Public Offering with the aim that other Parties purchase Securities.

10. Legal Consultant is a legal expert who provides legal opinions to other parties conducting activities in the capital market sector and is registered with the Financial Services Authority.

11. Stock Exchange is the Party that organizes and provides systems and/or facilities to match buy and sell offers of other Parties with the aim of trading Securities among them.

CHAPTER II
PUBLIC OFFERING OF INDONESIAN DEPOSITARY RECEIPTS
Article 2
The Public Offering of Indonesian Depositary Receipts whose Underlying Securities are Securities of an Indonesian legal entity must comply with the legislation regulating Public Offerings applicable to the aforementioned Underlying Securities.

Article 3
(1) The Public Offering of Indonesian Depositary Receipts whose Underlying Securities are Securities of a legal entity of another country that has been sold through a public offering with an Equivalent Jurisdiction must comply with the following provisions:
a. this Financial Services Authority Regulation; b. legislation in the capital market sector regulating general provisions for submitting registration statements; and
c. legislation in the capital market sector regulating registration procedures in the context of Public Offering, except provisions related to the Public Offering period and the allocation period of Securities.
(2) The Public Offering of Indonesian Depositary Receipts whose Underlying Securities are Securities of a legal entity of another country that has been sold through a public offering with a non-equivalent jurisdiction must comply with all legislation in the capital market sector regulating Public Offerings.

Article 4
The Public Offering of Indonesian Depositary Receipts whose Underlying Securities are Securities of a legal entity of another country that has not been sold through a public offering must comply with legislation in the capital market sector regulating Public Offerings.

Article 5
The Registration Statement in the context of the Public Offering of Indonesian Depositary Receipts whose Underlying Securities are Securities of a legal entity of another country with an Equivalent Jurisdiction that has been sold through a public offering as referred to in Article 3 paragraph (1) must contain at least:
a. a cover letter for the Registration Statement in accordance with the format of the Cover Letter for Registration Statement contained in the Appendix which is an integral part of this Financial Services Authority Regulation; b. the registration statement that has been submitted to the capital market supervisor of another country with an Equivalent Jurisdiction and has been translated into Indonesian by an official translator; and
c. additional documents and/or information consisting of:

1. a statement letter from the company or Legal Consultant who has a contract with the party conducting the Public Offering of Indonesian Depositary Receipts or the party issuing the Underlying Securities to conduct the Public Offering of Indonesian Depositary Receipts, with the provision that the aforementioned statement letter contains new material information regarding the Underlying Securities, and such information has not been included in the Registration Statement or other documents submitted to the capital market supervisor of another country with an Equivalent Jurisdiction;
2. a legal opinion made by a Legal Consultant stating that the legal system of the country where the Public Offering of Underlying Securities is conducted can be categorized as having an Equivalent Jurisdiction, by presenting reasons and analysis regarding the level of protection and legal efforts to claim compensation provided to investors in Indonesia concerning:
   a) incomplete, incorrect, and/or misleading information regarding the Underlying Securities; b) unfair, unregulated, or inefficient trading of Underlying Securities, when investors in Indonesia exercise their right to exchange Indonesian Depositary Receipts for Underlying Securities from the Custodian Bank; and c) dilution of Underlying Securities and/or conflict of interest transactions in the event that the Underlying Securities are equity-type Securities;
3. an explanation of the requirements and provisions contained in the Underlying Securities deposit agreement related to the issuance of Indonesian Depositary Receipts;
4. an analysis and opinion from an accountant registered with the Financial Services Authority regarding:
   a) the tax aspects of Indonesian Depositary Receipts for foreign and Indonesian investors; and b) differences between the accounting principles used in preparing financial statements with generally accepted accounting principles in Indonesia or with International Financial Reporting Standards, if there are differences in accounting principles;
5. procedures for the transfer of Indonesian Depositary Receipts, distribution of profits and other rights regarding ownership of Indonesian Depositary Receipts, retrieval of Underlying Securities, cancellation of Indonesian Depositary Receipts, and other matters related to Indonesian Depositary Receipts, as well as an explanation of the Custodian Bank's experience in issuing Indonesian Depositary Receipts;
6. a complete explanation regarding the determination of price, underwriting, and distribution of Indonesian Depositary Receipts;
7. a complete explanation regarding the plan for the listing or non-listing of Indonesian Depositary Receipts on the Stock Exchange;
8. a complete explanation regarding risks related to Indonesian Depositary Receipts, excluding risks inherent in the Underlying Securities; and
9. a complete explanation regarding the forecasted trading of Indonesian Depositary Receipts in the secondary market.

