Recently Indonesia has been through rapid development in almost every sector. The country has transformed into a key player in the global economy.
This has stimulated a massive foreign investment flow in recent years. Many investors view Indonesia as a promising place for expand their businesses. Although the forging democracy has also helped the growing investment climate, nevertheless Indonesia is not so liberal in terms of investment regulation.
By setting up a business in Indonesia, you will need to follow local rules. Local law in Indonesia regulates and restricts the establishment of a foreign company in Indonesia. The Indonesian Government determines which industries are closed to foreign investment through the Negative Investment List (Daftar Negatif Investasi), which in theory is issued every three years unless revised before then.
The Negative Investment List contains specific business sectors and fields that are entirely closed to foreign investment and those which are conditionally open for foreign investment. It means that if you are a foreign investor who wants to establish a company in a business fields that closed to foreign investment, you will need to establish a local company in form of PT with 100% local shareholders. Meanwhile, if you want to invest in a business fields that are conditionally open for foreign investment, you will find some restrictions, particularly in shareholding. In this case you can establish a PT PMA/PT Penanaman Modal Asing (Foreign Capital Limited Liability Company). The specific limitations on foreign shareholders depend upon the business field you desire to enter.
For instance, if you want to establish a distribution company in Indonesia, as the foreign shareholder you will only be allowed to hold 67% of the shares. For the remaining 33% of shares, you will have to find a nominee shareholder from Indonesia.
A local nominee in Indonesia is standard however not always safe practice. It’s commonly used when foreign investors wish to invest in business sectors that are either closed or conditionally open to foreign investment (see the Negative Investment List). The idea of a nominee agreement is that the foreign investor obtains as much control as possible and is put in a position — insofar as is possible — comparable to that of a registered shareholder.
In this article Cekindo will try to explain you what are the usual risks and mistakes of using local nominee, how to minimize these risks and mistakes and finally how to operate your company in Indonesia by using local nominees in the safe way through a Nominee agreements package from Cekindo.
What Are the Risks If You Use Local Nominee in an Incorrect Way?
1. The Local Nominee could fully claim the ownership rights of their share and leave the foreign investor without giving him the opportunity to pursue legal action against the local nominee. This could happen because the foreign investor (if they are investing in a closed business sector and have established a Local Limited Liability Company/PT) is not listed as a shareholder in the company’s structure. This means his rights in the Company won’t be protected by local law, since based on article 33 of Foreign Investment Law in Indonesia are prohibited any agreements whereby one party declares that it holds shares on behalf of another. This is clearly an attempt to abolish nominee structures.
2. In the event of dispute between the foreign shareholder and local nominee, the confidential structure of the nominee will be exposed and come under government attention.
3. If you are investing in a conditionally open business sector that only allows a minority share for foreign shareholders, the Local nominee as the majority shareholder will have full rights of ownership and run the decision-making process in the company, particularly if the nominee is acting as the director.
4. Another common practice a lot of small agencies is to establish the company under different business classification to obtain bigger foreign share and make all registration process more easy however this way will bring you problems later on once you apply for some licences such as business licence or import licence.
What are the ways to make the local nominee practice more safe without breaking the law?
Hence, if you are a foreign investor who wishes to invest in Indonesia and use a local nominee, we suggest you to combine some of these solutions:
1. Make a reliable, notarized set of agreements with the local nominee to cover all your rights. Cekindo provides you shareholder service using individual and corporate shareholders and appropriate set of agreements to protect your ownership with no breaking any Indonesian laws.
2. You may prefer to establish a Representative Office with 100% of ownership with not requirement for minimal capital however you can only perform research, marketing, and promotion activities. You are not allowed to generate revenue in Indonesia and all revenue have to go directly to the head office.
3. Have more local nominee shareholders from Indonesia to avoid one person from owning a majority share (with minimum 2 shareholders based on Indonesian regulation)
4. Withdraw money from the company in a regular basis
Cekindo will help you to combine the above mentioned options and prepare for you several agreements that will ensure the security of the investor’s rights over the company. Read more about our Cekindo package for Local nominee company in Indonesia
These should be signed by the investors and the local nominee to limit the authority of the local nominee over the company as well as to give more authority for the genuine owner over the company.
What will be part of Cekindo safe package of agreements to protect your ownership?
1. Call Option Agreement
The call option agreement is a legally-binding agreement between two parties, the buyer/nominee and the Seller Company, governing the terms of a call option. The buyer/nominee of the call option has the right (but not the obligation) to buy an agreed quantity of a particular commodity or security, for example shares in a company, from the Seller Company of the option within a certain time frame, for a certain price. The Seller Company is obligated to sell the predefined commodities or securities should the buyer/nominee decide to exercise the call option.
This call option agreement covers the standard terms of a call option, for example the option period, quantity and price of shares or security, and consideration for the call option, as well as a number of detailed additional clauses including but not limited to Representation and Warranties, Covenants and Settlement of Disputes.
As per the call option agreement:
- The Nominee grants to the Seller Company exclusive, irrevocable and unconditional rights to the Seller Company to purchase all, but not less than all of, the Options Shares (Call Option) at any time during the Exercise period.
- The Seller Company shall exercise the Call Option at any time during the Exercise Period by serving a Call Option Notice to the Nominee.
