MERGER AGREEMENT. Article 1 :

Transcription

1 MERGER AGREEMENT This Merger Agreement is made by and between Efes Sınai Yatırım Holding A.Ş. ( Efes Sınai ) registered with the Istanbul Trade Registry Office under no having its principle place of business at Esentepe Mah. Anadolu Cad. No:1 Kartal Istanbul, on one hand, and Coca-Cola İçecek A.Ş. ( CCI ) registered with Istanbul Trade Registry Office under no having its principle place of business at Esenşehir mah. Erzincan Cad. No: 36, Ümraniye Istanbul, on the other, under the following terms and conditions. Article 1 : The Board of Directors of both CCI and Efes Sınai have deemed appropriate to propose, to their General Meeting, the merger between the two companies via acquisition of Efes Sınai by CCI without dissolution and as a whole, based on the authorities granted thereto under the decision of the Extraordinary General Meeting dated and with due consideration to their corporate operations under the following conditions, and in accordance with Articles 146, 151 and 451 of the Turkish Commercial Code, Articles 17, 18, 19 and 20 of the Corporate Tax Law No and the Communiqué of the Capital Markets Board on Merger Procedures. Article 2 : The merger shall be based on the financial statements dated 30 June 2006, and CCI shall acquire all assets and liabilities included in the balance sheet of Efes Sınai as a whole. As a result of the merger, Efes Sınai shall terminate without dissolution, and the assets of Efes Sınai shall pass to CCI without dissolution and as a whole, and CCI shall be the universal successor of Efes Sınai. Article 3 : CCI shall transfer all assets and liabilities of Efes Sınai which it has acquired as a whole, into its balance sheet, as they are. However, during such transfer, CCI s interest share in Efes Sınai shall be reduced. Article 4: The profits or losses arising from Efes Sınai s operations until the registration date of termination without dissolution shall remain with CCI and all accounts available on the date of termination without dissolution due to Efes Sınai s merger shall pass to CCI accounts as a whole. Article 5 : Efes Sınai and CCI shall submit to the Tax Office to which Efes Sınai is associated, the corporate tax return form of Efes Sınai which will be prepared and jointly signed by the two companies as of the transfer date, within the prescribed statutory timeframe following the registration of merger (registration of CCI s capital increase and alteration of the articles of association). The balance sheets concerning the transfer and income statements shall be enclosed with the tax return form of Efes Sinai which shall terminate without dissolution as a result of the merger. 1

2 Article 6 : CCI shall submit to the Tax Office to which Efes Sınai is associated, within the prescribed statutory timeframe, a letter of undertaking which ensures that CCI shall pay those tax liabilities of Efes Sınai that have accrued or shall accrue, and that it shall perform its other duties and obligations and provide sufficient amount of collateral upon request. In addition, the debts of Efes Sınai (which will terminate without dissolution as a result of merger) against third parties shall be paid by CCI in full and complete at their maturity dates in accordance with the relevant agreements and other regulations concerning the Turkish Commercial Code. The provisions of Article 451 of the Turkish Commercial Code on the responsibilities of CCI s Board of Directors shall be reserved. Article 7 : Te following documents have been issued in connection with the merger, based on the attached balance sheets prepared by the parties as of 30 June 2006: The Expert Report dated 20 September 2006 pursuant to the decision of the 14th Commercial Court of First Instance, Istanbul dated 20 June 2006 and numbered 2006/802, Expert Company Report dated 20 October 2006 and issued by İş Yatırım Menkul A.Ş., one of the Expert Companies designated by the Capital Markets Board, letter of the Competition Authority dated 22 June 2006 and numbered B.50.0.REK /421, and the authorization of the Capital Markets Board dated 9 November 2006 and numbered 48/1369. In this context; All Series 4 th Class C bearer shares to be issued by CCI due to the merger, each with a nominal value of 1 New Kurush, by increasing its capital up to YTL shall be distributed free of charge to the partners of Efes Sınai outside CCI in proportion to their respective shares on the transfer date. Accordingly, 1 CCI bearer share with a nominal value of 1 New Kurush shall be offered against 6, Efes Sınai shares with a nominal value of TL, and according to the foregoing conversion rate, nominal CCI shares of YTL 1, shall be offered against each Efes Sınai share with a nominal value of YTL 1. As a result of the conversion based on the foregoing rates, a fractional receipt shall be given to the shareholders who cannot buy a share with a nominal value of 1 New Kurush. In the event the value fractional receipts is increased to 1 New Kurush and submitted as such, they shall be replaced with CCI shares with a nominal value of 1 New Kurush. The fractional receipts shall give the shareholders the right to participate in the profits in proportion to the relevant fraction. After the merger, Class A preferred shares available to Efes Sınai and the rights in connection with these shares, as stated in the articles of association of Efes Sınai, shall not remain and become null and void upon termination of Efes Sınai without dissolution upon the merger. On the other hand, Class A and Class B preferred shares available to CCI and the rights in connection with these shares, as stated in the articles of association of CCI, shall remain as they are. 2

