1 RELEVANT AUTHORITIES AND LEGISLATION
1.1 What regulates M&A?
There is no specific code which regulates Mergers & Acquisitions ("M&A") in all its aspects in Turkey. However, the general principles governing M&A transactions are included under several codes, such as the Turkish Commercial Code, the Code of Obligations, the Capital Markets Law, the Law on the Protection of the Competition, the Labour Law and relevant Tax Laws.
1.2 Are there different rules for different types of company?
Publicly-traded companies are subject to the rules and regulations promulgated by the Capital Markets Authority, in addition to the provisions of the Turkish Commercial Code applicable to the different types of companies.
1.3 Are there special rules for foreign buyers?
Foreign buyers are treated equally to domestic buyers, as per the Foreign Direct Investment Law enacted in 2003. Unless otherwise stated in international agreements and certain specific laws, the same rules are applicable for foreign buyers. However, there is a notification requirement, which is required to be submitted to the General Directorate of Foreign Investment within one month after the completion of a transaction in Turkey.
In addition to the above, regarding the asset (real estate) transfer located in prohibited military areas, security areas or strategic areas, Turkish companies with foreign shareholders and Turkish companies incorporated by foreign investors are subject to prior approval from the General Staff (Genelkurmay Başkanlığı).
1.4 Are there any special sector-related rules?
There are some special sector-related rules, such as in the energy (electricity and natural gas in particular), banking, insurance, media and telecommunication sectors. For example, the M&A transactions in the energy sector are subject to the approval of the Energy Market Regulatory Authority ("EMRA") in the event of a shareholding change in the target company which is equal to or more than 10%. Regardless of such percentages, any transfer of shares that results in a change of control also requires the approval of EMRA.
1.5 Does protectionism operate in favour of local owners?
It may be reasonably argued that Turkish legislation is described as not being "protectionist". As a matter of fact, foreign investors in Turkey are treated equally as domestic investors, as per the Foreign Direct Investment Law.
1.6 What are the principal sources of liability?
The liabilities are mainly determined and agreed in the relevant agreements, to be executed by the parties in relation to the M&A transaction. Other than that, regarding the asset transfers, the Code of Obligations regulates the liabilities of both parties (buyer and seller) jointly for 2 (two) years following the realisation date of such asset transfer. However, the Turkish Commercial Code regulates the personal liability of the shareholders for 3 (three) years and joint liability of the parties for an indefinite period. Note that 2 (two) years' liability is open to discussion and subject to court precedents since time limitation is not indicated under Turkish Commercial Code in relation to the responsibility of the parties.
2 MECHANICS OF ACQUISITION
2.1 What alternative means of acquisition are there?
There are two alternative means of acquisition: (i) share transfer; and (ii) asset transfer. In both cases, the completion of the transfers is subject to the approval of the Competition Board in the event that the thresholds described under the Competition legislation are reached.
2.2 What advisers do the parties need?
Typically, potential investors hire the services of legal, accounting and financial advisors. However, taking into account the context of the M&A, insurance advisors, real estate experts, experts on the environmental and social impact assessment and technical advisors may also be required during the transaction.
2.3 How long does it take?
The period of the transaction entirely depends on the nature of the transaction, such as the acquisition type (share or asset transfer), financial size and the operations of the target company. Furthermore, whether the transaction is subject to any regulatory approval or not has a direct impact on the timing of the closing. We can divide the period into three sections: (i) due diligence (the sellers providing the documentation, complete and in due time; the buyers' work affects the completion of due diligence); (ii) execution of the relevant agreements, such as share purchase agreements and/or shareholders' agreements, amendment of articles of association of the target company, which are entirely subject to both parties' time and effort; and (iii) fulfilment of the terms and conditions agreed in the mentioned agreements, i.e. the statutory approvals and permits.
2.4 What are the main hurdles?
The hurdle may be deemed as the approvals of the regulatory boards and Competition Board which may mostly affect the schedule and/or the closing of the transaction.
There is a threshold system which has recently changed with a communique of the Turkish Competition Authority that was published in the Official Gazette on 29 December 2012 and will enter into force on 01 February 2013, governing the review process of the merger and acquisition transactions that are subject to the authorisation of the Turkish Competition Board.
