PT Sarana Menara Nusantara Tbk. ("SMN" or the "Company") was established in Kudus in 2008. The main focus of SMN is to perform investment activity in operating companies that specialize in owning and operating tower sites for lease to wireless communications companies. From 2008 until now, SMN's sole investment is the acquisition of 99.999% of the outstanding shares of PT Profesional Telekomunikasi Indonesia ("Protelindo"). As SMN's business activities are conducted primarily through Protelindo, the description of SMN's business will focus on the assets and operations of Protelindo. Any references to "our", "us", "we" or "the Group" refer to SMN and Protelindo on a consolidated basis.
Established in 2003, Protelindo is the largest independent owner and operator of towers for wireless communications companies in Indonesia. Protelindo's primary business is leasing space at its multi-tenant tower sites to all major wireless operators in Indonesia pursuant to long term lease agreements. This leased space consists of both vertical space on the towers as well as ground space at each site. Protelindo has the largest, newest and most expansive portfolio held by any independent owner and operator of towers in Indonesia. Furthermore, the majority of its towers are not located near other towers that provide the same services.
As at September 30, 2010, Protelindo owned and operated 4,828 towers in Indonesia, including 2,796 towers in Java, Indonesia's most densely populated island and where its capital, Jakarta, is located.
Protelindo's wide network of tower sites is able to address the needs of national, regional, local and emerging wireless communications companies and WiMAX operators. It operates independently from any wireless communications company and has a diversified customer base, which includes all major wireless communications companies in Indonesia, namely PT Telekomunikasi Selular ("Telkomsel"), PT XL Axiata Tbk ("XL Axiata"), PT Indosat Tbk ("Indosat"), PT Hutchison CP Telecommunications ("Hutchison"), PT Telekomunikasi Indonesia Tbk ("Telkom Flexi"), PT Bakrie Telecom Tbk ("Bakrie Telecom"), PT Mobile-8 Telecom Tbk ("Mobile-8"), PT Natrindo Telepon Seluler ("Axis"), PT Smart Telecom ("Smart") and PT Sampoerna Telekomunikasi Indonesia ("Sampoerna") and two Worldwide Interoperability for Microwave Access ("WiMAX") operators, namely PT First Media Tbk ("First Media") and PT Berca Global Access ("Berca"). Protelindo's network, together with the relatively diversified customer base among the major Indonesian wireless communications companies and WiMAX operators, provides it with a diverse source of new business opportunities.
A Master Lease Agreement, or MLA, sets forth the terms and conditions governing the underlying site leases with the counterparty thereto. Protelindo currently has MLAs with the ten major wireless carriers in Indonesia and with two WiMAX operators, all of which cover an aggregate of 7,996 site leases as at September 30, 2010 for a tenancy ratio of approximately 1.66:1.
Protelindo has significant incremental capacity on its existing tower portfolio to grow with additional colocations. Its tower portfolio has the capacity to add new colocation tenants and to install additional equipment for existing tenants on its towers. The leased space consists of both vertical space on Protelindo's towers, on which its customers can install radio frequency antennas and microwave antennas, as well as ground space at each site for shelters and cabinets that house electronic equipment and power supplies. Protelindo's customers require such equipment to be installed at numerous geographic locations across their targeted service areas in order to provide wireless communications services to their end users. Protelindo's customers lease incremental tower space from Protelindo as they seek to expand the coverage area of their wireless networks and/or improve their available capacity to service end users. Protelindo believes that it provides a mission-critical service due to the importance of a fully-functioning network as required by a wireless operator to adequately service end users.
For the year ended December 31, 2009, SMN recorded revenue, EBITDA and net income of Rp1,082.5 billion (US$121.3 million), Rp932.9 billion (US$104.5 million) and Rp589.5 billion (US$66.1 million), respectively.
For the nine months ended September 30, 2010, SMN recorded revenue, EBITDA and net income of Rp1,008.1 billion (US$113.0 million), Rp836.6 billion (US$93.7 million) and Rp70.8 billion (US$7.9 million), respectively.
Protelindo's year-over-year revenue increase was 397.3% from Rp104.7 billion (US$11.7 million) in 2007 to Rp520.6 billion (US$58. 3 million) in 2008 and 107.9% from Rp520.6 billion (US$58.3 million) in 2008 to Rp1,082.5 billion (US$121.3 million) in 2009.
The Group believes that Indonesia's tower industry presents significant growth opportunities, which are driven by favorable industry conditions, such as rapidly increasing mobile phone usage among the Indonesian population, increasing wireless access to data services including wireless internet, increasing use of "smart phones", the continued strong growth in the Indonesian economy and the resulting need to expand and improve network coverage and capacity by many wireless communications companies in Indonesia.
Protelindo's tower rental business is characterized by significant operating flexibility and low cash flow volatility. Its tower rental business has sustained its growth rate and generated predictable revenue and cash flows from existing customers due to the following characteristics:
A tower can be either self-supporting or supported by guy wires. There are two types of self-supporting towers: lattice and monopole. A lattice tower is usually tapered from the bottom up and has three or four legs. A monopole is a tubular structure that is typically used in places where there are space constraints or a need to address aesthetic concerns. Generally, a tower site consists of a compound located on the ground or rooftop which encloses the tower and an equipment shelter that houses a variety of transmitting, receiving and switching equipment used by wireless communications companies. Rooftop towers are more common in urban areas where tall buildings are generally available and high traffic density requires multiple towers. One advantage of a rooftop tower is that it can typically be installed without undergoing extensive permitting and approval processes. Moreover, the installation of free-standing tower structures in urban areas is often undesirable or difficult due to zoning restrictions, land availability and high site acquisition costs.
A tower's location, height and the loading capacity in terms of the number of antennae that can be supported by the tower at certain wind speeds determine its desirability to wireless communications companies. An antenna's height on a tower and the tower's location determine the line-of-sight of such antenna with the horizon. The technology and type of transmitting equipment used by the wireless communications company determines the transmitted signal distance. The specific equipment used by wireless communications companies is also an important factor in determining the requisite height for a tower. In light of the above factors, the tower's location is the most important factor in determining its desirability and functionality for a wireless communications company.
The pictures below illustrate the general structures of a free-standing lattice tower and a roof top based tower and their key elements.
Figure 1: Images of Protelindo's Rooftop and Greenfield Towers
Between establishment in 2003 and March 2007, Protelindo had an initial build-to-suit contract to construct and own 232 towers. It has grown significantly since the current senior management and advisory team took over management of operations in March 2007, increasing the tower portfolio from 232 towers to 4,828 towers as at September 30, 2010 through acquisitions and the construction of towers on a build-to-suit basis.
In 2008, Protelindo completed the acquisition of 53 towers from PT Indonusa Mora Prakarsa, and between May 2008 and March 2010, Protelindo acquired 3,603 towers from Hutchison pursuant to a tower transfer agreement. According to the Master Lease Agreement that was entered into in connection with Protelindo's acquisition of Hutchison's towers, Hutchison is the anchor tenant of these towers for an initial term of 12 years.
In addition to acquisitions, Protelindo continually seeks attractive opportunities to construct new towers for its customers to increase Protelindo's tower portfolio. Since 2007, it has built over 899 towers on a build-to-suit basis for several customers. As at September 30, 2010, Protelindo had existing orders to construct 288 towers for wireless communications companies such as Hutchison and XL Axiata. The actual number of towers built may be higher depending on acquisition opportunities and other potential build-to-suit contracts from wireless communications companies.
