In general, shareholders can be defined as persons/legal entity who invest their capital in a limited liability or well known as the Company. The capital invested by shareholders is also called as shares. In the event of shareholdings, shareholders have several rights as stipulated in Article 52 Law No 40 of 2007 concerning Limited Liability (“Law 40/2007”) including:
- Attend and cast vote in the GMS;
- Receive dividend payment as the remainder of assets from liquidation;
- Exercise other rights under this Law.
Three shareholders rights which mentioned above, is a general shareholders rights. The rights as mentioned above may be owned by all of the shareholders as long as the company does not regulate or differentiate the rights of shareholders based on shares qualification. Each company can have more than 1 qualification of shares, each of which is entitled to a different shares qualification. In the prevailing regulations, shares qualification is regulated in Article 52 paragraph (1) Law 40/2007 as follows:
“Articles of association shall determine 1 (one) or more share classifications”.
Furthermore, Article 53 paragraph (2) and (3) Law 40/2007 mentioned that:
“Each share in the same classification provides its holders the same rights”.
“in the even that there are more than 1 (one) share classifications, the articles of association shall determine one of them as ordinary shares.”
Shareholders rights with different shares qualifications is determined in General Meeting of Shareholders (“GMS”) in company’s articles of association. GMS may determine that one of the shares qualifications does not have voting rights and other rights specified in the Law. This is regulated in Article 52 paragraph (3) Law 40/2007 as follows:
“the provision as referred to in paragraph (1), letter a and letter c, shall not apply for certain shares classification as stipulated in this Law.”
Referring to the provision above, in the event that shareholders does not have voting rights and other rights specified in the Law, the several consequences that may arise is as follows:
- May not request to conduct the GMS (Article 79 paragraph (2) Law 40/2007).
- The shareholders does not need to sign the GMS resolution in the event that RUPS was held in a circular manner (Article 91 Law 40/2007).
- May not to submit a claim to the Board of Directors and the Board of Commissioners which causes loss to the company due to their fault or negligence. (Article 97 paragraph (6) and Article 114 paragraph (6) Law 40/2007).
- May not to submit a proposal regarding the company’s dissolution (Article 144 paragraph (1) Law 40/2007).
In contrast to shareholders without voting rights, shareholders with voting rights can vote for the company’s interest including to exercise the rights mentioned above by taking into account the number of quorums. In the event that the quorum is sufficient and in accordance with the laws and regulations or the regulations in the articles of association, the GMS may decide to grant the decision given by the shareholders with voting rights.
In addition to the shares qualifications that can be determined without voting rights, a share can also be qualified based on preferences in receiving dividends and/or settlement in the event of liquidation. In addition to being entitled to receive dividends and liquidation proceeds, shareholders without voting rights still have shareholder rights as follows:
- Recorded its share ownership in the register of shareholders of the corporation;
- Transfer of shares with sale - purchase or grant; and
- Obtain regularly and timely the company's annual report.
Based on the explanation above, it is necessary to more deeply understand about the shares rights and the shares qualifications in the company's articles of association before taking over the shares rights. This can be done through prior legal due diligence to the takeover of shares in order to avoid future risks.
Author: Leonardus Agatha P., S.H., M.H.
This Article is generally made for the purpose of ANR Law Firm publication only and should not be treated as legal advice for your legal problem. Shall you have any further questions regarding this topic, you may contact the Advocate who authored this article at email@example.com.