In order to implement the mandate of Law No. 4 of 2023 on the Development and Strengthening of the Financial Sector and to ensure that reports on changes in share ownership comply with currently applicable international standards, the Indonesian Financial Services Authority (Otoritas Jasa Keuangan or "OJK") recently issued Regulation No. 4 of 2024 on Reporting of Ownership or Change of Ownership in Listed Company and Reporting of Pledge over Listed Company Shares ("Reporting Regulation"). The Reporting Regulation was issued on 26 February 2024 and will come into effect six months after its issuance, i.e. 26 August 2024, superseding the current OJK Regulation No. 11/POJK.04/2017, addressing the same subject.
What Changes?
Reporting Requirements
Under the newly issued Reporting Regulation, the reporting obligation is activated on any change in share ownership percentage (increases or decreases from the previous percentage), which applies to (i) any party who owns shares with voting rights of at least 5%; and (ii) controlling shareholders1. If the responsible party is an organized group2, the reporting is carried out by one of the shareholders appointed to represent the organized group.
Timing
Rather than ten working days as set-out in the previous regulation, the new Reporting Regulation stipulates the report on the change of ownership shall be done immediately and in any event no later than five business days from the date any shareholder obtains the ownership of voting shares or any change in ownership of voting shares held in a listed company. This timing also applies if the reporting is delegated to another party. However, once OJK has set up an electronic reporting system, the timing for reporting will be shortened to three business days. Nevertheless, the timeline for the initiation of this electronic reporting system remains uncertain.
Additional Items to be Reported
The Reporting Regulation expands the information that must be included in the ownership report, which, other than what has been enumerated in the previous regulation, now includes the following additional required information:
- Type of transaction;
- Classification of the shares;
- The identity of the grantor (if the report is delegated to another party);
- Details of the members of shareholders (for any organized reporting group of shareholders);
- Explanation whether the current controller will remain controlling of the relevant listed company (if the change of ownership is made by the controller); and
- Information regarding the names of shareholders registered in the shareholder register of the listed company (for indirect share ownership).
Exemption
Under the Reporting Regulation, the report is not required to be submitted if there is a change in share ownership due to (i) corporate actions carried out by a listed company in the form of additional capital with (rights issue) or without granting pre-emptive rights (private placement); or (ii) corporate actions carried out by a listed company without any involvement of shareholder transactions.
Reporting of a Pledge over a Listed Company's Shares
The Reporting Regulation now requires the reporting of any encumbrance placed on shares of listed companies to the OJK (under any type of security interest available under law, including pledge and fiducia security) by the party granting such encumbrance (i.e., the shareholder).
Triggering Event
The reporting requirement is triggered if any shareholders encumber 5% or more of its holding of a listed company's shares with voting rights – whether in a single or a series of transactions. Any change to the percentage of shares pledged must also be reported to OJK.
Timing
As in the case with reporting of a change of ownership, the report on encumbrance is to be made at the latest five business days after the agreement for such share pledge is entered into by a shareholder.
Information to be Reported
The minimum information required to be reported include:
- Number/percentage of pledged shares;
- Amount of loan secured by the share pledge;
- Events that may result in any change to the number of shares pledged (for example, if there is any requirement to top up the pledged shares upon certain triggers); and
- Nature of affiliate relationship (if any).
Potential Impact
Considering that encumbrances over shares and share pledges of listed company shares is a common feature of used in financing transactions, it is crucial for both lenders and shareholders to be aware of this new requirement. In particular, lenders may wish to ask for evidence that the reporting has been made as a condition precedent or condition subsequent in the relevant loan agreement.
1 This also applies to any controlling shareholders with less than 5% ownership.
2 From an Indonesian capital markets law perspective, “organized group” shall likely mean a jointly controlled group, established with formal arrangements.
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