In 2023, global M&A activity slowed, impacted by economic hurdles such as tightening financial conditions, elevated inflation, and geopolitical instability. Similarly, M&A activity in Türkiye, which had been growing for three years, also decreased in 2023. Based on Deloitte’s Annual Turkish M&A Review of 2023, total deal volume in Turkey fell by 30% year-on-year to approximately USD8 billion across 403 transactions, with the number of transactions decreasing by 3%. This decline aligns with the broader global M&A market, which experienced its second consecutive year of contraction in 2023. The global deal volume dropped by roughly 25% year-on-year, reaching approximately USD 2.3 trillion.
In 2023, small, early-stage start-ups and mid-market deals dominated deal flow, with a high number of start-up deals (306 transactions) and e-commerce transactions making a remarkable contribution.
The majority of deals were driven by venture capital firms and angel investors, which were involved in 55% of the total number of deals.
Foreign investors maintained their confidence in the Turkish market: 95 deals with a combined deal value of USD5.2billion contributed 65% of the total deal value. Western investors were once again responsible for the highest number of deals and the largest deal volume among foreign investors.
Local investors have taken an equal share of Turkish M&A: 308 deals with a combined deal value of USD2.8 billion contributed 35% of the total deal value.
Financial investor activity reached a level of 237 transactions, with a deal value of USD1.3billion. The private equity sector was only able to realise 12 transactions, worth USD291 million in deal volume and representing the lowest level in the past five years, but venture capital and angel investor entities scored 222 deals, marking only a 3% decrease in number.
In 2023, technology, internet and mobile services continued to be on investors’ radar, with 123 transactions taking place, but this was not enough to boost total Turkish deal volume, as the energy sector, with USD570 million worth of deals realised through 31 transactions, attracted the largest number of deals, comprising 18% of the total annual deal volume.
Investors’ interest in e-commerce is also worth noting. There were 20 deals in the e-commerce sector with a combined deal value of USD502 million, enabling the sector to rank in second place according to deal value. Financial services, gaming, manufacturing, and healthcare also continued to draw strong interest from investors, with 38, 30, 27 and 26 transactions respectively.
The most common and preferred technique for acquiring a company in Türkiye is through share acquisition. Accordingly, investors generally choose to acquire the entire share capital or the majority/minority shares of joint stock (anonim şirket) and limited liability (limited şirket) companies, as these companies are more advantageous in terms of limitation of shareholders' liability.
Asset transfers are also used for acquisitions, but are not common.
In asset transfers, if an entire business is transferred – including “assets” and “liabilities” – and this transfer is notified to the creditors of the transferred business, the purchaser assumes responsibility for the liabilities. However, the seller remains jointly liable with the purchaser for a period of two years from the date of the notice or announcement.
Thereafter, the entire liability is shifted to the purchaser. Such a prescribed regime for pre-closing liabilities often requires parties to develop specific indemnity regimes and structures in asset transfers, depending on the particulars of the transaction as well as the assets and liabilities in question. The tax efficiency of asset transfer transactions primarily discourages parties from following this route.
Depending on the sector and the investment, Turkish M&A transactions may trigger various filing and approval requirements before different public authorities, such as antitrust filings or filings before the Energy Market Regulatory Authority of Türkiye (EMRA), the Banking Regulatory and Supervision Agency (BRSA), the Ministry of Treasury and Finance (the Treasury) or the Capital Markets Board of Türkiye (the CMB).
The major regulatory filing requirements in Türkiye are, briefly, as follows:
There are no general limits (statutory, de facto or otherwise) on foreign ownership or control, and foreign investors are treated in the same way as domestic investors. However, certain limitations are applicable to certain sectors. For instance, under the broadcasting legislation, foreign shareholders cannot hold more than 50% of the paid-in share capital of a broadcasting company. In addition, special regulatory requirements apply to foreign-owned interests in the petroleum, mining, broadcasting, maritime transportation and aviation sectors.
Real estate acquisitions are also subject to certain screening and regulatory approvals, which vary depending on the acquirer, its location and/or its proximity to security sensitive areas (eg, military zones or special security zones).
Under Turkish law, mergers and acquisitions leading to a permanent change of control require an antitrust filing with the Turkish Competition Authority if the following thresholds are exceeded:
Furthermore, according to the Communiqué Concerning the Mergers and Acquisitions Calling for the Authorisation of the Competition Board (No 2010/4), transactions regarding the acquisition of technology undertakings operating in the Turkish geographical market or having R&D activities or providing services to users in Türkiye need not adhere to the TRY250 million thresholds. For clarity, the rest of the turnover thresholds (ie, TRY750 million, TRY3 billion) shall still apply for a filing to be triggered.
The Communiqué defines “technology undertakings” as “Undertakings or related assets operating in the fields of digital platforms, software and video game development, financial technologies, biotechnology, pharmacology, agriculture chemicals and health technologies”. Due to this broad definition, more and more acquisition transactions are expected to trigger a merger control filing in the technology sector in Türkiye.
For the purposes of calculating the relevant turnover thresholds, a company will be deemed to “control” another company if it:
There are special rules for calculating the threshold in certain sectors (eg, banking).
