In December 2022, the Financial Services Authority (OJK) issued a circular letter, i.e., OJK Circular Letter No. 33/SEOJK.04/2022 on Guidelines on Implementation of Offerings That Do Not Constitute Public Offerings (the implementing rule of OJK Rule 29/2021 (as defined below), hereinafter referred to as, "OJK Circular Letter 33/2022"). Under OJK Circular Letter 33/2022, a securities offering with an amount of more than IDR 5 billion can, in certain circumstances, be determined as exempt from the public offering requirement. An offeror can submit an application for exemption to OJK and, if OJK accepts, the general public offering process (such as obtaining an effective registration statement from OJK) will not be required.
In more detail
For context, under Indonesian capital market law, "public offering" means an offering of securities by an issuer for the purpose of selling securities to the public in accordance with the procedure stipulated under the capital market law and its implementing regulations. A public offering within the meaning of capital market law will be deemed to have been made if an offering is (i) made within the territory of the Republic of Indonesia, and/or (ii) made outside of the territory of the Republic of Indonesia to Indonesian citizens, wherever they are domiciled or located, with one of the following circumstances:
- Offered to more than 100 parties, irrespective of whether the offer is followed up with a purchase
- Sold to more than 50 parties, irrespective of whether the purchase is preceded by an offer
- Published through mass media (including the internet, newspaper, magazines, film, television, radio or other electronic media, letters and brochures, as well as any printed materials)
Under OJK Regulation No. 29/POJK.04/2021 on Offerings That Do Not Constitute Public Offerings ("OJK Rule 29/2021"), an offering of securities will not constitute a public offering if: (i) its total value does not exceed IDR 5 billion, and (ii) it is conducted in one or more tranches within a 12-month period. OJK Rule 29/2021 also states that OJK may determine a limit other than IDR 5 billion for certain specific securities offerings. However, the more in-depth procedures to obtain the determination only came a year later through the newly issued OJK Circular Letter 33/2022.
Under OJK Circular Letter 33/2022, any offerings of securities with a total value of more than IDR 5 billion can be exempted from a public offering if conducted in, among others, the following forms:
- Public companies implementing a share ownership program
- Supranational institutions (e.g., World Bank, International Monetary Fund, Asian Development Bank and Islamic Development Bank) conducting debt securities and/or sukuk offerings
- Foreign companies that have been listed on a stock exchange implementing a share ownership program for its employees or the employees of companies under its control
Share ownership programs implemented by public companies or foreign companies are offerings of securities in the form of shares or other equity securities. The shares offered can be from newly issued shares or treasury stock of the public company or the foreign company implementing the program.
How to obtain the exemption
In order for OJK to determine that a securities offering of more than IDR 5 billion can be exempted from public offering requirements, the offeror must submit certain documents to OJK, which include:
- An application letter
- An information memorandum containing detailed information about the proposed offering - the required information is set out in detail in OJK Circular Letter 33/2022
OJK will review the application documents and may request revision and/or additional information from the applicant, which must be fulfilled within 20 business days after the receipt of the request. If the applicant does not fulfill the request within the timeframe, OJK will deem that the proposed offering is cancelled. Based on the application review, OJK has the discretion to issue or not to issue the requested exemption.
The offeror can only execute the proposed offering upon receipt of the exemption from OJK. The securities offering can be conducted at the latest 12 months after the issuance date of the OJK exemption.
The offeror must share the prepared information memorandum with the prospective buyers/offerees of the securities at the latest two business days before the securities offering is conducted. The evidence of the information memorandum distribution must also be submitted to OJK two business days after the securities offering is conducted.