As at September 30, 2010, of Protelindo's tower portfolio, 4,126 towers were free-standing lattice ground towers, 664 towers were rooftop based towers and 38 sites were in-building repeater systems.
The most important factor that affects the demand for space on a specific tower is the location of that tower. Protelindo's tower portfolio is the largest, newest and most expansive portfolio in Indonesia of any independent owner and operator of telecommunications towers. The majority of Protelindo's tower sites are not located near competing tower sites. Accordingly, the Group believes that its towers are strategically located in the most populous regions to support growth in potential colocations.
Below is a map showing the distribution of Protelindo's tower sites in Indonesia and a table setting out the number of tower sites that it has in each of the major regions in Indonesia as at September 30, 2010.
Figure 2: Protelindo sites
Table 1: Number of tower sites by region
|Region||No. of Tower Sites|
|Bangka Belitung Islands||16|
(1) Protelindo has 477 towers in DKI Jakarta
Protelindo's extensive experience in the tower industry has helped tailor its services to the needs of wireless communications companies.
Protelindo rents space on its towers to all ten major wireless communications companies and two WiMAX operators in Indonesia. The towers are rented with accompanying ground space at each tower site for shelters and cabinets that house electronic equipment and power supplies.
Protelindo designs, builds (with the assistance of contractors), owns and operates its towers. It has developed an in-house expertise for certain value-added services that are offered to the wireless communications industry. As a provider of infrastructure systems with "end-to-end" design, construction and operating expertise, Protelindo offers its customers the flexibility of choosing between the provision of a full ready-to-operate network infrastructure or any of the value-added component services involved therein. Such services include site selection, site acquisition, site development and construction.
The senior management and advisory team of Protelindo has extensive experience in helping wireless communications companies design and engineer their networks around Protelindo's existing tower portfolio. It maintains sophisticated network design services primarily to support the site selection and construction of towers.
Protelindo engages in site acquisition activities for its own tower development purposes. Based on data generated in the network design and site selection process, a "search ring" is issued to the site acquisition department for verification of possible land acquisition candidates within the search ring. Most of the land rights upon which its towers are built are acquired through long-term ground leases with the land owner. Within each search ring, geographic information systems specialists select the most suitable sites, based on demographics, traffic patterns and signal characteristics. Once a site is selected and the terms of a ground lease for the site are completed, a survey is prepared and the resulting site plan is created. Applications are then submitted to the local authorities for the necessary permits and approvals. If the necessary permits and approvals are issued, a contractor on Protelindo's pre-approved list takes over the process of constructing the tower.
The senior management and advisory team has provided site development and construction services to the wireless communications industries in various countries, including the United States, Mexico, Brazil and Indonesia, for over 19 years. Accordingly, Protelindo has extensive experience in the development and construction of towers. Its site development and construction services include clearing sites, laying foundations and electrical and telecommunications lines, and constructing equipment shelters and towers through outsourced partners. Protelindo can provide cost-effective and timely completion of construction projects in part because its site development personnel are cross-trained in all areas of site development and construction and it relies on a pre-approved list of contractors who are based throughout Indonesia and who have undergone a thorough technical, financial and legal due diligence screening process with Protelindo and whom Protelindo periodically evaluates and reviews. Generally, it takes 30 to 60 days to set up a colocation and 120 to 180 days to complete a new build-to-suit tower. Protelindo has demonstrated the capacity to build up to 150 towers per month.
Protelindo has MLAs and associated site leases with all ten major wireless communications companies and two WiMAX operators in Indonesia. Protelindo receives lease fees for the rental of space on its towers from wireless communications companies. As at September 30, 2010, it had entered into 12 MLAs and signed 7,996 site leases thereunder. Since Protelindo only builds or acquires towers for which it has secured an anchor tenant, all of the operational towers currently have one or more tenants and thus all of these towers are generating revenue. Protelindo's anchor tenant customers include Hutchison, Telkomsel, Indosat, XL Axiata, Telkom Flexi, Mobile-8, Bakrie Telecom, Axis and Sampoerna. In addition, Protelindo is able to derive additional revenue from each tower by leasing the remaining available space to other colocation tenants, which include all of the major wireless communications companies in Indonesia and both WiMAX operators.
Protelindo's tenant site leases generally have initial non-cancellable terms of five, ten or 12 years with typical renewal terms of five, six or ten years at the option of the customer. The site leases are governed by an MLA entered into with the customer. Lease fees from customers are set forth in their respective MLA and are paid either annually, quarterly or monthly in advance based on the terms of the MLA. Wireless communications companies are expected to renew their sites leases with Protelindo because suitable alternative towers may not be available, and repositioning a tenancy site in a wireless operator's existing network is expensive and often requires reconfiguring several other towers within its network. Repositioning a tower site may impact the wireless communications company's network quality and coverage (causing network disruptions or blackouts) and may also require the wireless communications company to obtain additional governmental permits. Most of Protelindo's tenant site leases have escalation provisions that periodically increase a portion of the amount of rent due under the site lease. These automatic increases are typically annual and are based on the rate of inflation in Indonesia as measured by the increase in the consumer price index.
A substantial portion of Protelindo's existing and future revenues depend on the demand for rental space on its towers from colocation tenants in addition to anchor tenants of such towers. Protelindo actively markets its towers to wireless communications companies in Indonesia for the purpose of renting available space to these potential colocation tenants. The demand for rental space at Protelindo's towers from colocation tenants is influenced by several factors, including:
The number of tenants that Protelindo's towers can accommodate varies depending on the tower location, height, and structural capacity at certain wind speeds.
A significant number of Protelindo's towers have the capacity to hold additional equipment for new and existing tenants without the need to make capital investment to expand. Due to the expertise and experience of Protelindo's engineering team, nearly all of the towers can be upgraded to accommodate additional tenants. The costs to upgrade a tower are minimal, a portion of which may be shared with the customer, resulting in a short payback period for the net capital investment.
Protelindo's customers include all major wireless communications companies operating in Indonesia, namely Telkomsel, Indosat, Hutchison, XL Axiata, Telkom Flexi, Mobile-8, Bakrie Telecom, Axis, Smart and Sampoerna, and two WiMAX operators, namely First Media and Berca.
For the nine months ended September 30, 2010, four of Protelindo's customers each accounted for 10% or more of total revenues. The following table shows the percentage of revenue contribution of Protelindo's top six customers during the last three years.
Table 2: Revenue contribution of top 6 customers
|For the year ended December 31,||For the nine months ended September 30,|
As indicated above, approximately 94% of Protelindo's total revenues for the nine months ended September 30, 2010 were derived from six customers. In particular, Hutchison accounted for approximately 48% of that amount. Protelindo expects the proportion of revenues from Hutchison to decrease in the future as Protelindo's customer profile becomes more diversified, especially on the 3,899 towers on which Hutchison is already the anchor tenant. Protelindo is subject to certain risks as set forth in "Risk factors-Risks relating to the business-A substantial portion of Protelindo's revenue is derived from a concentrated number of customers" and "Risk factors-Risks relating to the business-Due to the long-term expectations of revenue from tenant leases, the tower industry is sensitive to the credit worthiness of its tenants."
Protelindo aims to provide suitable tower space in response to every request for installation it receives from a wireless communications company. It markets colocation tenancies available on towers to existing customers in order to maximize the number of customers installed on each tower. Protelindo's strategy is to estimate each wireless communications company's plan for network expansion and, using its proprietary software, determine which of its existing towers are within the area in which it believes its customers are looking to expand. Protelindo then provides each wireless communications company with a detailed analysis of its towers within the customer's expansion area and a financial comparison of the cost of leasing space on Protelindo's towers and the cost of building new towers. Protelindo believes that its proprietary database and ability to perform mapping and network design services provide key strategic advantages for acquiring additional leases through colocation.