In Türkiye, the Turkish Labour Code (Law No 4857) regulates the relationship between an employee and an employer. Although the Labour Code regulates employment matters, in the event of a business transfer resulting in the transfer of an employment contract, special provisions of the Turkish Commercial Code (Law No 6102) (TCC) may be applicable under certain circumstances.
The Labour Code provides that, when the workplace or a particular business thereof is transferred to another legal body on the basis of a legal transaction, such as a sale agreement, the employment contracts that exist at the workplace or a part thereof at the date of transfer are transferred to the new employer, along with all their rights and obligations. An employee's continuity of service with their former employer (transferor) must be taken into account by the new employer (transferee) in respect of all rights and benefits for which the employee's length of service is taken into consideration.
Neither the transferor nor the transferee may terminate the employment contract by reason of the transfer, and the transfer is not considered a just cause for termination by the employee. However, the transferor's or the transferee's right to terminate due to economic and/or technologic necessities, a change in the business organisation or other just causes is preserved.
According to the Labour Code, in the event of a transfer of all or part of a business, there is no need to obtain prior written consent from employees, provided that their terms of employment will not be subject to any material change. Furthermore, the former employer and the new employer are jointly liable for the transferor's debts to the employees arising out of the employment contract that were incurred prior to the transfer and that are due at the date of transfer. However, the former employer's liability for these obligations is limited to a two-year period from the date of transfer. Such joint liability may not arise in the event of the dissolution of the legal entity by merger, participation or change of status.
Purchasers should pay particular attention to employment matters in M&A transactions if the employees of the target are unionised and have collective bargaining agreements in place.
There is no national security review of acquisition transactions in Türkiye.
The most significant legal developments in Türkiye in recent years relating to M&A include the following.
Minimum Capital Amounts of Joint-Stock and Limited-Liability Companies Changed
The minimum capital requirements for joint-stock and limited-liability companies, specified in Articles 332 and 580 of the Turkish Commercial Code No 6102, have been revised by the Presidential Decision on Increasing the Minimum Capital Amount for Joint-Stock and Limited-Liability Companies (the "Decision"). This Decision, numbered 7887 and dated 24 November 2023, was published in the Official Gazette on 25 November 2023.
In accordance with the Decision, the minimum capital requirements for joint-stock and limited-liability companies have been revised as follows:
Amendments to the Turkish Commercial Code
The Turkish Commercial Code No 6102 (the "Commercial Code") has recently undergone revisions through Law No 7511 on Amending the Turkish Commercial Code and Certain Other Laws (“Law No 7511”). This law, published in the Official Gazette dated 29 May 2024, and numbered 32560, became effective on the same date. The key changes are as follows:
An Alternative to Going Public Through Venture Capital
The Communiqué on Companies Whose Shares will be Traded on the Venture Capital Market (the “Venture Capital Communiqué”) became effective upon its publication in the Official Gazette on 18 May 2023.
The Venture Capital Communiqué introduces the possibility for a joint stock company to offer its shares to qualified investors through a capital increase without the requirement of a public offering. This means that joint stock companies can now go public by selling newly issued shares exclusively to qualified investors, bypassing the need for a public offering of these shares.
Shares of companies subject to the Venture Capital Communiqué are prohibited from undergoing a public offering for a duration of two years from the commencement of their trading on the stock exchange. Furthermore, within a period not exceeding five years from the year their shares began trading in the venture capital markets, companies must submit an application to the Capital Markets Board accompanied by a prospectus, seeking approval for their shares to be traded on other markets of the stock exchange through capital increase without a public offering.
Amendments to Law on E-Commerce
The Law on E-Commerce (Law No 6563) (the “E-Commerce Law”) was significantly amended on 7 July 2022 to set forth obligations for intermediary service providers and service providers. One of the amendments brought about by the E-Commerce Law, scheduled to be effective from 1 January 2024, includes the prohibition of electronic commerce intermediary service providers from selling their own brands within their marketplaces. Furthermore, these providers are barred from facilitating banks, with whom they have economic ties, from engaging in activities related to the execution of all services they provide, encompassing lending transactions. Electronic intermediary service providers are restricted from engaging in goods transport activities governed by the Road Transport Law, organising transport business activities under the purview of the Decree Law on Certain Regulations on Transport and Infrastructure, and providing postal services as defined by the Postal Services Law.
See 4.2 Material Shareholding Disclosure Threshold to 4.6 Transparency for relevant information.
The disclosure of material events for publicly listed companies is primarily regulated by the Disclosure Communiqué, under which the CMB makes a distinction between “insider information” and “continuous information”. Rather than identifying each material event requiring disclosure in the Disclosure Communiqué, the CMB leaves specific disclosure decisions regarding insider information to the companies’ individual discretion, on a case-by-case basis.
The Disclosure Communiqué defines “insider information” as information or any event that is not disclosed to the public that may affect investors’ investment decisions, or is likely to affect the value or price of the shares or relevant capital markets instruments of the issuer.
