AMENDMENT TO BUSINESS COMBINATION AGREEMENT
Exhibit 2.2
AMENDMENT TO BUSINESS COMBINATION AGREEMENT
This AMENDMENT TO BUSINESS COMBINATION AGREEMENT (this “Amendment”) is made and entered into as of February 14, 2023, by and among MNG Havayolları ve Taşımacılık A.Ş., a joint stock corporation organized under the laws of Turkey (the “Company”), Merlin HoldCo, LLC, a Delaware limited liability company and a direct, wholly-owned Subsidiary of the Company (“HoldCo”), Merlin IntermediateCo, LLC, a Delaware limited liability company and a direct, wholly-owned Subsidiary of HoldCo (“IntermediateCo”), Xxxxxx XxxXx, LLC, a Delaware limited liability company and a direct, wholly-owned Subsidiary of HoldCo (“XxxXx”), Xxxxxx Merger Sub, Inc., a Delaware corporation and a direct, wholly-owned Subsidiary of IntermediateCo (“Merger Sub”), and Golden Falcon Acquisition Corp., a Delaware corporation (“GF”). Each of the Company, HoldCo, IntermediateCo, XxxXx, XX, and Merger Sub shall individually be referred to herein as a “Party” and, collectively, the “Parties.” Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Business Combination Agreement (as defined below).
RECITALS
WHEREAS, the Company, HoldCo, IntermediateCo, XxxXx, Merger Sub, and GF previously entered into that certain Business Combination Agreement dated December 6, 2022 (the “Business Combination Agreement”);
WHEREAS, Section 10.12 of the Business Combination Agreement provides that the Business Combination Agreement may be amended by execution of an instrument in writing signed on behalf of each of the parties to the Business Combination Agreement; and
WHEREAS, the Parties desire to amend the Business Combination Agreement as set forth in this Amendment.
NOW, THEREFORE, the Parties, intending to be legally bound, agree as follows:
| 1. | Recitals. The ninth recital of the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“WHEREAS, at the Effective Time, each share of Class B common stock, par value $0.0001 per share, of GF (“GF Class B Common Shares”) shall be automatically converted into one (1) share of Class A common stock, par value $0.0001 per share, of GF (“GF Class A Common Shares”) in accordance with the terms of the GF Certificate of Incorporation (such automatic conversion, the “GF Class B Conversion”) and, after giving effect to such automatic conversion at the Effective Time, as a result of the Merger, each (a) issued and outstanding GF Class A Common Share shall no longer be outstanding and shall automatically be converted into the right of the holder thereof to receive one Company ADS (and the Company Ordinary Share represented thereby); and (b) each outstanding GF Warrant shall automatically become a Company Warrant and all rights with respect to GF Class
A Common Shares underlying the GF Warrants shall be automatically converted into rights to purchase Company ADSs (and the Company Ordinary Shares represented thereby) and thereupon assumed by the Company;”
| 2. | Section 1.02(d). Section 1.02(d) of the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“No later than the fifth (5th) Business Day prior to the Closing Date, GF shall deliver to the Company a schedule (the “Payment Spreadsheet”) setting forth, in each case on an aggregate basis, (i) GF’s good faith calculation of the Merger Consideration, (ii) the allocation of the Merger Consideration among GF Stockholders, (iii) the number of GF Warrants that are outstanding and unexercised, and the allocation of Company Warrants among the holders thereof, and (iv) the number of Company Ordinary Shares that shall be issuable upon exercise of such Company Warrants. As promptly as practicable following GF’s delivery of the Payment Spreadsheet, the Parties shall work together in good faith to finalize the calculation of the Merger Consideration and the Payment Spreadsheet. The allocation of the Merger Consideration, including the Company Warrants, set forth in the Payment Spreadsheet shall, to the fullest extent permitted by Applicable Legal Requirements, be final and binding on all Parties and shall be used by the Company for purposes of issuing the Merger Consideration to GF Stockholders, and conversion of the GF Warrants into Company Warrants, in each case pursuant to this Article I, absent manifest error. In issuing the Merger Consideration and converting the GF Warrants into Company Warrants pursuant to this Article I, the Company and Merger Sub shall, to the fullest extent permitted by Applicable Legal Requirements, be entitled to rely fully on the information set forth in the Payment Spreadsheet, absent manifest error.”
| 3. | Section 2.08(d). Section 2.08(d) of the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“GF Warrants. At the Effective Time, by virtue of the Merger and without any action on the part of any holder of an GF Warrant, each GF Warrant that is issued and outstanding immediately prior to the Effective Time shall automatically and irrevocably be converted into the right to receive one (1) Company Warrant exercisable for Company ADSs (and the Company Ordinary Share represented thereby) in accordance with its terms. From and after the Effective Time, the holders of GF Warrants prior to the Effective Time shall cease to have any rights with respect to such warrants as provided for herein or by Applicable Legal Requirements.”