Protelindo also develops marketing strategies specific to each wireless communications company and regularly meets with these customers' network design teams and equipment vendors to explain the value of developing their network based on Protelindo's tower locations. Additionally, Protelindo presents each wireless communications company with a timeline for implementing their colocation and the installation of their equipment and it strives to meet that goal in order to outperform its competitors. Protelindo's marketing staff undergo ongoing training in sales and mapping to maximize the colocation opportunities on its towers.
Protelindo competes with both independent tower operators in Indonesia, such as Tower Bersama Infrastructure, Solusi Tunas Pratama and Jaring Lintas Indonesia, as well as wireless communications companies which own and operate their own towers through their tower subsidiaries such as Tower Nasional, a tower operator formed by XL Axiata to manage its tower portfolio. Some of the large wireless communications companies in Indonesia, such as Telkomsel and Indosat, have recently begun leasing available space on their towers to other wireless communications companies.
Protelindo's strategy is also to focus on its ability to provide additional services and the superior quality of those services, as well as improved speed to market, to obtain colocation on existing towers.
Protelindo hires a large number of contractors in the areas of construction, consultancy, electrical connection, site acquisition, engineering, tower reinforcement, shelters, maintenance and security. These contractors are based throughout Indonesia and Protelindo believes that its contractor relationships give it access to some of the most qualified workers in Indonesia. Each of Protelindo's contractors undergoes a strict screening that involves technical, financial and legal evaluations before they are hired and each further undergoes periodical reviews as they continue to work with Protelindo. Based on the senior management and advisory team's extensive experience in the tower business, Protelindo has established a proprietary scope of work and quality control procedures for each of its contractors to follow. All contractors sign a standard umbrella contract under which specific assignments and prices are agreed to in individual purchase orders.
All maintenance activities for Protelindo's towers are performed under a proprietary scope of work that it has developed and is supervised by its management personnel. The day-to-day maintenance of the towers, which encompasses both preventive and corrective maintenance, is outsourced under short-term contracts on a fixed fee per month basis. However, individual site audits are conducted on a periodic basis to ensure quality control and to ensure that the towers are functioning properly and up to operating standards set by Protelindo.
Protelindo has an internal security team that implements a crisis management protocol in conjunction with its external security partners, which provide corporate risk management as well as field security services. As at September 30, 2010, Protelindo had contracts with 1,043 site keepers who monitor and manage its tower sites, as well as other partners with whom it has outsourced field security on a site-by-site basis. In order to ensure that its operations, maintenance and customer service are conducted in the most efficient manner possible, Protelindo groups its towers into regional clusters.
Protelindo is responsible for obtaining a ground lease, the right to use the land on which a tower is located, for each of its towers. Its ground leases typically run for 5 to 10 years, are paid in advance and include renewal options. As at September 30, 2010, Protelindo had 4,811 ground leases and the average remaining term of those leases (including the optional renewal terms) was approximately 12.6 years. The average ground space covered by its ground leases is 170 square meters.
Protelindo is also responsible for securing licenses for each of its towers. Please see the information regarding licenses set forth in "Risk Factors--Protelindo does not have, and may have difficulty obtaining, the required licenses and permits for some of its towers, and its existing licenses and permits may be amended or revoked or may not be renewed".
Pursuant to Government Regulation No. 27 of 1999 on Environmental Impact Analysis, environmental analysis is not required for the construction of new towers; however, Protelindo's operations are subject to other environment-related national and regional laws and regulations such as those regulating the use of hazardous material and waste. Protelindo's MLAs prohibit customers from using or storing any hazardous substances on tower sites in violation of applicable environmental laws and tenants are required to provide notice of any environmental impact resulting from their use of Protelindo's towers. Protelindo has monitoring in place ensure that applicable environmental laws are substantially complied with.
From time to time Protelindo is involved in various legal proceedings that arise in the ordinary course of business. While the outcome of those proceedings cannot be predicted with certainty, the Group does not expect any pending matters, if adversely determined, to have a material adverse effect on its financial condition or results of operations.
As at September 30, 2010, the Group had 251 employees.
Protelindo carries both property and earthquake insurance for its towers that are covered by Asuransi AIU Indonesia (American International Group) in the amount of Rp3,333 billion (US$373.5 million). Protelindo also carries terrorism and sabotage insurance covered by Asuransi Bintang Tbk in the amount of Rp3,333 billion (US$373.5 million) and public liability insurance covered by Zurich Insurance Indonesia in the amount of US$10 million. Protelindo considers such insurance coverage to be adequate and in accordance with customary industry practice.
The Group believes that the strengths outlined below set Protelindo apart from its competitors and are important differentiating factors in the implementation of its business strategies.
Protelindo's long-term site leases provide very stable and predictable recurring revenues, and therefore, a stable operating basis and predictable cash flow.
The Group believes that it has the ability to access the substantial capital resources required for tower construction and acquisition projects in the future. Protelindo has utilized financing from banks and private sources of debt and equity to meet its capital requirements.
The Group believes that Protelindo has an established reputation and track record in both the domestic and international financial markets. This enabled Protelindo to arrange a US$360.0 million and Rp1,180.0 billion facility in November 2008 during the global financial crisis. On May 27, 2010, Protelindo was able to refinance the loan arranged in November 2008 in the form of a US$375.0 million and Rp926.9 billion facility agreement. Moreover, on August 13, 2010 the US$375.0 million and Rp926.9 billion facility agreement was replaced by a syndication agreement amounting to US$363.0 million and Rp1,034.5 billion. The syndication agreement is, in essence, a refinancing of the agreement it replaced on the same terms save for the inclusion of more lenders into the syndication and redistribution of US dollar and Rupiah borrowings. The Group believes Protelindo's reputation and track record will assist it in accessing favorable financing terms going forward.
The Group is led by an experienced senior management and advisory team who are experts in the tower industry. Members of the senior management and advisory team are pioneers in the tower business, having started with Gearon Communications in 1991, one of the first businesses in the tower industry in the United States. Gearon Communications merged with American Radio in 1997 and began operating as American Tower Corporation, which has grown to be one of the largest tower operators in the world.
Several members of the senior management and advisory team are former employees and officers of American Tower Corporation who are accustomed to managing a public company listed on the New York Stock Exchange. These same individuals founded the international business operations of American Tower Corporation. While working at American Tower Corporation, members of the Group's senior management and advisory team helped to grow the business from 300 towers to more than 22,500 towers over a nine year period and operated towers for major wireless communications companies in the United States, Brazil and Mexico.
The Group believes that knowledge, experience and expertise that members of the senior management and advisory team gained while working at American Tower Corporation gives Protelindo a competitive advantage as it develops and expands its business in Indonesia.
Protelindo has MLAs and associated site leases with all major wireless communications companies and two WiMAX operators in Indonesia, including Telkomsel, Indosat, XL Axiata, Hutchison, Telkom Flexi, Mobile-8, Bakrie Telecom, Smart, Axis and Sampoerna. Protelindo also has MLAs with the leading WIMAX providers, First Media and Berca. Protelindo's strategy is to only build or acquire towers for which an anchor tenant is already secure. Moreover, Protelindo does not compete with its customers in the provision of wireless communications services. Accordingly, not only do all of the operational towers currently have one or more tenants and thus all are generating revenue, Protelindo is also able to derive additional revenue from each tower by leasing the remaining available space to other colocation tenants because Protelindo is not in competition with such operators.
