THE DEPARTMENT OF FINANCE OF THE REPUBLIC OF INDONESIA CAPITAL MARKET AND FINANCIAL INSTITUTION SUPERVISORY BOARD COPY OF DECREE OF THE CHAIRMAN OF CAPITAL MARKET AND FINANCIAL INSTITUTION SUPERVISORY BOARD NUMBER: KEP-259/BL/2008 CONCERNING TAKE OVER OF PUBLIC COMPANY CHAIRMAN OF THE CAPITAL MARKET AND FINANCIAL INSTITUTION SUPERVISORY BOARD, Considering that
:
a.
whereas in the framework of increasing the share liquidity of the Public Company and providing opportunity to the investors to access and or to own shares in Public Company through Capital Market which is in order, fair and efficient, it is necessary to perfect the provisions regulating Take Over of Public Company;
b.
whereas
in
the
framework
of
ensuring
the
effectiveness of the implementation of Rule Number IX.H.1 and preventing the occurrence of public loss due to the violation to the mentioned rule, it is considered necessary to determine a form of specific sanction in the Rule Number IX.H.1; c.
whereas based on the consideration as referred to in letter a and letter b, it is necessary to perfect the Rule of Bapepam (Capital Market Supervisory Board) Number IX.H.1, Attachment of Decree of the Chairman of Bapepam Number: Kep-05/PM/2002
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concerning the Take Over of Public Company by enacting a new Decree of Chairman of Capital Market and Financial Institution Supervisory Board; Having in mind
:
1.
Law Number 8 of 1995 concerning Capital Market (State Gazette of 1995 Number 64, Supplement of State Gazette Number 3608);
2.
Government
Regulation
Number
45
of
1995
concerning Implementation of Activities in Capital Market Sector (State Gazette of 1995 Number 86, Supplement of State Gazette Number 3617) as amended by Government Regulation Number 12 of 2004 (State gazette of 2004 Number 27, Supplement of State Gazette Number 4372); 3.
Government
Regulation
Number
46
of
1995
concerning Examination in Capital Market Sector (State Gazette of 1995 Number 87, Supplement of State Gazette Number 3618); 4.
Decree of the President of the Republic of Indonesia Number 45/M of 2006; DECIDING:
To determine that :
DECREE OF CHAIRMAN OF CAPITAL MARKET AND FINANCIAL INSTITUTION SUPERVISORY BOARD CONCERNING TAKE OVER OF PUBLIC COMPANY Article 1
Provisions concerning Take Over of Public Company are regulated in Rule Number IX.H.1 as contained in the Attachment of this Decree.
2
Article 2 By the enactment of this Decree, the Decree of Chairman of Bapepam Number: Kep05/PM/2002 dated 3 April 2002 concerning Acquisition of Public Company is revoked and declared as not applicable. Article 3 This Decree is effective as of the date of its enactment. So that everyone is aware, further orders that to announce this Decree and to place it in the State Gazette of the Republic of Indonesia.
Enacted in
:
Jakarta
On
:
30 June 2008
Chairman of Capital Market and Financial Institution Supervisory Board [signed] A. Fuad Rahmany NIP 060063058 Certified true copy Head of General Affairs Section [signed] Prasetyo Wahyu Adi Suryo NIP 060076008
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ATTACHMENT Decree of Chairman of Capital Market and Financial Institution Supervisory Board Number: Kep-259/BL/2008 Dated: 30 June 2008 RULE NUMBER IX.H.1: TAKE OVER OF PUBLIC COMPANY 1.
Definitions in relation to this Rule: a.
Public Company is a Public Company or Company having undertaken Public Offering of shares or other Equity Securities.
b.
Party is individual, company, legal entity, joint enterprise, association, or Organized Group.
c.
Organized Group is Parties who have made plans, agreements or decisions to cooperate in order to achieve certain objectives.
d.
Controller of Public Company, which further shall be referred to as Controller, is a Party having shares of more than 50% (fifty percent) of all shares which have been fully paid, or a Party having capability to determine, either directly or indirectly, by whatsoever means, management and/or policy of Public Company.
e.
Take Over of Public Company, which further shall be referred to as Take Over, is an action, which either directly or indirectly, causes change to the Controller of Public Company.
2.
In the framework of Take Over, the new Controller must: a.
announce to public and deliver to Bapepam-LK on the occurrence of Take Over no later than 2 (two) working days as of the occurrence of Take Over, such information consists of:
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1)
all acquired shares and total amount of shareholding; and
2)
identity of the relevant party consisting of name, address, telephone, facsimile, type of business and purpose of control;
b.
conduct Tender Offer for all the remaining shares of such Public Company, except for: 1)
shares owned by the Shareholder having undertaken Take Over transaction with the new Controller of the Public Company;
2)
shares owned by another Party having received offer with the same terms and conditions from the new Controller of the Public Company;
3)
shares owned by another Party which at the same time is also undertaking Tender Offer of the shares in the same Public Company;
3.
