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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 provided there is a permanent
change in control”
shall be considered as a merger or acquisition within
the scope of the Act on the Protection of Competition (“Competition
Act”).
Article 5/2 of Communiqué no:2010/4 gives the definition of control.
According to this article, the
“control may be acquired through rights,
contracts or other instruments which, separately or together, allow de
facto or de jure exercise of decisive influence over an undertaking. In
particular, these instruments consist of ownership right or operating right
over all or part of the assets of an undertaking, and those rights or
contracts granting decisive influence over the structure or decisions of
the bodies of an undertaking.”
In the said case, as also mentioned above, there is a transfer of shares
since Danone will acquire 50, 1% of the shares of Sırma. Furthermore,
upon analysis of the Shareholders’ Agreement signed between the parties
on 04.05.2013, it can also be noted that, contrary to Dişli Holding A.Ş.
and Karabacak Holding A.Ş, Danone will have a decisive influence over
the administration of Sırma. In other words, the control of Sırma will be
permanently transferred to Danone, by the way of share transfer.
In the light of the foregoing, the operation between Danone and
Sırma is considered as a merger or an acquisition within the scope the
Communiqué No. 2010/4.
Threshold System
In accordance with Article 7/1 of the Communiqué 2010/4, in case
that (a) the total turnovers of the parties in Turkey exceed TRL one
hundred million, and turnover of at least two of the parties in Turkey
each exceed TRL thirty million or (b) the asset or activity subject to
acquisitions, and at least one of the parties in mergers have a turnover
in Turkey exceeding TRL thirty million and the other party has a global
turnover exceeding TRL five hundred million, the operation shall be
submitted to the authorization of the Board.