The senior management and advisory team also helped develop the tower industry in Indonesia and has successfully acquired, developed and operated a large portfolio of towers throughout Indonesia. Protelindo started operations in 2003 as one of the first independent tower companies in Indonesia. The current senior management and advisory team joined Protelindo in March 2007 and, together with local employees and managers, have adapted and developed the tower business in Indonesia. Over the past three and a half years of operations, Protelindo has hired and trained over 250 full-time employees. The local managers and employees have an in-depth knowledge of Indonesian regulations and the customs and practices relating to the acquisition, construction, operation and maintenance of towers throughout Indonesia.
The senior management and advisory team has continually improved their own finance, marketing, construction and operations management systems over a decade working together and during which time it has overseen the construction and operation of over 35,000 towers in multiple markets worldwide.
In Indonesia, the senior management and advisory team has developed custom-built software specifically designed to support Protelindo's business processes. Software applications serve the finance, marketing, colocation, engineering, legal, property management, maintenance, construction and human resources departments and ensure that information is accurate and utilized in the most efficient manner.
Protelindo is an independent owner and operator of towers and is not owned by or affiliated with any wireless communications company. Independence is a significant advantage, as Protelindo's customers may be disincentivized to provide rental income for site leases to competitors in the wireless communications industry and would prefer to lease towers from an independent tower operator. In addition, Protelindo believes it provides its customers with more targeted and specialized services without bias towards any particular wireless communications companies. All of Protelindo's towers are available and have capacity for colocation without reservation of strategic sites.
Protelindo is the first significant-scale independent owner and operator of towers in Indonesia with long-term customer site leases with every major wireless communications company in Indonesia. It actively markets its existing tower space to new and current customers and has experienced a steady demand from colocation tenants.
The Group believes that Protelindo enjoys an "early mover advantage" as barriers to entry in the Indonesian tower industry are significant due to:
The Group believes that Protelindo's existing portfolio of towers is a platform from which it can further grow its business. Its tower portfolio is the largest and most expansive of any independent tower operator in Indonesia. This creates economies of scale with respect to its operations, such as tower maintenance and other operating expenses, and offers what the Group believes is a critical mass of towers to support the network requirements of Protelindo's customers.
The towers are also generally well placed in areas of high population density. Approximately 95% of Protelindo's towers are located in Indonesia's four most populated regions: Java, Sumatera, Kalimantan and Sulawesi. Approximately 58% of its towers are located on the Java island, which is the region with the highest population density in Indonesia.
The vast majority of Protelindo's towers have been recently built, with an average tower age of just over three years, and were constructed as multi-tenant towers to support equipment from multiple tenants. The majority of the towers are built for tenancy of four or more tenants, which can be added at minimal expense. As at September 30, 2010, the tenancy ratio was approximately 1.66:1.
The Group believes that Protelindo's extensive network of towers, the design and location of its towers, its broad customer base and resulting strong cash flow generation will allow it to strengthen its position in the Indonesian tower industry. The Group also believes that Protelindo's towers and sales initiatives are strongly positioned to capture large numbers of colocation tenants. The Group intends to utilize the following business strategies to strengthen its position in the industry, expand its network of towers and grow the number of colocation tenants.
The Group believes that Protelindo can grow its business substantially by leasing available space on its existing towers to multiple tenants, a concept referred to as "colocation." The costs of operating a tower are largely fixed. Accordingly, leasing available space to additional wireless communications companies will significantly improve Protelindo's operating margins and return on invested capital. The Group is exploring other expansion opportunities, including hosting on its towers equipment supporting new technologies such as 3G, 3.5G and WiMAX, which the Group believes could translate to additional colocation opportunities.
The Group also believes that Protelindo's ability to help wireless communications companies quickly enter new regional areas and expand network coverage and capacity will help increase its tenancy ratio. Therefore, the Group targets wireless communications companies that are expanding or improving their existing network infrastructure as well as those deploying new technologies. The Group believes that Protelindo has established a large enough tower base to sustain sufficient growth primarily through colocations.
Protelindo utilizes targeted sales and marketing techniques to increase the tenancy ratio on its towers through colocation and to identify desirable build to suit projects and acquisition opportunities. The Group believes that the key to success of that strategy lies in Protelindo's ability to develop and maintain long-term relationships with wireless communications companies and consistently meet customers' needs in terms of the timing and quality of the services provided. Our relationships with our customers are further enhanced by our desire to understand their network expansion needs and to deliver efficient and cost-effect solutions. Protelindo seeks to be recognized as a company that makes commercially reasonable commitments to its customers and then timely delivers on those commitments.
Historically, wireless communications companies constructed the vast majority of towers for their own use and outsourced only discrete aspects, such as site acquisition and construction. Recently, however, wireless communications companies have contracted independent tower operators, like Protelindo, to build and own towers and lease space on such towers under long-term lease agreements. These arrangements are known as "build-to-suit" arrangements.
Protelindo intends to grow its business by focusing its construction activities on such build-to-suit projects that meet minimum return criteria. Under those arrangements, Protelindo typically agrees to work with a wireless communications company to build and own a network of tower sites that are constructed in the wireless communications company's chosen locations. The wireless communications company then becomes the anchor tenant on those towers under a long-term site lease agreement. Protelindo does not construct towers without securing in advance a site lease with an anchor tenant. The Group believes that a factor in Protelindo's growth to date arises from the reliable construction of its towers.
Protelindo expects to build a significant portion of its new towers under such arrangements. It has demonstrated that it has the systems and processes in place to build up to 150 towers per month. By providing this service, Protelindo has the potential to increase the size of its tower portfolio and create additional revenue streams from both anchor tenants and colocation tenants.
Protelindo achieved its leading industry position in Indonesia through both tower construction and tower acquisitions and its future growth is partly dependent on its ability to continue to acquire new towers. Protelindo will continue to pursue strategic acquisitions that meet its minimum return criteria, including transactions with large wireless communications companies and smaller independent tower companies who seek to sell their towers.
Protelindo evaluates potential acquisitions using many criteria, including potential colocation demand, degree of overlap with its existing tower portfolio, tower location, tower design, existing capacity utilization, local population density and potential growth, environment and local government regulations relating to new tower development. Protelindo will continue to explore available cost-effective funding and effectively manage its capital structure.
In compliance with the capital market and stock exchange rules, as a public company, SMN has an Unaffiliated Director, Independent Commissioner, Corporate Secretary and an Audit Committee. At the same time, SMN also implements controls on Protelindo through Extraordinary General Meetings of Shareholders and its Board of Commissioners.
In accordance with Indonesian law, SMN has both a Board of Commissioners and a Board of Directors. The two boards are separate and no individual may serve as a member on both boards.
The rights and obligations of each member of the Board of Commissioners and Board of Directors are regulated by the articles of association (the "Articles") and by the decisions of shareholders in general meetings. Under the Articles, the Board of Directors must consist of at least two members, one of them will be appointed as the President Director. The President Director acting with another director can legally bind SMN. In the absence of the President Director, then any two of the directors can legally bind SMN. Under the Articles, the Board of Commissioners must consist of at least two members, and one of them may be appointed as the President Commissioner. All of the members of the Board of Commissioners must act together in order to act on or behalf of the Board of Commissioners.
The Board of Commissioners acts as an overall supervisory and monitoring body for SMN. Members of the Board of Commissioners cannot initiate action with regard to the management of SMN and it cannot legally represent SMN, unless in certain circumstances where all members of the Board of Directors are unable or legally prevented to do so.