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| 4. | Section 2.09. Section 2.09 of the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“Establishment of ADR Facility; Distribution of Company ADSs. (a) Prior to the Closing, the Company shall cause a sponsored American depositary receipt (“ADR”) facility (the “ADR Facility”) to be established with a reputable bank reasonably acceptable to GF (such bank or any successor depositary bank, the “Depositary Bank”) for the purpose of issuing the Company ADSs including entering into a customary deposit agreement with the Depositary Bank (the “Deposit Agreement”), in form and substance reasonably acceptable to GF, establishing the ADR Facility, to be effective as of the Effective Time, and filing with the SEC a registration statement on Form-6 relating to the registration under the Securities Act for the issuance of the Company ADSs.
(b) Prior to the Effective Time, the Company shall designate a U.S. bank or trust company reasonably acceptable to GF to act as agent of the Company for the purposes of distributing the Company ADSs (the “Company ADS Agent”). At or concurrently with the Effective Time, the Company shall (i) allot and issue, or cause to be allotted and issued, to the Depositary Bank a number of Company Ordinary Shares equal to the aggregate number of Company ADSs to be issued to the holders of GF Class A Common Shares pursuant to this Article II (the “Company ADS Recipients”), and (ii) deposit or cause to be deposited with the Company ADS Agent the uncertificated book-entries of Company Ordinary Shares representing the aggregate number of such Company ADSs for the benefit of the Company ADS Recipients, for exchange in accordance with this Article II, and the Depositary Bank shall be authorized to issue the Company ADSs representing such Company Ordinary Shares in accordance with this Agreement. The Company ADS Agent shall distribute the Company ADSs to either the Exchange Agent or the Company ADS Recipients as directed by the Company, in accordance with this Section 2.09 and the Deposit Agreement.
(c) The Company ADS Agent shall not be entitled to vote or exercise any rights of ownership with respect to Company Ordinary Shares held by it from time to time hereunder, except that, with respect to Company Ordinary Shares, it shall receive and hold all dividends or other distributions paid or distributed with respect thereto for the account of Company ADS holders entitled thereto.”
| 5. | Section 2.10. Section 2.10 of the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“(a) Prior to the Closing Date, the Company shall appoint a Person authorized to act as exchange agent in connection with the Transactions, which Person shall be reasonably acceptable to GF (the “Exchange Agent”), and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to GF (the “Exchange Agent Agreement”) for the purpose of exchanging GF Class A Common Shares for Company ADSs pursuant to Section 2.08(b). As of the Effective Time, the Company shall deposit (or cause to be deposited) with the Exchange Agent, for exchange in accordance with this Section 2.10 through the Exchange Agent, Company ADSs issued pursuant to Section 2.08(b).
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(b) Each holder of record of a book-entry share (“Book-Entry Share”), which immediately prior to the Effective Time represented outstanding GF Class A Common Shares that were converted pursuant to Section 2.08(b) into the right to receive the Merger Consideration shall, upon receipt by the Exchange Agent of an “agent’s message” in customary form (or such other evidence, if any, as the Exchange Agent may reasonably request), be entitled to receive in exchange therefor, the Merger Consideration for each GF Class A Common Share formerly represented by such Book-Entry Share, and such Book-Entry Share shall be canceled. Payment of the Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until such “agent’s message” (or such other evidence) is received, each Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration and shall not evidence any interest in, or any right to exercise the rights of a stockholder or other equity holder of, GF or the Surviving Company.”
| 6. | Section 6.01(a). Section 6.01(a) of the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“As promptly as practicable after the date hereof, GF and the Company shall jointly prepare, and the Company shall file with the SEC a registration statement on Form F-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of the (i) Company ADSs (and the Company Ordinary Shares represented thereby after the Stock Split) that constitute the Merger Consideration, and (ii) Company Warrants, which Registration Statement shall also contain a proxy statement of GF (as amended, the “Proxy Statement”) for the purpose of soliciting proxies or votes from GF Stockholders for the matters to be acted upon at a special meeting of stockholders of GF to be called and held for such purpose (the “GF Stockholder Meeting”) and providing the GF Stockholders an opportunity to exercise their Redemption Rights in conjunction with the stockholder vote on the GF Transaction Proposals. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from GF Stockholders to vote in favor of GF Transaction Proposals.”
