MERGERS AND ACQUISITIONS IN TURKEY Handan Oktay-Weldishofer LLM (Mainz/Germany) Partner Legal basis Merger and acquisition transactions have not been regulated under a separate law, but depending on the nature of the transaction, different laws and regulations become applicable. For example while asset transfers are mainly subject to the provisions of Turkish Civil Code and Turkish Commercial Code, share transfers are subject to the Turkish Commercial Code, but if the company s shares are traded at the Stock Exchange, the provisions of Turkish Capital Markets Law has to be obeyed. On the other hand merger of the companies has been regulated by the Turkish Commercial Code and Turkish Code of Obligations. In addition to these main laws Turkish Labor Act, Turkish Competition Law, Tax Laws contain provisions governing mergers and acquisitions. Since Turkish Commercial Code and Turkish Code of Obligations recently changed, but not have entered into force yet, we will point out only the current legal status of the merger and acquisitions. Mergers and acquisitions according to the new Turkish Commercial Code and Turkish Code of Obligations will be explained in detailed in an another article in the upcoming issues. Applicable structures I. Mergers Two types of mergers could be accomplished according to Turkish Commercial Code: Consolidation and Absorption. Two or more companies would be merged by means of a consolidation if they merge under a newly established company. If two or more companies are merged into another existing company, this would be defined as absorption. According to the Turkish Commercial Code, merger is possible only if the legal status of the companies are the same. For example a joint stock company (Anonim Sirket in Turkish) can only be merged with a joint stock company. Therefore merger of a joint stock company with a limited liability company (Limited Sirket in Turkish) is not possible. 1
Following completion of the merger procedures, merging companies terminate without liquidation. Assets of the merging companies constitute a part of the capital of the absorbing company in case of absorption or entire capital of the new established company in case of consolidation. After the merger, all rights, obligations and the credits of the acquired company would be automatically ipso iure- transferred to the absorbing company or the new established company as a whole. The absorbing company or the new established company shall be deemed as successor of the acquired companies. The following steps have to be followed for merger of the companies: - Authorized bodies of each company must empower their representatives to draft and sign the merger agreement - Merging companies have to apply to the court for the determination that there exist no obstacle for the merger as well as the determination of the merging company s value - Merger agreement must be drafted and signed before the Notary Public - Shareholders of the merging companies must approve the merger agreement. If the merger is made by way of absorption, the shareholders of the absorbing company have to approve the capital increase arising from the acquisition as well. - Merger agreement and the balance sheets of each company must be registered with the relevant Trade Registry and published in the Trade Registry Gazette. In addition, the acquired companies have to publish a declaration showing how they would pay their debts. - Creditors of each company have right to object the merger before the competent court within three months following the publication of the merger decision in the Trade Registry Gazette. If no objection is made, the merger becomes effective three months following the publication. II. Acquisitions Acquisitions are mostly realized by means of share transfer, business transfer or asset transfer. 1. Share Transfer Acquiring shares of a company is subject to the provisions of Turkish Commercial Code. Method of share transfer varies depending upon the type of the company. To transfer shares of a Limited Liability Company, the transferor and the transferee have to sign a share transfer agreement before the Notary Public. The shareholders must then approve the share transfer and this resolution has to be registered with the Trade Register and be published in the Trade Registry Gazette. In joint stock companies, share transfer method differs whether the shares are bearer or registered. If the shares are bearer, delivery of the shares to the transferee is sufficient to affect the share transfer. Registered shares require endorsement and delivery by the transferor to transferee and share transfer has to be registered in the share ledger of the company. Provisions of the articles of association of the company have to be considered before affecting the share transfers, since it might contain some limitations or require fulfillment of some procedures (i.e. pre- 2
emptive rights of other shareholders, approval of Board of Directors). In addition to the above procedures as provided by the Turkish Commercial Code, it is also common to sign a Share Transfer Agreement, where the rights and obligations of the transferor and the transferee are defined in more detail and representations and warranties of the transferor regarding the shares and the company are stated clearly. Nevertheless, signature of the Share Transfer Agreement does not automatically transfer the shares and the related provisions of the Turkish Commercial Code as described above have to be followed to transfer of the ownership of the shares. 2. Business transfer Whole or part of a business of a company can be transferred to a third party. In case the whole of the business is intended to transfer article 179 of the Turkish Code of Obligations is applicable. In this case, rights and obligations related to the business would be transferred automatically to the transferee whereby both the transferor and the transferee will continue to be jointly liable against the creditors for the obligations arising from the business for a period of two years. On the other hand, the transferor shall be liable from the obligations of the business as of the date when he/she informed the transfer of business to the creditors or announced the same in the newspapers. 