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Due Diligence for Merger & Acquisition, Corporate Restructuring and Takeover
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EMLI Training-Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects

Materi Legal Due Diligence untuk perusahan tambang di Indonesia yang disampaikan oleh Bapak Dendi Adisuryo dalam acara Kursus Intensif Hukum Pertambangan. Acara tersebut di selenggarakan oleh EMLI Trainig, yang hingga saat ini telah memiliki 1000 Alumini dari berbagai jenis latar belakang.

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EMLI Training-Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects

  1. 1. Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects By: Dendi Adisuryo (ADCO Attorneys at Law) 1
  2. 2. AGENDA OF DISCUSSION  Introduction to acquisition  Acquisition deals flow  Stages in and Characterictic of mining projects  Roles of legal due diligence  Workflow of legal due diligence  Preparing due diligence checklist  Key areas for legal due diligence review  Corporate legal standing  Mining Concession  Compliance to requirement under mining laws and regulations  Third Party Comitment  Assets  Disputes  Overlapping matters Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 2
  3. 3. AGENDA OF DISCUSSION  Key areas for legal due diligence review  .....  Overlapping matters  Environment  Frequent findings  Preparing legal due diligence report  How LDD Report will affect the deal? Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 3
  4. 4. INTRODUCTION TO ACQUISITION WHAT’S THE ACQUISITION?  Acquisition may be defined as an act of one enterprise of acquiring, directly or indirectly of SHARES, voting rights, assets or control over the management, of another enterprise  Acquisition is a legal action taken by a legal entity or an individual to take over shares in a company which will change the control of the Company (Article 1 (11) of Company Law) Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 4
  5. 5. ACQUISITION RATIONALE  Enhance, build and preserve markets  Achieve rapid business growth  Secure new resources  Develop globally-competitive companies  Establish a new business unit  Supporting tools for core business unit INTRODUCTION TO ACQUISITION Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 5
  6. 6. ACQUISITION DEALS FLOW Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 6 Information memorandum Approach target Joint statement on terms and/or procedure Final acquisition agreement Confidentiality agreement Due diligence Closing
  7. 7. Parties Involved in Acquisition 2 Financing Buyer Seller Lead advisor Corporate Lawyer Due Diligence $ Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 7
  8. 8. Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 8 STAGES IN MINING PROJECTS Exploration / project evaluation Development and construction Production Sale and Marketing IUP Exploration IUP OP
  9. 9. Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 9 CHARACTERISTIC OF MINING PROJECTS Industry Characteristic: 1. Relatively high uncertainty and high cost 2. Unrenewable resources 3. Remote area 4. Environment impacts 5. Heavy regulated industry
  10. 10. Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 10 ROLES OF LEGAL DUE DILIGENCE Obtaining objective information Identifying legal risks Arguments for negotiations Transaction structuring Determining conditions precedent to transaction Determining holdback amounts in transaction
  11. 11. Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 11 LEGAL DUE DILIGENCE WORKFLOW START UP Management Meeting Information Gathering Analysis The Report  Term of Reference  Initial manageme nt meeting  Site visit  Reassure management that LDD will not disrupt commercial activities of the target  Establish timings and reporting  Review initial proposed transaction structure  Obtain person in charge in the data room  Gather info from dataroom/documen t provided  Gather info from internet and other resources  Close liaison with the target’s official  Gather info from financial/environm ent/technical counsel  Obtain infofrom government agencies  Site Visit  Legal issues  Legal consequences  Legal Solution  Clear, easily- read document  Address what the commercial people need to know  Timely manner  Good news is nice, but the truth is the aim  Presentation to client  Q & A  Next stage of the transaction Post Report
  12. 12.  What’s the DD check list?  When to be served?  Do we have to obtain all of the documents in the list? Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 12 LEGAL DUE DILIGENCE CHECKLIST