| 7. | Section 6.01(e). Section 6.01(e) of the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“Prior to the Closing, the Company shall prepare and use reasonable best efforts to cause the Depositary Bank to file with the SEC a registration statement on Form F-6 relating to the registration under the Securities Act for the issuance of the Company ADSs (the “Form F-6”).”
| 8. | Section 6.08(c). Section 6.08(c) of the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“The Company shall use its reasonable best efforts to cause: (i) the Company’s initial listing application with the NYSE in connection with the Transactions to have been approved; (ii) the Company to satisfy all applicable initial listing requirements of the NYSE; and (iii) the Company ADSs and the Company
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Warrants to be approved for listing on the NYSE (and GF shall reasonably cooperate in connection therewith), subject to official notice of issuance, in each case, as promptly as reasonably practicable after the date of this Agreement, and in any event prior to the Effective Time.”
| 9. | Section 6.19. Section 6.19 of the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“The Company shall use commercially reasonable efforts to take all actions reasonably necessary to, and GF shall reasonably cooperate with the Company to, cause the board of directors of the Company, immediately after the Effective Time (the “Closing Company Board”) to consist of seven (7) directors, which shall include (i) two (2) directors designated solely by the Sponsor (both of which shall qualify as an “independent director” pursuant to NYSE requirements) and (ii) at least three (3) directors who qualify as “independent directors” pursuant to NYSE requirements in the aggregate. For the avoidance of doubt, the Company hereby agrees that (a) the Company shall not take any action that would interfere with the Sponsor’s right to designate two (2) independent directors to the Closing Company Board, (b) the Sponsor shall have the right to remove a Sponsor-designated director from the Closing Company Board (including any committees thereof), (c) the Sponsor shall have the exclusive right to fill vacancies created by reason of death, removal or resignation of a Sponsor-designated director (including any committees thereof), (d) the Company shall not remove any of the Sponsor-designated directors from the office during their respective three (3) year term, except upon the request of the Sponsor or as set forth in the Articles Amendment or the applicable law, and (e) the Company shall use commercially reasonable efforts to take all actions reasonably necessary to comply and ensure the Company Shareholders and the board of directors of the Company comply with this Section 6.19.”
| 10. | Section 7.01(d). Section 7.01(d) of the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“The Company ADSs and Company Warrants to be issued in connection with the Closing shall be approved for listing upon the Closing on the NYSE, subject only to official notice of issuance thereof.”
| 11. | Schedule A. The defined term “Company AD Warrant” is hereby deleted in its entirety from Section 1 and Section 2 of Schedule A to the Business Combination Agreement. Each of the defined terms “Company AD Warrant Recipient,” “Exercising Warrantholders,” and “Book-Entry Warrant” is hereby deleted in its entirety from Section 1 of Schedule A to the Business Combination Agreement. |
| 12. | Exhibit A (Articles Amendment). The Exhibit A to the Business Combination Agreement (Articles Amendment) is hereby amended and restated in its entirety as set forth in Exhibit A attached hereto. |
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| 13. | No Further Amendment. Except as expressly provided in this Amendment, all of the terms and conditions of the Business Combination Agreement remain unchanged and continue in full force and effect. |
| 14. | No Waiver. Except as specifically set forth herein, the execution of this Amendment shall not operate as a waiver of any right, power or remedy of the parties under the Business Combination Agreement nor shall it constitute a waiver of any provision of the Business Combination Agreement. |
| 15. | Effect of Amendment. This Amendment shall form a part of the Business Combination Agreement for all purposes, and each party to this Amendment and to the Business Combination Agreement shall be bound by this Amendment. |
| 16. | Governing Law. This Amendment, and any action, suit, dispute, controversy or claim arising out of this Amendment, or the validity, interpretation, breach or termination of this Amendment shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to conflict of laws principles. |
| 17. | Entire Agreement; Counterparts. This Amendment, the Business Combination Agreement (as amended by this Amendment) and any other documents and instruments and agreements among the Parties as contemplated by or specifically referred to in the Business Combination Agreement (including the Exhibits and Schedules thereto) constitute the entire agreement among the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof and thereof. This Amendment may be executed in one or more counterparts, all of which shall be considered one and the same document and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties; it being understood that all Parties need not sign the same counterpart. Delivery by electronic transmission to counsel for the other Parties of a counterpart executed by a Party shall be deemed to meet the requirements of the previous sentence. |
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first written above.