Article 6
The documents and/or information as referred to in Article 5, as well as the latest audited financial statements from the party conducting the Public Offering of Indonesian Depositary Receipts or the party issuing the Underlying Securities, must be submitted to the Financial Services Authority by the company representing the Issuer or the Legal Consultant acting on behalf of the party conducting the Public Offering of Indonesian Depositary Receipts or the party issuing the Underlying Securities.

Article 7
In the event that the Registration Statement is submitted to the Financial Services Authority more than 60 (sixty) days after the date of the last public offering of the Underlying Securities in the country with an Equivalent Jurisdiction, in addition to complying with the provisions as referred to in Article 3 paragraph (1), the aforementioned Registration Statement must be updated with the latest data contained in the documents and/or information as required in the country of origin:
a. the latest financial statements from the party issuing the Underlying Securities that have been audited by an accountant; and b. the Prospectus for the Public Offering of Indonesian Depositary Receipts, which in principle, in form and content, must comply with the provisions in the Financial Services Authority Regulation regarding the form and content of registration statement documents in the context of Public Offering of Equity-type Securities, Debt-type Securities, and/or Sukuk, the Financial Services Authority Regulation regarding the form and content of Prospectus and Summary Prospectus in the context of Public Offering of Equity-type Securities, and/or the Financial Services Authority Regulation regarding the form and content of Prospectus and Summary Prospectus in the context of Public Offering of Debt-type Securities.

Article 8
(1) The Company or Legal Consultant acting on behalf of the party conducting the Public Offering of Indonesian Depositary Receipts or the party issuing the Underlying Securities in the context of the Public Offering of Indonesian Depositary Receipts must submit a report on the results of the Public Offering of Indonesian Depositary Receipts to the Financial Services Authority no later than 15 (fifteen) days after the end of the Public Offering period. (2) The report on the results of the Public Offering of Indonesian Depositary Receipts as referred to in paragraph (1) must contain at least the number and value of Indonesian Depositary Receipts that have been sold.

Article 9
(1) The party conducting the Public Offering of Indonesian Depositary Receipts or the party issuing the Underlying Securities must appoint a Custodian Bank.
(2) The Custodian Bank appointed by the party conducting the Public Offering of Indonesian Depositary Receipts or the party issuing the Underlying Securities as referred to in paragraph (1) must:
a. submit to the Financial Services Authority all documents and reports submitted by the party conducting the Public Offering of Indonesian Depositary Receipts or the party issuing the Underlying Securities to the capital market supervisor of the country with an Equivalent Jurisdiction, which have been translated into Indonesian by an official translator; b. store the documents and reports as referred to in letter a and provide the aforementioned documents and reports when requested by the Financial Services Authority; and
c. submit to the Financial Services Authority and the holders of Indonesian Depositary Receipts all documents and reports that must be submitted to the holders of Underlying Securities from the country with an Equivalent Jurisdiction, which have been translated into Indonesian by an official translator.
(2) The documents and reports as referred to in paragraph (1) must be submitted to the Financial Services Authority within the time limits as regulated by the capital market supervisor in the country with an Equivalent Jurisdiction where the relevant company conducts the public offering. (3) In the submission of periodic financial reports to the Financial Services Authority, in the event that there are differences between the accounting principles used in preparing financial statements with generally accepted accounting principles in Indonesia or with International Financial Reporting Standards, such differences must be disclosed.