4)
shares owned by the Principal Shareholder; and
5)
shares owned by another Controlling Party in such Public Company;
In case the implementation of Tender Offer based on this rule causes the shares ownership by the new Controller to become more than 80% (eighty percent) of the paid-up capital of the Public Company, then the said new Controller must retransfer such shares in the Public Company to the public so that the shares owned by the public shall be at least 20% (twenty percent) of the paid-up capital of the Public Company and shall be owned by at least 300 (three hundred) Parties within a maximum period of 2 (two) years as of the implementation of the Tender Offer is completed.
4.
In case of the Take Over causes the new Controller to have shares in the Public Company of more than 80% (eighty percent) of the paid-up capital of the Public Company, then the said new Controller must re-transfer such shares in the Public Company to the public with an amount of at least the same shares percentage as that obtained in the implementation of Tender Offer and owned by at least 300 (three hundred) Parties within a maximum period of 2 (two) years.
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5.
The obligation to transfer shares by the Controller as referred to in numbers 3 and 4 shall not apply if the Public Company, after the occurrence of the Take Over, undertakes a corporate action causing the fulfillment of the requirements as referred to in number 3 or number 4.
6.
The implementation of Tender Offer as referred to in number 2 letter b shall commence no later than the end of the 2nd (second) working day after the occurrence of the Take Over and shall be implemented in accordance with the provision in the Rule Number IX.F.1, except the provisions of numbers 16 and 20. The implementation of Tender Offer shall commence by the delivery of announcement text of Tender Offer plan to Bapepam-LK.
7.
The candidate of new Controller conducting negotiation which may cause a Take Over may deliver the information to the company to be acquired, Bapepam-LK and the Stock Exchange where the shares of company to be acquired are listed, and announce it to the public.
8.
In case the candidate of the new Controller informs and announces the negotiation as referred to in number 7, then each material development of the negotiation must be regularly informed to the Party as referred to in number 7. Such information delivery shall be conducted no later than the end of 2nd (second) working day on which such development occurs.
9.
The information delivered and announced as referred to in number 7 shall at least consist of: a.
approximate numbers of shares and name of Public Company to be taken over;
b.
identity of the Acquirer, consisting of name, address, telephone, facsimile, type of business and purpose of control;
10.
c.
method and process of the take over negotiation;
d.
substance of take over negotiation.
In every Take Over, if the Principal Shareholder or Controller and the candidate of controller make a contract or activity which causes:
6
a.
use of resources of the company to be taken over in material amount;
b.
change of contract or agreement made by the company to be taken over; or
c.
change to the standard operational procedures of the Company to be taken over;
where such matter contains Conflict of Interest between the Public Company to be taken over and the shareholders and the Controlling Party or the Principal Shareholder, it must follow the provision of Rule Number IX.E.1. 11.
The implementation of Tender Offer must be commenced no later than 180 (one hundred eighty) days as of the announcement as referred to in number 7.
12.
The price of shares in Tender Offer in relation to a Take Over must be determined as follows: a.
In case the Take Over is undertaken directly on the shares in Public Company which are not listed and not traded on the Stock Exchange, the execution price of Tender Offer shall be at least in the amount of the price of Take Over that has been undertaken, or at least in the amount of a fair price determined by the Appraiser. The highest price must be taken;
b.
In case the Take Over is undertaken directly on the Shares in Public Company which are listed and traded on the Stock Exchange, however during 90 (ninety) days or more prior to the announcement as referred to in number 2 letter a, or prior to the announcement of negotiation as referred to in number 7, are not traded on the Stock Exchange or which trading is being temporarily suspended by the Stock Exchange, then the execution price of Tender Offer shall be at least in the amount of the average of highest price of daily trading on the Stock Exchange within the last 12 (twelve) months counted backward from the last trading day, or the day of temporary suspension of the trading, or the price of Take Over which has been undertaken. The highest price must be taken;
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c.
In case the Take Over is undertaken directly on the shares of Public Company which are listed and traded on the Stock Exchange, the execution price of Tender Offer shall be at least in the amount of the average of the highest price of daily trading on the Stock Exchange within the last 90 (ninety) days prior to the announcement as referred to in number 2 letter a, or prior to the announcement of negotiation as referred to in number 7, or the price of Take Over which has been undertaken. The higher price must be taken;
d.
In case the Take Over is undertaken indirectly on the shares of Public Company which are not listed and not traded on the Stock Exchange, then the execution price of Tender Offer shall be at least in the amount of the fair price determined by the Appraiser;
e.
In case the Take Over is undertaken indirectly on the shares of Public Company which are listed and traded on the Stock Exchange, however during 90 (ninety) days or more prior to the announcement as referred to in number 2 letter a, or prior to the announcement of negotiation as referred to in number 7, are not traded on the Stock Exchange or which trading is being temporarily suspended by the Stock Exchange, then the execution price of Tender Offer shall be at least in the amount of the average of the highest price of daily trading on the Stock Exchange within the last 12 (twelve) months counted backward from the last trading day, or the day of temporary suspension of the trading;
f.