| GOLDEN FALCON ACQUISITION CORP. | ||
| By: | /s/ Xxxxxx Xxxx | |
| Name: | Xxxxxx Xxxx | |
| Title: | CEO | |
[Signature Page to Amendment to Business Combination Agreement]
| MERLIN HOLDCO, LLC | ||
| By: | /s/ Xxx Xxxxx Xxxxxxxx | |
| Name: | Xxx Xxxxx Xxxxxxxx | |
| Title: | President and Treasurer | |
| By: | /s/ Xxxx Xxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxx | |
| Title: | Vice President and Secretary | |
[Signature Page to Amendment to Business Combination Agreement]
| MERLIN INTERMEDIATECO, LLC | ||
| By:: | /s/ Xxx Xxxxx Xxxxxxxx | |
| Name: | Xxx Xxxxx Xxxxxxxx | |
| Title: | President and Treasurer | |
| By: | /s/ Xxxx Xxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxx | |
| Title: | Vice President and Secretary | |
[Signature Page to Amendment to Business Combination Agreement]
| XXXXXX XXXXX, LLC | ||
| By: | /s/ Xxx Xxxxx Xxxxxxxx | |
| Name: | Xxx Xxxxx Xxxxxxxx | |
| Title: | President and Treasurer | |
| By: | /s/ Xxxx Xxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxx | |
| Title: | Vice President and Secretary | |
[Signature Page to Amendment to Business Combination Agreement]
| MERLIN MERGER SUB, INC. | ||
| By: | /s/ Xxx Xxxxx Xxxxxxxx | |
| Name: | Xxx Xxxxx Xxxxxxxx | |
| Title: | President and Treasurer | |
| By: | /s/ Xxxx Xxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxx | |
| Title: | Vice President and Secretary | |
[Signature Page to Amendment to Business Combination Agreement]
EXHIBIT A
Form of Articles Amendment
See attached.
AMERICAS 119576763
THE AMENDED AND RESTATED ARTICLES OF ASSOCIATION OF MNG HAVAYOLLARI VE TAŞIMACILIK ANONİM ŞİRKETİ
INCORPORATION
Article 1
A joint-stock company has been incorporated by the founders, whose names, surnames, nationalities, and addresses are provided below, in accordance with provisions of the Turkish Commercial Code concerning the instantaneous incorporation of joint-stock companies.
| NO. |
NAME AND SURNAME-TITLE OF THE |
RESIDENTIAL ADDRESS |
NATIONALITY | |||
| 1 | MNG Holding A.Ş. | Xxxx Xxxxx Cad. No:88 Gaziosmanpaşa/ANKARA |
REPUBLIC OF TURKEY | |||
| 2 | Günal İnşaat Ticaret ve Sanayi A.Ş. | Xxxx Xxxxx Cad. No:88 Gaziosmanpaşa/ANKARA |
REPUBLIC OF TURKEY | |||
| 3 | Mapa İnşaat ve Ticaret A.Ş. | Xxxx Xxxxx Cad. No:88 Gaziosmanpaşa/ANKARA |
REPUBLIC OF TURKEY | |||
| 4 | Ayşegül ÖZKAPLAN | Portakal Çiçeği Sok. No:46/5 Çankaya/ANKARA |
REPUBLIC OF TURKEY | |||
| 5 | Xxxxx XXXX | Bardacık Sok No:92/7 Gaziosmanpaşa/ANKARA |
REPUBLIC OF TURKEY | |||
| 6 | Xxxxx Xxxxxx XXXXXXXX | Xxxxxxx Xxx. No:25/2 Gaziosmanpaşa/ANKARA |
REPUBLIC OF TURKEY | |||
| 7 | Xxxxx Xxxxxx ARICA | Manolya Sok. No:5/7 Dikmen/ANKARA |
REPUBLIC OF TURKEY | |||
TRADE NAME OF THE COMPANY
Article 2
The trade name of the Company is “MNG Havayolları ve Taşımacılık Anonim Şirketi”.
PURPOSE AND FIELD OF ACTIVITY OF THE COMPANY
Article 3
The Company was established for the purpose of special scheduled and/or charter passenger, tourist, worker and cargo aircraft transportation within Turkey and/or between Turkey and foreign countries or two foreign countries. The company may engage in all kinds of ancillary and auxiliary activities and may operate in the following business scopes in order to realize its field of activity.