The new thresholds that set the boundaries of notification requirements read as follows: (a) total turnovers of the transaction parties in Turkey exceed 100 million Turkish Liras ("TRL") (approximately USD 56 million), and turnovers of at least two of the transaction parties in Turkey each exceed 30 million TRL (approximately USD 17 million); or (b) in acquisition transactions, the asset or the operation that is subject to the acquisition; in merger transactions, at least one of the transaction parties has a turnover in Turkey exceeding 30 million TRL, and a global turnover of at least one of the remaining transaction parties exceeds 500 million TRL (approximately USD 280 million).
Other than those, the voting rights in the Board and the General Assembly of the target company can be seen as a hurdle for the minority shareholder. In addition, as per the Turkish Commercial Code and Capital Market Law, since the minority rights are regulated for the minority shareholders holding 10% and 5% ratios, respectively; these ratios may also be considered.
2.5 How much flexibility is there over deal terms and price?
Deal terms and prices are flexible in private transactions. With respect to privatisation tenders, the tender price must comply with certain terms, such as the pre-tender valuation of the relevant committee. Regarding the mandatory tender offers which are triggered as a result of transactions affecting publicly traded companies, prices are to be blessed by the Capital Market Authority in line with the relevant legislation.
In respect of non-competition obligations in the agreements, the periods are subject to the limitations of Competition Board considering the sector of the transaction.
2.6 What differences are there between offering cash and other consideration?
In principle, there are no material differences between offering cash and other types of consideration. If there is any share swap, the procedures of such swap should be taken into account or, if there is a subscription in kind, there should be a court decision regarding the appraisal of the capital in kind.
2.7 Do the same terms have to be offered to all shareholders?
In the event that there is more than one shareholder, there is no requirement that the same terms should be applied for all shareholders other than those determined under the legislation. On the other hand, within the context of a mandatory tender offer for the shares of a publicly traded company, the same terms and conditions should apply to all shareholders holding the same class of shares.
2.8 Are there obligations to purchase other classes of target securities?
Unless otherwise stated in the articles of association of the target company, there is no legal obligation to purchase other classes of target securities. However, in publicly traded companies, the buyer should apply for the purchase of other classes of shares during the mandatory tender offer.
2.9 Are there any limits on agreeing terms with employees?
According to the Turkish Commercial Code, in the event of a transfer of a work place, wholly or partially, the employment contracts are also transferred to the transferor with all its right and obligations, provided that the employee does not object to this transfer. The employees are entitled to object on an individual basis to the transfer of their employment contract. Where an objection is made by the employee, the employee's employment will terminate at the end of the legal notice period. In such circumstances, the employee will be entitled to full severance payment from the transferor.
If there is a collective bargaining agreement, the provisions of such agreement should be taken into account during the determination of the obligations of the transferor and transferee parties against the employee.
In addition, the employee and the employer can agree on a non-compete clause which will be effective after the termination of its employment contract with a period of at the most 2 years.
2.10 What role do employees play?
Under Turkish law, there is no employees' committee or similar organisation established in the companies as a management body. Accordingly, the employees do not play an active role in the decision-making process.
2.11 What documentation is needed?
Most frequently, a pre-agreement in the form of a term sheet or a letter of intent, together with a confidentiality agreement, are signed by the parties before the execution of the definitive agreements. After having agreed on the transaction, a share purchase agreement or an asset transfer agreement is signed by the parties. In the event of a share transfer in relation to the shares of a limited liability company, a notarial deed should be executed by the parties before the notary public. Regarding the share transfer in joint stock companies, there is no mandatory provision in respect of the share purchase agreement being in verbal or written form. However, a written agreement is preferred by the parties in common practice.
As per the nature of the transaction, in the event of a share transfer, if there would be minority shareholders who will have corporate rights after the completion of the share transfer, a shareholders' agreement is recommended to be executed and articles of association of the target company are amended accordingly.
