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Mart 11, 2019

Mergers & Acquisitions 2019 | Turkey

M&A & Corporate

Relevant Authorities and Legislation 

1.1 What regulates M&A? 

Mergers and acquisitions are regulated under the Turkish Commercial Code (TCC) No.6102. Pursuant to the TCC, companies can be merged in two ways: firstly, the acquisition of a company by another company, technically called a “Merger By Acquisition”; and secondly, the union of multiple companies under a new company, technically called “Merger By Formation Of A New Company”. 

Although mergers and acquisitions in Turkey are subject to the provisions of the TCC, the provisions of other legal regulations such as the Turkish Code of Obligations No.6098; the Capital Markets Law No.6362; the Law of the Protection of Competition No.4054; and the Labor Law No.4857 shall be taken into consideration during each process of the mergers and acquisitions. When required in the specific regulations within the scope of the company type and actions, permission from the institutions such as the Energy Market Regulatory Authority, Competition Authority and Capital Markets Board shall be obtained.

1.2 Are there different rules for different types of company?

Under Turkish Law, companies are divided into two groups: namely, Stock Company; and Private Company. A Stock Company can be a Joint Stock Company, or a Limited/Commandite Company. A Private Company consists of an Ordinary Company, Limited Liability Partnership, or General Partnership.

The TCC examines mergers in three categories. Accordingly, the TCC specifies the conditions under which companies can be merged with others. Pursuant to Article 137 of the TCC entitled “Valid Mergers”, the following can be merged:

  • Stock Companies with a) Stock Companies, b) Cooperatives, and c) Collective or Cooperative Companies on the condition that the company is a transferred company.
  • Private Companies with a) Private Companies, b) Stock Companies on the condition that the Private Company is an acquired company, and c) Cooperative Companies on the condition that the Private Company is acquired.
  • Cooperatives with a) Cooperatives, b) Stock Companies, and c) Private Companies on the condition that the Cooperative Company is a transferred company.

In addition, there are special arrangements within the scope of the Publicly Held Corporation, one of the types of Joint Stock Companies. Namely, except the shareholders whose shares are traded on the stock market and the shareholders who collect money from the public through crowd-funding, the number of shareholders exceeding 500 shares in the Joint Stock Companies are considered to be public offer. In this context, except for those collecting money through crowd-funding platforms, Joint Stock Companies whose shares are publicly offered or considered to be offered public, are Publicly Held Companies.

In addition to the TCC regulations for mergers and acquisitions for Publicly Held Corporations, pursuant to the Capital Market Law No. 6362; the Provisions of Communiqué on Merger and Demerger No. ||-23.2 which regulates the procedures and principles to be followed in the merger and division procedures where at least one of the parties is a public-held cooperation, shall be applied.

It should be noted that the merger process is specified as among one of the important transactions of Publicly Held Companies. In this context, the Communiqué on Common Principles Regarding Significant Transactions and the Retirement Right No. II-23.1 should be considered.

As mentioned above, transactions carried out for Publicly Held Companies without the relevant requirements shall be abolished by the Board. In this context, an administrative fine shall be imposed and the lawsuit shall be filed within the frame of the provisions on annulment of the resolutions of the general assembly of the TCC.

1.3. Are there special rules for foreign buyers?

In accordance with the Foreign Direct Investment Law No. 4875 which regulates the principles for promoting foreign direct investment, there is no special regulation within the scope of specific legislation. For foreign buyers, there are equal opportunities and the same rights with domestic buyers. Moreover, they have also financial and tax advantages compared to domestic buyers.

1.4 Are there any special sector-related rules?

In general, mergers and acquisitions are performed when the conditions are provided in accordance with the TCC and other related Turkish legislations. However, some sectors are subject to specific rules, especially in banking, energy, insurance, telecommunications and similar sectors. Permission may be required by applying to institutions such as the Banking Regulation and Supervision Agency, the Energy Market Regulatory Authority, the Competition Authority, the Capital Markets Board and the General Directorate of Civil Aviation.

1.5 What are the principal sources of liability?

The primary liabilities of the transfer of the commercial enterprises are regulated in the Turkish Code of Obligations and the TCC. In accordance with Article 202 of the Turkish Code of Obligations, the legal entities who transfer the company and transferee, have joint responsibility for two years together.