[Signature Page to Business Combination Agreement]
a) The Company may purchase all kinds of vehicles, equipment, materials and spare parts in Turkey and abroad related to aircrafts and their operation and/or lease the same. The Company may directly operate the aircraft it has purchased or leased under Turkish registration within Turkey and/or between Turkey and foreign countries or between two foreign countries or only on international routes on a special scheduled basis and/or on a charter basis. The Company may carry passengers, tourists, workers and bulk (cargo) or rent these aircraft to Turkish or foreign companies on the basis of specific flights, seats or duration.
b) The Company may carry out import, export and transit transportation transactions related to its purpose and field of activity.
c) The Company may open and operate general and private warehouses where imported and exported goods are placed under customs supervision. The Company may open storehouses and warehouses. The Company may purchase and lease land, sea and air vehicles for these works. The Company may install, lease and operate fuel stations, maintenance and repair shops for these vehicles.
d) The Company may establish warehouses for the preservation of foodstuffs and establish and operate cold stores.
e) The Company may open and operate a warehouse for the storage of valuable items.
f) The Company may provide logistics services such as picking up a product from the factory where it is manufactured, transportation, customs clearance, storage and delivery to the purchaser.
g) The Company may provide Air Taxi Transportation operations and services. The Company may purchase all kinds of vehicles, equipment, materials and spare parts in Turkey and abroad necessary for air taxi transportation and/or lease the same. The Company may operate the aircraft it has purchased or leased under Turkish registration within Turkey and/or between Turkey and foreign countries or between two foreign countries or only on international routes. The Company may lease these aircraft to Turkish or foreign companies on the basis of specific flights, seats or duration.
h) The Company may provide ground operation services such as loading and unloading company aircraft at airports.
i) The Company may provide intermediary services in the purchase, sale and rental of spare parts and components related to aircraft.
j) The Company may open branch offices, agencies, representation offices, offices, maintenance stations, passenger and freight transportation and services, and ground operation services for domestic and foreign companies, in relation to its purpose and field of activity. The Company may provide all kinds of ground operation services for domestic and foreign airlines and may establish and operate fuel supply services, or have Turkish and foreign companies perform these works with private agreements. The company may undertake such services of other domestic and foreign companies operating in its own field of activity through agreements.
k) The company may establish new companies related to its field of activity or indirectly benefiting its field of activity. The company may participate in established domestic or foreign companies, acquire stocks and partnership shares, and perform transfer and merger transactions with companies operating in its own field of activity. The Company may sell, transfer and pledge the securities it owns or pledge such securities as collateral in various ways.
l) The Company may purchase movables, real estate and all kinds of goods in order to achieve its purpose and field of activity. The Company may carry out all kinds of transactions on its real estate. The Company may sell them to real or legal persons, exchange them, rent them partially or completely, operate, unite, allocate and distribute them. The Company may perform all kinds of corrections due to changes (such as demolition, construction) on real estate. The Company may establish construction servitude and condominium. The Company may convert the construction servitude into condominium ownership. The Company may carry out all kinds of transactions related to them (such as issuing lists, preparing management plans, determining land shares) and may issue and register all kinds of documents that may be requested by the Land Registry Offices. The Company may establish a mortgage, especially the real rights, on the real property belonging to the Company or third parties for
[Signature Page to Business Combination Agreement]
the debts of the Company or third parties, and revoke the mortgage. The Company may establish a commercial enterprise pledge on the securities belonging to the Company. The Company may also be a guarantor for the debts of the Company or third parties and may accept the surety of third parties and receive mortgages and all kinds of guarantees for its receivables.
m) The Company may obtain concessions, permits, patents and/or patent rights and licenses related to its field of activity. The Company may own all kinds of intangible rights such as brands, models, pictures. The Company may execute know-how, technical assistance, repair and maintenance agreements with foreign companies, and may employ foreign employees.
n) The Company may obtain and borrow all kinds of loans in short, medium and long terms from banks and similar organizations.
o) The Company may open all kinds of private education institutions related to its field of activity.
p) Except for the aforementioned business scopes, the Company may enter into other works that may be deemed beneficial and necessary in order to achieve the purpose and field of activity of the Company in the future, upon the proposal of the Board of Directors and the resolution of the General Assembly.
HEADQUARTERS AND BRANCH OFFICES OF THE COMPANY
Article 4
The registered office of the Company is in İstanbul. Address: WOW Convention Center İDTM 34149 Yeşilköy- Bakırköy/İSTANBUL. For the change of the address, the new address is registered at the trade registry and announced at the Turkish Trade Registry Gazette. It is also notified to the Ministry of Industry and Trade. For the Company that fails to register its new address after leaving the registered and announced address, this situation would be deemed as a reason for termination. The Company may open branches in Turkey and abroad, provided that it notifies the Ministry of Industry and Trade.
