13 Mar 2023
Indonesia’s FSA Raises Registration Threshold to Encourage Private Securities Offerings

In 2021, the Indonesian Financial Services Authority (“OJK”) increased the threshold that triggers the requirement to register and seek OJK approval for a private offering of securities.

Previously, the registration threshold was IDR 1 billion (approx. USD 65,000), but this was increased to IDR 5 billion (approx. USD 327,000) under OJK Regulation No. 29/POJK.04/2021.[1] This regulation was followed by the issuing of an OJK circular in 2022 (the “Circular”),[2] which sets out guidelines for the conducting of private offerings that are valued at more than IDR 5 billion.

The Circular’s key elements are as follows:

Registration Threshold

Registration with the OJK (including the filing of a formal registration statement) is required for a private securities[3] offering that meets the following criteria:

1. total value of more than IDR 5 billion (approx. USD 327,000),
2. made as a single offering or multiple offerings within a period of 12 months,
3. offered in Indonesia or to Indonesian nationals: (i) via the mass media, or (ii) to more than 100 Indonesians, or (iii) sold to more than 50 Indonesians[4], and
4. does not form part of a public offering.

Offeror Criteria

The Circular states that an offeror may be one of the following:

1. a public company that operates an employee stock-option program,
2. a supranational institution that makes an offering of debt securities or sukuk[5],
3. a foreign company listed on the stock exchange that operates an employee stock option program,
4. a party that makes a securities offering as part of an effort to deepen the market, or
5. a party that makes a securities offering in support of government policy.

Requisite Documentation

The offeror must prepare a securities offering document for submission to the OJK. The document should comprise: (i) a letter of application for the registration statement[6] and (ii) an information memorandum, which should set out the following information:

1. securities offer or distribution date;
2. mandatory preface (in upper case) that states: (i) the OJK neither approves nor disapproves the securities involved, nor vouches for the accuracy or completeness of the memorandum; (ii) the offeror is fully responsible for the accuracy of the information, facts, data, reports or opinions it contains , (iii) the offering is not a public offering as defined in the capital markets legislation -- this statement is known as a “tombstone” and the precise wording to be used is specified by the Circular;
3. information on the offeror, including name, address, business activities, capital structure, summarized financial statements, investment risks, and the party responsible for the offering;
4. information on the securities being offered, including total volume, price, rights of securities holders, and debt payment schedule and interest (if the securities are debt instruments);
5. the reason for issuing the securities;
6. requisite approvals or licenses;
7. contingency arrangements should the securities not be sold as planned;
8. estimated cost of conducting the offering;
9. how to order the securities;
10. information on the securities, and order form;
11. information on the trustee;
12. impact on the securities' rating if the offer is carried out by a non-listed or public company and the securities do not carry a guaranteed return of at least 10% of the value of the securities on offer;
13. litigation history (if any) of the offeror.

If the securities are offered as:

• sukuk;
• part of a foreign company employee stock option program; or
• part of a listed/public company employee stock option program;

additional information must be included in the information memorandum.

Submission Procedure

The offering document must be submitted to the OJK in either hard-copy or digital form. However, if the OJK has accepted a digital submission, subsequent processing will only be carried out digitally.

Should the offering exceed the threshold, the offeror must obtain prior OJK approval before proceeding, and the offering must be completed within 12 months of approval.

ABNR Commentary

The raising of the threshold that triggers the requirement to register an offering of securities with the OJK is a positive move as the lower the threshold, the harder it is for businesses to raise capital from the public due to the complex procedures that must be gone through at the OJK. So, anything that makes it easier for businesses in this regard is to be welcomed. In addition, the Circular provides clearer guidance as regards the procedures that businesses need to adhere to when making a private securities offering that is in excess of the threshold, thus helping to provide greater legal certainty and relieve the compliance burden on would-be issuers.

By partner Mr. Freddy Karyadi (fkaryadi@abrnlaw.com) and senior associate Ms. Anastasia Irawati (airawati@abnrlaw.com).

This ABNRNewsand its contents are intended solely to provide a general overview, for informational purposes, of selected recent developments in Indonesian law. They do not constitute legal advice and should not be relied upon as such. Accordingly, ABNR accepts no liability of any kind in respect of any statement, opinion, view, error, or omission that may be contained in this legal update. In all circumstances, you are strongly advised to consult a licensed Indonesian legal practitioner before taking any action that could adversely affect your rights and obligations under Indonesian law.