“POJK 16/2020 has made its possibility for public-listed companies to conduct General Meeting of Shareholders via an electronic mechanism.”
Financial Services Authority (“Otoritas Jasa Keuangan” or “OJK”) has stipulated Regulation of OJK Number 16/POJK.04/2020 on The Implementation of Electronic General Meeting of Shareholders by Public-Listed Companies (“POJK 16/2020”). This regulation was an implementation of OJK’s authorities in Regulation of the Government in Lieu of Law Number 1 of 2020 on State Financial Policies and the Stability of the Financial System Related to the Handling of the Coronavirus 2019 (COVID-19) Pandemic and/or Threats That Are Potentially Harmful to the National Economy and/or the Stability of the Financial System (“Peraturan Pemerintah Pengganti Undang-Undang or “Perppu 1/2020”).
POJK 16/2020 has made its possibility for public-listed companies to conduct General Meeting of Shareholders (“Rapat Umum Pemegang Saham” or “RUPS”) via an electronic mechanism.
Public-listed companies may be conducted electronic RUPS through the utilization of:
- E-RUPS provided by e-RUPS providers, which consists of:
- Depository and Settlement Institution appointed by OJK; or
- Other parties that approved by OJK (“OJK designated parties”).
- The System provided by public-listed companies.
Furthermore, public-listed companies must comply with the following provisions:
- Public-listed companies must follow the terms of e-RUPS utilization that stipulated by the E-RUPS providers.
- In order electronic RUPS is using e-RUPS by OJK designated parties or public-listed company’s system, the said e-RUPS must be connected to the Depository and Settlement Institution and securities administration bureau.
- Electronic RUPS uses a public-listed company’s system. The said system must provide the features all the RUPS participants are unable to participate in and interact within the RUPS implementation. Participation and interaction can be conducted through audio, visual, audiovisual, or other facilities.
E-RUPS Providers Obligation
The e-RUPS providers or public-listed companies that provide system must meet the following criteria at least:
- Registered as electronic system providers from authorizing institution.
- Possess a standard operating procedure of implementation electronic RUPS through e-RUPS.
- Provide track record audits towards all data processing activities in e-RUPS.
- Possess and place replacement facilities for data centers and disaster recovery centers related to e-RUPS implementation in Indonesia territory, at safe places, and separated from the primary data center (except public-listed companies that are providing system).
- Fulfill the minimum standard of information technology system, information technology security, system disruptions and failures, and transfer of managing information technology systems.
- Accept liability over the losses that resulted from any errors or omissions in providing and managing the e-RUPS system.
Furthermore, e-RUPS providers must set out the e-RUPS procedures. The e-RUPS procedures will be effective as it accepted by OJK and at least contains:
- Requirements and procedures of registration and/or accessibility rights to e-RUPS users.
- Registration fee and/or usage fee.
- Procedures for using e-RUPS.
- Rights and obligations of e-RUPS users.
- Access restriction of e-RUPS usage.
- Confidentiality, wholeness, and availability of RUPS information.
- Reporting and data collection mechanism to fulfill public-listed company reporting obligations.
- Personal data protection
- Temporary suspension of services to e-RUPS users.
Within the electronic RUPS implementation, public-listed companies must meet the following requirements:
- Contain information about electronic RUPS plan in meeting agenda notification to OJK, including the RUPS announcement and the RUPS summoning.
- Organize the physical RUPS, which at least attended by RUPS chairman, 1 (one) Director and/or 1 (one) Commissioner and supporting capital market professional.
Hereafter, the electronic RUPS must be conducted in the same locations as the physical means. However, public-listed companies may not be conducting the physical RUPS under certain conditions that the Governments or the OJK’s approval stipulate. In the said condition, the RUPS must be placed either in the e-RUPS provider’s location or public-listed company’s domicile if the company system is being used.
Furthermore, the shareholders or the proxies may be attended physically or electronically through e-RUPS. However, the companies may be determined the number of shareholders or the proxies who participated at the physical RUPS with concerning the declaration of shareholders or proxies’ intention to attend the physical RUPS.
The results of electronic RUPS must be arranged into an electronic RUPS minutes and compiled in the form of the notarial deed by the notary who registered in OJK. The e-RUPS providers and public-listed companies that provided system must convey the printed copy documents to the designated notary at least contain:
1. List of shareholders that electronically attended.
2. List of shareholders that authorize the proxies electronically.
3. Recapitulation of attended quorum and decision quorum.
4. Recorded transcripts of all interactions in electronic RUPS.
POJK 16/2020 has stipulated administrative sanctions for those who violate and cause a violation of the provisions in this regulation. Administrative sanctions that will be imposed consist of:
- Written warning/caution;
- Limitation of business activities;
- Suspension of business activities;
- Revocation of business license;
- Cancellation of approval; and/or
- Cancellation of registration.