LAW OF THE REPUBLIC OF INDONESIA NUMBER 40 OF 2007 CONCERNING LIMITED LIABILITY COMPANIES

LAW OF THE REPUBLIC OF INDONESIA
NUMBER 40 OF 2007
CONCERNING
LIMITED LIABILITY COMPANIES

BY THE GRACE OF ALMIGHTY GOD
THE PRESIDENT OF THE REPUBLIC OF INDONESIA
Consideration : a. whereas the national economy, which is operated
on a basis of economic democracy with principles
of community, efficiency, justice, sustainability,
environmental awareness, independence and
safeguards for balanced progress and national
economic unity, needs to supported by firm
economic institutions in the context of creating
prosperity for society;
b. whereas in the context of increasing development
of the national economy and at the same time
giving a firm basis for the business world in facing
the developments in the world economy and
progress in science and technology in the coming
era of globalisation, the support is needed of an act
regulating limited liability companies which can
secure the operation of a conducive climate for the
business world;
c. whereas limited liability companies as a pillar of
national economic development need to be given a
legal basis to spur on national development
composed mutual enterprises on the basis of the
principle of a family spirit;
d. whereas the Limited Liability Companies Act No. 1
of 1995 is viewed as no longer in accordance with
legal developments and the needs of society and so
needs to be replaced with a new act;
e. whereas given the above in paragraphs a, b, c, and
d, it is necessary to form a Limited Liability
Companies Act.
Bearing in mind: Article 5 paragraph (1), Article 20, and Article 33 of
the 1945 Constitution of the Republic of Indonesia.
With the Common Assent of
THE HOUSE OF PEOPLE’S REPRESENTATIVES OF THE REPUBLIC OF
INDONESIA
and
THE PRESIDENT OF THE REPUBLIC OF INDONESIA
HAS RESOLVED
to promulgate: A LIMITED LIABILITY COMPANIES ACT
CHAPTER I
GENERAL PROVISIONS
Article 1
In this Act, the following terms have the following meanings:
1. “Limited Liability Company” (hereinafter called a “Company”) means a
legal entity which constitutes an alliance of capital established pursuant
to a contract in order to carry on business activities with an authorised
capital all of which is divided into shares and which fulfils the
requirements stipulated in this Act and its implementing regulations.
2. “Company Organs” means the General Meeting of Shareholders, the
Board of Directors, and Board of Commissioners.
3. “Environmental and Social Responsibility” means a Company’s
commitment to taking part in sustainable economic development in
order to improve the quality of life and environment, which will be
beneficial for the Company itself, the local community and society in
general.
4. “General Meeting of Shareholders” (hereinafter called the “GMS”)
means the Company Organ which has authority not given to the Board
of Directors or Board of Commissioners within limits specified in this
Act and/or the articles of association.
5. “Board of Directors” means the Company Organ with full authority and
responsibility for the management of the Company in the interests of
the Company in accordance with the Company’s purposes and
objectives and to represent the Company in and out of court in
accordance with the provisions of the articles of association.
6. “Board of Commissioners” means the Company Organ with the task of
general and/or specific supervision in accordance with the articles of
association and giving advice to the Board of Directors.
7. “Open Company” means a Public Company or a Company which makes
an public offering of shares in accordance with the provisions of
legislative regulations in the field of capital markets.
8. “Public Company” means a Company which fulfils the criteria of
number of shareholders and amount of paid up capital in accordance
with the provisions of legislative regulations in the field of capital
markets.
9. “Merger” means a legal action taken by one or more Companies to
merge with another existing Company with the result that the assets
and liabilities of the merging Companies pass by operation of law to the
surviving Company and thereafter the merging Companies’ status as
legal entities ceases by operation of law.
10. “Consolidation” means a legal action taken by two or more Companies
to consolidate themselves by means of establishing a new Company
which by operation law obtains the assets and liabilities of the
consolidating Companies and the consolidating Companies’ status as
legal entities ceases by operation of law.
11. “Acquisition” means a legal action taken by a legal entity or individual
person to acquire shares in a Company resulting in the passing of
control of the Company.
12. “Demerger” means a legal action taken by a Company to demerge its
businesses resulting in all of the assets and liabilities of the Company
passing by operation of law to 2 (two) or more Companies or a part of
the assets and liabilities of the Company passing by operation of law to
1 (one) or more Companies.
13. “Registered Letter” means a letter addressed to a recipient evidenced
by a signed and dated receipt from the recipient.
14. “Newspaper” means a daily newspaper in the Indonesian language with
national circulation.
15. “Day” means a calendar day.
16. “Minister” means the minister whose tasks and responsibilities are in
the field of law and human rights.
Article 2
Companies must have a purpose and objective and business activities which
do not conflict with the provisions of legislative regulations, public order,
and/or morality.
Article 3
(1) Companies’ shareholders are not personally liable for legal
relationships entered into on behalf of the Company and are not liable
for the Company’s losses in excess of the shares they own.
(2) The provisions contemplated in paragraph (1) do not apply if:
a. the requirements for the Company to be a legal entity have not
been or are not fulfilled;
b. the shareholder concerned directly or indirectly exploits the
Company in bad faith in his/her personal interest;
c. the shareholder concerned is involved in illegal acts committed
by the Company; or
d. the shareholder concerned directly or indirectly illegally uses the
Company’s assets with the result that the Company’s assets
become insufficient to pay off the Company’s debts.
Article 4
This Act, their articles of association, and the provisions of other legislative
regulations apply to Companies.
Article 5
(1) Companies shall have a name and domicile within the territory of the
Republic of Indonesia as specified in their Articles of Association.
(2) Companies shall have a full address in accordance with their domicile.
(3) In correspondence and announcements issued by Companies, printed
materials, and deeds to which the Company is a party, the Company’s
full name and address must be mentioned.
Article 6
Companies may be established for a limited or unlimited period as specified in
the articles of association.
CHAPTER II
ESTABLISHMENT, ARTICLES OF ASSOCIATION AND AMENDMENTS OF
THE ARTICLES OF ASSOCIATION, REGISTER OF COMPANIES AND
ANNOUNCEMENTS
First Part
Establishment
Article 7
(1) Companies must be established by 2 (two) or more persons by a
notarial deed made in the Indonesian language.
(2) Each founder of a Company must subscribe shares at the time the
Company is established.
(3) The provision contemplated in paragraph (2) does not apply in the
context of a Consolidation.
(4) The Company obtains the status of a legal entity on date the Decree of
the Minister concerning the Company’s ratification as a legal entity is
issued.
(5) If after the Company obtains the status of a legal entity the number of
shareholders becomes less than 2 (two) persons, then within 6 (six)
months as from when that situation arises the shareholder concerned
must assign part of the shares to some other person or the Company
must issue new shares to some other person.
(6) In the event that the period contemplated in paragraph (5) has expired
and there is still less than 2 (two) shareholders, the shareholder shall
be personally liable for all legal relationships and losses of the
Company, and at the request of a party concerned, a district court may
wind up the Company.
(7) The provision which obliges Companies to be established by 2 (two) or
more persons as contemplated in paragraph (1) and the provisions in
paragraphs (5) and (6) do not apply to:
a. State Limited Liability Companies all of whose shares are owned
by the State; or
b. Companies managing stock exchanges, clearing and guarantee
houses, central securities depositories, and other institutions
regulated in the Capital Markets Act.
Article 8
(1) A deed of establishment must contain the articles of association and
other information related to the establishment of the Company.
(2) The other information contemplated in paragraph (1) must contain at
least:
a. the full name, date and place of birth, occupation, residence, and
nationality of individual founders or the name, domicile and full
address and number and date of the Minister’s Decree regarding
the ratification of legal entity founders of the Company;
b. the full name, date and place of birth, occupation, residence, and
nationality of members of the first Board of Directors and Board
of Commissioners to be appointed;
c. the names of shareholders who have subscribed shares, details
of the number of shares and the nominal value of the shares
subscribed and paid up.
(3) In making the deed of establishment, the founders may be represented
by other persons by virtue of a power of attorney.
Article 9
(1) To obtain the Minister’s Decree with regard to the ratification of the
Company as a legal entity as contemplated in Article 7 paragraph (4),
the founders shall jointly submit an application to the Minister
electronically via legal entity administration system information
technology services, filling in a form containing at least:
a. the Company’s name and domicile;
b. the Company’s period of incorporation;
c. the purpose and objective and business activities of the
Company;
d. the amount of authorised capital, subscribed capital, and paid up
capital;
e. the Company’s full address.
(2) Filling in the form contemplated in paragraph (1) must be preceded by
submission of the Company’s name.
(3) In the event that the founders do not submit the application
themselves as contemplated in paragraphs (1) and (2), the founders
may only give a power of attorney to a notary.
(4) Further provisions regarding the procedures for submission and the
use of Company names will be stipulated by Government Regulation.
Article 10
(1) The application to obtain the Minister’s Decree contemplated in Article
9 paragraph (1) must be submitted to the Minister no later than 60
(sixty) days as from the date on which the deed of establishment is
signed, complete with information regarding the supporting
documents.
(2) Provisions regarding the supporting documents contemplated in
paragraph (1) shall be stipulated by a Regulation of the Minister.
(3) If the form contemplated in Article 9 paragraph (1) and the
information regarding supporting documents contemplated in
paragraph (1) is in accordance with the provisions of legislative
regulations, the Minister shall directly declare electronically that there
is no objection to the application concerned.
(4) If the form contemplated in Article 9 paragraph (1) and the
information regarding supporting documents contemplated in
paragraph (1) is not in accordance with the provisions of legislative
regulations, the Minister shall directly notify the applicant
electronically of the rejection and the reasons therefor.
(5) Within a period of not more than 30 (thirty) days as from the date of
the declaration of no objection contemplated in paragraph (3), the
applicant concerned shall physically deliver the application with the
supporting documents attached.
(6) If all requirements contemplated in paragraph (5) have been fully met,
then no later than 14 (fourteen) days thereafter the Minister shall issue
a decree concerning the ratification of the Company as a legal entity
which will be signed electronically.
(7) If the requirements concerning the period and complete supporting
documents contemplated in paragraph (5) are not fulfilled, the
Minister shall directly inform the applicant of the same electronically
and the statement of no objection contemplated in paragraph 3 shall
lapse.
(8) In the event that the statement of no objection lapses, the applicant
contemplated in paragraph (5) may re-submit the application to obtain
the Minister’s Decree as contemplated in Article 9 paragraph (1).
(9) In the event that the application to obtain the Minister’s Decree is not
submitted within the period contemplated in paragraph (1), the deed of
establishment will become void by the lapse of time and the Company
which does not yet have legal entity status shall be wound up by
operation of law and the founders shall settle its affairs.
(10) The provision on the period contemplated in paragraph (1) also
applies to re-submitted applications.
Article 11
Further provisions regarding the submission of applications to obtain the
Minister’s Decree as contemplated in Article 7 paragraph (4) for certain areas
which do not yet have or cannot use electronic networks shall be stipulated by
Regulation of the Minister.
Article 12
(1) Legal acts performed by the prospective founders in relation to the
ownership of shares and paying in before the Company is established
must be recorded in the deed of establishment.
(2) In the event that the legal acts contemplated by paragraph (1) are
stated in a deed which is not an authentic deed, the deed shall be
attached to the deed of establishment.
(3) In the event that the legal acts contemplated by paragraph (1) are
stated in an authentic deed, the number, date and name and domicile
of the notary making the authentic deed shall be stated in the deed of
establishment of the Company.
(4) In the event that the provisions contemplated in paragraphs (1), (2),
and (3) are not fulfilled, the legal acts shall not give rise to rights and
obligations and shall not be binding on the Company.
Article 13
(1) Legal acts performed by the prospective founders in the interest of a
Company which has not yet been established shall be binding on the
Company after the Company becomes a legal entity if the first GMS of
the Company explicitly states that it accepts or takes over all rights and
obligations arising out of the legal acts performed by the prospective
founders or their proxies.
(2) The first GMS contemplated in paragraph (1) must be held within a
period of not more than 60 (sixty) days after the Company obtains the
status of a legal entity.
(3) The resolutions of the GMS contemplated in paragraph (2) shall be
lawful if the GMS is attended by shareholders representing all of the
shares with voting rights and the resolution is approved unanimously.
(4) In the event that the GMS is not held within the period contemplated
in paragraph (2) or the GMS does not succeed in adopting the
resolution as contemplated in paragraph (3), each of the prospective
founders who performed such legal acts shall be personally liable for
the consequences arising.
(5) The GMS approval contemplated in paragraph (2) will not be
necessary if the legal act is performed or approved in writing by all of
the prospective founders before the establishment of the Company.
Article 14
(1) Legal acts on behalf of a Company which has not yet obtained the
status of a legal entity may only be performed by all of the members of
the Board of Directors together with all of the founders and all of the
members of the Board of Commissioners of the Company and they will
all be jointly and severally liable for the legal acts.
(2) In the event that the legal acts contemplated in paragraph (1) are
performed by the founders on behalf of a Company which has not yet
obtained the status of a legal entity, the founders concerned shall be
liable for such legal acts and the legal acts shall not be binding on the
Company.
(3) The Company shall by operation of law become liable for the legal acts
contemplated in paragraph (1) after the Company becomes a legal
entity.
(4) The Company shall only be bound by and liable for the legal acts
contemplated in paragraph (2) after the legal acts have been approved
by all of the shareholders in a GMS attended by all of the Company’s
shareholders.
(5) The GMS contemplated in paragraph (4) is the first GMS, which must
be held no later than 60 (sixty) days after the Company obtains the
status of a legal entity.
Second Part
Articles of Association and Amendments to the Articles of Association
Paragraph 1
The Articles of Association
Article 15
(1) The articles of association contemplated in Article 8 paragraph (1) shall
contain at least:
a. the Company’s name and domicile;
b. the purposes and objectives and field of business of the
Company;
c. the Company’s period of incorporation;
d. the amount of the authorised capital, subscribed capital, and
paid up capital;
e. the number of shares, classifications of shares if any including
the number of shares for each classification, the rights attaching
to each share and the nominal value of each share;
f. the name, position and number of members of the Board of
Directors and Board of Commissioners;
g. the determination of the place and procedure for holding a GMS;
h. the procedures for the appointment, replacement, and dismissal
of members of the Board of Directors and Board of
Commissioners;
i. the procedure for the use of profits and allocation of dividends.