  13. 13. Obstacles to Due Diligence in Indonesia  No sophisticated public data base  Reluctance to present full package of documents  Delays in gathering and presentation of documents (from usually remote sites)  Differences: so many interdisciplinary issues (e.g. forestry, transportation, overlapping, counterfeited documents  More important than in developed countries – not purely a data room exercise  Legal uncertainty – clear title (in licenses, buildings, property)  Lawsuits: difficult to access  Representations and warranties may be useless because sellers are often “big” local person Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 13
  14. 14.  Corporate legal standing  Mining Concession  Compliance to requirement under mining laws and regulations  Third Party Comitment  Assets  Disputes  Overlapping matters  Environment Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 14 KEY AREAS FOR LEGAL DUE DILIGENCE REVIEW
  15. 15.  Corporate legal standing  Establishment  Capital structure (eg. change of capital structure, minimum capital requirement for PMA Co)  Shareholding composition  Company management  Authorities of management and corporate approval  Domicile of the company Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 15 KEY AREAS FOR LEGAL DUE DILIGENCE REVIEW
  16. 16.  Mining Concession  Issuer and date of issuance  Sequence of license, renewal or extension  Genuity of license  Clear and clean status  Expiry of license  Riights and obligation under the license  Location of the mine  Coverage area Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 16 KEY AREAS FOR LEGAL DUE DILIGENCE REVIEW
  17. 17.  Compliance to requirement under mining laws and regulations  Financial obligation (eg. dead rent, royalty, other PNBP)  Reporting obligation  Working plan and budget  Certain activity to be approved by issuer  Supporting licenses (eg. hauling road, jetty, stockpile)  Requirements under local government regulation (perda) Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 17 KEY AREAS FOR LEGAL DUE DILIGENCE REVIEW
  18. 18.  Third Party Comitment  Coal/mineral sale agreement  Exclusivity, duration, committed volume, price adjustment, payment methode, quality and quantity determination, exit clause  Services / contractorship agreement  Scope of work, service fee, fall and rise, exclusivity, evaluation based on performance indicator, parties responsibility  Joint Venture/Joint Operation/ Shareholder agreement  Scope of cooperation, parties’ responsibilities, rights of first refusal, quorum, minority vs majority roles, tag along vs drag along, capital injection, pre agreed matters, changes of control  Financing agreement  Indebted amount, security, prepayment, change of control, covenants, breach of agreements, debt reschedule / restructurisation  Marketing agreement  Exclusifity, commited amount, price determination, pre shipment payment, Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 18 KEY AREAS FOR LEGAL DUE DILIGENCE REVIEW
  19. 19.  Assets  Types of assets  Ownership title  Land compensation?  Encumbrances  Property rights  List of property – owned, occupied, leased  Supporting documents of ownership, occupation or leasing  Physical checking to BPN – Lurah for land properties  Appraisal or valuation of assets Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 19 KEY AREAS FOR LEGAL DUE DILIGENCE REVIEW
  20. 20.  Disputes  Court searches in PN, PTUN, PHI, P Niaga, BANI, PN Jakarta Pusat  Court search cannot reach potential disputes  Disputes in international arbitration forum?  Court search – must be authorized by the targeted company through a formal PoA  Cost may vary, depends on where, who, how big is the company, time frame  No full reliance to court search result  Potential dispute  Always asked for indemnity in the definitive agreement Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 20 KEY AREAS FOR LEGAL DUE DILIGENCE REVIEW
  21. 21.  Overlapping matters  Overlapping with other mining concession  Overlapping with HGU other right over surface land  Overlapping with forestry concession  Overlapping with other types of concession / license (eg. oil & gas)  Confirmation in form of:  Letter (unlikely)  Situation map (most common):  Sample of overlap with HGU  Sample of overlap with KP/IUP  Sample of overlap with forestry concession Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 21 KEY AREAS FOR LEGAL DUE DILIGENCE REVIEW
  22. 22.  Environment  AMDAL requirement – time line  RPL – RKL documents  Mining voids  Mining accidents  Environment claim  Review mining log book kept by Chief Mining Engineer (Kepala Teknik Tambang) Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 22 KEY AREAS FOR LEGAL DUE DILIGENCE REVIEW