The amendment of the articles of association requires a General Assembly Meeting and registration of such General Assembly Resolution at the relevant Trade Registry. If the company is a holding company, publicly held company, bank, or a financial or insurance company, the approval of the Ministry of Customs and Trade, and Capital Market Board is required for the registration, as the case may be. The amendment to the articles of association of energy companies requires the permission of EMRA.
2.12 Are there any special disclosure requirements?
Special disclosure requirements have been regulated only for the publicly held companies pursuant to the Capital Markets Law and its relevant communiques. Accordingly, a disclosure of material events to the public should be made, which may affect the investment decisions of investors and the value of the capital market instruments including the events in case a legal person holds directly or indirectly 5%, 10%, 15%, 20%, 25%, 1/3, 50%, 2/3 and 75% or more of the share capital or total voting rights of the target company. These thresholds differ in case of purchasing of its own shares by the target company. If an entity aims to buy its own shares in an amount exceeding 1% of its capital, public disclosure is mandatory for each purchase.
2.13 What are the key costs?
The main cost is the stamp duty, of which the ratio is 9.48 per mil (0.0948%) over the highest amount mentioned in each agreement that is applied for each original document. Regarding the stamp duty, there is a cap which is updated each year (the cap in 2013 is 1,487,397 TRL which is equivalent to EUR 633,851).
In relation to tax issues, VAT (18%) may be applicable and income/corporate tax may be applicable depending on the several features of the transfer. In the event that the target joint stock company has issued the share certificates and the share transfer is completed after 2 (two) years of the issuance of such share certificate, there would be no VAT and income tax to be incurred. However, as per the draft tax income tax law, which is expected to be enacted in 2013, such two-year period will be removed and income tax will accrue based on the scales defined under the law.
Additionally, there might be some costs regarding the notarisation, translation and trade registry applications.
2.14 What consents are needed?
In any M&A transaction, the requirement of the notification to the Competition Board should be considered before the completion of the transaction. Therefore, if the related turnovers of the parties have not met the criteria stipulated in the M&A Communique, it is essential to obtain the approval of the Competition Board by delivering all the required documentation and financial and legal information of the parties.
With respect to the regulatory approvals, depending on the sector and kind of the target company, the approval of EMRA, Banking Regulatory and Supervisory Board, Radio Television Supreme Council, Information and Communication Technologies Authority, the Capital Markets Board or the Ministry of Trade and Industry will be required, as the case may be applicable.
2.15 What levels of approval or acceptance are needed?
As per the articles of the association of the target company, the board of directors and/or shareholders' resolution might be needed during the M&A transaction. Furthermore, as a result or a condition precedent of a transaction, an amendment of the articles of association might be required that is subject to the approval of the shareholders and registration process at the relevant Trade Registry.
2.16 When does cash consideration need to be committed and available?
Principally, the cash consideration needs to be committed as of the execution of the share purchase agreements and available on the closing date of the M&A transaction. In the event that the consideration is paid in instalments or any condition is determined in the agreements for the consideration, an escrow mechanism can be arranged or pledge or security agreements can be executed in order for the security of the consideration. In publicly traded companies, the cash consideration is committed as per the calculation provided for in Capital Markets regulations and the source of such consideration should be clearly defined and stated during the application of the tender process. Similar to the M&A transactions in non-public companies, such cash consideration needs to be available at the time of the M&A transaction.
3 FRIENDLY OR HOSTILE
3.1 Is there a choice?
There is no different regulation covering a friendly or hostile transaction. However, as per the Capital Markets legislation, in case the management control of the target company which is a publicly held company is acquired by obtaining a certain group of shares by any person or shareholder, a tender offer is mandatory providing protection of the rights of the other shareholders of the target company.
Individuals/entities who own 50% or more of the capital and the voting rights of the target company are obliged to make a tender offer to the other shareholders, unless privileged shares exist.
3.2 Are there rules about an approach to the target?
There are no special rules regarding the approach to the target company, except for disclosure rules that may become applicable.