If any inside information comes to the attention of any persons subject to certain criteria set forth under the Disclosure Communiqué, public disclosure is required regarding that information. Publicly listed companies may suspend the disclosure of inside information by taking full responsibility for any non-disclosure in order to protect their legitimate interests, provided that:
Once the suspension conditions are eliminated, the issuer company must disclose the inside information on the Public Disclosure Platform (see 7.2 Type of Disclosure Required).
Information with respect to certain changes in the share ownership or management control in a company is considered “continuous information”. Accordingly, a person or persons acting together directly or indirectly to acquire or transfer 5%, 10%, 15%, 20%, 25%, 33%, 50%, 67% or 95% of the issued share capital or voting rights of a publicly held company are required to disclose such acquisitions on the Public Disclosure Platform. The disclosure is made automatically by the Central Securities Depository of Türkiye for direct share transfers, whereas indirect transfers must be disclosed by the relevant real persons and legal entities and persons acting together with them.
Furthermore, persons with managerial responsibility in a publicly listed company or persons with close relations to any such persons must publicly disclose their transactions relating to the shares of that company as of the date when the aggregate value of the transactions performed by those persons reaches TRY5 million in one calendar year, and must disclose their transactions relating to capital market instruments other than publicly offered shares of that company as of the date when the aggregate value of the transactions performed by those persons exceeds TRY5 million in one calendar year.
In addition to the aforementioned disclosure obligations under the Disclosure Communiqué, pursuant to Article 27 of the Share Communiqué (VII-128.1) it is necessary to submit a share sale information form for the CMB’s prior approval and to publicly disclose that form if shareholders who directly hold more than 20% of the shares in the listed company, either alone or together with the persons acting together with it, or shareholders who hold privileged shares allowing them to appoint or nominate at least one of the company directors, sell shares exceeding 10% of the share capital of a listed company within any 12-month period. Moreover, the total nominal value of the shares that will be sold per day under the share sale information form cannot exceed 10% of the total nominal value of the shares that are within the scope of the share sale information form.
Companies must make necessary updates within two business days in respect of any changes relating to the general information on the company disclosed on the Public Disclosure Platform. The Central Registry Agency is responsible for updating the shareholding chart indicating a publicly listed company’s real person and legal entity shareholders who hold directly 5% or more of the shares or voting rights of that publicly listed company, in the case of any changes. Accordingly, acquirer information is publicly disclosed if the shareholding/acquisition percentage is exceeded.
Dealings in derivatives are allowed in Türkiye and regulated under the Communiqué on Principles Regarding Investment Services, Activities and Ancillary Services (III-37.1). Regardless of their marketplace, dealings in derivatives must be mediated by authorised investment firms, since derivatives are capital markets instruments and their transactions fall under capital markets services that can be undertaken only by authorised investment institutions, pursuant to the Capital Markets Law.
Communiqué No III-37.1 provides an exemption to this requirement, stating that a derivative trading can be undertaken without the intermediation of an investment firm if it is performed by and between real and/or legal persons in such a manner that it cannot be considered as commercial or professional activity.
There are no specific disclosure obligations for derivative transactions, except those regulated under Article 11 of the Disclosure Communiqué. Accordingly, persons with managerial responsibility and the principal shareholders of an issuing company must disclose the following transactions:
There is no regulation that obliges shareholders to disclose the purpose of their acquisition or their intention regarding control of the company.
However, the CMB’s Tender Offer Communiqué (II-26.1) requires the offeror to make a disclosure of material actions planned for the company after the mandatory (or voluntary) tender offer is completed.
Under Turkish law, there is no regulation imposing disclosure obligations for deals in privately held companies. However, the Disclosure Communiqué should be observed for publicly held companies, although it does not specifically set forth at what stage a target is required to disclose a deal. In principle, any information or event that may affect investors’ investment decisions or the value of the shares must be disclosed.
In practice, deals are disclosed when the likelihood of reaching a definitive agreement reaches a level that might affect the investors’ decisions or the value of the shares.
Generally, publicly held companies in Türkiye follow the legal disclosure requirements set forth under the Disclosure Communiqué.
The scope of due diligence for a deal varies according to the scope of activity of the target company. Certain aspects are common for every company, such as its corporate status (constitutional documents, shareholder records, general assembly and board resolutions, etc), commercial and financial arrangements/agreements, employee relationships, intellectual property, real estate and litigation.
However, depending on the target company’s sector and commercial activities, the scope of legal due diligence may be expanded significantly in relation to licences, authorisations and permits. Apart from legal due diligence, it is also common for a purchaser to seek due diligence in relation to the target company’s financial, tax, technical/operational and environmental status.
In Turkish markets, it is common practice for the majority of shares to be owned or controlled by a single principal shareholder. Therefore, deal negotiations are often conducted with a principal controlling shareholder, and it is not general practice in Türkiye to begin with or to have a standstill agreement, although exclusivity is often agreed at the outset of the negotiations.
The definitive agreement executed with the controlling shareholder is not the instrument to document the tender offer terms.
The Tender Offer Communiqué requires both voluntary and mandatory tender offer terms and conditions to be fully disclosed by using a standard tender offer form, which must be filled out in line with the Tender Offer Communique and contain all terms and conditions in relation to the offer (price, timing, the undertaking’s existence of funds, ancillary disclosures, etc).