3 The conversion of shares shall start within 30 days following the registration of CCI s capital increase with the Trade Registry Office and shall be completed within the same period. Share distribution shall be made in materialized form and shall be announced with a Notice Concerning Share Distribution approved by the Capital Markets Board, in the Turkish edition of a paper and in one of the two local papers with the highest circulation, published and distributed in Istanbul where the parties have their headquarters, minimum two days in advance of the starting date of conversion. The merger shall be valid as from the date of registration of the decision of the general meeting (concerning the capital increase which CCI is required to make due to the merger) with the Istanbul Trade Registry Office and the shareholders of the merged company shall be entitled to receive dividend as from the accounting period when the capital increase made for the first time due to the merger was registered. Article 8 : Taking into consideration the increase of CCI capital to YTL due to merger, Article 6 Capital and Article 7 Types and Distribution of Shares of the Articles of Association of CCI shall be amended as follows: Capital Article 6: The company s capital is YTL This capital is divided into shares each with a nominal value of 1 New Kurush. These shares are classified into Class (A), (B) and (C). Class (A) and (B) shares are registered shares and hold the exclusive rights and concessions stated in this Articles of Association. Class (C) shares are bearer shares and hold no special rights and concessions. YTL representing the company s former capital has been fully paid up. The increased amount YTL has been met as a result of the merger carried out by acquisition of all assets and liabilities of Efes Sınai Yatırım Holding A.Ş. ( Efes Sınai ) as a whole within the framework of the Merger Agreement prepared in accordance with Articles 17, 18, 19 and 20 of the Corporate Tax Law No. 5520, Article 451 and other relevant articles of the Turkish Commercial Code and the provisions of the Capital Markets Board regulations. The Series 4 th Class C bearer shares, to be issued due to the merger, each with a nominal value of 1 New Kurush shall be distributed free of charge to the shareholders of Efes Sınai Yatırım Holding A.Ş. (other than those present at Coca-Cola İçecek A.Ş.) which will be liquidated as a result of the merger, in exchange for their current shares of Efes Sınai in accordance with the principles stated in the Merger Agreement. 3

4 In capital increases, shares shall be issued in proportion with the number of shares based on the class type which they belong to in order to represent the increased capital; in other words Class (A) shares shall be issued in proportion to the existing Class (A) shares, Class (B) shares in proportion to the existing Class (B) shares and Class (C) shares in proportion to Class (C) shares. In capital increases, the shares remaining after the exercise of pre-emptive right or, where exercise of pre-emptive right is restricted, all newly issued shares shall be Class (C) bearer shares provided that the issue shall be on the agenda and a clear decision shall be taken accordingly. The foregoing shares shall be offered to the public in accordance with the Communiqués of the Capital Markets Board at market price, provided such price shall not fall below the nominal value. The Board of Directors shall be entitled to combine and issue shares in coupons representing more than one share in accordance with the relevant regulations of the Capital Markets Board, keeping the same nominal values of the shares. Types and Distribution of Shares Article 7: The capital amount YTL fully consists of: Class A registered shares of YTL Class B registered shares of YTL Class C bearer shares of YTL Series 4 Class C bearer shares of YTL The shares shall be distributed among the shareholders as follows: Shareholder Number of Shares Anadolu Efes Biracılık ve Malt Sanayii A.Ş The Coca-Cola Export Corporation Efes Pazarlama ve Dağıtım Ticaret A.Ş Cemal Ahmet Bozer Other Number of Shares Depending on Fractional Receipt Class / Type of Shares Share Amount (YTL) Class A Shares ,0000 Class B Shares ,7860 Class A Shares ,0000 Class B Shares 18,8450 Class C Bearer Shares ,3690 Other Public Shares Class C Bearer Shares ,0000 4

5 Other Series 4 Class C Bearer Shares ,0000 TOTAL ,0000 Article 9 : Any legal rights concerning the brands, patent rights, models, drawings, special operational projects, patents, know-how, logos, and all types of intangible rights held by Efes Sınai shall be transferred to CCI as from the merger. Article 10 : The provisions of Article 445 of the Turkish Commercial Code shall govern the overdue debts of Efes Sınai which have not been claimed by the creditors along with its undue and/or controversial debts. Article 11 : The authorized personnel of the parties have agreed and undertaken that they shall fully perform the mutual obligations falling upon them due to the merger. The parties shall not make any claim against each other under any name whatsoever in the event the merger does not take place. Article 12 : Efes Sınai shall terminate on the date of registration of the decision of the general meeting concerning the capital increase CCI is obliged to make due to the merger, with the Istanbul Trade Registry Office, and when the conditions stated in Article 449 of the Turkish Commercial Code are satisfied, the registers of Efes Sınai available at the relevant Trade Registry Offices shall be cancelled. Article 13 : This Merger Agreement has been issued and executed in one original version, and shall enter into effect after being approved at the general meetings of the parties. The parties boards of directors shall be obliged to invite the shareholders to the general meeting to approve this Merger Agreement within 3 months following its approval by the Capital Markets Board. In the event the general meetings of the parties are not held within such period, this Merger Agreement shall be null and void together with all consequences. Istanbul, 8 November 2006 Transferee: Coca-Cola İçecek A.Ş. Transferor: 5

6 Efes Sınai Yatırım Holding A.Ş. ANNEX : Financial statements and balance sheets dated 30 June