(2) Apart from the provisions contemplated in paragraph (1), the articles
of association may also contain other provisions which do not conflict
with this Act.
(3) The articles of association may not contain:
a. provisions concerning receipt of fixed interest on shares; or
b. provisions concerning the grant of personal benefits to the
founders or other parties.
Article 16
(1) Companies may not use names which:
a. have been lawfully used by another Company or are in principle
the same as the name of another Company;
b. conflict with public order and/or morality;
c. are the same as or similar to names of state institutions,
government institutions, or international institutions, except
with the permission of those concerned;
d. are not in accordance with the purpose and objective and
business activities or merely show the purpose and objective of
the Company without its own name;
e. have the meaning Company, legal entity, or civil association.
(2) The name of the Company must be preceded by the phrase “Perseroan
Terbatas” (Limited Liability Company) or the abbreviation “PT”.
(3) In the case of a Public Company, apart from the provisions
contemplated in paragraph (2) being applicable, the abbreviation “Tbk”
must be added at the end of the Company’s name.
(4) Further provisions regarding the procedures for the use of Company
names shall be stipulated by Government Regulation.
Article 17
(1) Companies shall have be domiciled in the city or regency within the
territory of the Republic of Indonesia specified in the articles of
association.
(2) The domicile contemplated in paragraph (1) shall at the same time
constitute the Company’s head office.
Article 18
Companies must have a purpose and objective and a field of business which
are and stated in the Company’s articles of association and in accordance with
the provisions of legislative regulations.
Paragraph 2
Amendments to the Articles of Association
Article 19
(1) Amendments to the articles of association must be determined by a
GMS.
(2) Agenda items regarding amendments of the articles of association must
be clearly stated in invitations to a GMS.
Article 20
(1) The articles of association of a Company which has been declared
bankrupt cannot be amended except with the consent of the curator.
(2) The curator’s consent contemplated in paragraph (1) must be attached
to the application to the Minister for approval of notification of the
amendment of the articles of association.
Article 21
(1) Certain amendments to the articles of association must have the
approval of the Minister.
(2) The certain amendments to the articles of association contemplated in
paragraph (1) involve:
a. the Company’s name and/or domicile;
b. the Company’s purpose and objective and business activities;
c. the Company’s period of incorporation;
d. the amount of the authorised capital;
e. a reduction in the subscribed and paid up capital; and/or
f. a change in the Company’s status from private company to
Public Company or vice versa.
(3) It is sufficient to inform the Minister of amendments to the articles of
association other than those contemplated in paragraph (2).
(4) The amendments to the articles of association contemplated in
paragraphs (2) and (3) must be contained or stated in a notarial deed
in the Indonesian language.
(5) Amendments to the articles of association which are not contained in a
deed of minutes of meeting made by a notary must be stated in a
notarial deed no later than 30 (thirty) days as from the date of the GMS
resolution.
(6) Amendments to the articles of association may not be stated in a
notarial deed after the lapse of the 30 (thirty)-day period contemplated
in paragraph (5).
(7) Application for approval of an amendment to the articles of association
as contemplated in paragraph (2) must be submitted to the Minister,
no later than 30 (thirty) days as from the date of the notarial deed
containing the amendment to the articles of association.
(8) The provisions contemplated in paragraph (7) apply mutatis mutandis
to notifications to the Minister of amendments to the articles of
association.
(9) After the lapse of the 30 (thirty)-day period contemplated in paragraph
(7), the application for approval or notification of amendments to the
articles of association may not be submitted or delivered to the
Minister.
Article 22
(1) An application for approval of the amendment to the articles of
association with regard to extension of the period of incorporation of
the Company as determined in the articles of association must be
submitted to the Minister no later than 60 (sixty) days before the
Company’s period of incorporation expires.
(2) The Minister shall give his/her approval to applications for extension of
the period of incorporation as contemplated in paragraph (1) no later
than on the last date of the Company’s incorporation.
Article 23
(1) Amendments to the articles of association as contemplated in Article
21 paragraph (2) come into effect on the date on which the Minister’s
Decree with regard to the approval of the amendment to the articles of
association is issued.
(2) Amendments to the articles of association as contemplated in Article
21 paragraph (3) come into effect on the date on which the receipt for
the notification of the amendment to the articles of association is
issued by the Minister.
(3) The provisions contemplated in paragraphs (1) and (2) do not apply
where this Act determines otherwise.
Article 24
(1) Companies whose capital and number of shareholders fulfil the criteria
for a Public Company in accordance with the provisions of legislative
regulations in the field of capital markets shall amend their articles of
association as contemplated in Article 21 paragraph (2) subparagraph f
within 30 (thirty) days from when they first fulfil those criteria.
(2) The Boards of Directors of the Companies contemplated in paragraph
(1) must submit a declaration of registration in accordance with the
provisions of legislative regulations in the field of capital markets.
Article 25
(1) Amendments to the articles of association regarding a change in a
Company’s status from a private company to a Public Company come
into effect on:
a. the date on which the statement of registration submitted to the
supervisory institution in the field of capital markets comes into
effect for a Public Company; or
b. the public offering is made by a Company which submits a
declaration of registration to the supervisory institution in the
field of capital markets to make a public offering of shares in
accordance with the provisions of legislative regulations in the
field of capital markets.
(2) In the event that a declaration of registration of a Company as
contemplated in paragraph (1) subparagraph a does not come into
effect or a Company which has submitted a declaration of registration
as contemplated in paragraph (1) subparagraph b does not make the
public offering of shares, the Company must amend its articles of
association again within 6 (six) months after the date of the Minister’s
approval.
Article 26
Amendments to the articles of association made in the context of a Merger or
Acquisition come into effect on:
a. the date of the Minister’s approval;
b. a later date determined in the Minister’s approval; or
c. the date the notification of the amendment of the articles of association
is received by the Minister, or a later date determined in the deed of
Merger or the deed of Acquisition.
Article 27
The application for approval of the amendments to the articles of association
as contemplated in Article 21 paragraph (2) shall be refused if:
a. it is contrary to the provisions regarding procedures for amendment of
the articles of association;
b. the contents of the amendment are contrary to the provisions of
legislative regulations, public order, and/or morality; or
c. there is any objection from a creditor to the GMS resolution regarding
the reduction in capital.
Article 28
Provisions concerning the procedure for submitting applications to obtain a
Decree of the Minister with regard to the ratification of a Company as a legal
entity, and his/her objections thereto as contemplated in Articles 9, 10, and 11
shall apply mutatis mutandis to the submission of applications for the
approval of amendments to the articles of association and objections thereto.
Third Part
The Register of Companies and Announcements
Paragraph 1
The Register of Companies
Article 29
(1) The Register of Companies shall be managed by the Minister.
(2) The Register of Companies contemplated in paragraph (1) shall contain
data concerning Companies, covering:
a. name and domicile, purpose and objective and business
activities, period of incorporation, and capitalisation;
b. the Company’s full address as contemplated in Article 5;
c. the number and date of the deed of establishment and the
Minister’s Decree concerning ratification of the Company as a
legal entity as contemplated in Article 7 paragraph (3);
d. the number and date of deeds of amendment to the articles of
association and the Minister’s approval as contemplated in
Article 23 paragraph (1);
e. the number and date of deeds of amendment to the articles of
association and the date of the Minister’s receipt of notification
as contemplated in Article 23 paragraph (2);
f. the name and domicile of the notaries who made the deed of
establishment and deeds of amendment of the articles of
association;
g. the full name and address of the Company’s shareholders,
members of the Board of Directors and members of the Board of
Commissioners;
h. the number and date of the deed of winding up or number and
date of the order of the court concerning the winding up of the
Company which the Minister has been notified of;
i. the expiry of the Company’s status as a legal entity;
j. the balance sheet and profit and loss statement for the financial
year concerned for Companies for which auditing is mandatory.
(3) The Company’s data contemplated in paragraph (2) shall be entered in
the register of Companies on the same date as the date of:
a. the Decree of the Minister regarding the ratification of the
Company as a legal entity, or the approval of the amendments to
the articles of association for which approval is necessary;
b. the receipt of notification of amendments to the articles of
association which do not need approval; or
c. the receipt of notification of changes in the Company’s data
which do not constitute amendments of the articles of
association.
(4) The provisions contemplated in paragraph (2) subparagraph g with
regard to the name and address of Public Companies’ shareholders
shall be in accordance with the provisions of legislative regulations in
the field of capital markets.
(5) The register of Companies contemplated in paragraph (1) shall be open
to the public.
(6) Further provisions regarding the register of Companies shall be
stipulated in a Regulation of the Minister.
Paragraph 2
Announcements
Article 30
(1) The Minister shall announce in the Supplement to the State Gazette of
the Republic of Indonesia:
a. deeds of establishment of Companies together with the
Minister’s Decrees contemplated in Article 7 paragraph (3);
b. deeds of amendment to Companies’ articles of association
together with the Minister’s Decrees contemplated in Article 21
paragraph (1);
c. deeds of amendment to articles of association notification of
which has been received by the Minister.
(2) The announcements contemplated in paragraph (1) shall be made by
the Minister no later than 14 (fourteen) days as from the date of the
issuance of the Minister’s Decrees contemplated in paragraph (1)
subparagraphs a and b or as from the receipt of the notification
contemplated in paragraph (1) subparagraph c.
(3) Further provisions regarding the procedure for announcements shall
be implemented in accordance with the provisions of legislative
regulations.
CHAPTER III
CAPITAL AND SHARES
First Part
Capital
Article 31
(1) Companies’ authorised capital shall consist of the total nominal value
of their shares.
(2) The provision contemplated in paragraph (1) does not close off the
possibility of legislative provisions in the field of capital markets
providing for Companies’ capital to consist of shares without nominal
value.
Article 32
(1) Companies’ authorised capital shall be at least Rp. 50,000,000 (fifty
million Rupiah).
(2) Statutes regulating certain business activities may determine a
minimum amount for Companies’ authorised capital which is greater
than the provision for authorised capital contemplated in paragraph
(1).
(3) Changes in the amount of authorised capital contemplated in
paragraph (1) must be stipulated by Government Regulation.
Article 33
(1) At least 25% (twenty five per cent) of the authorised capital
contemplated in Article 32 must be subscribed and paid up in full.
(2) The capital subscribed and paid up in full contemplated in paragraph
(1) shall be proven by lawful evidence of deposit.
(3) Any further issuance of shares at any time to increase the subscribed
capital must be paid up in full.
Article 34
(1) Share capital may be paid up in the form of money and/or in other
forms.
(2) In the event that the share capital is paid up in some other form as
contemplated in paragraph (1) , the valuation of the share capital paid
up shall be specified based on a reasonable value determined in
accordance with market prices or by an expert not affiliated with the
Company.
(3) Shares paid up in the form of immoveable property must be announced
in 1 (one) or more Newspapers within a period of 14 (fourteen) days
after the deed of establishment is signed or after the GMS resolves on
such paying up of shares.
Article 35
(1) Shareholders and other creditors who have claims against a Company
may not set off their receivable against the obligation to pay up the
price of shares they have subscribed, except with the consent of a GMS.
(2) The receivables against the Company contemplated in paragraph (1)
which may be set off against paying up shares are receivables on claims
against the Company which arise out of:
a. the Company having received money or the surrender of tangible
or intangible goods which have a monetary value;
b. a party who underwrites or guarantees the Company’s debts
having satisfied the Company’s debts in the amount
underwritten or guaranteed; or
c. the Company having underwritten or guaranteed the debts of a
third party and the Company having received some benefit in the
form of money or goods which have a monetary value which the
Company has in fact directly or indirectly received.
(3) The GMS resolution contemplated in paragraph (1) shall be valid if
adopted in accordance with the provisions regarding invitations to
meetings, quorum, and number of votes to amend the articles of
association as provided in this Act and/or the articles of association.
Article 36
(1) Companies are prohibited from issuing shares to be owned by the
Company itself or by some other Company whose shares are directly
or indirectly owned by the Company.
(2) The prohibition on share ownership contemplated in paragraph (1)
does not apply to share ownership obtained by transfer by operation of
law, by grant, or by bequest.
(3) Shares obtained under the provisions contemplated by paragraph (2)
must within 1 (one) year after the date of acquisition be assigned to
some other person not prohibited from owning the shares in the
Company.
(4) In the event that the other Company contemplated in paragraph (1) is
a securities company, the provisions in legislative regulations in the
field of capital markets shall apply.
Second Part
Protection of Companies’ Capital and Assets
Article 37
(1) Companies may re-purchase issued shares provided that:
a. the re-purchase of shares does not cause the net assets of the
Company to become less than the subscribed capital plus the
mandatory reserves set aside; and
b. the total nominal value of all the shares re-purchase by the
Company and any pledge of shares or fiduciary security over
shares held by the Company itself or by some other Company
whose shares are directly or indirectly owned by the Company
does not exceed 10% (ten percent) of the total amount of capital
subscribed in the Company unless otherwise provided in
legislative regulations in the field of capital markets.
(2) Direct or indirect re-purchases of shares which are contrary to
paragraph (1) shall be void by operation of law.
(3) The Board of Directors shall be jointly and severally liable for losses
suffered by shareholders in good faith incurred as a result of repurchases
which are void by operation of law as contemplated in
paragraph (2).
(4) Shares re-purchased by Companies as contemplated in paragraph (1)
may only be possessed by Companies for not more than 3 (three) years.
Article 38
(1) The re-purchase of shares contemplated in Article 37 paragraph (1) or
their further transfer may only be done with the consent of a GMS,
unless provided otherwise in legislative regulations in the field of
capital markets.