The offeror must seek the CMB’s prior approval on the standard offer form and its contents before commencing the offer process.
The closing of an acquisition transaction may vary according to factors such as the size and nature of the target (eg, privately or publicly held), the assets involved, the percentage of shareholding sold, the number of parties involved, the existing/remaining shareholders, antitrust and other regulatory approvals, third-party consents and ancillary commercial arrangements (eg, transition services or off-take-related arrangements).
Taking these factors into account, the closing of an acquisition usually requires between three and six months.
The purchaser of shares in a publicly held company will be required to conduct a mandatory tender offer if a change of control occurs. The method for calculating the offer price differs, depending on whether or not the company is listed, whether the change of control has occurred in a direct or indirect manner, and whether there are different share groups.
The Tender Offer Communiqué imposes a mandatory tender offer threshold for publicly held companies, and states that any party or parties acting together to acquire management control of a publicly held company are required to:
Only those shareholders who held shares in the target company on the disclosure date of the acquisition of management control can participate in the tender offer process.
The acquisition of management control occurs when a person – individually or acting together with others – owns, directly or indirectly, at least 50% of the voting rights or, regardless of any voting rights owned directly or indirectly, acquires privileged shares that grant the power to elect directors constituting the majority of the board of directors or to nominate that number of directors for election at the general assembly of shareholders. When management control is indirectly acquired through the acquisition of management control over the target’s controlling shareholder, the shares held by the controlling shareholder and entities acting together with it are both taken into account when determining whether management control at target level is (indirectly) being acquired.
Exemptions
The CMB may grant an exemption from the mandatory offer obligation under certain circumstances, including but not limited to:
The Tender Offer Communiqué also sets forth the circumstances under which an obligation to make a mandatory tender offer is not triggered, including:
Where a change of control event does not trigger the initiation of a mandatory offer process, the persons acquiring management control over the target shall make a public disclosure, within two business days following the acquisition of management control, noting the fact that management control has been acquired and the reasons why a mandatory offer will not be made.
The main practice in Türkiye is to use cash as consideration. In private transactions, non-cash considerations (eg, shares and securities) are preferred from time to time, depending on the transaction and commercial mechanics.
In the case of mandatory tender offers, cash is the common method for consideration, although, subject to certain conditions, non-cash consideration in the form of shares or certain securities may be used if the selling shareholders agree. There are various formalities and requirements that need to be satisfied in order to pay out the offer price through non-cash considerations.
Earn-out and deferred consideration mechanisms that allow the acquirers to calculate and/or pay a portion of the acquisition price after the closing date are commonly used to bridge valuation gaps in deals in Türkiye. Moreover, escrow arrangements whereby the parties agree to deposit a certain amount of the acquisition price into an escrow account are sometimes coupled with earn-out and deferred consideration mechanisms, or are employed to ensure the reimbursement of potential indemnity claims of the acquirer.
The Tender Offer Communiqué imposes various rules on the tender offer process. For instance, the mandatory tender offer price cannot be less than the arithmetical average of the daily adjusted weighted average share price of the last six months prior to the public disclosure of the agreement regarding the sale of shares, or the highest price paid for the same group of shares of the target company within the last six months before the tender offer.
The Communiqué also specifies how the tender offer price will be determined in the case of an indirect change in the management control of the target company and, if there are multiple share groups, how the tender offer price will be determined for shares other than those whose transfer creates the tender offer requirement.
Furthermore, in the case of a mandatory tender offer, the Tender Offer Communiqué requires the offeror to apply to the CMB within six business days of the acquisition of the shares and voting rights granting management control, and to commence the offer transactions within two months of the acquisition.
If the mandatory tender offer process is not initiated within two months (or if it is extended until the end of the requested extension), the voting rights of those who are in violation of their mandatory offer obligations will automatically be suspended, and those shareholders will be prevented from voting at the general assembly until the completion of the tender offer process, unless the CMB determines otherwise. Those shareholders will also be subject to an administrative fine.
The Tender Offer Communiqué also provides detailed rules in relation to the voluntary tender offer process. For instance, voluntary tender offers may be made for a limited number of shares in a specific class of shares. The offer price in voluntary tender offers may be increased until the day before the expiry of the offer period, subject to certain conditions.
For mandatory tender offers, the offer must be made for all of the remaining other shareholders’ shares as of the date when the acquisition of management control was publicly disclosed. The shareholders of a publicly listed company who may be eligible for the mandatory offer will be determined using information from Türkiye’s Central Securities Depository.
The Tender Offer Communiqué requires funding to be available and ready for payment at the outset of the offer, and even requires disclosure of the source of funding in the standard tender form. Accordingly, making the offer conditional to obtaining financing is not possible as per the Tender Offer Communiqué.
For private deals, the parties have full flexibility and discretion to agree on whether to have the availability of acquisition financing as a condition precedent.
Recent practice shows that down-payments and break-up fees are becoming more common in order to secure a deal. Non-solicitation/no-shop clauses are also customary.
The drafting technique and the ambit for material adverse change clauses have been narrowed down.