Pursuant to Article 153 of the TCC, the merger becomes effective by registering to the trade registry. At the time of registration, all the assets and liabilities of the acquired company pass automatically to the buyer company. The partners of the acquired company become the partners of the transferee company. The merger decision is also announced in the Turkey Trade Registry Gazette.

Pursuant to Article 158 of the TCC, the shareholders that are responsible for the debt of the transferred company before the merger have a liability for the same after the merger. The requests for the personal responsibility of the partners arising from the debts of the transferred company are subject to statutory limitation after three years from the date of the announcement of the merger decision. If the assets become due after the date of announcements, the statutory limitation period starts from the due date. This limitation does not apply to the responsibilities of the partners who are personally responsible for the debts of the acquiring company.

Mechanics of Acquisition

2.1 What alternative means of acquisition are there?

The acquisition of a company could be realised by the way of a purchase of some or all shares of the company by the other company and by the way of the merger or demerger of the company. All the processes and methods of the acquisition, including the information regarding the documents, should be submitted to the Turkish Trade Office and other authorities, having been arranged by the TCC.

2.2. What advisers do the parties need?

The companies generally need support on the drafting and reviewing of agreements, the negotiation of the merger (acquisition) of the company, legal consultancy regarding due diligence, a detailed, comprehensive and specific review of the tax and financial position of the company, and preparation of the reports within this scope.

2.3. How long does it take?

Within the scope of the TCC, there is no specific period for this process. This period varies according to the size of the buyer and seller companies, point of view, structure of the agreement and the duration of the agreements to be executed. The process begins with the buyer’s offer and continues into the due diligence reports, negotiations, and if required, obtaining the permits from the relevant institutions, etc., until the completion of the process.

2.4 Whatare the main hurdles?

Different problems may arise in the merger and acquisition processes. Several of them are mentioned below:

  • in some cases, slow progress of processes due to bureaucracy;
  • failure to obtain necessary permissions within the scope of the merger and acquisition from related institutions;
  • whether the merger is necessary or not has not been sufficiently analysed;
  • to choose the wrong company as the target for the merger and acquisition, not having enough preliminary work on this issue; = not being cautious in evaluating the valuation of the company to be acquired; and
  • failure to obtain certain information on time due to insufficient analysis of the target company.

2.5 How much flexibility is there over deal terms and price?

Parties are free to deal with the price in the mergers and acquisitions of the companies, and there are no obstacles with regard to Turkish law. Financial and legal due diligence on the target company has great importance in order to determine the parties’ trumps in the purchase and mergers. As we know, with the due diligence period, the deficiencies are determined accordingly and the prices negotiated will be based on those results.

2.6 What differences are there between offering cash and other consideration?

In Turkish Law, although there is no legislation for that, it is common to pay cash. In addition, it may be possible to put the real capital in the merging company in case of merger.

2.7. Do the same terms have to be offered to all shareholders?

The basic principle accepted in the TCC is the continuation of the privity. Within this rule, each partner of the assignee company has a right to request their shares and rights – that would correspond to the current privity shares and rights – from the transferee company. TCC 140/1 is in favour of all the partner companies in cases of mergers and acquisitions as new establishments. While determining the assignee company’s shareholders’ scope of request of the given rights (alteration rate), the calculations will be made according to the real value of the companies by taking all the important aspects into consideration. The legislator clearly mentioned the aspects considered important, the value of the attending companies’ property holdings and distribution of the rights to vote. The shareholders of the assignee company keep their partnership position in the transferee company within certain alteration ratios. Nevertheless, according to Article 141 of the TCC under the caption “quit reserve’, there is an exception to this rule. According to the exception, the shareholders might be eligible for the real value of the shares as a quit reserve instead of the shares they would obtain in the transferee company (Mandatory Quit Reserve – TCC 141/2); or the choice of shares or quit reserve might be left to the shareholders (Optional Quit Reserve-TCC 141/1).

2.8 Are there obligations to purchase other classes of target securities?

Unless otherwise stated in the AoA of the target company, there is no legal obligation to purchase other classes of target securities in the Turkish Law system.