  23. 23.  Corporate Matters  The shares have been transfered to other parties  Unreported amendment to the AoA  Approval from the Minister in place after issuance of the KP/IUP  Lack of deed of shares transfer  Absence of spousal consent  Lack of corporate approval for certain transaction  Absence of shareholder registry  Absence of annual general meeting of shareholders Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 23 FREQUENT FINDINGS
  24. 24. FREQUENT LDD FINDINGS  General matters  Lack of reports document  Absence of approved work plan and budget  Less payment of deadrent or royalty  Mining operation within forestry area without IPP  Mining operation within forestry area only based on “recommendation” from local government  Absence of environment regular report  Sale of coal under HBA price  SKAB (sale report) is significantly different with production report  No sale and purchase or right release documentation for land clearance  Land clearance conducted by other party other than IUP holder  Discrepancy in overlapping issues (especially related to overlap with forestry concession holder)  No financial statement  Target company has not submited any annual tax return Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 24
  25. 25. FREQUENT LDD FINDINGS  Contractual  Long-term contract with onerous provisions and no possibility to adjust  Contract with its affiliated party  Contracts with no-perfect provisions  Agreement to pay “royalty” to un-disclosed party  Exclusife offtake agreement or marketing agreement  One-sided services agreement  Service agreement not in line with Permen 28 / 2009  Long term coal sale contract with fixed / caped price Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 25
  26. 26. PREPARING LEGAL DUE DILIGENCE REPORT  Golden rules:  Findings  Legal consequences  Proposed action  A glancing through a LDD Report Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 26
  27. 27. HOW LDD REPORT WILL AFFECT THE DEAL?  Subtance of the report:  Information of the target company  Risk identification  What to do with the risk:  Transfer of risk  Limit the risk  Absorb the risk  Reject the risk Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 27
  28. 28. HOW LDD REPORT WILL AFFECT THE DEAL?  Target to be achieved in M&A deal negotiation  Price  Terms  Time frame  Warranties  Remedies Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 28
  29. 29. HOW LDD REPORT WILL AFFECT THE DEAL?  Drafting acquisition agreement  Definitions and Interpretation  Sale and Purchase  Consideration  Condition  Pre-Completion and Post-Completion Obligations  Completion  Warranties  Indemnities  Share Purchaser’s Undertakings  Security for Claims  Share Purchaser’s Rights to Terminate  Confidentiality  Governing Law and Dispute Resolution  Notices  Miscellaneous Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 29
  30. 30. The contents of this presentation are intended for informational purposes only and are not in the nature of a legal opinion or advice. They may not encompass all possible regulations and circumstances applicable to the subject matter and readers are encouraged to seek legal counsel prior to acting upon any of the information provided herein. © Adisuryo Prasetio & Co 2012 Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 30
  31. 31. Legal Due Diligence for Acquisition Deal in Indonesian Mining Projects 31 DendiAdisuryo Practice Description He specializes and has practical experience in energy and mining projects and the banking/finance sector. He also has broad experience in assignments related to foreign capital investments and corporate restructuring. Lawyer/Consultant Biographies Please contact us if you have any questions regarding our firm: Adisuryo Prasetio & Co Setiabudi Building 2 6th Floor Jl. HR. Rasuna Said, Jakarta 12920 Jakarta Selatan - Indonesia Telp: +6221-52903034 Fax: +6221-52903035 email: dendi.adisuryo@adisuryo.com
  32. 32. Legal Due Diligence of Mining Projects in Indonesia 32
  • formesaid

    Aug. 20, 2020
  • RobertHyndes

    Sep. 1, 2018
  • evascotto

    Jun. 3, 2017
  • RakhmadiKusumo

    Jun. 1, 2017
  • TAMMMI

    May. 31, 2017

Materi Legal Due Diligence untuk perusahan tambang di Indonesia yang disampaikan oleh Bapak Dendi Adisuryo dalam acara Kursus Intensif Hukum Pertambangan. Acara tersebut di selenggarakan oleh EMLI Trainig, yang hingga saat ini telah memiliki 1000 Alumini dari berbagai jenis latar belakang.

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