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Another fundamental unbundling rule brought by the Law pro-
vides that distribution companies shall realize generation and whole-
sale operations under separate legal entities as of January 1, 2013.
Within this context, according to the Resolution of EMRA, the
legal unbundling for the conduct of distribution and retail sales opera-
tions realized by legal entities holding a distribution license under sep-
arate legal entities shall be realized in accordance with the provisions
of the Turkish Commercial Code numbered 6102 (“TCC”) relating to
partial spin-off procedure. In accordance with the provisions of TCC
relating to incorporation, a joint stock company shall be incorporated
before commencing the partial spin-off procedure. The articles of asso-
ciation of the joint stock company that is to be incorporated in this con-
text must include the clauses of purpose and subject, type of share cer-
tificates, transfer of share certificates, merger and amendment of the
articles of association as set out within the provisions of the
Regulation.
Under the TCC, in the case that a part of the assets is to be trans-
ferred by way of partial spin-off, a spin-off plan shall be prepared in
writing by the relative company’s board of directors.
Pursuant to article 165 of the TCC, in cases where there is a peri-
od exceeding six months between the date of the spin-off and the date
of execution of the spin-off agreement or where there is a material
change in the assets of the companies participating in the spin-off after
the last financial statement, an interim financial statement shall be
issued.
A copy of the spin-off agreement approved by the distribution
company shall be submitted before EMRA within five business days
following the conclusion of the agreement.
The shares of the acquiring, that is to say the newly incorporated
company, shall be acquired by the shareholders to the company sub-
jected to the spin-off procedure. The acquiring company and the com-
pany subject to the spin-off must have the same control structure until
the finalization of the legal unbundling. However, pursuant to article 6,
paragraph 3 of the Resolution, within generation and retail sales com-
panies which have the same control structure as the distribution com-
pany; even if persons conducting duties as member of board of direc-
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NEWSLETTER 2012