174 / 516
Evaluations within the Scope of Merger Communiqué.
The Board stated that pursuant to Article 5/1 (b) of the Merger
Communiqué, “the acquisition of direct or indirect control over all or
part of one or more undertakings by one or more undertakings or by
one or more persons, who currently control at least one undertaking,
through the purchase of shares or assets, through a contract or through
any other means” shall be considered a merger or acquisition transac-
tion within the scope Article 7 of the Competition Act.
The subject matter of the notification is the acquisition of rights
envisaged within the mid-phase, which provide Mahle to have joint
control over Behr. In this stage, the joint control shall be established
without any transfer of shares but through amendments to the agree-
ments and by the employment of executives of Mahle for two key posi-
tions in Behr.
First Two Phases.
The Board initially evaluated the first two phas-
es before making any further evaluations as regards to the mid-phase
in subject of the notification and asked for explanation on why the first
two phases were not notified. In response, it is alleged that these phas-
es do not shift the control and thereby they are not subject to notifica-
tion.
However, in the first stage Mahle had acquired the right to appoint
two members to the supervisory board of Behr. Behr, is managed by
one or more executive directors nominated by the supervisory board.
These executive directors only for the approval of the Supervisory
Board in a few very important decisions, which are not deemed as
decisions regarding the ordinary course of the business and which are
specifically determined as important.
Under these conditions the Board decided that the first two phases
must be evaluated to find out if any change of control occurs at that
stage.
The Supervisory Board consists of six (6) members and takes deci-
sions with simple majority. There are three exceptions, which require
qualified majority as affirmative votes of five members; which are (i)
commencing activities in new fields, ceasing current commercial activ-
ities, making essential changes in the production and sales program,
160
NEWSLETTER 2012