Answer ... Post-merger notification is mandatory for any merger, consolidation or share acquisition that meets the Indonesian turnover/asset value thresholds. Such transaction must be reported to the Business Competition Supervisory Commission (KPPU) within 30 working days of the effective date of the transaction.
In addition to the post-merger notification obligation, the parties to the transaction can elect for a voluntary pre-merger consultation with the KPPU if the transaction meets the assets or sales thresholds as set out above and there is a written agreement between the parties (eg, in the form of a memorandum of understanding or other written agreement).
A pre-merger consultation does not exempt the parties from the requirement to lodge a post-merger notification. However, the benefit of the voluntary pre-merger consultation is that the parties can secure the KPPU’s opinion on the transaction in advance and the KPPU should be consistent in its opinion once the post-merger filing is made, provided that there are no significant changes in the facts surrounding the transaction. Further, if the KPPU issues a favourable opinion on the prospective merger during the pre-merger consultation and no substantial or material changes are subsequently made to the transaction, then the KPPU will not re-evaluate the completed merger.
Answer ... In practice, the KPPU is open to informal and confidential discussions with the parties regarding their planned transaction. However, the KPPU will not issue anything in writing pending submission of the formal notification.
Answer ... The party responsible for filing the mandatory post-merger notification is the surviving company in a merger, the company resulting from the consolidation in a consolidation and the acquirer in an acquisition. The same also applies to the pre-merger consultation.
Answer ... There are no fees required to file a merger report with the KPPU.
Answer ... Notification forms are available on the KPPU website which the applicant must complete for filing purposes, along with the following supporting documents:
- power of attorney to submit the application (if required);
- articles of association of the parties to the transaction, including ultimate shareholders and subsidiaries (as relevant);
- company profiles of the parties;
- financial reports of the parties, including ultimate shareholders and subsidiaries (as relevant) for the last three years;
- ownership schemes of the parties, from the ultimate shareholders to their subsidiaries (as relevant);
- document evidencing that the merger is lawfully effective (or, in the case of a voluntary pre-merger consultation, an indication of potential legal issues relating to the merger);
- summary of the merger;
- business plan for the next three to five years;
- analysis of the industry in which the parties operate; and
- policies to address the effects of the merger.
The KPPU has the authority to request additional information from the parties or their affiliates as it deems necessary for its review. The KPPU will begin its review only once all documents have been received.
Answer ... A post-merger notification must be submitted within 30 working days of the date on which the transaction becomes legally effective. For a merger or direct acquisition of an Indonesian limited liability company, ‘legally effective’ means that any one of the following conditions has been satisfied:
- approval by the minister of law and human rights of the amendment to the articles of association, in case of a merger;
- acknowledgment of notification from the minister of law and human rights, with or without amendments to the articles of association; or
- approval by the minister of law and human rights of the deed of establishment of the company, in case of a consolidation.
In general, the notification must be made no later than 30 working days after the date of completion of the transaction.
In case of a merger between foreign companies, the merged entity must provide an official document released by the competent authority evidencing that the merger has been completed. If no official documents are released by the relevant authority, the KPPU may accept other documentation such as a statement or press release confirming that the merger has been completed.
Answer ... As described in question 3.1, the KPPU allows for voluntary pre-merger consultation.
Answer ... There is no prohibition on closing, as the merger control regime in Indonesia is based on post-merger notifications. Closing may be delayed if the parties opt to conduct a voluntary pre-merger consultation and wish to obtain the KPPU’s decision on the merger before closing the transaction.
Answer ... In practice, the KPPU will announce on its website that notification has been received and is under review. This includes voluntary pre-merger and post-merger notifications. The KPPU also issues press releases and uploads any opinions and decisions (Bahasa Indonesia versions) to its website. Regardless, the KPPU will not disclose any commercially confidential information contained in the notifications, opinions or decisions.