(2) The GMS resolution containing the consent contemplated in paragraph
(1) shall be valid if adopted in accordance with the provisions regarding
invitations to meetings, quorum, and number of votes to amend the
articles of association as provided in this Act and/or the articles of
association.
Article 39
(1) The GMS may deliver to the Board of Commissioners the authority to
consent to the implementation of a resolution of the GMS
contemplated in Article 38 for a period of 1 (one) year.
(2) The delivery of authority contemplated in paragraph (1) may be
extended each time for the same period.
(3) The delivery of authority contemplated in paragraph (1) may be
withdrawn at any time by the GMS.
Article 40
(1) Shares possessed by a Company because of re-purchase, transfer by
operation of law, by grant, or by bequest may not be used to cast votes
in the GMS and shall not be counted in determining the quorum which
must be achieved in accordance with the provisions of this Act and/or
the articles of association.
(2) The shares contemplated in paragraph (1) are not entitled to any
allocation of dividends.
Third Part
Increases in Capital
Article 41
(1) Companies’ capital may be increased with the consent of the GMS.
(2) The GMS may deliver to the Board of Commissioners the authority to
consent to the implementation of the resolution of the GMS
contemplated in paragraph (1) for a period of not more than 1 (one)
year.
(3) The delivery of authority contemplated in paragraph (2) may be
withdrawn by the GMS at any time.
Article 42
(1) A resolution of the GMS to increase the authorised capital shall be valid
if adopted with due attention to the requirements for a quorum and
number of votes in favour for amendments to the articles of association
in accordance with the provisions of this Act and/or the articles of
association.
(2) A resolution of the GMS to increase the subscribed and paid up capital
within the limits of the authorised capital shall be valid if adopted with
a quorum attending of more than ½ (one half) of all the shares with
voting rights and votes in favour from more than ½ (one half) of all the
votes cast, unless larger numbers are determined in the articles of
association.
(3) The Minister must be informed of increases in capital as contemplated
in paragraph (2) so that they can be recorded in the register of
Companies.
Article 43
(1) All shares issued for an increase in capital must first be offered to each
of the shareholders in proportion to their ownership of shares for the
same classification of shares.
(2) In the event that the shares to be issue for the increase in capital
constitute a classification of shares which has never been issued before,
those a pre-emptive right to buy are all the shareholders in accordance
with the proportion of shares they each own.
(3) The offer contemplated in paragraph (1) does not apply to issuances of
shares:
a. directed to the Company’s employees;
b. directed to holders of bonds or other securities which are
convertible into shares and which were issued with the consent
of the GMS; or
c. made in the context or reorganisation and/or restructuring with
the consent of the GMS.
(4) In the event that the shareholders contemplated in paragraph (1) do
not exercise their right to buy and pay in full for the shares bought
within a period of 14 (fourteen) days as from the date of the offer, the
Company may offer the remaining unsubscribed shares to third
parties.
Fourth Part
Reductions in Capital
Article 44
(1) Resolutions of the GMS to reduce the Company’s capital shall be valid
if adopted with due attention to the requirements for a quorum and
number of votes in favour for amendments to the articles of association
in accordance with the provisions of this Act and/or the articles of
association.
(2) The Board of Directors must inform all creditors of the resolution
contemplated in paragraph (1) by announcing it in 1 (one) or more
Newspapers within a period of not more than 7 (seven) days from the
date of the GMS resolution.
Article 45
(1) Within a period of 60 (sixty) days as from the date of the
announcement contemplated in Article 44 paragraph (2), the creditors
may submit written objections to the resolution to reduce capital
together with the reasons therefor to the Company, with a copy to the
Minister.
(2) Within a period of 30 (thirty) days as from when the objections
contemplated in paragraph (1) are received, the Company must give a
written answer to the objections received.
(3) In the event that the Company:
a. rejects the objection or does not provide a settlement which the
creditors agree to within a period of 30 (thirty) days as from the
date when the Company’s answer is received; or
b. does not give a response within the period of 60 (sixty) days as
from the date when the objection is submitted to the Company;
then the creditors may file suit with the district court whose
jurisdiction covers the Company’s domicile.
Article 46
(1) The reduction in the Company’s capital constitutes an amendment of
the articles of association which must have the Minister’s approval.
(2) The Minister’s approval contemplated in paragraph (1) shall be given
if:
a. there is no written objection from creditors within the period
contemplated in Article 45 paragraph (1);
b. a settlement of the objections submitted by creditors is achieved;
or
c. the creditors’ suit is rejected by the court by virtue of a
judgement which has obtained absolute legal effect.
Article 47
(1) Resolutions of the GMS concerning reductions in subscribed and paid
up capital shall be carried out by means of a withdrawal of shares or a
reduction in the nominal value of shares.
(2) The withdrawal of shares contemplated in paragraph (1) may be
carried out against shares which have been re-purchased by the
Company or against shares with a classification which may be
withdrawn.
(3) Reductions in the nominal value of shares without repayment must be
carried out in proportion against all shares of every classification of
shares.
(4) Exemptions from the proportionality contemplated in paragraph (3)
must have the consent of all shareholders the nominal value of whose
shares will be reduced.
(5) In the event of there being more than 1 (one) classification of shares,
the resolution of the GMS concerning the reduction in capital may only
be adopted after obtaining the prior consent of all shareholders of each
classification of shares whose rights will be diminished by the
resolution of the GMS concerning the reduction in capital.
Fifth Part
Shares
Article 48
(1) Companies’ shares shall be issued under the name of their owner.
(2) The requirements for ownership of shares may be determined in the
articles of association with due attention to the requirements
determined by the authorised agency in accordance with the provisions
of legislative regulations.
(3) In the event that requirements for ownership of shares as contemplated
in paragraph (2) have been determined and are not fulfilled, then the
party who obtained ownership of the shares may not exercise rights as
shareholder and the shares shall not be counted in any quorum which
must be achieved in accordance with the provisions of this Act and/or
the articles of association.
Article 49
(1) The value of shares must be stated in rupiah.
(2) Shares without a nominal value may not be issued.
(3) The provision contemplated in paragraph (2) does not close off the
possibility of the issuance of shares without a nominal value being
provided for in legislative regulations in the field of capital markets.
Article 50
(1) Companies’ Board of Directors shall make and keep a register of
shareholders, containing at least:
a. shareholders’ names and addresses;
b. the number, serial number, and date of acquisition of shares
held by shareholders and their classification in the event that
more than one classification of shares has been issued;
c. the amount paid up on every share;
d. the name and address of an individual or legal entity who has a
pledge over the shares or is the recipient of fiduciary security
over shares and the date of acquisition of the pledge or
registration of the fiduciary security;
e. information on the shares having been paid up in other forms as
contemplated in Article 34 paragraph (2).
(2) Apart from the register of shareholders contemplated in paragraph
(1), Companies’ Board of Directors must make and keep a special
register which contains information regarding shares in the Company
or in other Companies of members of the Board of Directors and
Board of Commissioners together with their families and the date such
shares were obtained.
(3) Changes of share ownership must also be recorded in the register of
shareholders and special register contemplated in paragraphs (1) and
(2).
(4) The register of shareholders and special register contemplated in
paragraphs (1) and (2) must be made available in the Company’s
domicile so that they can be seen by the shareholders.
(5) In the event of legislative regulations in the field of capital markets not
providing otherwise, the provisions contemplated in paragraphs (1),
(3) and (4) shall also apply to Public Companies.
Article 51
Shareholders shall be given proof of ownership of shares for the shares they
own.
Article 52
(1) Shares bestow on their owners the right to:
a. attend and cast votes in GMS;
b. receive payment of dividends and the remainder of assets from
liquidation;
c. exercise other rights under this Act.
(2) The provisions contemplated in paragraph (1) apply after the shares are
recorded in the register of shareholders under the name of the
shareholder.
(3) The provisions contemplated in paragraph (1) subparagraphs a and c
do not apply to certain classifications of shares as determined in this
Act.
(4) Each share bestows on its owner indivisible rights.
(5) In the event that 1 (one) share is owned by more than 1 (one) person,
the rights arising out of the shares shall be exercised by means of
appointing 1 (one) person as their joint representative.
Article 53
(1) The articles of association shall determine 1 (one) or more
classifications of shares.
(2) Each share in the same classification bestows on its holders the same
rights.
(3) In the event of there being more than 1 (one) classification of shares,
the articles of association shall determine one amongst them as
ordinary shares.
(4) The classifications of shares contemplated in paragraph (3) are,
amongst others:
a. shares with or without voting rights;
b. shares with special rights to nominate members of the Board of
Directors and/or members of the Board of Commissioners;
c. shares which after a certain period of time will be withdrawn or
exchanged for some other classification of shares;
d. shares which bestow on their holder the right to priority over
holders of shares with other classifications in receiving
dividends in the allocation of dividends cumulatively or noncumulatively;
e. shares which bestow on their holders the right to priority over
holders of shares with other classifications in receiving
allocations of the remainder of the Company’s assets in
liquidation.
Article 54
(1) The articles of association may determine fractions of the nominal
value of a share.
(2) Holders of a fraction of the nominal value of a share shall not be
granted individual voting rights unless the holder of a fraction of the
nominal value of a share individually or together with another holder
of a fraction of the nominal value of a share with the same classification
of share has a nominal value equal to 1 (one) nominal share of that
classification.
(3) The provisions contemplated in Article 52 paragraphs (4) and (5) shall
apply mutatis mutandis to the holders of fractions of the nominal value
of shares.
Article 55
Companies’ articles of association shall specify the method of transferring
rights over shares in accordance with the provisions of legislative regulations.
Article 56
(1) Rights over shares shall be transferred with a deed of transfer of rights.
(2) The deeds of transfer of rights contemplated in paragraph (1) or a copy
thereof shall be delivered to the Company in writing.
(3) The Board of Directors shall record the transfer of rights over shares,
and the date and day of the transfer of rights in the register of
shareholders or the special register as contemplated in Article 50
paragraphs (1) and (2) and no later than 30 (thirty) days as from the
date of recordal of the transfer of rights inform the Minister of the
change in the composition of the shareholders for recordal in the
Register of Companies.
(4) In the event that the notification contemplated in paragraph (3) is not
made, the Minister shall reject applications for approval or
notifications made based on compositions and names of shareholders
of which the Minister has not been notified.
(5) Procedures concerning the procedure for transfers of rights over shares
traded on capital markets shall be stipulated in legislative regulations
in the field of capital markets.
Article 57
(1) The articles of association may provide requirements concerning
transfers of rights over shares, viz.:
a. mandatory prior offer to shareholders with a particular
classification or other shareholders;
b. mandatory prior approval from the Company’s Organs; and/or
c. mandatory prior approval from the authorised agency in
accordance with the provisions of legislative regulations.
(2) The requirements contemplated in paragraph (1) shall not apply in the
event that transfers of shares are caused by assignment of rights by
operation of law, unless the mandatory approval contemplated in
paragraph (1) subparagraph c is related to inheritance.
Article 58
(1) In the event that the articles of association mandate that selling
shareholders first offer their shares to shareholders with a particular
classification or other shareholders, and within the period of 30
(thirty) days as from when the date the offer is made it transpires
that such shareholders have not made the purchase, the selling
shareholder may offer and sell the shares to third parties.
(2) Any selling shareholders compelled to offer shares as contemplated
in paragraph (1) is entitled to withdraw the offer after the lapse of the
30 (thirty)-day period contemplated in paragraph (1).
(3) The obligation to offer to shareholders with a particular classification
or to other shareholders as contemplated in paragraph (1) shall only
apply once.
Article 59
(1) The grant or refusal of approval for transfers of rights over shares
which need the approval of a Company Organ must be given in writing
with a period of not more than 90 (ninety) days as from the date the
Company Organ receives the request for approval for the transfer of
rights.
(2) In the event that the period contemplated in paragraph (1) has lapsed
and the Company Organ has not give a written statement, the
Company Organ shall be deemed to have approved the transfer of
rights over the shares.
(3) In the event that the transfer of rights over shares is approved by the
Company Organ, the transfer of rights must be carried out in
accordance with the provisions contemplated in Article 56 and must be
carried out no later than 90 (ninety) days as from the date on which the
approval is given.
Article 60
(1) Shares constitute moveable property and bestow the rights
contemplated in Article 52 on their owner.
(2) Shares may be encumbered with a pledge or fiduciary security provided
the articles of association do not specify otherwise.
(3) Pledges of shares or fiduciary security over shares registered in
accordance with the provisions of legislative regulations must be
recorded in the register of shareholders and the special register as
contemplated in Article 50.
(4) Voting rights on shares encumbered with a pledge or fiduciary security
shall remain with the shareholder.
Article 61
(1) Each shareholder is entitled to file suit against the Company in the
district court if the shareholder has been harmed by any action of the
Company considered unfair and unreasonable as a result of a
resolution of the GMS, Board of Directors and/or Board of
Commissioners.
(2) The suits contemplated in paragraph (1) must be filed with the district
court whose jurisdiction covers the Company’s domicile.
Article 62
(1) Each shareholder is entitled to request the Company that the
shareholder’s shares be bought at a fair price if the shareholder
concerned does not approve of actions by the Company which harm
that shareholder or the Company, in the form of:
a. amendments of the articles of association;
b. assignment or securing of assets of the Company which have a
value of more than 50% (fifty per cent) of the Company’s net
assets; or
c. Mergers, Consolidations, Acquisitions, or Demergers.
(2) In the event that the shares requested to be bought as contemplated in
paragraph (1) exceeds the limit on re-purchase of shares by the
Company as contemplated in Article 37 paragraph (1) subparagraph b,
the Company must endeavour that the remaining shares be bought by a
third party.
CHAPTER IV
WORK PLANS, ANNUAL REPORTS, AND USE OF PROFITS
First Part
Work Plans
Article 63
(1) Boards of Directors shall compile annual work plans before the start of
the coming financial year.
(2) The work plans contemplated in paragraph (1) shall also contain
annual budgets for Companies for the coming financial year.
Article 64
(1) The work plans contemplated in Article 63 shall be delivered to the
Board of Commissioners or GMS as specified in the articles of
association.