The TCC provides minority protection rules, but such minority rights are not sufficient to grant notable governance rights and benefits to minority shareholders. There are various methods to grant governance rights to minority shareholders, at either board or shareholder level.
Regardless of the method chosen, it is common practice to have such governance rights incorporated into the articles of association of the company (to the extent permitted by trade registry directorates), to support the enforceability of such rights.
Common methods to assert rights in the governance of the company include:
Special care and diligence are needed in the creating and implementing of an effective governance structure in publicly held companies, in order to comply with the requirements and restrictions of CMB legislation.
According to the provisions of the TCC, voting by proxy options in general assemblies can be separated into two groups: ordinary representation and depositor representation.
An ordinary representative is a shareholder or a third person appointed to represent a shareholder or more than one shareholder. A depositor representative, however, is a person who possesses the share certificate and has to be given instruction on how to vote on agenda items. A depositor representative can only be an intermediary agency, a portfolio management company, a pledgee or other persons or institutions authorised to be the custodian of stocks under the legislation, and to whom the shares to be represented in the general assembly have been deposited. Proxy solicitation is also allowed for public companies, provided that a notification is sent to the authority at least three days before the date of the general assembly meeting.
The TCC grants the parent company holding at least 90% (directly or indirectly) of the shares and voting rights of a company a right to squeeze out the minority shareholders if those shareholders obstruct the company’s operations, act in bad faith, create apparent distress on the company’s operations, or act recklessly.
Actions of minority shareholders that could lead to the aforementioned conditions are not specifically listed under the TCC. Therefore, the courts will determine whether or not such conditions have occurred, according to the circumstances of each case. In addition, the TCC elaborates on the details of the consideration to be paid to these minority shareholders in the event of a squeeze-out.
The TCC also allows the squeeze-out of the minority shareholder in a merger of two or more companies. Accordingly, the merger agreement to be signed between the merging companies can provide an option for the minority shareholders to exit the company or force them to exit the company with cash consideration instead of holding shares in the surviving entity. Such a merger agreement must be approved by the shareholders holding at least 90% (directly or indirectly) of the share capital of the company that will cease to exist.
In respect of public companies, a squeeze-out mechanism is regulated under the recently published Squeeze-Out Communiqué (II-27.3). Accordingly, if a purchaser or persons acting in concert with the purchaser obtain 98% or more of the voting rights of a public company, directly or indirectly, or acquire additional shares after reaching a 98% shareholding level, the minority shareholders of the target company will be entitled to sell-out rights against the controlling shareholder, and the controlling shareholder will be entitled to squeeze-out rights against the minority shareholders.
Under the Squeeze-Out Communiqué, companies whose management control belongs to the real person and/or legal entity shareholders of the company are deemed to be acting in concert with the purchaser, as well as the real persons and/or legal entities having management control over the legal entity shareholders of the company and the corporations whose management control belongs to these persons.
The squeeze-out and sell-out price varies depending on whether the relevant entity is a listed company or an unlisted company, as follows:
The majority of Turkish companies do not have a dispersed ownership structure, and shares are concentrated and owned by a principal selling shareholder or group of shareholders acting together, who also control the management of the target company.
Accordingly, in practice, even in the case of publicly held companies, instead of initially launching voluntary tender offers and building stakes, bidders primarily prefer to initiate acquisition negotiations directly with the principal shareholder and then follow up the mandatory tender process to complete the acquisition process.
In bilateral deals, soft commitments are often given at the early stages of the transaction through memoranda of understanding or letters of intent, which are backed up by concrete exclusivity obligations. Different methods are followed in the case of auction sales, the process of which is mandated and imposed by the principal selling shareholder and administered by its financial advisers.
In any event, if the target is a publicly held company, the mandatory disclosure requirements should be observed.
The Disclosure Communiqué requires that any information or event that may affect investors’ investment decisions or that is likely to affect the value and price of the shares or relevant capital markets instruments of the issuer if not disclosed to the public must be immediately disclosed (see 4.2 Material Shareholding Disclosure Threshold).
If a person or persons acting together directly or indirectly acquires or sells 5%, 10%, 15%, 20%, 25%, 33%, 50%, 67% or 95% of the issued share capital or voting rights of a publicly held company, such transaction must be disclosed on the Public Disclosure Platform (see 7.2 Type of Disclosure Required). The disclosure is made automatically by the Central Securities Depository of Türkiye for direct share transfers, whereas indirect transfers must be disclosed by the relevant real persons and legal entities and persons acting together with them by using a standard disclosure form.
The Tender Offer Communiqué regulates the disclosure requirements for voluntary and mandatory tender offers. All major stages of the offer process are disclosed via the Public Disclosure Platform. These stages include any event triggering the mandatory tender obligation, an application to the CMB for a tender process (either for exemption or to kick-start it), a decision of the CMB in relation to such an application, the announcement of a tender offer form approved by the CMB and the final shareholding structure upon completion of the offer process.
The details of the offer are disclosed using the standard offer form enclosed with the Tender Offer Communiqué, following the CMB’s approval of its content (eg, price, timing and other conditions).
See 4.2 Material Shareholding Disclosure Threshold for additional disclosure requirements under the Share Communiqué.