DURATION OF THE COMPANY
Article 5
The duration of the Company is indefinite from the date of registration and announcement. This duration may be shortened by obtaining permission from the Ministry of Industry and Trade and by amending the Articles of Association.
CAPITAL AND SHARES
Article 6
The Company has adopted the registered capital system as per the provisions of the Turkish Commercial Code and switched to the registered capital system with the permission of the Directorate General of Domestic Trade of the Ministry of Commerce dated [•] and numbered [•]. The ceiling of the registered capital of the Company is TRY 197,500,000 (one hundred ninety-seven million five hundred thousand Turkish Liras) and is divided into [•] ([•]) registered shares, each with a nominal value of TRY [•] ([•]). The authorization for the ceiling of registered capital permission given by the Ministry of Commerce shall be valid for the years 2022 through 2027 (5 years). If the permitted registered capital ceiling is not reached by such date (at the end of the year 2027), in order for the board of directors to pass a resolution for capital increase after the end of 2027, articles of association shall be amended in the general assembly in order to authorize the board of directors for a new term which shall not exceed 5 (five) years. In case of failure to obtain such authorization, the Company shall be deemed to exit the registered capital system.
The allocation of the issued capital of the Company between the shareholders of the Company is as follows:
[Signature Page to Business Combination Agreement]
| Shareholder |
Share Group |
Number of Shares |
Amount of Shares (TL) |
Shareholding Percentage (%) | ||||
| Günal İnşaat Anonim Şirketi |
B | [•] | 7,468,000.00 | 18.91 | ||||
| Mapa İnşaat ve Ticaret Anonim Şirketi |
A | [•] | [X] | [Y] | ||||
| B | [•] | 29,328,013.00 –[X] | 74.25 –[Y] | |||||
| Xxxxxx Xxxxx Xxxxx |
B | [•] | 1,303,987.00 | 3.30 | ||||
| MNG Holding Anonim Şirketi |
B | [•] | 215,000.00 | 0.54 | ||||
| Xxx Xxxxx Xxxxxxxx |
X | [•] | 1,185,000.00 | 3.00 | ||||
| TOTAL |
[•] | 39,500,000.00 | 100 |
The issued share capital of the Company is TRY 39,500,000 (thirty-nine million five hundred thousand Turkish Liras) and has been fully paid without collusion. The Company’s capital may be increased or decreased whenever necessitated as per the provisions of the Turkish Commercial Code.
The Board of Directors is authorized, at times it deems required, to pass resolutions on matters regarding increase of the issued capital through issuance of new shares, provided that the registered capital ceiling is not exceeded, and restriction of shareholders’ right to acquire new shares, in accordance with the provisions of the Turkish Commercial Code. The authority to restrict acquisition of new shares may not be exercised in a manner to cause inequality among the shareholders.
Following the capital increase as per the provisions of this article, the new version of the article regarding the Company’s capital of the articles of association showing the issued capital shall be registered with the Trade Registry by the Board of Directors and announced in the Turkish Trade Registry Gazette. Capital increases announced in the Turkish Trade Registry Gazette shall also be published on the Company website.
Since the nominal value of each share representing the capital of the Company has been changed from TRY 1.00 (one Turkish Lira) to TRY [•], the share certificates held by the shareholders of the Company shall be recalled from the shareholders and replaced with the share certificates representing the same amount of shares as changed by the resolution of the Board of Directors. Share certificates whose nominal value is not changed shall continue to be valid.
Except for (i) the legal or arbitrary share transfers to be made by the shareholder who owns A Group Shares to his or her first or second degree relatives; or (ii) share transfers whereby A Group Shares are transferred to a domestic or overseas legal entity whose management is controlled by the immediate blood relatives or second degree relatives of the shareholder who owns A Group Shares, in the event that any of the A Group Shares are transferred to a third party or listed in any stock exchange, the privileges on such shares shall automatically terminate and such shares shall be deemed to have been automatically converted into B Group Shares as of the date of such share transfer.
SHARE CERTIFICATES
Article 7
All the share certificates of the Company shall be issued as nominative share certificates.
Share certificates can be printed as various denominations.