(2) The articles of association may specify whether the work plan delivered
by the Board of Directors as contemplated in paragraph (1) must obtain
the approval of the Board of Commissioners or the GMS, unless
specified otherwise in legislative regulations.
(3) In the event that the articles of association specify that the work plan
must obtain GMS approval, the work plan must first be studied by the
Board of Commissioners.
Article 65
(1) In the event that the Board of Directors does not deliver a work plan as
contemplated in Article 64, the work plan for the previous year will be
put into effect.
(2) Work plans for the previous year will also apply to Companies whose
work plan has not yet obtained approval as contemplated in the articles
of association or legislative regulations.
Second Part
Annual Reports
Article 66
(1) Boards of Directors shall deliver annual reports to GMS after they have
been studied by the Board of Commissioners within a period of not
more than 6 (six) months after the Company’s financial year ends.
(2) The annual reports contemplated in paragraph (1) must contain at
least:
a. a financial report consisting of at least the last balance sheet for
the financial year just ended in comparison with the previous
financial year, a profit and loss statement for the financial year
concerned, a cash flow report, and a report on changes in equity,
and notes on the financial report;
b. a report on the Company’s activities;
c. a report on the implementation of Environmental and Social
Responsibility;
d. details of problems which arose during the financial year which
influenced the Company’s business activities;
e. a report on the duty of supervision performed by the Board of
Commissioners during the financial year just ended;
f. the names of the members of the Board of Directors and
members of the Board of Commissioners;
g. salaries and allowances for members of the Board of Directors
and salaries or honoraria and allowances for members of the
Board of Commissioners of the Company for the year just ended.
(3) The financial report contemplated in paragraph (2) subparagraph a
shall be compiled in accordance with the financial accounting
standards.
(4) For Companies which must be audited, the balance sheet and profit
and loss statement for the financial year concerned as contemplated in
paragraph (2) subparagraph a must be delivered to the Minister in
accordance with the provisions of legislative regulations.
Article 67
(1) The annual report contemplated in Article 66 paragraph (1) shall be
signed by all of the members of the Board of Directors and all of the
members of the Board of Commissioners serving in the financial year
concerned and shall be made available at the Company’s office from the
date of the invitation to the GMS for examination by the shareholders.
(2) In the event that members of the Board of Directors or members of the
Board of Commissioners do not sign the annual report as contemplated
in paragraph (1), those concerned must give their reasons therefor in
writing or the reasons must be stated by the Board of Directors in a
separate letter affixed to the annual report.
(3) In the event the members of the Board of Directors or members of the
Board of Commissioners who do not sign the annual report as
contemplated in paragraph (1) do not give any reasons therefor, those
concerned will be deemed to have approved the contents of the annual
report.
Article 68
(1) The Board of Directors must deliver the Company’s financial report to
a public accounting for auditing if:
a. the Company’s business is to collect and/or manage the public’s
funds;
b. the Company issues acknowledgements of indebtedness to the
public;
c. the Company is a Public Company;
d. the Company is a state-owned liability company;
e. the Company has assets and/or a business turnover worth at
least Rp. 50,000,000,000 (fifty billion Rupiah); or
f. it is obligatory under legislative regulations.
(2) In the event that the obligation contemplated in paragraph (1) is not
fulfilled, the financial report shall not be ratified by the GMS.
(3) The report on the public accountant’s audit as contemplated in
paragraph (1) shall be delivered to the GMS in writing by the Board of
Directors.
(4) The balance sheet and profit and loss statement from the financial
report contemplated paragraph (1) subparagraphs a, b, and c shall be
published in 1 (one) Newspaper after obtaining the ratification of the
GMS.
(5) Publication of the balance sheet and profit and loss statement as
contemplated in paragraph (4) shall be done no later than 7 (seven)
days after they are ratified by the GMS.
(6) Reduction of the value contemplated in paragraph (1) subparagraph e
must be stipulated by Government Regulation.
Article 69
(1) Approval of annual reports includes ratification by the GMS of
financial reports and reports of the supervisory tasks of the Board of
Commissioners.
(2) Resolutions for ratification of the financial reports and approval of the
annual reports as contemplated in paragraph (1) shall be determined
pursuant to the provisions in this Act and/or the articles of
association.
(3) In the event that the financial report provided turns out to be
inaccurate and/or misleading, the members of the Board of Directors
and members of the Board of Commissioners shall be jointly and
severally liable to the parties harmed.
(4) Members of the Board of Directors and members of the Board of
Commissioners shall be released from the liability contemplated in
paragraph (3) if it is proven that the situation was not due to their
fault.
Third Part
Use of Profits
Article 70
(1) Companies shall set aside a certain amount of the net profits each
financial year as a reserve.
(2) The mandatory setting aside as a reserve as contemplated in paragraph
(1) applies if the Company has a positive balance of profits.
(3) Net profits shall be set aside as contemplated in paragraph (1) until the
reserve reaches at least 20% (twenty per cent) of the total subscribed
and paid up capital.
(4) The reserves contemplated in paragraph (3) [sic] which have not yet
reached the amount contemplated in paragraph (2) [sic] may only be
used to cover losses which cannot be met by other reserves.
Article 71
(1) The use of net profits including the determination of the amount to be
set aside for reserves as contemplated in Article 70 paragraph (1) shall
be decided by the GMS.
(2) All net profits after the deduction to be set aside as reserves as
contemplated in Article 70 paragraph (1) shall be allocated to the
shareholders as dividends unless determined otherwise in the GMS.
(3) The dividends contemplated in paragraph (2) may only be allocated if
the Company has a positive balance of profits.
Article 72
(1) Companies may allocate interim dividends before the Company’s
financial year ends provided the Company’s articles of association so
provide.
(2) Interim dividends may be allocated as contemplated in paragraph (1)
if the Company’s total net assets do not become less than the total
subscribed and paid up capital plus the mandatory reserve.
(3) The allocation of interim dividends as contemplated in paragraph (2)
may not disrupt or cause the Company to be unable to fulfil its
obligations to creditors or disrupt the Company’s activities.
(4) The allocation of interim dividends shall be determined by a resolution
of the Board of Directors after obtaining the consent of the Board of
Commissioners with due attention to the provisions of paragraphs (2)
and (3).
(5) In the event that after the financial year ends it transpires that the
Company has suffered losses, the interim dividends allocated must be
returned to the Company by the shareholders.
(6) The Board of Directors and Board of Commissioners shall be jointly
and severally responsible for the Company’s losses in the event that
the shareholders do not return the interim dividends as contemplated
in paragraph (5).
Article 73
(1) Dividends not taken after 5 (five) years has passed as from the date
determined for the payment of dividends shall be placed in a special
reserve.
(2) The GMS shall provide a procedure for the collection of dividends
which have been placed in the special reserve contemplated in
paragraph (1).
(3) Dividends which have been placed in the special reserve contemplated
in paragraph (1) and not taken within 10 (ten) years shall become the
right of the Company.
CHAPTER V
ENVIRONMENTAL AND SOCIAL RESPONSIBILITY
Article 74
(1) Companies doing business in the field of and/or in relation to natural
resources must put into practice Environmental and Social
Responsibility.
(2) The Environmental and Social Responsibility contemplated in
paragraph (1) constitutes an obligation of the Company which shall be
budgeted for and calculated as a cost of the Company performance of
which shall be with due attention to decency and fairness.
(3) Companies who do not put their obligation into practice as
contemplated in paragraph (1) shall be liable to sanctions in
accordance with the provisions of legislative regulations.
(4) Further provisions regarding Environmental and Social Responsibility
shall be stipulated by Government Regulation.
CHAPTER VI
THE GENERAL MEETING OF SHAREHOLDERS
Article 75
(1) GMS have any authority not given to the Board of Directors or Board of
Commissioners within the limits specified in this Act and/or the
articles of association.
(2) In the forum of a GMS, shareholders are entitled to obtain information
related to the Company from the Board of Directors and/or Board of
Commissioners in so far as it is connected to the agenda items and does
not conflict with the Company’s interests.
(3) In the agenda item AOB, GMS are not entitled to adopt resolutions
unless all shareholders are present and/or represented in the GMS and
consent to the addition of the agenda item.
(4) Resolutions on items added to the agenda must be unanimously
approved.
Article 76
(1) GMS shall be held in the Company’s domicile or in the place where the
Company does its main business as specified in the articles of
association.
(2) The GMS of Public Companies shall be held in the domicile of the
stock exchange where the Company’s shares are listed.
(3) The location of the GMS as contemplated in paragraphs (1) and (2)
must be located in the territory of the Republic of Indonesia.
(4) If all the shareholders are present and/or represented in the GMS and
all the shareholders agree to the holding of a GMS with a particular
agenda, the GMS may be held at any place with due attention to the
condition contemplated in paragraph (3).
(5) The GMS contemplated in paragraph (4) may adopt resolutions if the
resolutions are unanimously agreed.
Article 77
(1) Apart from being held as contemplated in Article 76, GMS may also be
held via teleconference, video conference, or other vehicles for
electronic media which make it possible for all of the participants in the
GMS to directly see and hear each other and to participate in the
meeting.
(2) The requirements for quorums and the requirements for adopting
resolutions are the requirements provided in this Act and/or as
provided in the Company’s articles of association.
(3) The requirements contemplated in paragraph (2) shall counted based
on the participation of the participants in the GMS as contemplated in
paragraph (1)
(4) Any GMS held as contemplated in paragraph (1) must have minutes of
meeting made which are approved and signed by all of the GMS
participants.
Article 78
(1) GMS consist of Annual GMS and other GMS.
(2) Annual GMS shall be held within a period of not more than 6 (six)
months after the financial year ends.
(3) All the of the Company’s documents and annual reports
contemplated in Article 66 paragraph (2) must be submitted in the
annual GMS.
(4) Other GMS may be hold at any time based on need for the
Company’s interests.
Article 79
(1) Boards of Directors shall convene the annual GMS contemplated in
Article 78 paragraph (2) and the other GMS contemplated in Article 78
paragraph (4) with GMS invitations first.
(2) GMS may be convened as contemplated in paragraph (1) at the request
of:
a. 1 (one) or more shareholders who jointly represent 1/10 (one
tenth) or more of the total number of shares with voting rights,
unless the articles of association determine a smaller number; or
b. the Board of Commissioners.
(3) The request contemplated in paragraph (2) shall be submitted to the
Board of Directors by Registered Letter accompanied by the reasons
therefor.
(4) The Registered Letter contemplated in paragraph (3) shall be sent by
shareholder and a copy sent to the Board of Commissioners.
(5) The Board of Directors shall issue invitations to the GMS within no
more than 15 (fifteen) days as from the date on which the request for
the GMS to be convened is received.
(6) In the event that the Board of Directors does not issue invitations to the
GMS as contemplated in paragraph (5),:
a. the request for the GMS to be convened as contemplated in
paragraph (2) subparagraph a shall be re-submitted to the Board
of Commissioners; or
b. the Board of Commissioners shall issue invitations to the GMS
itself, as contemplated in paragraph (2) subparagraph b.
(7) The Board of Commissioners shall issue invitations to the GMS as
contemplated in paragraph 6 subparagraph a within no more than 15
(fifteen) days as from the date on which the request for the GMS to be
convened is received.
(8) A GMS convened by the Board of Directors on the basis of invitations
to the GMS as contemplated in paragraph (5) shall discuss matters
related to the reasons contemplated in paragraph (3) and other agenda
items considered necessary by the GMS.
(9) A GMS convened by the Board of Commissioners on the basis of
invitations to the GMS as contemplated in paragraph (6) subparagraph
b and paragraph (7) shall only discuss matters related to the reasons
contemplated in paragraph (3).
(10) The convening of GMS of Public Companies shall be subject to
the provisions of this Act in so far as the provisions of legislative
regulations in the field of capital markets do not determine otherwise.
Article 80
(1) In the event that the Board of Directors or Board of Commissioners do
not issue invitations to the GMS within the period contemplated in
Article 79 paragraphs (5) and (7), the shareholder requesting that a
GMS be convened may submit an application to the Chief Judge of the
District Court whose jurisdiction covers the Company’s domicile to
issue a court order granting the applicant permission to issue
invitations to the GMS himself/herself.
(2) After summonsing and hearing the applicant, the Board of Directors
and/or the Board of Commissioners, the Chief Judge of the District
Court may issue a court order granting permission to convene the GMS
if the applicant can summarily prove that the requirements have been
fulfilled and the applicant has a reasonable interest in the GMS being
convened.
(3) The court order of the Chief Judge of the District Court contemplated
in paragraph (2) shall also contain provisions regarding:
a. the form of the GMS, the agenda items for the GMS in
accordance with the shareholder’s application, the period for the
invitations to the GMS, the quorum to be present, and/or
provisions concerning requirements for the adoption of GMS
resolutions, and the designation of a chair of the meeting, in
accordance with or without being bound by the provisions of this
Act and/or the articles of association; and/or
b. an order obliging the Board of Directors and/or Board of
Commissioners to attend the GMS.
(4) The Chief Judge of the District Court shall refuse the application in the
event that the applicant is unable to prove summarily that the
requirements have been fulfilled and the applicant has a reasonable
interest in the GMS being convened.
(5) The GMS contemplated in paragraph (1) may only discuss the agenda
items determined by the Chief Judge of the District Court.
(6) The court order from the Chief Judge of the District Court with regard
to the granting of permission as contemplated in paragraph (3) shall be
final in nature and have absolute legal effect.
(7) In the event that the court order from the Chief Judge of the District
Court refuses the application as contemplated in paragraph (4), the
only legal avenue open is cassation.
(8) The provisions contemplated in paragraph (1) also apply to Public
Companies with due attention to the requirements for announcement
that a GMS is to be held and other requirements for a GMS to be
convened as provided for in legislative regulations in the field of capital
markets.
Article 81
(1) Boards of Directors shall issue invitations to shareholders before
convening the GMS.
(2) In certain cases, the invitations to the GMS contemplated in paragraph
(1) may be issued by the Board of Commissioners or the shareholders
pursuant to a court order of the Chief Judge of the District Court.