3.3 How relevant is the target board?
The target board is authorised to approve the share transfer in the target company and in accordance with such resolution; the share transfer and new shareholding structure should be registered in the share ledger. Share transfer becomes opposable to third parties upon registration of the transfer into the share ledger. The board may avoid approving the share transfer for registration into the share ledger; however the board cannot avoid adopting the relevant resolution, as long as such transfer is made pursuant to the share transfer procedures under the Turkish Commercial Code and articles of association of the target company.
3.4 Does the choice affect process?
In relation to publicly held companies, since it is a legal requirement to make an offer by the buyer to the other shareholders after the completion of a share transfer, it will not affect the process.
4 INFORMATION
4.1 What information is available to a buyer?
The parties may execute a confidentiality and non-disclosure agreement and, accordingly, the seller may provide any confidential information to the buyer. However, the seller may not prefer to provide all information. In such cases, such information might be provided at the signature of the agreements or stipulated in the agreements.
4.2 Is negotiation confidential and is access restricted?
Pursuant to the confidentiality and non-disclosure agreements executed between the parties, the access by the third parties may be restricted to the information and negotiation. Generally, the negotiation is performed between the representatives of the buyers and sellers, and in addition to those, their relevant financial and legal advisors and employees may be allowed to participate in the negotiation.
4.3 What will become public?
Information that will become public are the corporate documents, such as (i) the articles of association of the target company (including the amendments of such articles of association, share capital, founders, board members), (ii) some of the board resolutions (e.g. appointment of the board of directors and their duty distributions), and (iii) all general assembly resolutions which are open to public information, since they are required to be registered at the relevant Trade Registry.
4.4 What if the information is wrong or changes?
The sale agreement to be executed between the parties will more likely stipulate the relevant provisions in the event of the disclosure of the wrong information or changed information.
As a result, in such cases, first of all a notification should be immediately made to the buyer regarding the issue and if any loss or damage is still occurred by the buyer due to the wrong or changed information, the seller should compensate the buyer's loss or damages according to the provisions agreed in the sale agreements.
On the other hand, if the wrong information has been delivered to the state authorities, such as the Competition Board or Capital Markets Board, sanctions might be imposed according to the relevant regulations, unless the correct or amended information is not delivered in full.
5 STAKEBUILDING
5.1 Can shares be bought outside the offer process?
The shares can be bought outside the offer process considering the rules in the relevant legislation.
5.2 What are the disclosure triggers?
Please refer to our explanations under question 2.12 above.
5.3 What are the limitations and implications?
The limitations and implications have been regulated under the Capital Markets Law and relevant regulations.
6 DEAL PROTECTION
6.1 Are break fees available?
The break fees can be agreed by the parties in the agreement which will be valid and effective under Turkish law.
6.2 Can the target agree not to shop the company or its assets?
In the agreements, there should be a provision prohibiting the target company from shopping the company or its assets to any third party, otherwise a compensation/penalty provision should be triggered. As a result, the target company cannot make such decisions solely. Additionally, as per the agreements, the seller may also undertake the actions of the target company and if the completion of the transaction is not performed due to any act of the target company, the buyer will be compensated by the potential seller.
6.3 Can the target agree to issue shares or sell assets?
The target company can agree to issue shares or sell assets provided that the shareholders approve such issuance or sale. However, the companies with the registered share capital are entitled to issue shares or sell assets.
6.4 What commitments are available to tie up a deal?
Penalty clauses with high amounts and any security, such as mortgages or share pledges, are available to tie up a deal.
7 BIDDER PROTECTION
7.1 What deal conditions are permitted?
Under Turkish law, the parties may mutually agree on any terms and conditions, as long as they are in compliance with the provisions of Turkish law.
7.2 What control does the bidder have over the target during the process?
The bidder does not have any control over the target during the process. However, the bidder may prohibit some of the essential activities of the target company until the end of the completion of the transfer by putting a relevant provision in the agreement.
7.3 When does control pass to the bidder?
If it is a share transfer in a joint stock company, the transfer is completed by the (a) endorsement of the share certificates in the name of the buyer, if any, and delivery of them to the buyer, and (b) registration of the new shares in the share ledger. If it is a share transfer in a limited liability company, the transfer is completed by (a) an executed notarial deed, and (b) adoption of the shareholders' resolution in this respect. Thereafter, the control passes to the bidder as a shareholder.