The disclosures for tender offers are made at various stages of the offer process; see 7.1 Making a Bid Public.
All publicly held companies are required to disclose their financial statements, explanatory notes, material events and all other disclosures through the Public Disclosure Platform, which is an electronic system that uses internet and electronic signature technologies. The system is operated and managed by Borsa Istanbul and enables all users to:
Disclosures regarding changes related to shareholding structure and management control, securities attached to shares and a company’s acquisition of its own shares must be made no later than 9am on the third business day following the occurrence of the event triggering the disclosure requirement.
The bidders in a tender offer process are not required to produce or disclose financial statements during the offer process. However, the CMB is entitled to request any additional information from bidders during the offer process.
In any event, the CMB requires publicly held companies to disclose their financial information regularly, in accordance with the CMB standards.
Transaction documents do not have to be disclosed in full. Nonetheless, the CMB requires bidders to submit the share purchase agreement triggering the mandatory tender offer obligation and the agreement executed with the intermediary institution underwriting the mandatory tender offer process while submitting the standard tender form for the CMB’s review and approval.
In general, directors have a duty of loyalty and a duty of care, so are always expected to seek and prioritise the benefits and interests of the company exclusively over the benefits of share groups, shareholders and/or related parties of shareholders. Therefore, directors must not allow their relationship with the shareholders who nominated them to interfere with their fiduciary duties to act in the way they consider most likely to promote the success of the company.
Turkish law does not provide any exception whereby directors are allowed to represent or promote shareholders’ interests over the company’s interests. The TCC provides a list of duties that cannot be delegated by the directors (determining management organisation, the appointment of authorised signatories, supervision of acts of authorised signatories, managers and senior officers, etc).
It is not common for directors to establish special or ad hoc committees in business combinations, not even when directors have a conflict of interest, in which case they must refrain from voting on those matters of conflict.
Nonetheless, the CMB requires publicly held companies to establish certain mandatory committees (eg, audit committee, corporate governance committee, nomination committee and early risk-detection committee). Banks that are publicly held are subject to a slightly different regime, due to the BRSA rules.
A business judgement rule is adopted under the TCC, whereby directors should not be held liable for the decisions they make in good faith and with due care within their scope of authority granted under the TCC and articles of association. However, in practice, there are no Turkish court precedents addressing the implementation of this rule.
Independent, outside advice given to directors in a business combination may include legal, business, accounting, financial and statistical advice.
Under the TCC, directors are prohibited from participating in discussions on the issues concerning their external personal interests (ie, any interest that does not relate to the interests of the company) or the external personal interests of their spouse, lineal heirs and descendants and relatives by blood and by marriage within the third degree that conflict with the interests of the company.
This prohibition would be applied whenever the duty of good faith requires a director not to participate in the discussions of the board (eg, cases where the interests of the nominating shareholder conflict with the interests of the company). Even if the conflict is not known by the directors, the director who has the conflict of interest must declare the conflict and not attend such discussions. Directors who breach the duty to avoid conflicts of interest are liable for damages, as are directors who know of the conflict but do not take the necessary precautions.
Although they have been tried in the past, hostile tender offers are not common in Türkiye, as the shareholding structures of publicly held companies are not dispersed and the majority of the shareholding and management are often controlled by a single shareholder (or a group of shareholders acting together) at the board and shareholder level.
Challenging such a dual-level controlling position by stakebuilding through the acquisition of minority shares in the market or reaching agreements with minority shareholders might be very difficult, or even impossible in practice. In addition, hostile tender offers are not regulated under any specific legislation in Türkiye.
Considering that hostile takeovers are not common, defensive measures that are common in other jurisdictions (poison pills, staggered boards, golden parachutes, etc) are not developed in practice in Türkiye.
This is not applicable in Türkiye.
This is not applicable in Türkiye.
Directors cannot object to a business combination in the case of a mandatory tender offer. In a voluntary tender offer, they are not entitled to object to the sale of the shares, except under certain specific circumstances.
In publicly held companies, the directors’ ability to “just say no” to share transfers depends on a variety of conditions. If the shares are bearer shares, the board cannot intervene or reject the transfer of the shares.
However, various rules apply in the case of registered shares. If the shares are non-listed registered shares and the articles of association of the target company condition the transfer of those registered shares upon board approval, the board may reject the share transfer based on certain grounds specifically listed under the TCC and offer to purchase the relevant shares on behalf of the target, other shareholders or third persons.
If the shares are listed registered shares, the board may reject recognition of the shareholder status of the acquirer only if the articles of association impose a percentage limit per shareholder and the acquirer exceeds this limit through such an acquisition. The transfer of title and rights linked with the listed registered shares depends on whether the transaction is concluded at market (Borsa Istanbul) or off the market. Nonetheless, if the board does not reject the transfer of the listed registered shares within 20 days of notice being given, the acquirer is automatically recognised as the shareholder of the target company.
In Türkiye, arbitration is the common platform for dispute resolution in M&A deals, rather than court litigation. Parties often prefer international platforms such as the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA), but the Istanbul Arbitration Centre (ISTAC) has recently been promoted as an alternative platform for arbitration. ISTAC has also started to become the preferred method among parties involved in small to mid-sized deals.