Article 82
(1) Invitations to the GMS shall be issued within a period no later than 14
(fourteen) days before the date on which the GMS is held, exclusive of
the date of the invitation and the date of the GMS.
(2) Invitations to the GMS may be issued by Registered Letter and/or by
an advertisement in Newspapers.
(3) Invitations to the GMS must state the date, time, place, and agenda
items, accompanied by a notice that the materials to be discussed in
the GMS will be available in the Company’s offices from the dated on
which the invitation to the GMS is issued to the date on which the GMS
is held.
(4) The Company must give shareholders free copies of the materials to be
discussed contemplated in paragraph (3) if asked.
(5) In the event that the invitation is not in accordance with the provisions
contemplated in paragraphs (1) and (2), and the invitation is not in
accordance with paragraph (3), the GMS resolutions will still be valid if
all of the shareholders with voting rights are present or represented in
the GMS and the resolution is approved unanimously.
Article 83
(1) For Public Companies, invitations to a GMS must be preceded by an
announcement that invitations to a GMS will be issued with due
attention to the provisions of legislative regulations in the field of
capital markets.
(2) The announcements contemplated in paragraph (1) shall be issued
within a period no later than 14 (fourteen) days before the invitation to
the GMS.
Article 84
(1) Each share issued shall carry one vote, unless the articles of association
determine otherwise.
(2) The vote contemplated in paragraph (1) shall not apply to:
a. shares in the Company controlled by the Company itself;
b. shares in a parent Company directly or indirectly controlled by
its subsidiary; or
c. shares in the Company controlled by another Company whose
shares are directly or indirectly owned by the Company.
Article 85
(1) Shareholders, either in person or through a representative by virtue of
a power of attorney, are entitled to attend GMS and use their votes in
accordance with the number of shares they own.
(2) The provision contemplated in paragraph (1) does not apply to holders
of shares without voting rights.
(3) In voting, the votes cast by shareholders apply for all the shares they
own and shareholders are not permitted to give a power of attorney to
more than one proxy for part of the shares they own with different
votes.
(4) In voting, members of the Board of Directors, members of the Board of
Commissioners, and employees of the Company concerned are
prohibited from acting as proxies for shareholders as contemplated in
paragraph (1).
(5) In the event that shareholders are present at the GMS in person, any
power of attorney they have given shall not be valid for that meeting.
(6) The chair of the meeting is entitled to determine who is entitled to be
present in the GMS with due attention to the provisions of this Act and
the Company’s articles of association.
(7) Apart from the provisions contemplated in paragraphs (3) and (6), the
provisions of legislative regulations in the field of capital markets also
apply to Public Companies.
Article 86
(1) GMS may be held if more than ½ (one half) of the total number of
shares with voting rights are present or represented in the GMS, unless
a larger quorum is specified by Statute or by the articles of association.
(2) In the event that the quorum contemplated in paragraph (1) is not
achieved, invitations to a second GMS may be issued.
(3) Invitations to a second GMS must state that the first GMS was held but
did not achieve its quorum.
(4) The second GMS contemplated in paragraph (2) shall be lawful and
entitled to adopt resolutions if at least 1/3 (one third) of the total
number of shares with voting rights are present or represented in the
GMS, unless a larger quorum is specified by the articles of association.
(5) In the event that the quorum for the second GMS as contemplated in
paragraph (4) is not achieved, the Company may apply to the Chief
Judge of the District Court whose jurisdiction covers the Company’s
domicile to determine the quorum for a third GMS at the request of the
Company.
(6) Invitations to a third GMS must state that the second GMS was held
but did not achieve its quorum and that a third GMS will be held with a
quorum determined by the Chief Judge of the District Court.
(7) The court order of the Chief Judge of the District Court with regard to
the GMS quorum contemplated in paragraph (5) shall be final and have
absolute legal effect.
(8) Invitations to second and third GMS shall be issued within a period no
later than 7 (seven) days before the second and third GMS is held.
(9) The second and third GMS shall be held no sooner than 10 (ten) days
and no later than 21 (twenty-one) days after the preceding GMS is held.
Article 87
(1) GMS resolutions shall be adopted on the basis of deliberation to reach
a consensus.
(2) In the event that resolutions on the basis of deliberation to reach a
consensus as contemplated in paragraph (1) cannot be achieved,
resolutions shall be lawful if approved by more than ½ (one half) of
the number of votes cast unless Statute and/or the articles of
association specify that resolutions shall be lawful if approved by a
greater number of affirmative votes.
Article 88
(1) GMS to amend the articles of association may be held if in the meeting
at least 2/3 (two thirds) of the total number of shares with voting rights
are present or represented in the GMS and the resolution will be lawful
if approved by at least 2/3 (two thirds) of the number of votes cast
unless the articles of association specify a quorum to be present and/or
provisions about the adoption of resolutions of GMS which are higher.
(2) In the event that the quorum to be present contemplated in paragraph
(1) is not achieved, a second GMS may be convened.
(3) The second GMS contemplated in paragraph (2) shall be lawful and
entitled to adopt resolutions if in the meeting at least 3/5 (three fifths)
of the total number of shares with voting rights are present or
represented in the GMS and the resolution shall be lawful if approved
by at least 2/3 (two thirds) of the number of votes cast unless the
articles of association specify a quorum to be present and/or provisions
about the adoption of resolutions of GMS which are higher.
(4) The provisions contemplated in Article 86 paragraphs (5), (6), (7), (8),
and (9) shall apply mutatis mutandis to GMS contemplated in
paragraph (1).
(5) The provisions contemplated in paragraphs (1), (2), and (3) with regard
to the quorum to be present and the provisions concerning
requirements for adoption of GMS resolutions also apply to Public
Companies in so far as it is not provided otherwise in legislative
regulations in the field of capital markets.
Article 89
(1) GMS to approve Mergers, Consolidations, Acquisitions, or Demergers,
to file applications for the Company to be declared bankrupt or
extensions of its period of incorporation, and to wind up the Company
may only be held if in the meeting at least ¾ (three quarters) of the
total number of shares with voting rights are present or represented in
the GMS and the resolution shall be lawful if approved by at least ¾
(three quarters) of the number of votes cast, unless the articles of
association specify a quorum to be present and/or provisions
concerning the requirements for adoption of GMS resolutions which
are higher.
(2) In the event that the quorum contemplated in paragraph (1) cannot be
achieved, a second GMS may be held.
(3) The second GMS contemplated in paragraph (2) shall be lawful and
entitled to adopt resolutions if in the meeting at least 2/3 (two thirds)
of the total number of votes with voting rights are present or
represented in the GMS and the resolution shall be lawful if approved
by at least ¾ (three quarters) of the number of votes cast, unless the
articles of association specify a quorum to be present and/or
provisions concerning requirements for the adoption of GMS
resolutions which are higher.
(4) The provisions contemplated in Article 86 paragraphs (5), (6), (7), (8),
and (9) shall apply mutatis mutandis to the GMS contemplated in
paragraph (1).
(5) The provisions contemplated in paragraphs (1), (2), and (3) with
regard to the quorum to be present and/or provisions concerning
requirements for the adoption of GMS resolutions also apply to Public
Companies in so far as it is not provided otherwise in legislative
regulations in the field of capital markets.
Article 90
(1) In each GMS convened, GMS minutes must be made and signed by the
chair of the meeting and at least 1 (one) shareholder appointed by and
from the participants in the GMS.
(2) The signature contemplated in paragraph (1) shall not be required if
the GMS minutes are made by notarial deed.
Article 91
Shareholders may also adopt binding resolutions outside GMS provided that
all shareholders with voting rights approve them in writing by signing the
proposal concerned.
CHAPTER VII
BOARDS OF DIRECTORS AND BOARDS OF COMMISSIONERS
First Part
Boards of Directors
Article 92
(1) Boards of Directors shall undertake the management of Companies in
the interest of the Companies and in accordance with the Companies’
purpose and objectives.
(2) Boards of Directors are authorised to undertake the management
contemplated in paragraph (1) in accordance with any policy that
seems appropriate within the limits specified in this Act and/or the
articles of association.
(3) Companies’ Boards of Directors shall consist of 1 (one) or more
members of the Board of Directors.
(4) Companies whose business is related to the collection of and/or
management of the public’s funds, Companies which issue
acknowledgements of indebtedness to the public, or Public Companies
must have at least 2 (two) members of the Board of Directors.
(5) In the event that the Board of Directors consists of 2 (two) or more
members of the Board of Directors, the division of management tasks
and authority between the members of the Board of Directors shall be
determined by a GMS resolution.
(6) In the event that the GMS contemplated in paragraph (5) does not
make any determination, the division of the tasks and authority of the
members of the Board of Directors shall be determined by a resolution
of the Board of Directors.
Article 93
(1) Those who may be appointed as members of the Board of Directors are
individuals capable of performing legal actions, except those who in
the 5 (five) years previous to their appointment have:
a. been declared bankrupt;
b. been members of a Board of Directors or a Board of
Commissioners declared to be at fault in causing a Company to
be declared bankrupt;
c. been sentenced for crimes which caused losses to the state
and/or were related to the finance sector.
(2) The provisions on the requirements contemplated in paragraph (1) are
without prejudice to the possibility of the authorised technical agencies
determining additional requirements pursuant to legislative
regulations.
(3) Fulfilment of the requirements contemplated in paragraphs (1) and (2)
shall be proven by a letter to be kept by the Company.
Article 94
(1) Members of Boards of Directors shall be appointed by the GMS.
(2) Initially, members of Boards of Directors shall be appointed by the
founders in the deeds of establishment contemplated in Article 8
paragraph (2) subparagraph b.
(3) Members of Boards of Directors shall be appointed for a certain period
and may be re-appointed.
(4) Articles of Association shall provide procedures for the appointment,
replacement and dismissal of members of the Board of Directors and
may also provide procedures for nominating members of the Board of
Directors.
(5) Resolutions of GMS with regard to the appointment, replacement, and
dismissal of members of the Board of Directors shall also determine
when the appointment, replacement or dismissal comes into effect.
(6) In the event that the GMS does not determine when the appointment,
replacement or dismissal of members of the Board of Directors comes
into effect, the appointment, replacement or dismissal shall come into
effect as from the close of the GMS.
(7) In the event of appointment, replacement or dismissal of members of
the Board of Directors, the Board of Directors must notify the Minister
within a period of not more than 30 (thirty) days as from the date of the
GMS resolution of the change in the members of the Board of Directors
for recordal in the register of Companies.
(8) In the event that the notification contemplated in paragraph (7) has not
been made, the Minister shall refuse any application submitted or
notification delivered to the Minister by a Board of Directors which has
not yet been recorded in the register of Companies.
(9) The notification contemplated in paragraph (8) does not include the
notification delivered by a new Board of Directors of its own
appointment.
Article 95
(1) Appointments of members of Boards of Directors who do not fulfil the
requirements contemplated in Article 92 shall be void by operation of
law as from when the other members of the Board of Directors or the
Board of Commissioners know the requirements were not fulfilled.
(2) Within a period of not more than 7 (seven) days from when it becomes
known, another member of the Board of Directors or the Board of
Commissioners must publish the annulment of the appointment of the
member of the Board of Directors concerned in a Newspaper and
inform the Minister thereof for recordal in the register of Companies.
(3) Legal actions performed for and on behalf of the Company by the
member of the Board of Directors contemplated in paragraph (1)
before his/her appointment is annulled shall remain binding on and
the liability of the Company.
(4) Legal actions performed for and on behalf of the Company by the
member of the Board of Directors contemplated in paragraph (1) after
his/her appointment is annulled shall be void and the personal liability
of the member of the Board of Directors concerned.
(5) The provisions contemplated in paragraph (3) shall not reduce the
liability of the member of the Board of Directors concerned for losses
to the Company as contemplated in Articles 97 and 104.
Article 96
(1) Provisions concerning the amount of the salary and allowances for
members of Boards of Directors shall be stipulated by GMS
resolutions.
(2) The authority of the GMS contemplated in paragraph (1) may be
delegated to the Board of Commissioners.
(3) In the event that the authority of the GMS contemplated in paragraph
(2) is delegated to the Board of Commissioners, the amount of the
salary and allowances contemplated in paragraph (1) shall be
stipulated by resolution of a meeting of the Board of Commissioners.
Article 97
(1) Boards of Directors shall be responsible for the management of
Companies as contemplated in Article 92 paragraph (1).
(2) The management contemplated in paragraph (1) shall be performed by
each member of the Board of Directors in good faith and full liability.
(3) Each member of the Board of Directors shall fully personally liable for
the Company’s losses if the Director concerned is at fault or negligent
in carrying out his/her duties in accordance with the provisions
contemplated in paragraph (2).
(4) In the event that a Board of Directors consists of 2 (two) or more
members of the Board of Directors, the liability contemplated in
paragraph (3) shall be joint and several for each member of the Board
of Directors.
(5) Members of the Board of Directors cannot be held liable for the losses
contemplated in paragraph (3) if they can prove that:
a. the losses were not due to their fault or negligence;
b. they carried out the management in good faith and with
prudence in the interests of and in accordance with the purpose
and objectives of the Company;
c. they do not have a direct or indirect conflict of interest in the
action of management that caused the losses; and
d. they took action to prevent the losses from arising or continuing.
(6) On behalf of the Company, shareholders representing at least 1/10
(one tenth) of the total number of shares with voting rights may file
suit through the district court against the members of the Board of
Directors who by their fault or negligence gave rise to the losses for the
Company.
(7) The provision contemplated in paragraph (5) do not reduce the right of
other members of the Board of Directors and/or members of the Board
of Commissioners to file suit on behalf of the Company.
Article 98
(1) Boards of Directors shall represent Companies in and out of the courts.
(2) In the event that a Board of Directors consists of more than 1 (one)
person, any member of the Board of Directors has the authority to
represent the Company unless the articles of association specify
otherwise.
(3) The authority of the Board of Directors to represent the Company as
contemplated in paragraph (1) is unlimited and unconditional unless
this Act, the articles of association or a GMS resolution specifies
otherwise.