2. Letter of Indemnity
Letter of Indemnity is a legal binding letter between two parties, Seller Company and the Nominee, whereas the Seller Company pursuant to the execution of the Loan Agreement, cooperation agreement, pledge of share agreement, hereby agrees to indemnify, defend and hold harmless Nominee, his spouse and/or heirs (hereinafter collectively referred to as the “Indemnitees”)
- from and against any and all liabilities including environmental liabilities, losses, damages, penalties, judgments, claims, costs and expenses of any kind of nature whatsoever (including attorneys’ fees, including allocated costs of in-house counsel, and
- from disbursements in connection with any actual or threatened investigative, administrative or judicial proceeding, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by or asserted against such Indemnitee, in any manner relating to, arising out of, or as a result of Nominee being the shareholder of the Company, including but not limited to the tax payment obligations, save for the willful default and/or negligence of Nominee.
3. PoA to Vote and Sell
Through the POA to Vote and Sell the Nominee grants an irrevocable Power of Attorney to the Seller Company to Vote and Sell Shares with the right of substitution to:
- act on behalf of and in the name of the Nominee to sell and/or transfer the Shares which is hereafter owned or acquired in whatever form to any party or person whomsoever
- to receive the sale proceeds/selling price and give receipt therefore, to represent the Nominee wherever and towards any party or person whomsoever in any matter and act as shareholder,
- do everything necessary or considered necessary by the Authorized concerning the Shares without any exception.
4. Cooperation Agreement
Through the Co-operation Agreement Seller Company and Nominee agrees and acknowledges to co-operate in running the company, including the cooperation between the Seller Company and the Nominee for the purchase and management and selling of shares. Nominee and the Seller Company agree and acknowledge in the cooperation agreement among others the following key factors:
- that the Seller Company shall have the beneficial interests in the shares
- that the Purchase price of the shares paid by the Nominee shall be a debt to the Seller Company
- that in the event of issuance of new share by Seller Company, the Nominee shall have the sole right for subscription
- that the Nominee shall designate the Seller Company as his representative/proxy in exercising his rights on the shares.
5) Loan Agreement between Local Shareholder and Investor
Through Loan Agreement the Lender (Seller Company) has made available to the Borrower/nominee a facility of borrowing for the sole purpose of enabling the Borrower to fund the purchase of Shares.
In the agreement both the Lender (Seller Company) and the borrower/nominee acknowledge and agree that this Loan Agreement shall be a limited recourse loan agreement under which the Lender’s claim in respect of payment of the Loan here under shall be restricted to (i) net proceeds received by the Borrower/Nominee from the sale of all or any of the Shares, (ii) dividends on the Shares actually received by the Borrower/Nominee and (iii) net proceeds received by the Borrower as a result of the liquidation of the Company.
The Lender (Seller Company) and borrower further acknowledge and agree through this agreement that the Borrower may satisfy the Loan hereunder by tendering the Shares to the Lender. In such an event, the Lender may accept such tender or to designate a qualified party to do so. All net proceeds of the transfer of the Shares received by the Borrower/Nominee shall be paid over to the Lender upon which the Loan shall be deemed satisfied and the obligations of the Borrower hereunder extinguished.
6) Pledge of Shares Agreement
Through the Pledge of Share Agreement the Pledger (Nominee) and the Pledgee (Seller Company) have entered into a Loan Agreement pursuant to which the Pledgee has advanced loan to the Pledger for the purpose of acquiring shares. The loan agreement stipulates that the Pledger (Nominee) shall pledge the Shares in favour of the Pledgee (Seller Company) to secure repayment of the Loan and the Pledger’s performance of his other obligations under the Loan Agreement.
To secure the due, punctual and complete satisfaction of the Pledger’s ( Nominee’s) obligations to the Pledgee ( Seller Company) under the Loan Agreement, the Pledger Nominee through this Pledge of Share Agreement:
- pledges to the Pledgee (Seller Company) who hereby accepts the pledge from the Pledger (Nominee), all of the Pledger’s rights, title and interest in the Shares representing the issued and paid-up share capital of the Company shares and any supplement thereto (the “Pledged Shares”); and
- undertakes to the Pledgee (Seller Company) to pledge any other shares of the Company which the Pledger (Nominee) may at any time in the future own, including but not limited to any shares issued by virtue of shares dividends, bonus shares, created upon any option or otherwise (the “Additional Pledged Shares”), and as soon as the Additional Pledged Shares have been pledged, they shall be deemed to be Pledged Shares.
7) Director Appointment Letter
The Seller Company enumerates through the Letter of Appointment to the Nominee the following key factors among others:
- Appointment Period of the Nominee
- Remuneration of the Nominee
- Termination of the Nominee
- Maintaining the confidentiality between Seller Company and Nominee
- Dispute Resolution methodologies between the Seller Company and the Nominee.
You can download the detailed explanation about each of nominee agreement here.
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As a Market Entry Consultancy firm, Cekindo will provide you set of appropriate Nominee agreements include our individual and corporate shareholders to make sure you choose the safest way to engage a local nominee in Indonesia, you can also check our article about step by step start a company and complete business overview about our services. This service is annually (except set of nominee agreements) and will be extended as long as needed by our client.
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