Depending on the survival periods agreed under the definitive agreements, warranty and indemnity claims are brought within two years, which is often regarded as sufficient time to observe and analyse the validity of warranties and undertakings given by the seller.
Despite the economic fluctuations and political uncertainties causing certain covenant breaches by the sellers in the market, there has not been any notable court or arbitral precedent touching upon “broken-deal” issues.
Given the limited power of statutory minority rights, shareholder activism is not an important force in Türkiye, and there are no examples of shareholder activism defence mechanisms.
See 11.1 Shareholder Activism.
See 11.1 Shareholder Activism.
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info@ciftcilaw.com.tr www.ciftcilaw.com.trAn Overview of M&A Activity in Türkiye in 2023
Global M&A activity fell to decade-low levels in 2023 due to high interest rates and inflation, as well as geopolitical struggles and wars.
Even though there are conflicting market reports and analyses in relation to the level of Turkish M&A activity in 2023, most agree that the Turkish M&A market followed the global downward trend, in line with global M&A trends and economic risks and uncertainties. According to the 2023 edition of Deloitte’s Annual Turkish M&A Review, the disclosed transaction volume of M&A deals last year was approximately USD8 billion, composed of a total of 403 deals, representing a 30% decline in terms of deal volume and a 3% decline in terms of deal number compared to the strong levels of the previous year. This did not come as a surprise, despite the rapid economic growth observed in the last two years, in light of the devastating earthquakes that impacted a major area in the southeastern part of Turkey in February 2023, and high inflation rates that reached 64.77%. These factors, as well as the political uncertainty surrounding the presidential elections held in May 2023, had a significant effect on M&A appetite in the Turkish market, particularly in the first two quarters of the year.
In terms of a sectoral breakdown of Turkish M&A deals in 2023, technology, internet and mobile services, energy and gaming were the highest grossing sectors, accounting for almost half of the total deal count in 2023.
According to Deloitte, the largest ten deals in 2023, including estimates for deals with undisclosed values, corresponded to 44% of the total deal volume in the Turkish M&A market. The remaining deals mostly occurred in the mid-market and small-to-early stage start-ups. This amounted to a relative decline in terms of the contribution of mega-deals to Turkish M&A activity compared to the previous year. Similarly, the average deal size decreased from USD28 million in 2022 to USD20 million. The largest deal of the year was the USD500 million investment by various venture capital investors in Getir, corresponding to almost 6% of the total deal volume.
Role of foreign investors
Notwithstanding the unstable financial environment caused mostly by unpredictable governmental policies, as a developing country seeking capital, it is essential for Turkey to attract direct foreign investment. Despite the downturn in both the global and Turkish M&A markets, foreign investors seemed to maintain their confidence in Turkish companies in 2023, as was the case in previous years. A closer look at the specifics of M&A activity in Turkey over the past year reveals that foreign investors have once again dominated the market, with a total deal volume of USD5.2 billion through 95 deals, exceeding the five-year average in terms of deal volume. Notable transactions include Vitol’s acquisition of BP’s gas station business in Türkiye, and DHL Group’s acquisition of MNG Kargo, one of the leading courier, express and parcel players in Türkiye.
Consistent with the recent trend in the Turkish M&A market, European and Gulf area-based investors had the biggest influence over the Turkish M&A market in 2023, representing 77% of the M&A deal value. That being said, in line with global trends, US and Americas-based investors are expected to play a bigger role in the market in the coming year.
Likewise, based on indications from the last quarter of 2023, 2024 could be a break-out year for Asia-based investors in Turkey. For example, in December 2023, the Taiwan Cement Corporation announced a share purchase agreement with OYAK, the pension fund of the Turkish Armed Forces, to increase Taiwan Cement Corporation’s 40% stake in OYAK Çimento, a leading Turkish cement firm listed on the Istanbul Stock Exchange, to 60%, while also acquiring 60% of OYAK’s stake in Cimpor Portugal Holdings, for a reported total value of USD740 million.
Role of financial investors
Following a strong year for the involvement of financial investors (ie, private equity firms, venture capital firms, angel investors and international financial institutions) in the Turkish M&A market in 2022, 2023 saw a significant decline in investments made by financial investors. According to Deloitte’s report, the total deal volume of M&A transactions involving financial investors in 2023 was USD1.3 billion (including estimates for undisclosed values), which amounts to a 74% decrease compared to the previous year.
Venture capital firms and angel investor entities played the biggest role amongst all financial investors in 2023, taking part in 93% of deals, with a notable 222 transactions. This meant that more than half of the M&A deals in Türkiye in 2023 involved venture capital firms and angel investors. Two landmark deals played a major role in this trend in 2023: the USD500 million raised by Getir and the USD105 million raised by Insider. 2023 was also a slow year for private equity deals, as was the case in 2022.
The technology, gaming, mobile and internet industry
According to Deloitte’s report, the technology industry accounted for 59 venture capital and angel investor agreements, followed by gaming (29), internet and mobile services (32) and fintech (22). Mobile gaming continues to be one of the industries that has been on a constant rise in Türkiye over the past few years. The leadership of the technology sector is largely driven by individual investors, crowdfunding transactions, venture capital and start-up transactions carried out by venture capital firms.