(4) The GMS resolution contemplated in paragraph (3) may not be
contrary to the provisions of this Act and/or the Company’s articles of
association.
Article 99
(1) Members of Boards of Directors do not have the authority to represent
Companies if:
a. there is a case before the courts between the Company and the
member of the Board of Directors concerned; or
b. the member of the Board of Directors concerned has a conflict of
interests with the Company.
(2) In such events as are contemplated in paragraph (1), the persons
entitled to represent the Company are:
a. other members of the Board of Directors who do not have a
conflict of interests with the Company;
b. the Board of Commissioners, in the event that all of the
members of the Board of Directors have a conflict of interests
with the Company; or
c. other parties appointed by the GMS in the event that all of the
members of the Board of Directors or all of the members of the
Board of Commissioners have a conflict of interests with the
Company.
Article 100
(1) Boards of Directors shall:
a. make a register of shareholders, special register, GMS minutes,
and minutes of meetings of the Board of Directors;
b. make annual reports as contemplated in Article 66 and the
Company’s financial documents as contemplated in the
Company Documents Act; and
c. maintain all registers, minutes and the Company’s financial
documents contemplated in subparagraphs a and b and others
of the Company’s documents.
(2) All registers and minutes, and the Company’s financial documents and
others of the Company’s documents as contemplated in paragraph (1)
shall be kept in the Company’s domicile.
(3) At a shareholder’s written request, the Board of Directors shall give the
shareholder permission to examine the register of shareholders, special
register, and GMS minutes contemplated in paragraph (1) and the
annual report and to obtain copies of GMS minutes and copies of the
annual report.
(4) The provision contemplated in paragraph (3) does not preclude the
possibility of legislative regulations in the field of capital markets
determining otherwise.
Article 101
(1) Members of Boards of Directors shall make reports to Companies
with regard to shares owned by the member concerned of the Board of
Directors and/or his/her family in the Company and other Companies
for recordal in the special register.
(2) Members of Boards of Directors who do not fulfil the obligation
contemplated in paragraph (1) and cause losses to the Company shall
be personally liable for such losses to the Company.
Article 102
(1) Boards of Directors shall seek GMS approval for:
a. assignment of Company assets; or
b. making security for debt Company assets;
which constitute more than 50% (fifty per cent) of Companies’ net
assets in 1 (one) or more separate or inter-related transactions.
(2) The transactions contemplated in paragraph (1) subparagraph a are
transactions assigning Company net assets which occur in a period of 1
(one) financial year or a longer period provided for in the Company’s
articles of association.
(3) The provisions of paragraph (1) shall not apply to actions assigning or
using as security Company assets as operation of the Company’s
business in accordance with its articles of association.
(4) The legal actions contemplated in paragraph (1) which do not have
GMS approval shall still bind the Company in so far as the other party
in the legal action are acting in good faith.
(5) The provisions on quorum and/or provisions concerning adoption of
GMS resolutions contemplated in Article 89 shall apply mutatis
mutandis to GMS resolutions for approving the actions of the Board of
Directors contemplated in paragraph (1).
Article 103
A Board of Directors may give a written power of attorney to 1 (one) or more
employees of the Company or to some other person(s) for and on behalf of the
Company to perform specific legal actions as described in the power of
attorney.
Article 104
(1) No Board of Directors has the authority to submit a petition for the
bankruptcy of its own Company to the Commercial Court before
obtaining GMS approval, without prejudice to the provisions
stipulated in the Bankruptcy and Suspension of Payments Act.
(2) In the event of the bankruptcy contemplated in paragraph (1)
occurring because of the fault or negligence of the Board of Directors
and the bankrupt estate is insufficient to pay the whole of the
Company’s liabilities in the bankruptcy, each member of the Board of
Directors shall be jointly and severally liable for the whole of the
obligations not paid from the bankrupt estate.
(3) The liability contemplated in paragraph (2) shall also apply to
members of the Board of Directors who are at fault or negligent and
who served as members of the Board of Directors in the 5 (five)-year
period before declaration of bankruptcy is uttered.
(4) Members of the Board of Directors shall not be liable for the
bankruptcy of the Company as contemplated in paragraph (2) if they
can prove that:
a. the bankruptcy was not due to their fault or negligence;
b. they performed their actions of management in good faith, with
prudence and full liability for the interests of the Company and
in accordance with the Company’s purpose and objectives;
c. they did not have any direct or indirect conflict of interest over
the actions of management performed; and
d. they took action to avoid the occurrence of the bankruptcy.
(5) The provisions contemplated in paragraphs (2), (3), and (4) shall also
apply to the Board of Directors of a Company declared bankrupt at the
petition of some other party.
Article 105
(1) Members of Boards of Directors may be dismissed at any time by virtue
of GMS resolutions stating the reason therefor.
(2) The resolutions to dismiss members of Boards of Directors
contemplated in paragraph (1) shall be adopted after the directors
concerned have been given the opportunity to defend themselves in the
GMS.
(3) In the event that a resolution to dismiss a member of a Board of
Directors as contemplated in paragraph (2) is adopted by a resolution
outside a GMS in accordance with the provisions contemplated in
Article 91, the member of the Board of Directors concerned shall first
be notified of the planned dismissal and be given the opportunity to
defend himself/herself before the resolution for dismissal is adopted.
(4) No opportunity for defence as contemplated in paragraph (2) shall be
necessary in the event that the director concerned does not object to
the dismissal.
(5) Dismissals of members of the Board of Directors shall come into effect
as from:
a. the close of the GMS contemplated in paragraph (1);
b. the date of the resolution contemplated in paragraph (3);
c. some other date determined in the GMS resolution
contemplated in paragraph (1);
d. some other date determined in the GMS resolution
contemplated in paragraph (3).
Article 106
(1) A member of a Board of Directors may be suspended by a Board of
Commissioners, giving the reasons therefor.
(2) The member of the Board of Directors concerned shall be informed of
the suspension contemplated in paragraph (1) in writing.
(3) A member of a Board of Directors who has been suspended as
contemplated in paragraph (1) does not have the authority to carry out
the tasks contemplated in Article 92 paragraph (1) and Article 98
paragraph (1).
(4) Within a period of no more than 30 (thirty) days after the date of the
suspension a GMS must be convened.
(5) The member of the Board of Directors concerned shall be given the
opportunity to defend himself/herself in the GMS contemplated in
paragraph (4).
(6) The GMS shall confirm or revoke the resolution for suspension.
(7) In the event that the GMS confirms the resolution for suspension, the
member of the Board of Directors shall be dismissed.
(8) In the event that when the period of 30 (thirty) days has passed the
GMS contemplated in paragraph (4) has not been convened or the
GMS has not been able to adopt a resolution, the suspension shall be
void.
(9) For Public Companies, the provisions of legislative regulations in the
field of capital markets shall apply to the convening of GMS as
contemplated in paragraphs (6) and (7).
Article 107
Provisions shall be stipulated in the Articles of Association with regard to:
a. procedures for the resignation of members of the Board of Directors;
b. procedures for filling vacant positions on the Board of Directors; and
c. the parties who have the authority to undertake the management of
and represent the Company in the event that all of the members of the
Board of Directors are prevented from doing so or have been
suspended.
Second Part
Boards of Commissioners
Article 108
(1) Boards of Commissioners shall supervise management policies, the
running of management in general, with regard to both the Company
and the Company’s business, and give advice to the Board of
Directors.
(2) The supervision and giving of advice contemplated in paragraph (1)
shall be done in the Company’s interests and in accordance with the
Company’s purpose and objectives.
(3) Boards of Commissioners shall consist of 1 (one) or more members.
(4) Boards of Commissioners consisting of more than 1 (one) member
shall constitute a council and no member of the Board of
Commissioners may act alone but rather on the basis of a resolution of
the Board of Commissioners.
(5) Companies whose business activities are related to the collection
and/or management of the public’s funds, Companies who issue
acknowledgements of indebtedness to the public, and Public
Companies must have at least 2 (two) members of their Boards of
Commissioners.
Article 109
(1) Apart from a Board of Commissioners, companies doing business
based on sharia principles must have a Sharia Supervisory Board.
(2) The Sharia Supervisory Boards contemplated in paragraph (1) shall
consist of one or more sharia experts appointed by the GMS on the
recommendation of the Indonesian Council of Ulema.
(3) The Sharia Supervisory Boards contemplated in paragraph (1) shall
have the task of giving advice and suggestions to the Board of Directors
and supervise Companies’ activities so that they are in accordance with
sharia principles.
Article 110
(1) Those capable of becoming members of Boards of Commissioners are
individuals capable of performing legal actions except for those who in
the 5 (five) years before their appointment:
a. were declared bankrupt;
b. were members of a Board of Directors or Board of
Commissioners who were declared to be at fault causing a
Company to be declared bankrupt; or
c. sentenced for crimes which caused financial losses to the state
and/or which were related to the financial sector.
(2) The requirements contemplated in paragraph (1) are without prejudice
to the possibility of the authorised technical agencies determining
additional requirements under legislative regulations.
(3) Fulfilment of the requirements contemplated in paragraphs (1) and (2)
shall be proven by a letter kept by the Company.
Article 111
(1) Members of Boards of Commissioners shall be appointed by GMS.
(2) Initially, members of Boards of Commissioners shall be appointed by
founders in the deeds of establishment contemplated in Article 8
paragraph (2) subparagraph b.
(3) Members of Boards of Commissioners shall be appointed for a definite
period and may be reappointed.
(4) Articles of Association shall stipulate procedures for the appointment,
replacement, and dismissal of members of the Board of Commissioners
and may also provide for the nomination of members of the Board of
Commissioners.
(5) GMS resolutions regarding the appointment, replacement, and
dismissal of members of the Board of Commissioners shall also
determine when the appointment, replacement and dismissal come
into effect.
(6) In the event that the GMS does not determine when the appointment,
replacement or dismissal of members of the Board of Directors comes
into effect, the appointment, replacement or dismissal shall come into
effect as from the close of the GMS.
(7) In the event of an appointment, replacement or dismissal of members
of the Board of Directors occurring, the Board of Directors shall notify
the Minister of the change for recordal in the register of Companies
within a period of not more than 30 (thirty) days as from the date of the
GMS resolution.
(8) In the event that the notification contemplated in paragraph (7) has not
been made, the Minister shall reject any further notification concerning
changes in the composition of the Board of Commissioners delivered to
the Minister by the Board of Directors.
Article 112
(1) Appointments of members of Boards of Commissioners which do not
fulfil the requirements contemplated in Article 110 paragraphs (1) and
(2) shall be void by operation of law as from when the other members
of the Board of Commissioners or the Board of Directors come to know
of the non-fulfilment of the requirements.
(2) Within a period of not more than 7 (seven) days after it becomes
known, the Board of Directors shall announce the annulment of the
appointment of the member of the Board of Commissioners concerned
in the Newspaper and notify the Minister for recordal in the register of
Companies.
(3) Legal actions performed by the member of the Board of Commissioners
contemplated in paragraph (1) for and on behalf of the Board of
Commissioners before his/her appointment is nullified shall remain
binding on and the liability of the Company.
(4) The provision contemplated in paragraph (2) is without prejudice to
the liability of the member of the Board of Commissioners concerned
for losses to the Company as contemplated in Articles 114 and 115.
Article 113
Provisions concerning the amount of salaries or honoraria and allowances for
members of Boards of Commissioners shall be stipulated by GMS.
Article 114
(1) Boards of Commissioners shall be responsible for the supervision of
the Company as contemplated in Article 108 paragraph (1).
(2) Each member of the Board of Commissioners shall perform in good
faith, prudence, and responsibility the tasks of supervising and giving
advice to the Board of Directors as contemplated in Article 108
paragraph (1) in the interests of the Company and in accordance with
the Company’s purpose and objectives.
(3) Each member of the Board of Commissioners shall share in personal
liability for the Company’s losses if the Commissioner concerned is at
fault or negligent in performing the tasks contemplated in paragraph
(2).
(4) In the event that a Board of Commissioners consists of 2 (two) or more
members of the Board of Commissioners, the liability contemplated in
paragraph (3) shall be apply jointly and severally to each member of
the Board of Commissioners.
(5) Members of Boards of Commissioners may not be held liable for the
losses contemplated in paragraph (3) if they can prove that:
a. they have carried out their supervision in good faith and
prudence in the interests of the Company and in accordance
with the Company’s purpose and objectives;
b. they do not have any direct or indirect personal interest in the
actions of management of the Board of Directors which caused
the losses; and
c. they have given the Board of Directors advice to prevent the
losses arising or continuing.
(6) On behalf of the Company, shareholders representing at least 1/10 (one
tenth) of the total number of shares with voting rights may sue in the
district court members of the Board of Commissioners who because of
their fault or negligence gave rise to losses to the Company.
Article 115
(1) In the event of bankruptcy occurring because of the fault or negligence
of the Board of Commissioners in performing its supervision of the
management carried out by the Board of Directors and the assets of the
Company being insufficient to pay the whole of the Company’s
obligations as a result of the bankruptcy, then each member of the
Board of Commissioners shall be jointly and severally liable together
with the members of the Board of Directors for obligations which have
not been paid off.
(2) The liability contemplated in paragraph (1) shall also apply to members
of the Board of Commissioners who ceased to serve in the 5 (five) years
before the judgement declaring the Company bankrupt was uttered.
(3) Members of the Board of Commissioners cannot be held liable for the
bankruptcy of the Company as contemplated in paragraph (1) if they
can prove that:
a. the bankruptcy was not because of their fault or negligence;
b. they had carried out their task of supervision in good faith and
prudence in the interests of the Company and in accordance
with the Company’s purpose and objectives;
c. they do have any direct or indirect personal interest in the
actions of management by the Board of Directors which caused
the bankruptcy.
d. they gave the Board of Directors advice to prevent the
occurrence of the bankruptcy.
Article 116
Boards of Commissioners shall:
a. make minutes of meetings of the Board of Commissioners and keep
copies thereof;
b. report to the Company regarding share ownership by them and/or their
families in the Company and other Companies; and
c. give GMS reports concerning their task of supervision performed
during the financial year just past.