[Signature Page to Business Combination Agreement]
BOARD OF DIRECTORS, its DURATION and BOARD MEETINGS
Article 8
The business and management of the Company shall be carried out by a Board of Directors consisting of 7 (seven) members to be elected by the General Assembly within the framework of the provisions of the Turkish Commercial Code and these articles of association. 5 (five) members shall be elected by the General Assembly from among the nominees nominated by the majority of the shareholders holding A Group Shares.
3 (three) members of the Board of Directors shall be elected as independent board members. Regarding the necessary requirements to be fulfilled by the independent board members, maximum compliance will be ensured with the terms and provisions in the corporate governance principles of the Capital Markets Board.
If a legal entity is elected as a member of the board of directors, one real person determined by the legal entity shall be registered and announced on behalf of the legal entity together with such legal entity; in addition, the registration and announcement shall be immediately announced on the Company’s website. Only such registered person may attend and vote in the meetings on behalf of the legal entity.
In the event that a board membership becomes vacant for any reason or if the independent board member ceases to be independent, the board of directors shall temporarily appoint a person possessing the legal requirements and submit the same to the approval of the first general assembly in line with the provisions of the Turkish Commercial Code and capital markets legislation. The temporary member to be elected by the board of directors shall be determined in accordance with the allocation of the members mentioned in the first paragraph of this Article. Member so appointed shall serve until the general assembly meeting that such member is submitted for approval and if approved, complete the term of office of his predecessor.
Each year, the chairman and the vice chairman to act as the chairman’s proxy when he is absent shall be elected from amongst the nominees to be nominated by the majority of the shareholders holding A Group Shares.
The board of directors shall establish Audit Committee, Early Detection of Risk Committee and Corporate Governance Committee. Composition, duties and working principles of such committees shall be governed by the Turkish Commercial Code, the Capital Markets Law and the relevant legislation as well as such committees’ relationships with the Board shall be governed by the provisions of the relevant legislation.
Board members are appointed for a maximum term of 3 (three) years. Term of office of each Board member shall terminate upon expiry of its term of office or upon its resignation, loss of legal capacity, death or receipt of the written notice dismissing such member from duty. Unless dismissed, board members whose terms of office expires may be re-elected.
If one of the Board members is declared bankrupt or if a Board member’s capacity is restricted or a member ceases to possess the legal requirements necessary for membership or qualifications envisaged in the articles of association, such person’s membership shall automatically terminate without need for any further procedure.
[Signature Page to Business Combination Agreement]
Even if they had been appointed in the articles of association, board members may always be dismissed prior to the expiry of their term of office upon a resolution of the general assembly in case of presence of a relevant item in the agenda or if there is no relevant item in the agenda, in case of presence of a just cause. A legal person who is a Board member may replace the person registered on its behalf, at any time. Members who are dismissed are not entitled to claim compensation.
Meetings of the Board of Directors shall be held at the place and time determined by the Board of Directors at the head office or the Company or any place inside or outside Turkey.
As per provisions of the Turkish Commercial Code, if one of the members does not request a discussion, the board of directors may pass a resolution, provided that written consents or signatures of the sufficient number of board members envisaged in the Turkish Commercial Code and these articles of association are obtained in relation to the proposal of a board member written in the form of a resolution. As a validity condition of the resolution, the same proposal must be made to all Board members. Approvals do not have to be on the same sheet; however all of the sheets bearing the approval signatures must be affixed in the resolution book of the Board of Directors in order for the resolution to be valid.
Persons who are entitled to attend the board meetings of the Company may also participate in such meetings in electronic environment in accordance with article 1527 of the Turkish Commercial Code. In accordance with the provisions of the Communiqué on Assemblies to be Held in Electronic Environment in Commercial Companies Except for Company General Assemblies (the “Communiqué”), the Company may establish an electronic meeting system that will allow the beneficiaries to attend the meetings, express their opinions, make suggestions and vote on electronic environment or purchase services from the systems established for this purpose. At all meetings to be held, it shall be ensured that the beneficiaries can exercise their rights specified in the provisions of the relevant legislation within the framework of the aforementioned Communiqué through the system established in accordance with this provision of the articles of association or the system from which support services shall be obtained.
Board meetings may not only be conducted entirely in electronic environment but may also be conducted through participation of some members in electronic environment to a meeting where some members are physically present.
THE REPRESENTATION OF THE COMPANY AND TASK DISTRIBUTION OF THE MEMBERS OF THE BOARD OF DIRECTORS
Article 9
The representation of the Company belong to the Board of Directors against others.