Significant corporate venture capital deals in the Turkish M&A market in 2023 include:
With no signs of a slowdown, Türkiye is still expected to continue its rise in the gaming sector and remain a gaming hub, further boosting M&A activity in the upcoming years.
Initial public offerings
2023 was a record-breaking year for the Turkish initial public offering (IPO) market. An all-time high number of 54 IPOs were made in Turkey, almost all of which were considered a success. In 2023, companies going public raised approximately USD3 billion as a result of a significant demand, especially from local individual investors aiming to minimise the impact of high inflation rates.
Most recently, the IPO of TAB Gıda, which holds franchise rights for Burger King, Popeyes and others, broke the record for the most subscription bids made by individual investors, with approximately 5.2 million bids. The number of individual investors in the Borsa Istanbul, the Turkish stock exchange, has doubled since the beginning of 2019, and there are already 60 companies waiting to be listed in the forthcoming days.
Notwithstanding the above, for the time being, international investors do not seem to be as enthusiastic as local investors about IPOs on the Borsa Istanbul. This is mostly due to the fact that the chronically high and unpredictable inflation rates complicate an analysis of profit margins and valuations of Turkish companies. Still, the sharp increase in IPO transactions in 2023 is expected to increase the number of Turkish companies that will be caught on foreign investors’ radars, which may increase foreign investment in the Turkish stock exchange.
Potential impact of environmental, social and governance (ESG) compliance
In recent years and especially in 2023, increased public awareness concerning climate change and global warming has heightened the importance of global companies’ compliance with ESG sustainability criteria.
While ESG compliance has been a focal point in a number of markets, such as the US and the EU, Türkiye has only very recently caught up with this trend, and its impact has been felt mostly in banking and finance deals (especially in cases involving international finance institutions) rather than M&A activity. A recent example of this was the issue of USD715 million green bonds by the Istanbul Metropolitan Municipality on the London Stock Exchange in November 2023. This marked the first green bond issued by a municipality in Türkiye, and its proceeds will be used to finance eligible green projects under the Sustainable Finance Framework of the Municipality.
ESG compliance is expected to become more of a hot topic for the Turkish M&A market in the coming years. Investors have been expecting more from Turkish targets in terms of compliance with ESG criteria, and companies with a strong commitment to maintaining ESG values are becoming more and more likely to be appealing targets for foreign investors. Although public awareness and the regulatory framework for ESG compliance are yet to reach the desired levels, many Turkish companies have started to run ESG compliance processes. This could have a positive impact on the Turkish M&A market in the next few years, as companies with better ESG compliance are more likely to attract the attention of investors.
Expectations for 2024
Türkiye has been experiencing a period of political uncertainty, mostly due to the parliamentary and presidential elections in May 2023. With the municipal elections at the end of March 2024 behind it, Türkiye will be looking at a period of more than four years with no scheduled elections in sight (barring any snap elections, which have been quite common in the past). While it would be overly optimistic to think that this will mean political stability, this should at the very least provide a certain level of visibility in terms of the political climate and governmental policies to investors considering investing in the Turkish market.
Likewise, steps taken in recent years in relation to the management of the Turkish economy have been received positively by the business world, such as the appointment of Mehmet Şimşek as the Minister for Treasury and Finance in June 2023, and the last two appointments to the position of governor of the Turkish Central Bank. Even though Türkiye’s high inflation is still far from being resolved, these factors give the market players reasons to be optimistic about M&A activity in the Turkish market in 2024, particularly from the second quarter onwards, after the municipal elections in March.
Similar to what happened in the previous year, the challenges faced by Turkish companies in finding access to financing due to high interest rates may cause further IPO activity, or local companies may turn their gaze to bigger companies active in their sector, especially foreign investors, thus increasing M&A activity in 2024.
Gaming, telecommunications and technology are expected to continue their rise to become leading sectors in the Turkish M&A market in 2024, just as in the last few years. The construction-related goods and services sector is also expected to have a major impact in the Turkish M&A market, having already shown signs of activity in the form of Taiwan Cement Corporation’s acquisition of OYAK Cimento’s control.
This expected surge in activity in the construction sector is mainly due to the urgent need to reconstruct the 11 cities that were severely affected by the devastating earthquakes that happened on 6 February 2023. These earthquakes have reminded the Turkish public that the country – and particularly its biggest city, İstanbul – is located in an earthquake zone, and is in dire need of a large-scale urban transformation and building reinforcement projects. The Turkish government has already taken various steps to accelerate these extensive processes, including passing amendments to urban transformation laws, and M&A activity is expected to take notice soon.
The automotive sector is once again expected to be important in terms of M&A activity in Türkiye in 2024. Türkiye’s first indigenous electric car, TOGG, hit the Turkish roads in 2023, breathing life into the spare parts automotive supply industries, and electric cars have also become increasingly popular in the last few years, causing a rapid growth in businesses related to this industry, such as charging stations. Finally, technology, renewable energy, life sciences and healthcare are expected to be leading industries in terms of M&A deals throughout 2024.
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