Article 117
(1) Articles of association may determine the grant of authority to Boards
of Commissioners to give approval or assistance to Boards of Directors
in the performance of certain legal actions.
(2) In the event that the articles of association determine requirements for
the grant of approval or assistance as contemplated in paragraph (1),
then without the approval or assistance of the Board of Commissioners
the legal action shall still be binding on the Company provided that the
other party in the legal action is acting in good faith.
Article 118
(1) Pursuant to the articles of association or a GMS resolution, a Board of
Commissioners may perform actions of management of a Company in
specified situations for a specified period.
(2) A Board of Commissioners performing actions of management in a
specified situation for a specified period as contemplated in paragraph
(1) shall apply all provisions with regard to the rights, authority and
obligations of the Board of Directors against the Company and third
parties.
Article 119
The provisions with regard to the dismissal of members of Boards of Directors
contemplated in Article 105 shall apply mutatis mutandis to the dismissal of
members of Boards of Commissioners.
Article 120
(1) Companies’ articles of association may provide for 1 (one) or more
Independent Commissioners and 1 (one) Delegated Commissioner.
(2) The independent Commissioners contemplated in paragraph (1) shall
be appointed on the basis of a GMS resolution from parties not
affiliated with the main shareholders, the members of the Board of
Directors and/or the other members of the Board of Commissioners.
(3) The delegated Commissioner contemplated in paragraph (1) shall be a
member of the Board of Commissioners appointed on the basis of a
resolution of a meeting of the Board of Commissioners.
(4) The tasks and authority of the delegated Commissioner shall be
determined in the Company’s articles of association provided that they
do not conflict with the tasks and authority of the Board of
Commissioners and do not prejudice the task of management
performed by the Board of Directors.
Article 121
(1) In carrying out their tasks of supervision as contemplated in Article
108, Boards of Commissioners may form committees the members of
which are one or more members of the Board of Commissioners.
(2) The committees contemplated in paragraph (1) shall be responsible to
the Board of Commissioners.
CHAPTER VIII
MERGERS, CONSOLIDATIONS, ACQUISITIONS, AND DEMERGERS
Article 122
(1) Mergers and Consolidations shall cause the merging or consolidating
Company to expire by operation of law.
(2) The expiry of the Company contemplated in paragraph (1) shall occur
without any prior liquidation.
(3) In the event of the expiry of the Company contemplated in paragraph
(2),
a. the assets and liabilities of the merging or consolidating
Company shall pass in law to the surviving Company or the
consolidated Company;
b. shareholders of the merging or consolidating Company shall by
operation of law become shareholders of the surviving or
consolidated Company;
c. the merging or consolidated Company shall expire by operation
of law as from when the Merger or Consolidation comes into
effect.
Article 123
(1) The Board of Directors of the merging Company and surviving
Company shall compile a draft Merger.
(2) The draft Merger contemplated in paragraph (1) must contain at least:
a. the name and domicile of each Company in the Merger;
b. the reasons and explanations of the Board of Directors of the
Companies in the Merger and the Merger requirements;
c. procedures for the valuation and conversion of shares in the
merging Company into shares of the surviving Company;
d. the draft for any amendment of the articles of association of the
surviving Company;
e. the financial reports contemplated in Article 66 paragraph (2)
subparagraph a covering the last 3 (three) financial years from
each of the Companies in the Merger;
f. the plans for continuing or terminating the business activities of
the Companies in the Merger;
g. a pro forma balance sheet of the surviving Company in
accordance with accounting principles generally applied in
Indonesia;
h. method of settlement of the status, rights and obligations of the
members of the Board of Directors, Board of Commissioners and
employees of the merging Company;
i. method of settlement of the rights and obligations of the
merging Company against third parties;
j. method of settlement of the rights of shareholders who do not
agree to the Merger of the Companies;
k. names of the members of the Board of Directors and Board of
Commissioners and the wages, honoraria, and allowances for
members of the Board of Directors and Board of Commissioners
of the surviving Company;
l. estimated period for implementation of the Merger;
m. report on the circumstances, development and results achieved
of each of the Companies in the Merger;
n. main activities of each Company in the Merger and changes
which occurred in the current financial year; and
o. details of problems arising during the current financial year
which affected the activities of the Companies in the Merger.
(3) The draft for the Merger contemplated in paragraph (2) shall, after
obtaining the approval of the Board of Commissioners of each
Company, be submitted to the GMS of each Company to obtain its
approval.
(4) Apart from the provisions in this Act, certain Companies in Mergers
will also need prior approval from the relevant government agencies in
accordance with the provisions of legislative regulations.
(5) The provisions contemplated in paragraphs (1) to (4) shall also apply to
Public Companies in so far as legislative regulations in the field of
capital markets do not provide otherwise.
Article 124
The provisions contemplated in Article 123 shall mutatis mutandis also apply
to consolidating Companies.
Article 125
(1) Acquisitions shall be done by means of acquisition of shares already
issued and/or to be issued by the Company via the Company’s Board of
Directors or directly through the shareholders.
(2) Acquisitions may be done by legal entities or by individuals.
(3) The acquisitions contemplated in paragraph (1) are acquisitions of
shares which cause the passing of control over the Company.
(4) Acquisitions by legal entities in the form of a Company [sic], the Board
of Directors before performing the legal action of acquisition must be
based on [sic] a GMS resolution which fulfils the quorum and
provisions on conditions for adoption of a GMS resolution as
contemplated in Article 89.
(5) In the event that the Acquisition is performed through the Board of
Directors, the acquiring party must present its intention of performing
an Acquisition to the Board of Directors of the Company to be acquired.
(6) The Board of Directors of the Company to be acquired and the
acquiring Company with the approval of their respective Boards of
Commissioners shall compile a draft Acquisition containing at least:
a. name and domicile of the acquiring Company and the Company
to be acquired;
b. the reasons and explanations of the Board of Directors of the
acquiring Company and the Board of Directors to be acquired;
c. the financial reports contemplated in Article 66 paragraph (2)
subparagraph a for the most recent financial year of the
acquiring Company and the Company to be acquired;
d. procedures for valuation and conversion of shares of the
Company to be acquired into exchange shares if payment for the
acquisition is to be made by shares;
e. the number of shares to be acquired;
f. preparation of funding;
g. pro forma consolidated balance sheet of the acquiring Company
after the Acquisition compiled in accordance with accounting
principles generally applied in Indonesia;
h. method of settlement of rights of shareholders who do not agree
to the Acquisition;
i. method of settlement of the status, rights and obligations of
members of the Board of Directors, Board of Commissioners,
and employees of the Company to be acquired;
j. estimate of the period of implementation of the Acquisition,
including the period for granting a power of attorney from the
shareholders to the Company’s Board of Directors to assign
shares;
k. draft of any amendment of the articles of association of the
Company resulting from the Acquisition.
(7) In the event of shares being acquired directly from shareholders, the
provisions contemplated in paragraphs (5) and (6) shall not apply.
(8) The acquisition of shares contemplated in paragraph (7) must be
subject to the provisions of the articles of association of the Company
to be acquired concerning the transfer of rights over shares and
contracts made by the Company with other parties.
Article 126
(1) The legal actions of Merger, Consolidation, Acquisition and Demerger
must be subject to the interests of:
a. the Company, minority shareholders, the Company’s employees;
b. creditors and other business partners of the Company; and
c. the public and sound business competition.
(2) Shareholders who do not agree with a GMS resolution with regard to
Merger, Consolidation, Acquisition, or Demerger as contemplated in
paragraph (1) may only exercise their rights as contemplated in Article
62.
(3) No exercise of rights as contemplated in paragraph (2) will halt the
process of implementing the Merger, Consolidation, Acquisition, or
Demerger.
Article 127
(1) GMS resolutions regarding Mergers, Consolidations, Acquisitions, or
Demergers shall be valid if adopted in accordance with the provisions
of Article 87 paragraph (1) and Article 89.
(2) The Boards of Directors of Companies in Mergers, Consolidations,
Acquisitions, or Demergers must publish an abstract of the draft in at
least 1 (one) Newspaper and publish it in writing to the employees of
the Company in the Merger, Consolidation, Acquisition, or Demerger
no later than 30 (thirty) days before the invitations to the GMS.
(3) The publication contemplated in paragraph (2) must also contain
notice that interested parties may obtain the draft Merger,
Consolidation, Acquisition, or Demerger at the Company’s office as
from the date of its publication to the date on which the GMS is
convened.
(4) Creditors may submit objections to the Company within a period of
not more than 14 (fourteen) days after the publication contemplated
in paragraph (2) with regard to the Merger, Consolidation,
Acquisition, or Demerger in accordance with the draft.
(5) If within the period contemplated in paragraph (4) no creditors have
submitted any objection, the creditors will be deemed to have
approved the Merger, Consolidation, Acquisition, or Demerger.
(6) In the event that a creditor’s objection as contemplated in paragraph
(4) cannot be resolved by the Board of Directors as of the date on
which the GMS is convened, the objection must be presented in the
GMS in order to find a resolution.
(7) Until the resolution contemplated in paragraph (6) is achieved, the
Merger, Consolidation, Acquisition, or Demerger cannot be
performed.
(8) The provisions contemplated in paragraphs (2), (4), (5), (6), and (7)
shall apply mutatis mutandis to publication in the context of
Acquisition of shares directly from shareholders in the Company as
contemplated in Article 125.
Article 128
(1) Draft Mergers, Consolidations, Acquisitions, or Demergers approved
by the GMS shall be set forth in a deed of Merger, Consolidation,
Acquisition, or Demerger made before a notary in the Indonesian
language.
(2) Deeds of acquisition of shares directly from shareholders must be
stated in a notarial deed in the Indonesian language.
(3) The deeds of consolidation contemplated in paragraph (1) shall serve
as the basis for making the deed of establishment of the Company
resulting from the Consolidation.
Article 129
(1) A copy of the deed of Merger of Companies shall be attached to:
a. the application submitted to obtain the approval of the Minister
as contemplated in Article 21 paragraph (1); or
b. the delivery of notification to the Minister of the amendment of
the articles of association as contemplated in Article 21
paragraph (3).
(2) In the event that the Merger of Companies is not accompanied by an
amendment of the articles of association, a copy of the deed of Merger
must be delivered to the Minister for recordal in the register of
Companies.
Article 130
A copy of the deed of Consolidation shall be attached to the application
submitted to obtain a Decree of the Minister with regard to ratification of the
Company resulting from the Consolidation as a legal entity as contemplated in
Article 7 paragraph (3).
Article 131
(1) A copy of the deed of Acquisition of Company must be attached to the
delivery of notification to the Minister concerning the amendment to
the articles of association contemplated in Article 21 paragraph (3).
(2) In the event of an Acquisition of shares directly from shareholders, a
copy of the deed of transfer of rights over shares must be attached to
the delivery of notification to the Minister concerning the change of
composition of shareholders.
Article 132
The provisions contemplated in Articles 29 and 30 also apply to Mergers,
Consolidations, or Acquisitions of Companies.
Article 133
(1) The Board of Directors of a Company surviving a Merger or the Board
of Directors of a Company resulting from a Consolidation must publish
the result of the Merger or Consolidation in 1 (one) or more
Newspapers within no more than 30 (thirty) days as from the date the
Merger or Acquisition comes into effect.
(2) The provisions contemplated in paragraph (1) also apply to the Boards
of Directors of Companies whose shares are acquired.
Article 134
Further provisions with regard to Mergers, Consolidations, and Acquisitions
of Companies shall be stipulated by Government Regulation.
Article 135
(1) Demergers may be carried out by means of:
a. a pure Demerger; or
b. a partial Demerger.
(2) A pure merger as contemplated in paragraph (1) subparagraph a causes
all of the assets and liabilities of the Company to pass by operation of
law to 2 (two) or more other transferee Companies and the Company
demerging its business expires by operation of law.
(3) A partial Demerger as contemplated in paragraph (1) subparagraph b
causes part of the assets and liabilities of the Company to pass by
operation of law to one or more other transferee Companies but the
demerging Company remains in existence.
Article 136
Further provisions with regard to Demergers shall be stipulated by
Government Regulation.
Article 137
In the event that legislative regulations in the field of capital markets do not
provide otherwise, the provisions contemplated in Chapter VIII also apply to
Public Companies.
CHAPTER IX
INSPECTIONS OF COMPANIES
Article 138
(1) Companies may be inspected with the purpose of obtaining data or
information in the event of suspicion that:
a. the Company has committed acts which break the law and are
detrimental to shareholders or third parties; or
b. members of the Board of Directors or Board of Commissioners
commit acts which break the law and are detrimental to the
Company or shareholders or third parties.
(2) The inspection contemplated in paragraph (1) shall be carried out by
submitting a petition in writing together with the reasons therefor to
the district court whose jurisdiction covers the Company’s domicile.
(3) The petition contemplated in paragraph (2) may be submitted by:
a. 1 (one) or more shareholders who represent at least 1/10 (one
tenth) of the total number of shares with voting rights;
b. other parties who are authorised to submit a petition for
inspection by virtue of legislative regulations, the Company’s
articles of association, or contracts with the Company;
c. the public prosecutors’ office in the public interest.
(4) The petition contemplated in paragraph (3) subparagraph a must be
submitted after the petitioner first asks the Company for the data or
information in a GMS and the Company does not give the data or
information.
(5) Petitions to obtain data or information concerning a Company or
petitions for inspection to obtain data or information must be based
on reasonable grounds in good faith.
(6) The provisions contemplated in paragraph (2), paragraph (3)
subparagraph a, and paragraph (4) do not close off the possibility of
legislative regulations in the field of capital markets determining
otherwise.
Article 139
(1) The Chief Judge of the district court may refuse or grant the petition
contemplated in Article 138.
(2) The Chief Judge of the district court contemplated in paragraph (1)
shall refuse the petition if the petition is not based on reasonable
grounds and/or is not in good faith.
