Simplified Merger Of Equity Companies

August 12, 2013

As per Article 136, Paragraphs (3) and (4) of the New Turkish Commercial Code (NTCC) No.6102, a merger takes place by automatic acquisition of the shares of the transferee company by he shareholders of the transferor company in exchange for the assets of the transferor company, based on a certain ratio of exchange. As a result of a merger, the transferee takes over the assets of the transferor as a whole. A merger results in the termination of the transferee company, which will be removed from the trade registry. The NTCC introduces new regulations on mergers, which is an important topic within the context of Company Law. One of such new regulations is the simplified merger procedure applicable to equity companies. In fact, the basis of the legislating bodies in the preparation of this procedure is that the risks that may potentially arise for minority shareholders in the merger of very similar companies is either zero or negligible. Therefore, Article 156 "Convenience" of the NTCC provides that many protective provisions regarding the merger procedures will not be enforced in simplified mergers. Article 155, Paragraphs 1(a) and 1(b) of the NTCC, defining the situations where simplified mergers are allowed, provide that “Equity companies may merge through a simplified merger process if the transferee equity company possesses all shares of the transferor equity company that provide voting rights, or if a single company or a single real person or a single group of persons bound by law or an agreement possesses all shares of the parties to the merger that provide voting rights.” Article 155, Paragraph 1(a) of the NTCC requires 100% ownership of the shares (that provide voting rights), therefore we believe that this Article would not be much of an issue for the practicing lawyers. However, we believe that Article 155, Paragraph 1(b) of the NTCC, which regulates the merger of companies controlled by the same controlling entity, requires some more practice to settle down. Inasmuch as, when Article 155, Paragraph 1(b) of the NTCC is evaluated, it is seen that the provision is applicable only when a single person or a group of persons are in possession of all shares of both companies that are parties to the merger. For instance, if the shareholders of two companies with completely same shareholders are assumed to be a "group of persons bound by law or an agreement", then such two companies may merge through the simplified merger procedures. Moreover, if the shareholding percentage of the shareholders in both companies are identical, it would be even easier to suggest that such two companies may merge through the simplified merger procedures. If the controlling authority, i.e. shareholders in control of the company, is the same for both companies despite differences in capital percentages, we can also suggest that the simplified merger procedures can be used. However, it should be noted that the simplified merger procedure is an exceptional practice introduced by the NTCC, and the framework of such exception will be clarified in time, as the provisions are practiced.

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