Article 10
(1) The Custodian Bank must submit a monthly report regarding changes in ownership of Indonesian Depositary Receipts, including changes in the number of Underlying Securities deposited at the Custodian Bank, to the Financial Services Authority in accordance with the format of the Report on Changes in Outstanding Indonesian Depositary Receipts contained in the Appendix which is an integral part of this Financial Services Authority Regulation no later than on the 12th (twelfth) day of the following month. (2) In the event that the deadline for submitting the monthly report as referred to in paragraph (1) falls on a holiday, the report must be submitted no later than on the 1 (one) next working day.

Article 11
(1) The obligation to submit all documents and reports as referred to in Article 9 paragraph (2) letters a and c applies since the Registration Statement with the Financial Services Authority becomes effective. (2) The obligation to submit all documents and reports as referred to in Article 9 paragraph (2) letters a and c ends in the event that the number of Underlying Securities deposited with the Custodian Bank, for 6 (six) consecutive months, becomes less than 10% (ten percent) of the total number of Underlying Securities that served as the basis for the issuance of Indonesian Depositary Receipts at the time of the initial Public Offering of Indonesian Depositary Receipts.

Article 12
In the event that the Public Offering of Indonesian Depositary Receipts whose Underlying Securities are shares or other equity-type Securities of a legal entity of another country with an Equivalent Jurisdiction, the aforementioned Public Offering of Indonesian Depositary Receipts is not required to comply with the following legislation:
a. Financial Services Authority Regulation regarding restrictions on shares issued prior to the Public Offering; b. Financial Services Authority Regulation regarding capital increases of public companies by granting preemptive rights;
c. legislation in the capital market sector regulating affiliate transactions and conflict of interest transactions of a certain nature;
d. Financial Services Authority Regulation regarding ownership reports or any changes in ownership of shares of public companies; and e. Financial Services Authority Regulation regarding mergers or consolidations of public companies.

CHAPTER III
ADMINISTRATIVE SANCTIONS
Article 13
(1) Any party that violates the provisions as referred to in Article 6, Article 8, and Article 9, Article 10, shall be subject to administrative sanctions.
(2) Sanctions as referred to in paragraph (1) are also imposed on parties who cause the occurrence of violations as referred to in paragraph (1).
(3) Sanctions as referred to in paragraph (1) and paragraph (2) are imposed by the Financial Services Authority.
(4) Administrative sanctions as referred to in paragraph (1) consist 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/or g. cancellation of registration.
(5) Administrative sanctions as referred to in paragraph (4) letters b, c, d, e, f, or g may be imposed with or without being preceded by the imposition of an administrative sanction in the form of a written warning as referred to in paragraph (4) letter a. (6) Administrative sanctions in the form of a fine as referred to in paragraph (4) letter b may be imposed separately or together with the imposition of administrative sanctions as referred to in paragraph (4) letters c, d, e, f, or g. (7) The procedure for imposing sanctions as referred to in paragraph (3) is carried out in accordance with the provisions of the legislation.

Article 14
In addition to administrative sanctions as referred to in Article 13 paragraph (4), the Financial Services Authority may take specific actions against any party that violates the provisions of this Financial Services Authority Regulation.

Article 15
The Financial Services Authority may announce the imposition of administrative sanctions as referred to in Article 13 paragraph (4) and specific actions as referred to in Article 14 to the public.

CHAPTER IV
CLOSING PROVISIONS
Article 16
At the time this Financial Services Authority Regulation comes into force, the Decision of the Chairman of the Capital Market Supervisory Agency Number Kep-49/PM/1997 concerning the Public Offering of Indonesian Depositary Receipts (Indonesian Depositary Receipt), along with Regulation Number IX.A.10 which is its appendix, is repealed and declared invalid.