The Board of Commissioners can only supervise the implementation of corporate policies decided or approved by the shareholders and provide advice to the Board of Directors on matters pertaining to the management of SMN.
Members of the Board of Commissioners are appointed and removed by a vote at the General Meeting of Shareholders. Currently, the Board of Commissioners is comprised of two members, including the President Commissioner.
The current members of the Board of Commissioners are as follows:
Table 3: SMN Board of Commissioners
|Name||Position||Age||Position Held Since|
|Martin Basuki Hartono||President Commissioner||37||November 2009|
|John Aristianto Prasetio||Independent Commissioner||60||November 2009|
Mr. Martin Basuki Hartono, born December 12, 1973, has been President of the Board of Commissioners since November 18, 2009 and is concurrently the President Commissioner of Protelindo. He has served as the Business Technology Director at PT Djarum since 1998, and has also worked in the Human Resources area at PT Djarum since 2002. Mr. Hartono graduated with a Bachelors Degree in Economics from University of California at San Diego, United States in 1996. He also obtained a Post Graduate Degree in Marketing and Strategy from Claremont Graduate University, California, United States in 1998.
Mr. John Aristianto Prasetio was appointed as an Independent Commissioner of SMN on November 18, 2009. He also currently serves as a Commissioner of PT CBA Asia, Jakarta, as an Independent Commissioner of PT Kalbe Farma Tbk., Jakarta, and as an Independent Commissioner of PT Global Mediacom Tbk., Jakarta. He began his career as a faculty lecturer in economics at University of Indonesia, Jakarta from 1971 to 1986. Afterward, he joined Prasetio, Utomo & Co., Jakarta from 1988 to 1999 as Managing Partner and then he moved to Andersen Worldwide, Singapore as Asia Pacific CEO/Area Managing Partner. From 2003 to 2004 he served as the Commissioner of Ernst & Young Indonesia in Jakarta and Senior Advisory Partner from 2004 to 2005. Mr. Prasetio graduated from the Program for Management Development at Harvard Business School, Boston, United States in 1980, after graduating with a degree in Economics from the University of Indonesia in 1973.
The Board of Directors is responsible for overseeing the day-to-day operations of SMN and making management decisions affecting SMN. The Board of Directors also works with key management personnel to formulate business strategy and to monitor and oversee its implementation. The President Director acting with another director has the authority to legally bind SMN in agreements with third parties.
Members of the Board of Directors are appointed and removed by a vote at the General Meeting of Shareholders. Currently, the Board of Directors is comprised of four directors, including the President Director.
The current members of the Board of Directors are as follows:
Table 4: SMN Board of Directors
|Name||Position||Age||Position Held Since|
|Adam Gifari||President Director||33||November 2009|
|Aloysius Moerba Suseto||Unaffiliated Director||56||November 2009|
|Kenny Harjo||Director||53||November 2009|
|Rinaldy Santosa||Director||42||June 2010|
Mr. Adam Gifari, born March 24, 1977, has been the President Director of SMN since November 18, 2009, and is concurrently the President Director of Protelindo. Mr. Gifari served in the Investment Banking Division of PT Andalan Artha Advisindo Sekuritas from 2003 to 2007 and prior to that served as a Research Analyst for PT Andalan Artha Advisindo Sekuritas from 1999 to 2002. Mr. Gifari graduated from the University of Indonesia in 1999 with a degree in Financial Management.
Mr. Aloysius Suseto has been the Independent Director of SMN since November 18, 2009. He is primarily responsible for overseeing SMN's compliance with prevailing regulations and laws. Mr. Suseto has enjoyed a long and successful career that has included positions with, among others: PT Toyota Astra Motor Jakarta from 1975 to 1976; PT Limatra, Jakarta as Electrical Engineer from 1976 to 1978; PT Unilever Indonesia, Jakarta with his last occupation as the Site Manager from 1978 to 1984; General Manager HRD of PT Indosat, Jakarta from 1984 to 1995; President Commissioner of PT Graha Lintas Property, Jakarta from 1995 to 1999; President Commissioner of PT Intikom Telepersada, Jakarta from 1997 to 2000; President Director of PT Sisindosat, Jakarta from 1995 to 1999; Commissioner of PT Pengembangan Pariwisata Sulawesi Selatan, Jakarta from 1999 to 2009; President Director of PT Hotel Indonesia Natour, Jakarta from 1999 to 2009. Mr. Suseto graduated with a degree in Technique Electro from the Bandung Institute of Technology in 1975 and with a degree in Economics from the University of Indonesia in 1978.
Mr. Kenny Harjo has been a Director of SMN since November 18, 2009 and is concurrently a Director of Protelindo. He is primarily responsible for overseeing SMN's financial matters. He also serves as a Commissioner of PT Ecogreen Oleochemichals, Jakarta (since 2004). Previously, Mr. Harjo served as an Auditor with Price Waterhouse & Co. in Pittsburgh, USA from 1981 to 1983; Senior Accountant of PT Marathon Petroleum Indonesia, Jakarta from 1985 to 1987; Deputy Controller of PT Kalimantan Plantation Development, Jakarta from 1988 to 1989; Deputy Director of PT Dharmala Group, Jakarta from 1990 to 2001, and Business Development Manager of PT Djarum, Jakarta from 2002 to 2004. Mr. Harjo graduated with a degree in Accountancy from the University of California, United States in 1980. He earned the designation of Certified Public Accountant from the State of Colorado and the State of Montana, United States, in 1984.
Mr. Rinaldy Santosa, born August 20, 1968, was appointed as a member of the Board of Directors in June 2010. Prior to joining SMN, he held management positions in the finance areas of multinational companies after working with PricewaterhouseCoopers for 9 years from 1993 to 2002. Mr. Santosa has a BA in accounting from Trisakti University and holds a masters degree in finance from University of Technology, Sydney, Australia.
SMN is committed to complying with Good Corporate Governance ("GCG") standards and principles as prescribed by the prevailing laws and regulations in Indonesia. SMN believes in the virtues of implementing GCG policies to the highest standards. SMN further believes that operating under GCG polices provides added value and protection, as well as transparency, to the shareholders and stakeholders. SMN's corporate governance framework provides for checks and balances while allowing management flexibility for prompt decision-making in the ordinary course of business.
Apart from simply complying with all legal and regulatory requirements, SMN strives to apply GCG practices as a key element to enhance its attractiveness and competitiveness in the domestic and foreign equity and debt markets. To provide accountability and transparency to the shareholders, SMN will deliver financial reports regularly as required by SMN's Articles of Association and capital markets laws and regulations. The reports include periodic financial reports to be delivered to Bapepam & LK and the Indonesian Stock Exchange ("IDX"), as well as other relevant reports as specified in the capital markets regulations.
SMN continues to monitor compliance with the principles of GCG as stipulated by the BAPEPAM & LK and IDX rules. In connection with the implementation of GCG principles in SMN's business and in accordance with the rules of the IDX and related BAPEPAM & LK rules, SMN has appointed and established the following:
In compliance with BAPEPAM & LK regulation No. Kep-29/PM/2004 of Rule No.IX.I.5 concerning the Establishment and Guidelines of the Audit Committee's working practice, SMN has established an Audit Committee that provides the Board of Commissioners with independent, objective assurance and consulting service that add value and improve the effectiveness of risk management, control and GCG as stipulated in the Audit Committee Charter.