In case the Take Over is undertaken indirectly on the shares of Public Company which are listed and traded on the Stock Exchange, then the execution price of Tender Offer shall be at least in the amount of the average highest price of daily trading on the Stock Exchange within the last 90 (ninety) days prior to the announcement as referred to in number 2 letter a, or prior to the announcement of negotiation as referred to in number 7.
13.
In case the commencement of the execution of Tender Offer passes the deadline of 180 (one hundred eighty) days, the period of price determination of the execution
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as referred to in number 12 letter c and letter f above shall be adjusted following the period of the execution of Tender Offer. 14.
In case the execution price as referred to in number 13 is lower than the execution price as referred to in number 12 letter c and letter f, the execution price of Tender Offer shall be the execution price as referred to in number 12 letter c and letter f.
15.
The provisions as referred to in number 2 shall not apply to the Take Over as a result of: a.
marriage or inheritance;
b.
purchase or obtaining of shares in Public Company within every 12 (twelve) months, in an amount of maximum 10% (ten percent) of the total marketable shares with valid voting right;
c.
implementation of duties and authorities of government or state body or institution based on Law;
d.
direct purchase of shares owned and/or possessed by the government or state body or institution as an implementation of the provision as referred to in number 15 letter c;
e.
decree or decision of the Court with permanent legal validity;
f.
business
merger,
business
separation,
business
consolidation
or
implementation of liquidation of the shareholders; g.
grant constituting shares delivery without any agreement to obtain any consideration in whatsoever forms;
h.
certain debt security determined in a loan agreement, and debt security in the framework of restructuring of the Company determined by Government or state body or institution based on law;
i.
obtaining of shares as implementation of Rule Number IX.D.1 and Rule Number IX.D.4.
j.
obtaining of shares due to implementation of policy of government or state body or institution;
k.
implementation of Tender Offer, if undertaken, shall be in conflict with the laws and regulations;
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l.
obtaining of shares from implementation of Tender Offer based on Rule Number IX.F.1 which is undertaken not as a fulfillment of obligation based on this regulation.
16.
The provision as referred to in number 2 shall not apply to a Take Over undertaken indirectly through another Public Company, provided that such revenue contribution of the Public Company to the other Public Company is less than 50% (fifty percent) at the time of occurrence of Take Over based on the consolidated financial statement of the other Public Company.
17.
In case the Take Over as referred to in number 15 occurs, the Party who becomes the new controller must provide information disclosure to the company to be acquired, Bapepam-LK and the Stock Exchange, and shall announce to the public no later than the end of the 2nd (second) working day as of the Take Over, which amongst other things consists of:
18.
a.
identity;
b.
such shares and share percentage before and after the Take Over, and
c.
valid supporting evidence.
In case the Take Over occurs as referred to in number 15 letter d and letter h, then besides the information as referred to in number 17, the Party who becomes the new controller must also provide information disclosure on:
19.
a.
Affiliation relationship (if any);
b.
Take Over reason; and
c.
the plan of the acquiring Party toward the company to be taken over.
The information as referred to in number 8, number 9, number 17 and number 18 shall be announced to the public through 1 (one) daily newspaper in Indonesian language having national circulation. This obligation shall not apply to the Party who becomes the new controller as a result of such matters referred to in number 15 letter a, letter b, letter e and letter f.
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20.
Without prejudice to the application of the criminal provisions in Capital Market sector, Bapepam-LK shall be authorized to impose any sanction to every Party violating the provisions of this Rule as follows: a.
violation of the provision number 2 letter b, the sanction imposed will be: 1)
cancellation of transaction and imposing the new controller to: a)
pay fine; and
b)
return the shares or other Equity Securities to the Party who is
its
counterpart
in
the
transaction,
and
to
pay
compensation for any loss incurred; or 2) b.
fine and obligation to conduct Tender Offer.
violation to the provisions of number 2 letter a, number 8, number 17 and number 18 shall be subject to administrative sanction in the form of fine of Rp. 100,000,- (one hundred thousand Rupiah) of every day of delay in delivering the said information.
c.
violation to the provisions of number 12, number 13 and number 14 due to the negligence of the acquiring Party, shall be subject to sanction to pay compensation to the shareholders of the Public Company.
d.
violation to the provisions as referred to in number 10 shall be subject to cancellation of contract or cessation of activities as referred to in number 10 and shall be subject to fine.
e.
violation of the provisions as referred to in number 3 and number 4 shall be subject to administrative sanction in the form of fine without prejudice to the obligation to implement the provisions in number 3 and number 4.
21.
Bapepam-LK can extend the period of fulfillment of obligation of new Controller as referred to in number 3 and number 4 if the following conditions occur:
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a.
The Stock Exchange where the shares of the Public Company are listed and traded is closed;
b.
trading of shares of the said Public Company in the Stock Exchange is suspended;
c.
emergency situation (force majeure). Enacted in
:
Jakarta
On
:
30 June 2008
Chairman of the Capital Market and Financial Institution Supervisory Board [signed] A. Fuad Rahmany NIP 060063058 Certified True Copy Head of General Affairs Section [signed] Prasetyo Wahyu Adi Suryo NIP 060076008
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