2.9 Are there any limits on agreeing terms with employees?

According to Article 158 and 178 of the TCC, in case the workplace is transferred partially or completely, the employment contracts of the seller are transferred with all the employees with all rights and obligations to the buyer provided that all employees do not object to this period. In case the employee objects, the period of the employment agreement will be terminated at the end of the legal notice period.

2.10 What role do employees, pension trustees and other stakeholders play?

Unless otherwise stated in the AoA, employees, pension trustees and stakeholders do not play an active role in the acquisition process. However, as stated in question 2.9, the employees have the right to object the transfer to the buyer company.

2.11 What documentation is needed?

Generally, the due diligence requested documents are delivered by the seller to the buyer in order to commence the process. Also, a letter of intent and a promise of sale or confidentiality agreement are signed between the parties. In case the buyer accepts to buy the shares of the company, the Share Purchase Agreement or Merger Agreement and then the Shareholders Agreement are signed between the parties. If required, the AoA are amended by taking a General Assembly resolution and by the registration of this decision by the Trade Registry. Also, the submission of the Merger Agreement, Merger Report and last balance sheet are required by the Turkish Trade office.

2.12 Are there any special disclosure requirements?

Only Publicly Held Companies have the obligation of disclosure in the process of mergers and acquisitions. In the event that the company is a Publicly Held Company, investors have to publicly announce important material events that may directly or indirectly affect capital market instruments. The following are to be announced in public companies: take the decision of the merger or division process; apply to the Board regarding the merger or division process; signing of the expert opinion; signing of the merger or division agreement or the division plan; preparation of the merger; or division report.

2.13. What are the key costs?

The main cost is stamp tax for the acquisition process. Tax is updated every year for each original document. VAT can be applied for asset transfers and income/corporation tax may also be applicable depending on some of the transfer characteristics. In addition, there should be a consultancy fee, and notary, translation, trade registry application fees, etc., regarding all these transactions.

2.14 What consents are needed?

As per Article 12 of Communiqué No. 2010/4 the mergers and acquisitions transaction which are in the scope of the Communiqué, should be approved by the Competition Board. Therefore, if the relevant turnovers of the parties exceed the amounts specified in the M&A Communiqué, it is essential to obtain the approval of the Competition Board by presenting all the necessary documents of the parties with their financial and legal information. With respect to the regulatory approvals, depending on the sector and the kind of target company, the approval of the EMRA, the Banking Regulatory and Supervisory Board, the Radio Television Supreme Council, the Information and Communication Technologies Authority, the Capital Markets Board, or the Ministry of Trade and Industry, will be required.

2.15 What levels of approval or acceptance are needed?

The mergers and acquisitions to be notified to the Competition Board in accordance with the procedures are negotiated by the Board within 15 days

following the preliminary examination. As a result of the negotiation, the Board shall permit to perform the operation or start a final investigation. In the case of a final decision, the Board has the right to take the necessary measures related to the transaction. Mergers and acquisitions which are not reviewed within 30 days from the application date are deemed to be authorised and these mergers and acquisitions shall be legally valid.

In the event that the mergers and acquisitions are not notified, the Competition Board shall examine the transaction in case the Board informed of such mergers or acquisitions. If the transaction is not considered to be contrary to the Communiqué No. 2010/4 as a result of the examination, the transaction will be allowed, but a penalty shall be applied to the company as there is no notification. In case the transaction is deemed contrary to the Communiqué, the Board takes the necessary measures to initiate and start the investigation.

2.16 When does cash consideration need to be committed and available?

Principally, cash consideration needs to be committed as of the execution of the share purchase agreements and it needs to be available on the closing date of the M&A transaction. However, this matter and the conditions of the cash should be determined in the agreement signed between the parties.

Friendly or Hostile

3.1. Is there a choice?

The merger decision is taken separately by the general assemblies of the merged companies. Most mergers and acquisitions occur as a result of mutual agreement in the business world. In such cases, both parties have the opportunity to evaluate the costs and interests, assets and liabilities and to progress with full information of the risks and profits. However, intercompany mergers do not always occur as a result of mutual agreement and intent. The target board may oppose the buyer’s offer to take over due to the low purchase price proposed by the buyer, or fear of losing the management and control of the company.