In order to meet the requirements of BAPEPAM & LK and the IDX, on September 3, 2010 the Board of Commissioners appointed the following individuals as members of the Audit Committee:
Table 5: SMN Audit Committee
|Name||Position||Age||Position Held Since|
|John Aristianto Prasetio||Head of Audit Committee||60||September 2010|
|Anang Yudiansyah Setiawan||Member of Audit Committee||41||September 2010|
|Patricia Marina Sugondo||Member of Audit Committee||43||September 2010|
The duties of the Audit Committee include providing professional and independent advice to the Board of Commissioners and identifying matters that require the attention of the Board of Commissioners, including a review of the following: SMN's financial information (including financial reports and projections); the independence and objectivity of SMN's public accountant; the adequacy of SMN's public accountant's audits that all material risks have been considered; the adequacy of SMN's internal controls; SMN's compliance as a listed company with the prevailing capital markets regulations and other regulations related to SMN's business and SMN's internal auditors' duties. The Audit Committee also examines and reports complaints to the Board of Commissioners, maintains the confidentiality of documents, data and information relating to SMN, conducts audits of any alleged mistake in the resolutions of a Board of Directors' meeting or deviations in the implementation of the resolutions of such meetings.
In accordance with Indonesian law, Protelindo has both a Board of Commissioners and a Board of Directors. The two boards are separate and no individual may serve as a member on both boards.
Like SMN, the rights and obligations of each member of the Board of Commissioners and Board of Directors of Protelindo are regulated by its articles of association and by the decisions of shareholders in general meetings. Under the articles of association, the Board of Directors must consist of at least one member, and if more than one member is appointed, then one of them may be appointed as the President Director. The President Director can legally bind Protelindo or, in the absence of the President Director, any one director can legally bind Protelindo. The Board of Commissioners must consist of at least one member, and if more than one member is appointed, then one of them may be appointed as the President Commissioner. All of the members of the Board of Commissioners must act together in order to act on or behalf of the Board of Commissioners.
In general, the role of the Board of Commissioners is similar to the role described above for the Board of Commissioners of SMN. Members of the Board of Commissioners are appointed and removed by a vote at the General Meeting of Shareholders. Currently, the Board of Commissioners is comprised of two members, including the President Commissioner.
The current members of the Board of Commissioners of Protelindo are as follows:
Table 6: Protelindo Board of Commissioners
|Name||Position||Age||Position Held Since|
|Martin Basuki Hartono||President Commissioner||37||April 2009|
|Ario Wibisono||Commissioner||48||April 2009|
Mr. Martin Basuki Hartono, born December 12, 1973, has been President of the Board of Commissioners since November 18, 2009, and is concurrently the President Commissioner of SMN. He has also served as the Business Technology Director at PT Djarum since 1998, and has also worked in the Human Resources area at PT Djarum since 2002. Mr. Hartono graduated with a Bachelors Degree in Economics from University of California at San Diego, United States in 1996. He also obtained a Post Graduate Degree in Marketing and Strategy from Claremont Graduate University, California, United States in 1998.
Mr. Ario Wibisono, born July 3, 1962, has been a member of the Board of Commissioners since April 21, 2009. He was President Director of PT Andalan Artha Advisindo Sekuritas from 2006 until 2007 and a Director at PT Andalan Artha Advisindo Sekuritas from 1999 until 2006. Mr. Wibisono graduated with a Civil Engineering degree from the Institut Teknologi Bandung in 1985 and a Graduate Degree in Operations Management from the Institut Pendidikan & Pembinaan Manajemen, Indonesia in 1986.
The role of the Board of Directors is similar to the role described above for the Board of Directors of SMN. Members of the Board of Directors are appointed and removed by a vote at the General Meeting of Shareholders. Currently, the Board of Directors is comprised of four directors, including the President Director.
The current members of the Board of Directors of Protelindo are as follows:
Table 7: Protelindo Board of Directors
|Name||Position||Age||Position Held Since|
|Adam Gifari||President Director||33||April 2007|
|Guy Hamilton Eargle, Jr.||Director||62||August 2008|
|Kenny Harjo||Director||53||April 2009|
|Rinaldy Santosa||Director||42||June 2010|
Mr. Adam Gifari, born March 24, 1977, has been President of the Board of Directors since April 2007 and is concurrently the President Director of SMN. Prior to joining us, he worked at PT Andalan Artha Advisindo Sekuritas in the Investment Banking Division from 2003 to 2007, and as an analyst for the period of 1999-2002. Mr. Gifari graduated with a Bachelors Degree majoring in Financial Management from the University of Indonesia in 1999.
Mr. Guy Eargle, born August 5, 1948, has been a member of the Board of Directors since August 2008 and is concurrently the Managing Director of Protelindo. Prior to joining Protelindo, he was Vice President of Business Development at American Tower Corporation and Executive Vice President of American Tower Corporation's operations in Brazil from 2000 to 2007. Mr. Eargle studied Advertising at the University of South Carolina, United States.
Mr. Kenny Harjo, born September 6, 1957, has been a member of the Board of Directors since April 2009 and is concurrently a Director of SMN. He has also served as a member of PT Ecogreen Oleochemical's Board of Commissioners since 2004. Mr. Harjo was a manager of Non-Cigarette Business Development at PT Djarum for the years 2002 to 2004. Mr. Harjo graduated with a Bachelor of Arts in Accountancy from the University of Southern California, United States in 1980 and obtained his Certified Public Accountant designation in the State of Colorado, United States and the State of Montana, United States in 1984.
Mr. Rinaldy Santosa, born August 20, 1968, was appointed as a member of the Board of Directors in June 2010 and is concurrently a Director of SMN. Prior to joining Protelindo, he held management positions in the finance areas of multinational companies after working with PricewaterhouseCoopers for 9 years from 1993 to 2002. Mr. Santosa has a BA in accounting from Trisakti University and holds a master degree in finance from University of Technology, Sydney, Australia.
On March 8, 2010, SMN completed an IPO of its shares and is now listed on the IDX under the symbol "TOWR". The proceeds from the sale of shares by SMN in the IPO were injected by SMN into Protelindo, and further used by Protelindo for partial repayment of then existing debt. In the IPO, SMN offered 112,232,500 shares (11% of the outstanding shares) to the public at a nominal value of Rp. 500 with an initial offering price equal to Rp. 1,050 per share. All shares offered to the public have been registered with the Indonesian Securities Central Custodian pursuant to a Registration Agreement of Equity Securities.
Of the remaining 89.0% of the outstanding shares, as of September 30, 2010, 45.4% was owned by PT Tricipta Mandhala Gumilang ("TMG"), while 43.6% was owned by PT Caturguwiratna Sumapala ("CGS"). Both TMG and CGS are wholly owned by various members of the Hartono family.
The following diagram illustrates the current ownership structure of SMN and Protelindo as of September 30, 2010.
The following is a brief summary of material rights and restrictions related to SMN shares under applicable provisions of Indonesian law and the provisions of SMN's Articles of Association. The following summary description is not meant to be complete.