However, with respect to the management, the control passes to the new management when the new board members and managers, as the case may be, are registered at the relevant Trade Registry.
7.4 How can the bidder get 100% control?
The bidder can get 100% control in the event that it holds 100% of the share capital in the target company. However, such control can also be achieved by way of holding less shares but with the shares representing the total voting rights. The Turkish Commercial Code governs several quorums in order to adopt and perform various decisions. All shareholders are also entitled to participate to the share increase under the Turkish Commercial Code in order not to be diluted in the company. As a novelty, the Turkish Commercial Code grants the squeeze-out right to the shareholder who controls, directly or indirectly, at least 90% of the share capital and having at least 90% of the voting rights (i.e., the parent company) in a joint stock corporation. Accordingly, such shareholder is entitled to exercise its right through an application to the relevant court, if the minority shareholder(s) acts in a manner to obstruct the company's operations, acts in bad faith, creates perceptible disruption in the company or acts recklessly. In a similar manner, as per the new Capital Markets law, if the thresholds designated by the Capital Markets Board are met upon a share purchase -through an offer or other means-, the squeeze-out right can be exercised by the purchaser.
8 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. Furthermore, certain decisions, such as the application of the tender offer process, the requirement of the tender offer, and the completion of the tender offer process should be publicised by the board of the target. On the other hand, the board is entitled to delay the publication of the information in order to avoid damages on the legal rights and benefits of the company. Such kind of legal benefits occur particularly in the event (a) the negotiations are close to the agreement but in case of publication of the negotiation results, it will incur damages on the benefits of the investors, or (b) the application of the agreements or the relevant board decisions require the approval of the other party or the disclosure of the information affects negatively on the period.
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. Only the other shareholders may resist the change of control if he/she has any legal right under the articles of association or shareholders' agreement. Otherwise, any shareholder is entitled to sell its shares to any third party without any prior approval of the other shareholders.
8.3 Is it a fair fight?
The target is comprised of three main organs (i) the general assembly, (ii) the board, and (iii) an independent auditor in joint stock companies, if required as per the relevant legislation. As the shareholders are entitled to appoint the board in compliance with the law and the articles of association of the company, they also allow and prohibit some activities to be performed in the company. Taking into consideration the role of the shareholders in the company, it may be deemed as a fair fight for the board directly not to resist a change of control.
9 OTHER USEFUL FACTS
9.1 What are the major influences on the success of an acquisition?
It is essential to obtain all relevant statutory approvals, permits and licences pursuant to the legislation. The sector should be assessed and considered in detail and the financial and legal due diligence should be performed.
9.2 What happens if it fails?
In case of a failure of the transaction due to the non-compliance of any party, such party should compensate the loss or damages of the other party and/or should pay the penalty which can be set forth in the agreements.
10 UPDATES
10.1 Please provide a summary of any relevant new law or practices in M&A in Turkey.
There was a new Turkish Commercial Code no. 6102 published in the Official Gazette dated 14 February 2011 and no. 27846 which was effective as of 1 July 2012. The new Turkish Commercial Code provides several amendments to existing commercial legislation, while introducing several new concepts and principles (M&A rules are regulated). The application of the new concepts (e.g. squeeze out, simplified merger) being introduced by the new Turkish Commercial Code will be of major importance. Since there is no precedent related to the new concepts introduced under the Turkish Commercial Code, interpretations of several provisions would be at the discretion of the judges.
Furthermore, there was also a new Code of Obligations no. 6098 published in the Official Gazette dated 04 February 2011 and no. 27836, which was also effective as of 1 July 2012. The new Code of Obligations also provides several amendments to any kind of transactions and implementation of the agreements provided for under the Code of Obligations.
Additionally, new Capital Markets Law Code no. 6362 published in the Official Gazette dated 30 December 2012 and no. 28513 also provides several novelties (e.g. squeeze out) in line with the Turkish Commercial Code.
This article appeared in the 2013 edition of The International Comparative Legal Guide to: Mergers & Acquistions; published by Global Legal Group Ltd, London. www.iclg.co.uk.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