3.2. Are there rules about an approach to the target?

Legal provisions on how the mergers and acquisitions will be carried out are regulated under the TCC in the first instance, as well as the other specific laws. Additionally, since the mergers and acquisitions process is considered as a project, first of all due diligence and risk management projects shall be carried out for companies that are merged, in order to define all the risks and processes regarding the legal, financial, operational and commercial issues in advance. Therefore, within the scope of the approach to the target, the process should not be considered only as a legal process, but as a process that is prepared, carried out and finalised by expert lawyers, and financial, technical and relevant consultants working intensively.

3.3. How relevant is the target board?

Mergers or acquisitions may have more than one reason. One of the reasons why companies are involved in this process is to take advantage of expanding and maintaining their customer portfolio. In this process, legal risks are considered together with the acquiring company, then the principal contracts and related documents to be signed regarding the M&A process will be prepared. The decision on M&A takes effect when decided by the board of directors of each company and with the merger agreement, the merger report, the financial statements of the last three years and the annual reports of the companies by the approval of the General Assembly. Otherwise, the M&A agreement shall not be signed and the M&A process will not be valid as it cannot be registered and announced before the Trade Registry Office. In this context, the board of the target company is required to make decisions of the same nature, otherwise there is no valid and binding M&A process.

3.4 Does the choice affect process?

The approaches and proposals of the willing company regarding the M&A process also have significant importance. Moreover, without the cooperation of the target company, the offeror company’s investigation will be limited to the review of public information; therefore, a friendly approach and finalisation of the M&A process in cooperation and coordination will affect the transactions positively.

Information

4.1. What information is available to a buyer?

The seller may not allow all information to be given to the buyer, but the buyer may still have some information especially by reviewing the Chamber of Commerce for obtaining the details of the company, especially the company’s the AoA and any documentation relating to the registration, which could also be examining the patent, trademark, tax, land and debt enforcement proceedings registers before the relevant institutions.

4.2 —Is negotiation confidential and is access restricted?

There are no rules preventing the buyer from negotiating with the seller. Generally, it is accepted for negotiations to be conducted on a confidential basis. Should parties mutually agree otherwise, all the information shall be kept confidential.

4.3. When is an announcement required and what will become public?

There are some regulations for the protection of creditors and third parties’ rights. For the effectiveness of the merger, the merger agreement, the merger report, the activity reports of the companies, the last balance sheets of the companies and the resolutions with respect to the merger are required to be announced in the Turkish Trade Registry Gazette. Also, an announcement is made by the merged parties in order to inform the creditors three times with intervals of seven days.

4.4 What if the information is wrong or changes?

Parties generally stipulate the relevant provision in their agreement for protecting their interest such as providing security payments or bank guarantee letters. Should any damages incurred cause the wrong information, the loss or damages are compensated by the parties in accordance with their agreement.

Stakebuilding

5.1 Can shares be bought outside the offer process?

There is no restriction regarding this issue. If the buyer intends to be a shareholder by direct shareholding or by using the derivatives, and the percentage of the shares or voting rights obtained by the buyer reaches certain thresholds, the share transfers shall be disclosed to the public as ongoing information.

5.2. Can derivatives be bought outside the offer process?

Derivatives are regulated pursuant to the Communiqué on the Principles Regarding Investment Services, Activities and Ancillary Services. Although each case is evaluated according to circumstances, transactions that may affect the control change shall be disclosed to the public.

5.3. What are the disclosure triggers for shares and derivatives stake building before the offer and during the offer period?

Due to some reasons such as being in a dominant position and/or reaching a specific capital in a company, it is necessary to get approval from the Capital Market Board and Competition Board.

5.4 What are the limitations and consequences?

Limitations and their consequences are regulated under the Capital Markets Law No. 6362. Any transactions breaching the principles and procedures of the Capital Market Board will be invalid. Interested parties may have fines imposed on them as a result of these transactions.

Deal Protection

6.1 Are break fees available?

The parties at their discretion could determine to break free of their contract unless it will be forcing or equitable.

6.2 Can the target agree not to shop the company or its assets?

The target company has the right to sell the company or its assets to a third party, and there is no provision in Turkish Law which inhibits this right. However, the parties could agree on whether not to shop the company or its assets to the third party by adding the “no shop” or “exclusivity” provisions to the agreement. In case such a provision has been added and the target company has not complied with this provision, the penal clause may be put into effect.