SMN is a limited liability company, duly established under the laws of the Republic of Indonesia. SMN was established pursuant to Deed No.31 dated 2 June 2008, made before Dr. Irawan Soerodjo, S.H., M.Si., Notary in Jakarta. The deed of establishment was ratified by the Minister of Law and Human Rights of the Republic of Indonesia ("MOLHR") pursuant to Decree number: AHU-37840.AH.01.01.Th 2008 dated 2 July 2008 and was registered in the Companies Register (Daftar Perseroan) No. AHU-0054707.AH.01.09.Tahun 2008 dated 2 July 2008, and in the Companies Registry pursuant to Law No. 3 Year 1982 concerning Mandatory Company Registration ("UUWDP") with TDP No. 22.214.171.124.00369 dated 15 July 2008. SMN's registered office is at Jalan Jend. A. Yani No. 19 A, Kudus, Indonesia, and its register of shareholders is maintained at its correspondence office at Artha Graha Building, 16th Floor, Jalan Jend. Sudirman Kav. 52-53, Jakarta, 12190 Indonesia.
There is only one class of shares in SMN, being common shares of par value of Rp500 each. The authorized share capital of SMN is Rp600,000,000,000 consisting of 1,200,000,000 common shares. The issued and paid-up share capital of SMN consists of 1,020,292,500 common shares.
SMN's activities are regulated by its Articles of Association and certain legislation, including legislation relating to telecommunications and capital markets.
To achieve its purpose and objectives, SMN may conduct businesses in the field of services and investments including but not limited to services of leasing and management of telecommunication towers, consulting services in the field of telecommunications installation, management consulting services, business administration, business and investment development strategy, and to conduct investments or share ownership in other companies. Supporting business activities of SMN include conducting business in the field of leasing and management of buildings, offices, apartments, condominiums and their facilities and providing consultant services in the field of construction.
The articles of association of SMN have been amended several times. The latest amendment of the Articles of Association was as set forth in Deed no.274 dated 26 March 2010, made before Dr. Irawan Soerodjo, S.H., M.Si., Notary in Jakarta. This amendment to the articles of association has been approved by the MOLHR pursuant to Decree number: AHU-AH.01.10-13487 dated 2 June 2010 and has been registered in the Companies Register (Daftar Perseroan) No. AHU-0041662.AH.01.09.Tahun 2010 dated 2 June 2010.
In general, any amendments to the Articles of Association of SMN can only be effected pursuant to a resolution at a General Meeting of Shareholders attended by shareholders or their proxies representing at least two-thirds of the total issued shares. Resolutions adopted at such a meeting must be approved by at least two-thirds of the total valid votes cast at the meeting.
Any amendment to the Articles of Association that would (i) change the Company's name and/or the domicile; (ii) modify its objectives and purpose and its business activities; (iii) change its term of establishment; (iv) change the amount of the authorized capital; (v) reduce the issued and paid-up capital; and/or (vi) change its status into a private company or vice versa will only be effective upon approval by the MOLHR. Any other amendments will only be effective after the issuance of letter of acceptance and notification from the MOLHR upon such amendment.
If a quorum is not obtained at a first meeting convened for such purpose, then no earlier than 10 days and no later than 21 days after the date of such original General Meeting, a second meeting may be held to render a legal and binding resolution on matters which were not resolved at the previous meeting. On the second meeting, shareholders shall be notified no later than 7 days before the actual meeting date exclusive of the date of notification and the date of the meeting. The second meeting must be attended by shareholders representing at least three fifths of the total issued shares, and resolutions adopted at such a meeting must be approved by more than half of the total votes present and cast at the meeting. If a quorum is not obtained at the second meeting, the Chairman of BAPEPAM & LK determines the timing of, the quorum required for and the number of votes required for a third meeting.
All transfers of SMN's common shares must be evidenced by an instrument of transfer signed by or on behalf of the transferor and by or on behalf of the transferee or based on other documents which give satisfactory evidence of such transfer in the opinion of the Board of Directors. In addition, any transfer of the SMN's shares must comply with rules and regulations applicable in the Indonesian capital market and of the IDX. Transfers of shares take effect only after the transfer is registered in the company's Shareholder Register. The transferor of any shares will be treated as the owner of such shares until the name of the transferee has been recorded in the Shareholder Register by the Board of Directors, through SMN's Share Registrar. Under the scriptless system, KSEI will be registered as the holder of the shares in the company's Register, in its capacity as the central securities depositary institution which holds the shares on behalf of KSEI participants which in turn hold the shares on behalf of shareholders.
The holders of shares whose names are recorded in the Shareholder Register are entitled to pre-emptive rights in the event that SMN issues new shares, convertible bonds, warrants or other securities convertible into equity securities. Such preemptive rights may be sold and transferred to third parties without the company's consent to the extent permitted by the rules and regulations applicable in the Indonesian capital market and of the IDX.
In accordance with BAPEPAM & LK Regulation IX.D.4 and as provided for in SMN's Articles of Association, SMN may increase its capital without providing a pre-emptive right to the registered shareholders or the beneficial shareholders to subscribe for securities, provided that such action is regulated under SMN's Articles of Association, with the following provisions:
Other than as described above, SMN's authorized share capital may be increased or decreased by a resolution of an Extraordinary General Meeting of Shareholders and amendment of its Articles of Association. Any such amendment will be effective only after obtaining approval from MOLHR. In the case of a decrease in SMN's authorized share capital, the approval from MOLHR may only be given if (i) approved by a General Meeting of Shareholders; (ii) there are no written objections from SMN's creditors; (iii) a settlement has been reached on any objection raised; and (iv) any creditors' lawsuit as the result of objections by creditors is rejected by a final and binding judgment rendered by the court.
Non-Indonesian investment in Indonesian companies may trigger shareholding limitations as governed under the investment law and regulations, in particular, Presidential Regulation No. 36 of 2010 regarding Lists of Business Fields That Are Closed to Investments and Business Fields That Are Conditionally Open For Investments (commonly known as the "Negative List"). The Negative List sets out the industries and business fields in which foreign investment is prohibited, restricted or subject to the fulfilment of certain conditions as stipulated by the applicable governmental authorities. As SMN is a public listed company involved in the telecommunications tower industry, the Negative List is applicable to it, however, the Negative List also provides that non-Indonesian investment in the form of indirect investment or portfolio investment where such transaction is carried out in the local stock exchange are not be covered by the Negative List restrictions. "Indirect investments or portfolio investments" are not defined under the Negative List or applicable regulations, however certain experts and investment practitioners view that "indirect investments or portfolio investments" are investments made through a stock exchange that do not rise to a controlling interest in a publicly listed company.
Each share entitles the owner thereof to cast one vote at a General Meeting of Shareholders. In the case of shares held by KSEI, prior to SMN taking corporate action, KSEI must provide details to SMN concerning the share entitlements of all the Beneficial Shareholders on whose behalf shares are held. A KSEI participant holding the shares on behalf of a Beneficial Shareholder is obliged to notify such Beneficial Shareholder of the potential exercise of any pre-emptive rights, delivery of annual reports and other notices issued by SMN as well as notices of General Meetings of Shareholders. Beneficial Shareholders or their legal representatives have the right to be present and vote at the company's General Meetings of Shareholders.
The Annual General Meeting of Shareholders must be held annually, and by no later than 6 months (June 30) after end of each financial year. At an Annual General Meeting of Shareholders, pursuant to the Company Law, the Board of Directors must submit an annual report which should include, at least (i) the annual financial reports; (ii) a report on the company's activities; (iii) a report in relation to the corporate and social responsibility implementation; (iv) details regarding any problems arising during the financial year which affected or affects the company's activities; (v) a report in relation to the supervisory duties which has been carried out by the Board of Commissioners during the preceding financial year; (vi) the names of the members of the Board of Directors and the Board of Commissioners; and (vii) the salaries and other remuneration for both the Board of Directors and the Board of Commissioners for the preceding year. Such annual report must be made available in SMN's office for inspection by any shareholder from the day such shareholder is notified of the Annual General Meeting of Shareholders through the date of the Annual General Meeting of Shareholders.