(3) In the event that the petition is granted, the Chief Judge of the district
court shall issue an order for inspection and appoint at least 3 (three)
experts to carry out the inspection with the purpose of obtaining the
data or information required.
(4) No member of the Board of Directors, member of the Board of
Commissioners, employee of the Company, consultant, or public
accountant appointed by the Company may be appointed as an expert
contemplated in paragraph (3).
(5) The experts contemplated in paragraph (3) are entitled to inspect all
documents and assets of the Company they deem it necessary to know.
(6) Each member of the Board of Directors, member of the Board of
Commissioners, and all employees of the Company must give all
information necessary for the inspection to be carried out.
(7) The experts contemplated in paragraph (3) must keep the results of the
inspection they carried out confidential.
Article 140
(1) Reports on the outcome of the inspection shall be delivered to the
Chief Judge of the district court by the experts contemplated in Article
139 within the period specified in the court order for the inspection no
later than 90 (ninety) says as from the date of the appointment of the
experts.
(2) The Chief Judge of the district court shall give copies of the report on
the outcome of the inspection to the petitioner and the Company
concerned within a period of no more than 14 (fourteen) says as from
the date when the report on the outcome of the inspection is received.
Article 141
(1) In the event that the petition for an inspection is granted, the Chief
Judge of the district court shall determine the maximum cost of the
inspection.
(2) The cost of inspection contemplated in paragraph (1) shall be paid by
the Company.
(3) The Chief Judge of the district court may on the petition of the
Company charge reimbursement of all of part of the cost of the
inspection contemplated in paragraph (2) to the petitioner, the
members of the Board of Directors, and/or the members of the Board
of Commissioners.
CHAPTER X
WINDING UP, LIQUIDATION AND EXPIRY OF STATUS OF COMPANIES
AS LEGAL ENTITIES
Article 142
(1) Winding up of Companies shall occur:
a. pursuant to a GMS resolution;
b. because the period of incorporation determined in the articles of
association has expired;
c. pursuant to a court order;
d. on revocation of bankruptcy pursuant to a decision of the
commercial court which has absolute legal effect, the Company’s
estate being insufficient to pay the cost of bankruptcy;
e. because the bankrupt estate of a Company which has been
declared bankrupt is in a state of insolvency as provided for in
the Bankruptcy and Suspension of Payments Act; or
f. because of the revocation of the Company’s business permits
such that the Company must enter into liquidation in
accordance with the provisions of legislative regulations.
(2) In the event that a Company is wound up as contemplated in paragraph
(1),:
a. it must be followed by liquidation by a liquidator or a curator;
and
b. the Company may not perform any legal action except where
necessary to settle all of the Company’s affairs in the context of
liquidation.
(3) In the event of a Company being wound up pursuant to a GMS
resolution, the period of incorporation determined in the articles of
association having expired or on the revocation of bankruptcy pursuant
to a decree of the commercial court and the GMS resolution does not
appoint a liquidator, the Board of Directors shall act as liquidator.
(4) In the event of a Company being wound up on the revocation of
bankruptcy as contemplated in paragraph (1) subparagraph d, the
commercial court shall at the same time decide on the dismissal of the
curator with due attention to the provisions in the Bankruptcy and
Suspension of Payments Act.
(5) In the event of the provision contemplated in paragraph (2)
subparagraph b being breached, the members of the Board of Directors,
the members of the Board of Commissioners, and the Company shall be
jointly and severally liable.
(6) The provisions concerning the appointment, suspension, dismissal,
authority, obligations, liability, and supervision of the Board of
Directors shall apply mutatis mutandis to the liquidator.
Article 143
(1) The winding up of a Company will not cause the Company to lose its
status as a legal entity until the liquidation is completed and the
liquidator’s accountability has been accepted by the GMS or the court.
(2) As from when the winding up begins, each letter issued by the
Company must bear the words “dalam likuidasi” (in liquidation)
behind the name of the Company.
Article 144
(1) The Board of Directors, Board of Commissioners, or 1 (one) or more
shareholders representing at least 1/10 (one tenth) of the total number
of shares with voting rights may submit a proposal to the GMS for the
Company to be wound up.
(2) The GMS resolution concerning the winding up of the Company shall
be valid if adopted in accordance with the provisions contemplated in
Article 87 paragraph (1) and Article 89.
(3) The winding up of the Company shall begin at the time determined in
the GMS resolution.
Article 145
(1) The Company shall be wound up by operation of law if the period of its
incorporation determined in its articles of association expires.
(2) Within a period of not more than 30 (thirty) days after the Company’s
period of incorporation expires the GMS shall determine the
appointment of a liquidator.
(3) The Board of Directors may not perform any new legal actions on
behalf of the Company after the Company’s period of incorporation
determined in the articles of association has expired.
Article 146
(1) District Courts may wind up Companies on:
a. a petition from the public prosecutors’ office on the grounds that
the Company has breached the public interest or the Company
has committed actions which breach legislative regulations;
b. a petition from interested parties on the grounds that there is a
legal defect in the deed of establishment;
c. a petition from shareholders, the Board of Directors, or the
Board of Commissioners on the grounds that it is not possible
for the Company to continue.
(2) The court order shall stipulate the appointment of a liquidator.
Article 147
(1) Within a period of not more than 30 (thirty) days as from the date the
Company is wound up, the liquidator shall notify:
a. all creditors of the winding up of the Company by means of an
announcement of the Company’s winding up in a Newspaper
and the State Gazette of the Republic of Indonesia; and
b. the Minister of the winding up of the Company for it to be
recorded in the register of Companies that the Company is in
liquidation.
(2) The notification of the creditors in the Newspaper and the State
Gazette of the Republic of Indonesia contemplated in paragraph (1)
subparagraph a shall contain:
a. the winding up of the Company and its legal basis;
b. the liquidator’s name and address;
c. the procedure for the submission of claims; and
d. the period for submission of claims.
(3) The period for submission of claims contemplated in paragraph (2)
subparagraph d is 60 (sixty) says as from the date of the
announcement contemplated in paragraph (1).
(4) The notification to the Minister contemplated in paragraph (1)
subparagraph b shall be accompanied by evidence of:
a. the legal basis for the winding up of the Company; and
b. notification to the creditors in a Newspaper as contemplated in
paragraph (1) subparagraph a.
Article 148
(1) In the event that the notification to creditors and the Minister as
contemplated in Article 147 has not yet been given, the winding up of
the Company will not apply to third parties.
(2) In the event that the liquidator fails to make the notification
contemplated in paragraph (1), the liquidator shall be jointly and
severally liable with the Company for any losses suffered by third
parties.
Article 149
(1) A liquidator’s obligations in settling a Company’s assets in the
liquidation process shall cover implementation of:
a. recordal and announcement of the Company’s assets and debts;
b. announcement in a Newspaper and the State Gazette of the
Republic of Indonesia with regard to the plan for division of the
assets resulting from the liquidation;
c. payment to the creditors;
d. payment of the remainder of the assets resulting from the
liquidation to shareholders; and
e. other action necessary in implementing the settlement of assets.
(2) In the event that a liquidator estimates that a Company’s debts will be
greater than the Company’s assets, the liquidator shall submit a
petition for the bankruptcy of the Company, unless legislative
regulations determine otherwise, and all creditors whose identity and
address are known must approve any settlement outside bankruptcy.
(3) Creditors may submit an objection to the plan for division of the assets
resulting from the liquidation within a period of not more than 60
(sixty) days as from the date of the announcement contemplated in
paragraph (1) subparagraph b.
(4) In the event that an objection submitted as contemplated in paragraph
(3) is rejected by the liquidator, the creditor may file suit with the
District Court within a period of not more than 60 (sixty) says as from
the date of the rejection.
Article 150
(1) Creditors who submit bills within the period contemplated in Article
147 paragraph (3) which are then rejected by the liquidator may then
file suit with the District Court within a period of not more than 60
(sixty) days as from the date of rejection.
(2) Creditors who have not yet submitted their bills may submit them via
the District Court within a period of 2 (two) years as from when the
winding up of the Company is announced as contemplated in Article
147 paragraph (1).
(3) Bills may be submitted by creditors as contemplated in paragraph (2)
in the event that there are any remaining assets resulting from the
liquidation allocated to shareholders.
(4) In the event that remaining assets have been divided among
shareholders and there are creditors’ bills as contemplated in
paragraph (2), the District Court shall order the liquidator to retrieve
the remaining assets resulting from the liquidation already divided
among shareholders.
(5) Shareholders must return the remaining assets resulting from the
liquidation as contemplated in paragraph (4) in the ratio of the amount
received to the amount of the bill.
Article 151
(1) In the event that the liquidator does not perform its obligations as
contemplated in Article 149, then at the petition of interested parties
or at the petition of the public prosecutors’ office, the Chief Judge of
the District Court may appoint a new liquidator and dismiss the old
liquidator.
(2) The dismissal of the liquidator as contemplated in paragraph (1) shall
be done after the person concerned has been summoned for his
information to be heard.
Article 152
(1) Liquidators shall be accountable to the GMS or the court appointing
them for the liquidation of the Company they carried out.
(2) Curators shall be accountable to the supervisory judge for the
liquidation of the Company they carried out.
(3) Liquidators shall inform the Minister and announce the final outcome
of the liquidation process in the Newspaper after the GMS gives the
liquidator an acquittal and discharge or after the court accepts the
accountability of the liquidator it appointed.
(4) The provision contemplated in paragraph (3) shall also apply to
curators whose accountability has been accepted by the supervisory
judge.
(5) The Minister shall record the expiry of a Company’s status as a legal
entity and delete the Company’s name from the register of Companies
after the provisions contemplated in paragraphs (3) and (4) have
been fulfilled.
(6) The provision contemplated in paragraph (5) shall also apply to the
expiry of a Company’s status as a legal entity due to a Merger,
Consolidation, or Demerger.
(7) The notification and announcement contemplated in paragraphs (3)
and (4) shall be made within no more than (30) thirty days as from
the date when the liquidator’s or curator’s accountability is accepted
by the GMS, court, or supervisory judge.
(8) The Minister shall announce the expiry of the Company’s status as a
legal entity in the State Gazette of the Republic of Indonesia.
CHAPTER XI
FEES
Article 153
Provisions regarding fees for:
a. obtaining approval for the use of a Company name;
b. obtaining a decree ratifying a Company as a legal entity;
c. obtaining a decree approving amendments of articles of association;
d. obtaining information concerning Company data in the register of
Companies;
e. the announcements in the State Gazette of the Republic of Indonesia
and the Supplement to the State Gazette of the Republic of Indonesia
mandated in this Act; and
f. obtaining copies of Decrees of the Minister regarding ratification of the
Company as a legal entity or approving amendments of a Company’s
articles of association;
shall be stipulated by Government Regulation.
CHAPTER XII
OTHER PROVISIONS
Article 154
(1) The provisions of this Act apply to Public Companies if legislative
regulations in the field of capital markets do not provide otherwise.
(2) Legislative regulations in the field of capital markets exempting from
the provisions of this Act may not conflict with the basic principles of
Company law in this Act.
Article 155
Provisions regarding the liability of Boards of Directors and/or Boards of
Commissioners for their faults or negligence stipulated in this Act shall not
prejudice provisions stipulated in Criminal Law Statutes.
Article 156
(1) In the context of implementation and development of this Act, a team
of experts shall be formed to monitor Company law.
(2) The membership of the team contemplated in paragraph (1) shall
consist of elements from:
a. government;
b. experts/academics;
c. professionals; and
d. the business world.
(3) The team of experts shall have the authority to review deeds of
establishment and amendments to articles of association obtained on
its own initiative from the team or at the request of interested parties,
and to give an opinion on the outcome of such review to the Minister.
(4) Further provisions regarding the authority, organisational composition
and working methods of the team of experts shall be stipulated by
Regulation of the Minister.
CHAPTER XIII
TRANSITIONAL PROVISIONS
Article 157
(1) Articles of association of Companies which have already obtained the
status of legal entities and amendments of articles of association which
have been approved by and reported to the Minister and registered in
the register of companies before this Act comes into effect shall remain
in effect if they are not contrary to this Act.
(2) Articles of association of Companies which have not yet obtained the
status of legal entities and amendments thereof which have not yet
been approved by or reported to the Minister at the time this Act
comes into force must be adapted to this Act.
(3) Companies which have already obtained the status of legal entities
under legislative regulations shall within 1 (one) year after this Act
comes into effect adapt their articles of association to the provisions of
this Act.
(4) Companies which do not adjust their articles of association within the
period contemplated in paragraph (3) may be wound up based on a
decision of the district court at the petition of the public prosecutors’
office or interested parties.
Article 158
When this Act comes into effect, Companies which do not fulfil the provisions
contemplated in Article 36 must adapt to the provisions of this Act within a
period of 1 (one) year.
CHAPTER XIV
CLOSING PROVISIONS
Article 159
Implementing regulations of the Limited Liability Companies Act No. 1 of
1995 are declared still in effect in so far as they do not contradict or have not
been replaced by new regulations under this Act.
Article 160
When this Act comes into effect, the Limited Liability Companies Act No. 1 of
1995 (Statute Book of the Republic of Indonesia 1995 No. 13, Supplement to
the Statute Book of the Republic of Indonesia No. 3587) is revoked and
declared no longer in effect.
Article 161
This Act shall come into effect on the date on which it is enacted.
So that all persons may know of it, it is ordered that the enactment of this act
be placed in the Statute Book of the Republic of Indonesia.
Ratified in Jakarta
on August 16, 2007
THE PRESIDENT OF THE REPUBLIC OF INDONESIA
Signed
DR. H. SUSILO BAMBANG YUDHOYONO
Enacted in Jakarta
on August 16, 2007
THE MINISTER OF LAW AND HUMAN RIGHTS
OF THE REPUBLIC OF INDONESIA
Signed
ANDI MATTALATTA
LEMBARAN NEGARA REPUBLIK INDONESIA TAHUN 2007 NOMOR 106
Duplicate copies
DEPUTY MINISTER OF STATE
SECRETARIAT ON
LEGISLATION,
MUHAMMAD SAPTA MURTI