6.3. Can the target agree to issue shares or sell assets?

Issuing of shares or selling of the assets of the company could be realised in case the company’s shareholders give consent for such operation.

6.4 What commitments are available to tie up a deal?

In order to prevent the parties from terminating the agreement, high amounts of fines and mortgages may be imposed as a penal clause. In addition, stock pledge is an effective method used to avoid the termination of the agreement.

Bidder Protection

7.1 What deal conditions are permitted and is their invocation restricted?

Within the scope of Turkish Law, there is no restriction on any specific terms and conditions unless the terms are contrary to Turkish Law.

7.2 What control does the bidder have over the target during the process?

Turkish Law does not regulate any type of authorisation to the bidder for controlling the target company during the process; however, the parties can agree on any restriction about the target company’s actions during the process.

7.3. When does control pass to the bidder?

Control can pass to the bidder according to the type of company that is transferred the shares. In a Joint Stock Company, stock certificates have to be endorsed to the bidder and possession is required to transfer. Then, share transfer shall be registered with a share ledger so the control passes to bidder. The Turkish Commercial Code doesn’t regulate the registration of share transfer to the Turkish Trade Registry in the joint stock company.

However, in a Limited Liability Company, share transfer can be valid by an executed notarial deed and affirmative decision of the general assembly. Then, share transfer has to be registered to the Turkish Trade Registry. If there is an issued share certificate, it must be endorsed and possession is required to transfer. Therefore, the control passes to the bidder.

7.4 How can the bidder get 100% control?

Although the Turkish Commercial Code regulates different quorums to get a general assembly resolution for different decisions, it can be said that the bidder can get 100% control of the target company when it has all the voting rights by purchasing the shares.

Target Defences

8.1 Does the board of the target have to publicise discussions?

According to the relevant Capital Markets regulations, publicly traded companies are required to publish all matters in respect of internal information which have an impact on the decisions of the investors, such as the changes in the share capital of the company, new appointments in the board and auditor committee or changes to the financial structure of the target. However, such information should be published once it becomes precise; i.e. not at the negotiation/discussion stage, as the case may be applicable.

In the above-mentioned circumstances, the company is required to avoid the risk of misleading the public and provide the confidentiality of the information during such delayed period.

8.2. What can the target do to resist change of control?

It is not possible for the target company to resist the change of control. If other shareholders have any legal right in an agreement or shareholders agreement, they can only resist change of control. If there is nothing regarding this, any shareholder will have the legal right to sell their shares to third party without any confirmation from the other shareholders.

8.3 Is it a fair fight?

The target company involves three main departments as follows:

  1. General Assembly.
  2. Board of Directors.
  3. Independent Auditor (in a Joint Stock Company under the relevant law).

Moreover, since shareholders are entitled to appoint a board of directors, they can also decide whether some activities related to the company can be allowed or not. According to the shareholders’ role in the company, a board of directors which doesn’t resist a change of control may be considered fair.

Other Useful Facts

9.1 What are the major influences on the success of an acquisition?

It is crucial that an acquisition to obtain all relevant statutory approvals, permits and licences is pursuant with the legislation. The acquired firm should be evaluated and considered in detail. Additionally, legal and financial due diligence should be performed.

9.2. What happens if it fails?

of the party, the party should compensate the loss or damages of the other party. Also, if the parties determined a penalty regarding the failure of the acquisition, they should pay this penal clause.

Updates

10.1 Please provide a summary of any relevant new law or practices in M&A in your jurisdiction.

Within the scope of Turkish Commercial Law No. 6102 and Capital Market Law No. 6362, many innovations have been made relating to M&A. For example, according to the Turkish Commercial Code, it is possible for a company in liquidation or a company that has lost its capital or is submerged in debt to participate in the merger. In addition, according to the Turkish Commercial Code, the Parties may decide in the Merger Agreement to allocate the shares and rights of the new company between shareholders of the transferring company and/or pay indemnity for exclusion equivalent to the actual value of the company shares to waive the shareholder. The related legislation is being developed day-by-day.

 

Levent Lezgin Kılınç, Founding Partner and Seray Özsoy, Partner 

This article was published in ICLG

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