The Board of Directors and/or the Board of Commissioners and/or Shareholders may convene an Extraordinary General Meeting of Shareholders if required. An Extraordinary General Meeting of Shareholders must be convened upon receipt of written notice requesting a meeting from Board of Commissioners or one or more shareholders owning an aggregate of at least one tenth of the Company's subscribed shares with the total valid votes cast at the meeting. If neither the Board of Directors nor the Board of Commissioners convenes such a meeting within 60 days of receipt of such written notice, the applicable shareholders may call for a meeting at the Company's expense after obtaining the approval from the District Court having jurisdiction over the Company.
At least 14 days prior to the issuance of a notice for both Extraordinary General Meetings and Annual General Meetings of Shareholders (exclusive of the date of notification and the date of the meeting), an announcement must be made by placing an advertisement in at least two daily newspapers published in Indonesia, one of which must have a wide circulation in Indonesia, that a shareholders' meeting is to be called. Notice to the shareholders of the meeting must also be made by newspaper advertisement, as described above, published at least 14 days before the date of the meeting (exclusive of the dates of the notice and the meeting).
Generally, the quorum for an Annual General Meeting of Shareholders requires shareholders and/or authorized proxies representing more than 50.0% of the issued and outstanding shares with voting rights to be represented either in person or by a power of attorney at such meeting. The quorum requirement may be greater, depending on the nature of the resolutions to be considered at such meeting.
If a quorum for such General Meeting is not obtained, then no earlier than 10 days and no later than 21 days from the date of the original General Meeting, a second meeting may be held to render a legal and binding resolution on matters which were not resolved at the first meeting. The second meeting must be attended by shareholders representing at least one-third of the total issued shares.
Shareholders may be represented in a General Meeting of Shareholders by any person holding a power of attorney, provided that if the proxy is a commissioner, director or employee of SMN then the vote of any such proxy shall not be counted. In order to be adopted, resolutions must receive the affirmative votes of shareholders holding more than 50.0% of the shares which are either present or represented in the meeting (except for resolutions concerning certain transactions such as (i) the transfer or disposal of rights or encumbrances or the action to encumber all or more than 50.0% of the Company's total assets, (ii) amendments to the company's Articles of Association, or (iii) a merger, consolidation, acquisition and spin-off (iv) dissolution and liquidation, or (v) conflict of interest transactions, which have various voting thresholds above that level). In addition, for certain transactions involving a conflict of interest, approval from independent shareholders must be obtained in accordance with BAPEPAM & LK
BAPEPAM & LK Regulation IX.E.1 and IX.J.1 require that the General Meeting of Shareholders, attended by more than 50.0% of the non-conflicted Shareholders, approve transactions involving a conflict of interest with more than 50.0% of the non-conflicted Shareholders voting to approve. If the meeting fails to reach such quorum, a second meeting can be called with a same quorum requirement, and if this quorum is not reached again, BAPEPAM & LK's chairman shall determine any new quorum requirements.
The appointment of the Board of Directors and the Board of Commissioners is approved at a General Meeting of Shareholders.
SMN's financial year commences on January 1 and ends on December 31 of the same year.
Within six months after the end of each financial year, the Board of Directors must prepare SMN's annual report consisting of, among other things, an audited balance sheet and an audited profit and loss statement to be signed by all the commissioners and directors and approved by the shareholders at the Annual General Meeting.
Shareholders vote at the Annual General Meeting on whether to approve SMN's annual report, which includes its audited financial statements. Such approval discharges the Board of Directors and Board of Commissioners from any liabilities in respect of the annual report to the extent that their relevant actions are reflected in the annual report.
All of SMN's outstanding shares have equal rights and preferences, including the right to receive dividend distributions if and when declared by SMN. Pursuant to the prevailing laws in Indonesia and SMN's Articles of Association, SMN can declare and distribute dividends to shareholders based upon a recommendation from the SMN's Board of Directors and upon the approval of the shareholders at a General Shareholders Meeting. A decision of whether or not to distribute dividends and the amount thereof will rely on several relevant factors, including SMN's revenues, cash flow, liabilities, financial condition, investment plan and growth opportunities. There is no guarantee that SMN will declare and distribute any dividends, and the Board of Directors has the authority to adjust SMN's dividend policy at any given time.
A resolution for dissolution of SMN must be approved at a General Meeting of Shareholders attended by shareholders or their proxies representing at least three-quarters of the total votes cast at the meeting. In the event that resolution can not be reached through mutual agreement, shareholders or their proxies representing more than three-quarters of the total valid votes cast at the meeting may then decide on the final resolution.
In the event of the company's dissolution, liquidation must be undertaken by a liquidator in the case of the expiration of the term of the corporation or dissolution as a result of a resolution of the General Meeting of Shareholders or dissolution pursuant to a verdict of the Court. If the General Meeting of Shareholders fails to appoint a liquidator, the Board of Directors shall act as the liquidator.
The liquidator must notify the creditors by announcing the liquidation in the State Gazette and in daily newspapers published in Indonesia with national circulation as well as notify the Minister of Law and Human Rights, BAPEPAM & LK and/or its substitute pursuant to prevailing regulations.
The Company Law affords certain rights to shareholders, and certain additional rights to one or more shareholders collectively representing at least 10.0% of all voting shares of a company ("Minority Shareholders").
Under the Company Law, a shareholder generally has the right to lodge legal action against a company if it has been harmed by any unfair and unreasonable action the company has taken. In addition, each shareholder of a public company has the right to request the company to repurchase the shareholder's shares at the then prevailing market price if such shareholder disagrees with certain of the company's actions which harm the interests of such shareholder or the company. These actions include: (1) the amendment of the company's Articles of Association; (ii) transfer or disposal of rights or encumbrance of the company's assets of more than 50% of the company's net assets; or (iii) a merger, consolidation, acquisition, or spin-off of the company. Under the Company Law, the company may repurchase shares, provided that such repurchase (a) may not cause the company's net assets (as stated in its recent balance sheet, as approved by the shareholders within the last six months) to become lower than the issued capital plus the compulsory reserves already set aside, and (b) the total of the repurchased shares and the share pledge or fiduciary guarantee on the shares held by the company itself and/or other company which shares are directly or indirectly owned by the company, do not exceed 10% of the issued capital of the company, except as otherwise regulated by capital market regulations. To the extent that a request to repurchase shares exceeds these limitations, the company is required to seek a third-party purchaser for such shares.
Under Article 40 of the Company Law, shares repurchased by a company (1) may not be used to cast a vote in a General Meeting of Shareholders, (2) will not be counted in determining the quorum and (3) cannot receive any dividends.
SMN's Minority Shareholders have certain other rights. These include the rights to call a General Meeting of Shareholders in the event that the Board of Directors or the Board of Commissioners fail to convene such meeting within the stipulated time. Minority Shareholders also have the right to lodge a derivative action on the SMN's behalf against the directors or commissioners who, through error or negligence, have caused the company losses. Under the Company Law, directors and commissioners are obliged to act in good faith, with full responsibility and in the SMN's best interests when carrying out their corporate duties. The Minority Shareholders may request that SMN be examined by a court if there is suspicion that SMN has committed an act contrary to law which damages the shareholders or third party or if there is any suspicion that any of its directors or commissioners has committed an act contrary to law which damages SMN, the shareholders, or third party. Minority Shareholders may also apply to a court for the SMN's dissolution under certain circumstances as provided under the Company Law.