The Board of Directors may assign its power of representation to one or more executive member(s) or third parties as directors. Minimum one member of the Board of Directors must have the power of representation. (Article 370 of the Turkish Commercial Code)
The Board of Directors shall issue an internal directive pursuant to Article 367 of the Turkish Commercial Code and may transfer the management partially or completely to one or more members of the Board of Directors or to a third party.
In order for the documents to be delivered and agreements to be concluded by the Company to be valid, they shall bear the signature of the authorized signatory of the Company, which shall be appended under the trade name of the Company.
[Signature Page to Business Combination Agreement]
GENERAL ASSEMBLY
Article 10
The General Assemblies are convened regularly and extraordinarily. The ordinary General Assemblies are gathered within 3 months after the end of the financial year of the Company at least once in a year, and the extraordinary General Assemblies gather in circumstances and cases where necessitated by the businesses of the Company.
At the General Assembly Meetings, the voting rights of the shareholders shall be determined by proportioning the total value of the nominal value of the shares that the respective shareholder possesses, to the total value of the Company’s nominal capital. The shareholder may attend the General Assembly meetings personally or send a representative who is or is not a shareholder.
At the General Assembly Meetings, the issues mentioned in article 409 of the Turkish Commercial Code are negotiated and the necessary decisions are made. The quorum for the meetings and the resolutions are subject to the provisions of the Turkish Commercial Code.
The General Assembly may convene at the headquarters or any convenient places.
The beneficiaries who are entitled to attend the general assembly meetings of the Company may also participate in such meetings in electronic environment in accordance with article 1527 of the Turkish Commercial Code. In accordance with the provisions of the Regulation on General Assemblies to be Held in Electronic Environment in Joint Stock Companies, the Company may establish an electronic general assembly system that will allow the beneficiaries to attend the general assembly meetings, express their opinions, make suggestions and vote on electronic environment or purchase services from the systems established for this purpose. At all general assembly meetings to be held, in accordance with this provision of the articles of association, it shall be ensured that the beneficiaries and their representatives can exercise their rights specified in the provisions of the aforementioned Regulation through the established system.
ANNOUNCEMENTS
Article 11
Announcements of the company shall be made in accordance with the provisions of the fourth paragraph of Article 35 of the Turkish Commercial Code.
The announcements regarding the calling of the General Assembly to the meetings are obligated to be made at least two weeks in advance excluding the days of the meeting in accordance with Article 414 of the Turkish Commercial Code.
ACCOUNTING PERIOD
Article 12
The accounting period of the Company shall start on the first day of January of each year and shall end on the last day of December of the same year. However, for the year that the Company is incorporated, the accounting period shall start on the day on which the company’s establishment was finalized and it shall end on the last day of December of the same year.
DETERMINATION OF PROFIT and DIVIDEND PAYMENTS
[Signature Page to Business Combination Agreement]
Article 13
The net profit of the Company is the balance remaining after all the expenses are deducted from the total income determined at the end of the activity period. a) The general legal reserve of 5% is set aside from the net profit for the period until it reaches twenty percent (20%) of the paid-in capital each year. b) 5% of the remaining amount is distributed to the shareholders as dividend. The General Assembly is authorized to decide to set aside as legal reserves or to distribute partially or completely the amount remaining from the net profit following the deduction of the amounts stated in subparagraphs (a) and (b). The general assembly may distribute advance dividend to shareholders within the framework of the relevant legislation. The provisions of the relevant legislation shall be applied to the calculation and distribution of the advance dividend.
RESERVE FUND
Article 14
The provisions of Articles 519 and 523 of the Turkish Commercial Code are applied to the contingency reserves spared by the Company.
LEGAL PROVISIONS
Article 15
The provisions of the Turkish Commercial Code shall apply to matters which are included in this Articles of Association.
ISSUANCE OF SECURITIES AND CAPITAL MARKET INSTRUMENTS
Article 16
Provided that the provisions of the Turkish Commercial Code, Capital Markets Law and legislations regarding thereto are complied with, the Company may issue all kinds of capital markets instruments to be sold to real and legal persons in and out of Turkey.
Provided that the provisions of the Capital Markets Law and the applicable capital market legislation regarding thereto are complied with, the Board of Directors of the Company has the authority to issue all kinds of capital markets instruments including bonds, commercial papers, convertible bonds, exchangeable bonds and other capital markets instruments which are deemed as debt instruments.
The board of directors is authorized in relation to determination of issuance and maximum amounts, types, maturities, interests and other requirements as to the issuance and authorization of the management regarding these matters as per the Capital Markets Law.
[Signature Page to Business Combination Agreement]