This copy is in accordance with the original
Deputy Director of Legal Consultancy and
Harmonization of Banking Regulations 1
Legal Directorate 1
Legal Department signed
Wiwit Puspasari

Article 17
This Financial Services Authority Regulation comes into force on the date of its promulgation.
To ensure that everyone knows it, it is ordered to promulgate this Financial Services Authority Regulation by placing it in the State Gazette of the Republic of Indonesia.
Established in Jakarta on February 17, 2020
CHAIRMAN OF THE COMMISSIONERS
FINANCIAL SERVICES AUTHORITY
REPUBLIC OF INDONESIA, signed
WIMBOH SANTOSO
Promulgated in Jakarta on February 19, 2020
MINISTER OF LAW AND HUMAN RIGHTS
REPUBLIC OF INDONESIA, signed
YASONNA H. LAOLY
STATE GAZETTE OF THE REPUBLIC OF INDONESIA YEAR 2020 NUMBER 50

EXPLANATION
OF
FINANCIAL SERVICES AUTHORITY REGULATION
REPUBLIC OF INDONESIA
NUMBER 6 /POJK.04/2020
CONCERNING
PUBLIC OFFERING OF INDONESIAN DEPOSITARY RECEIPTS (INDONESIAN DEPOSITARY RECEIPT)

I. GENERAL
That since December 31, 2012, the functions, duties, and authority for the regulation and supervision of financial services activities in the capital market, insurance, pension funds, financing institutions, and other financial service institutions have transferred from the Minister of Finance and the Capital Market and Financial Institution Supervisory Agency to the Financial Services Authority. In relation to the above, it is necessary to reorganize the existing regulatory structure, particularly those related to the capital market sector, by converting Capital Market and Financial Institution Supervisory Agency Regulations related to the capital market sector into Financial Services Authority Regulations. This reorganization is carried out so that Financial Services Authority Regulations related to the capital market sector are aligned with Financial Services Authority Regulations in other sectors. Based on the background and aspects mentioned above, it is necessary to replace the existing legislation in the capital market sector regulating the public offering of Indonesian Depositary Receipts, namely the Decision of the Chairman of the Capital Market Supervisory Agency Number Kep-49/PM/1997 concerning the Public Offering of Indonesian Depositary Receipts (Indonesian Depositary Receipt), along with Regulation Number IX.A.10 which is its appendix, into a Financial Services Authority Regulation concerning the Public Offering of Indonesian Depositary Receipts (Indonesian Depositary Receipt).

II. ARTICLE BY ARTICLE
Article 1
Clearly stated.
Article 2
Legislation in the capital market sector related to Public Offerings includes, among others, legislation in the capital market sector regulating general provisions for submitting registration statements, registration procedures in the context of Public Offerings, and registration statement documents in the context of Public Offerings.
Article 3
Clearly stated.
Article 4
Clearly stated.
Article 5
Clearly stated.
Article 6
Clearly stated.
Article 7
Clearly stated.
Article 8
Clearly stated.
Article 9
Clearly stated.
Article 10
Clearly stated.
Article 11
Clearly stated.
Article 12
Clearly stated.
Article 13
Clearly stated.
Article 14
The term "specific actions" includes, among others, the postponement of the issuance of an effective statement for a Registration Statement in the context of a Public Offering.
Article 15
Clearly stated.
Article 16
Clearly stated.
Article 17
Clearly stated.
SUPPLEMENT TO THE STATE GAZETTE OF THE REPUBLIC OF INDONESIA NUMBER 6467

APPENDIX
FINANCIAL SERVICES AUTHORITY REGULATION
REPUBLIC OF INDONESIA
NUMBER 6 /POJK.04/2020
CONCERNING
PUBLIC OFFERING OF
INDONESIAN DEPOSITARY RECEIPTS
COVER LETTER FOR REGISTRATION STATEMENT
Number :
Attachment :
Subject : Cover Letter for
Registration Statement in the context of Public Offering of Indonesian Depositary Receipts …….(name of Issuer) .....(address), …..(date/month/year) To The Executive Head of Capital Market Supervision in Jakarta Hereby we submit the Registration Statement in the context of the Public Offering of Indonesian Depositary Receipts …………… (company name) amounting to …… with a value of Rp ……….