3. Asset transfer In order not to take over certain liabilities of the transferor, taking over some assets could be a solution under certain conditions. Depending on the type of the asset to be transferred, provisions of different laws are applicable. For example if there is an immovable within the assets to be transferred provisions of Turkish Civil Code has to be followed. According to this sales agreement has to be drafted by and concluded before the Land Registry. Or if a trademark would be transferred a separate trade mark transfer agreement has to be concluded and submitted to the Turkish Patent Institute. In practice a general asset transfer agreement is being drafted and on the closing day each asset is being transferred in accordance with the legal requirements for transferring the ownership of the respective asset. 4. A thin line between asset transfer and the business transfer In some cases transfer of some assets of a company is considered as business transfer under certain laws. Especially in cases where main assets of the company including the personnel would be transferred to the transferor shall be considered as transfer of business despite for example the obligations of the transferee would not be transferred. The main criterion is whether the transferee could continue to its activities and pay its debts after the asset transfer. If following the asset transfer, there would not be sufficient assets or if there would be no business to perform, as a result of which the receivables of the creditors cannot be recovered, then it is considered that the business is transferred. The following laws consider the transferee as the legal successor of the transferor in the above cases and therefore the transferor might hold liable for the obligations of the transferee despite such obligations have not been transferred: - Labour law Turkish Labour Law considers above mentioned transfers as "transfer of working place" in which case the transferor would be considered as the "successor" of the transferee. Therefore the transferee will be 3
liable for any kind of duties of the transferor arising from the employment agreements and Turkish Labour Code for the period before the transfer including the severance payment obligations. Authorizations I. Permission of the Turkish Competition Board - Turkish Bankruptcy and Execution Law If the debtors of the transferor are not informed of the transfer of the Business three months before the transfer, it would be deemed that the Purchaser knew that the Seller sold its assets against the interest of the creditors. If the debtors are not informed according to the procedure described in the law, asset transfer agreement shall be deemed null and void, in which case the debtors shall have the right to attach all transferred assets. The law provides the following alternatives to inform the debtors: a. Sending a letter b. Hanging a signboard at the company s premises stating that the business would be transferred and announcing the transfer in the Trade Registry Gazette c. If the above is not possible, by means of any kind of vehicle (i.e. announcement in the newspapers) informing all debtors regarding the transfer of Business - Law for Collection of Public Debts Transferee shall be deemed as legal successor of the transferor and could be hold liable for the debts of the transferor to government bodies, such as tax office, social security institute. It is not possible to exclude this liability by means of informing the related government agency about the transfer or making announcements or signing an agreement. According to Turkish Competition Act and its related Communiqué, in case - the combined aggregate turnover of the parties in exceeds TL 100 million and the aggregate Turkish turnover of each of at least two of the parties to the transaction exceeds TL 30 million, or - or if the worldwide turnover of one of the parties exceeds TL 500 million and the Turkish turnover of at least one of the other parties exceeds TL 5 million, the transaction must be subject to prior notification. The turnover thresholds are subject to revision by the Turkish Competition Authority every two years. The notification is not required if there is no affected market as a result of a transaction, nevertheless in case of a joint venture, even if the transactions exceed the turnover thresholds, For the purpose of calculating the thresholds any two or more transactions between the same persons or undertakings occurring within a two-year period shall be treated as a single concentration. 4
. II. Permission of Government Agencies Depending on the sector, in which the merger or acquisition would take place, prior permission of such authorities, i.e. Banking Regulatory and Supervisory Authority, Telecommunication Authority, Energy Market Regulatory Authority; has to be obtained before the closing of merger or acquisition transaction. Such authorities may also restrict provisions of the merger or acquisition agreement between the parties. III. Capital Market Board (CMB) s Permission If one the parties to the merger or acquisition is a listed (publicly held) company, some requirements of the CMB has to be fulfilled. In case of a merger, before submitting the merger agreement to the approval of the General Assembly, prior permission of the CMB has to be obtained. Provisions of the Communiqués of the CMB has to be applied for the calculation method of the assets, determining the new share capital of the merging entities and post-merger notifications. management control would be acquired, through block sale or series of sales, an offer to the other shareholders has to be made to buy their shares (Mandatory Tender Offer). Furthermore, if a party or parties acting together owns between 25%-50% of the capital and voting rights of the company, and intends to increase such rates by 10% or more within a 12 months period, such party or parties must also make a Mandatory Tender Offer. In case of existence of certain conditions, the CMB may grant exemption from the Mandatory Tender Offer obligation. Major changes in the assets and share structure of the company, that may affect investor s decisions, market value of the shares and all material issues regarding the company, its operations, subsidiaries and manager, have to be disclosed to the CMB and ISE. The ISE, then announce such changes in the daily bulletin to the investors. A list of the major changes has been announced by the CMB s Communiqués. For further information on Mergers & Acquisitions in Turkey please contact Ms. Handan Oktay Weldishofer at: howeldishofer@yamaner.av.tr If the acquisition would take place in the form of an allocated sale of shares, the sale has to be realized in the Istanbul Stock Exchange and its requirements must be fulfilled by the involved parties. In case of the an acquisition of 25% or more of the capital and voting rights or if 5