1. Identity of the company representing the Issuer / Legal Consultant in conducting the Public Offering of IDRI.
   a. name : ……...........………………………........
   b. full address : ……...........………………………........
   c. number and date of the Deed of
   Establishment and the latest Deed of Amendment of Articles of Association
   (if any) : ……...........………………………........
   d. approval and consent of the Minister of Law and Human Rights of the Republic of Indonesia regarding the Deed of Establishment and the latest Deed of Amendment of Articles of
   Association (if any) : ……...........………………………........
   e. number and date of announcement in the State Gazette of the Republic of Indonesia regarding
   letter d above : ……...........………………………........
   f. Taxpayer Identification Number (NPWP) : ……...........………………………........
   g. members of the board of directors and board of commissioners of the company or partners in the legal consultant office :
   No. Name Position Address
7. Identity of the party conducting the Public Offering of IDRI or the party issuing the Underlying Securities.
   a. company name/individual
   name : ……...........………………………........
   b. legal form : ……...........………………………........
   c. business activities : ……...........………………………........
   d. full address : ……...........………………………........
   e. documents and information
   related to company establishment : ……...........………………………........
   f. company management structure :
   No. Name Nationality Position
13. Custodian Bank.
    a. company name : ..…....................……………………… b. full address : ..…....................………………………

c. Number and date of the Deed of Establishment and the latest Deed of Amendment to the Articles of Association (if any): ..…....................………………………

d. Approval and ratification by the Minister of Law and Human Rights of the Republic of Indonesia regarding the Deed of Establishment and the latest Deed of Amendment to the Articles of Association (if any): ..…....................………………………

e. Number and date of the announcement in the State Gazette of the Republic of Indonesia in relation to letter d above: ..…....................………………………

f. Number and date of approval from the Financial Services Authority (Otoritas Jasa Keuangan): ..…....................………………………

g. Company Tax Identification Number (NPWP): ..…....................………………………

h. Officials responsible for the custodian department:
No. Name Citizenship Address
1.
2.
3.
4.
5.

4. Legal Consultant.
   a. Name: ..…..............................……………… b. Full address: ..…..............................………………
   c. NPWP: ..…..............................………………
   d. Registered letter number: ..…..............................………………

5. Securities Issuance Underwriter (if any).
   a. Name: ..…..............................……………… b. Full address: ..…..............................………………
   c. NPWP: ..…..............................………………
   d. Number and date of Business License from the Financial Services Authority: ..…..............................………………

6. Number of pages in the submitted Registration Statement.

7. List of attached documents:
   a. ………………………………………………………………. b. ……………………………………………………………….
   c. ……………………………………………………………….

THE STATEMENTS OR INFORMATION CONTAINED IN THE REGISTRATION STATEMENT ARE TRUE AND THERE ARE NO MATERIAL FACTS OMITTED FROM THE REGISTRATION STATEMENT THAT ARE REQUIRED TO MAKE THE REGISTRATION STATEMENT NOT MISLEADING.

(Company Name)
Stamp
.............................................
(Clear Name)

This copy is consistent with the original
Deputy Director of Legal Consultancy and
Banking Regulation Harmonization 1
Legal Directorate 1
Department of Law signed
Wiwit Puspasari

REPORT ON CHANGES TO THE NUMBER OF CIRCULATING INDONESIAN CUSTODY EFFECT CERTIFICATES (SPEI) PERIOD MONTH:…………… Company Name:
Custodian Bank Name:
Telephone:
Facsimile:

a. Initial number of shares deposited in the Custodian Bank as the basis for issuing SPEI ………………… b. Number of shares deposited at the beginning of the reporting period ……………
c. Change in the number of shares deposited during the reporting period:

• Increase in deposited shares ………
• Decrease in deposited shares ……...
  d. Balance of shares deposited at the end of the reporting period ………………………. e. Number of SPEIs based on the share balance deposited at the end of the reporting period …… f. Ratio between the amount in letter d and the amount in letter a (%) …………...

xxxxxxx
(xxxxxxx) + xxxxxxx - xxxxxxxx xxxxxxxx
.............%

Jakarta, …………...........
CUSTODIAN BANK
(Full Name & Position)

Determined in Jakarta on 17 February 2020

CHAIRMAN OF THE COMMISSIONERS BOARD
FINANCIAL SERVICES AUTHORITY
REPUBLIC OF INDONESIA, signed
WIMBOH SANTOSO
WIMBOH SANTOSO