EXHIBIT D
EXECUTION COPY
TURKCELL HOLDING A.S.
SHAREHOLDERS AGREEMENT
Dated as of October 21, 1999
between
SONERA CORPORATION
CUKUROVA HOLDING A.S.
YAPI ve KREDI BANKASI A.S.
PAMUKBANK T.A.S.
TURKIYE GENEL SIGORTA A.S.
and
PAMUK FACTORING A.S.
TABLE OF CONTENTS
Page
SECTION I DEFINITIONS........................................................2
1.01 Definitions............................................................2
1.02 Principles of Construction.............................................4
SECTION II PURPOSE OF THE COMPANY AND TRANSFER OF TURKCELL SHARES.............4
2.01 Purpose................................................................4
2.02 Transfer of Turkcell Shares............................................4
SECTION III CAPITAL; SHARES AND SHARE TRANSFERS................................5
3.01 Current Capital of the Company.........................................5
3.02 Share Transfers........................................................5
SECTION IV GOVERNANCE AND MANAGEMENT OF THE COMPANY...........................6
4.01 Shareholders Meetings..................................................6
4.02 Board of Directors.....................................................7
4.03 Important Decisions of the Board of Directors..........................7
4.04 Important Decisions of the Shareholders Meetings.......................7
4.05 Subsidiary Governance..................................................8
4.06 Auditors and Records...................................................8
SECTION V CONDUCT OF BUSINESS................................................8
5.01 Non-Competition........................................................8
5.02 Turkcell Public Offering...............................................8
SECTION VI MISCELLANEOUS......................................................8
6.01 Entire Agreement.......................................................8
6.02 Publicity and Confidentiality..........................................9
(i)
Page
6.03 Assignment; Successors and Assigns.....................................9
6.04 Governing Law..........................................................9
6.05 Arbitration............................................................9
6.06 Interpretation........................................................10
(ii)
TURKCELL HOLDING A.S. SHAREHOLDERS AGREEMENT
This TURKCELL HOLDING A.S. SHAREHOLDERS AGREEMENT, dated as of October
21, 1999, by and among Sonera Corporation, organized under the laws of Finland
("Sonera") and Cukurova Holding A.S., a joint stock company organized under the
laws of the Republic of Turkey, Yapi ve Kredi Bankasi A.S. a joint stock company
organized under the laws of the Republic of Turkey, Pamukbank T.A.S. a joint
stock company organized under the laws of the Republic of Turkey, Turkiye Genel
Sigorta A.S. a joint stock company organized under the laws of the Republic of
Turkey and Pamuk Factoring A.S. (Cukurova Holding A.S. and Yapi ve Kredi Bankasi
A.S. and Pamukbank T.A.S. and Turkiye Genel Sigorta A.S. and Pamuk Factoring
A.S. are collectively referred to as "Cukurova");
WITNESSETH THAT:
WHEREAS, the parties agreed to establish, subject to receipt of
required governmental approvals, Turkcell Holding A.S (the "Company") to develop
more efficiently the business of Turkcell Iletisim Hizmetleri A.S., a joint
venture company organized under the laws of the Republic of Turkey ("Turkcell");
WHEREAS, the parties to this Agreement wish to set forth the terms and
conditions for incorporation of the Company and their continuing cooperation as
shareholders in the Company,
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION I
DEFINITIONS
1.01 Definitions. In this Agreement, each of the following terms shall
have the meanings set forth below:
"Affiliate" shall mean, at the date hereof and at any time from the
date hereof, (i) as to each Shareholder any person or entity which (a) is
directly or indirectly controlled by such Shareholder, (b) directly or
indirectly controls such Shareholder, and (c) is under common control with such
Shareholder; for the purposes of this definition, "control" shall mean the
power, whether held directly or indirectly, to direct or cause direction of
management and policies through ownership of voting shares, contract or
otherwise.
"Agreement" shall mean this Turkcell Holding A.S. Shareholders
Agreement, including the Schedules, as amended, supplemented, restated or
otherwise modified from time to time.
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"Board of Directors" shall mean the Board of Directors of the Company.
"Come Along Notice" shall have the meaning assigned to such term in
Section 3.02.
"Company" shall have the meaning assigned to such term in the preamble
to this Agreement.
"Cukurova" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Dollars" and the "USD" symbol shall mean the lawful currency of the
United States of America.
"Important Decisions" shall have the meaning assigned to such term in
Sections 4.03 and 4.04.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind, including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement or any
lease in the nature thereof.
"Nominee Shareholders" shall mean Yapi ve Kredi Bankasi A.S.,
Pamukbank T.A.S., Turkiye Genel Sigorta A.S. and Pamuk Factoring A.S.
"Offeree" shall have the meaning assigned to such term in Section
3.02(c).
"Offered Shares" shall have the meaning assigned to such term in
Section 3.02(c).
"Party" and "Parties" shall mean Sonera and/or Cukurova as the case
may be.
"Person" shall mean an individual, partnership, joint venture,
company, trust, unincorporated organization, government or other entity.
"Purchase Notice" shall have the meaning assigned to such term in
Section 3.02(c).
"Shares" shall mean the shares of the Company at any time outstanding.
"Shareholders" shall mean the owners of the Shares from time to time.
"Shareholders Meeting" shall mean any general assembly of the
Shareholders held pursuant to Section 4.01, the Articles of Association of the
Company and applicable law.
"Sonera" shall have the meaning assigned to such term in the preamble.
"Subsidiary" and "Subsidiaries" shall mean Turkcell and any other
company in which the Company holds majority shares.
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"Transfer" shall mean any sale, assignment, transfer, or any
arrangement or transaction which would allow any Person the right to participate
in the income, capital growth or voting rights of any Shares (except for proxies
given in connection with Shareholders Meetings), or any subjecting of the
Company to a merger, business combination, consolidation or other
reorganization, in whole or in part, voluntarily or by operation of law. The
words "Transfers" and "Transferred" shall have similar import, as the context
requires.
"Transferor" shall have the meaning assigned to such term in Section
3.02(c).
"Transfer Notice" shall have the meaning assigned to such term in
Section 3.02(c).
"Transferee" shall have the meaning assigned to such term in Section
3.02(c).
"Turkish Lira" and the "TL" symbol shall mean the lawful currency of
the Republic of Turkey.
"Turkcell" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Turkcell Shares" shall have the meaning assigned to such term in
Section 2.02.
1.02 Principles of Construction. All references to Sections and
Articles are to Sections and Articles in this Agreement unless otherwise
specified. The words "hereof, "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement.
SECTION II
PURPOSE OF THE COMPANY AND TRANSFER OF TURKCELL SHARES
2.01 Purpose. (a) The purpose of the Company shall be to act as a
holding company and participate in the capital of Turkcell and other companies
engaged in the import, manufacturing, distribution, marketing, sale, export and
development of products and rendering of services in or otherwise related to the
telecommunications sector.
(b) Unless otherwise agreed, the Parties shall cause the Company to
invest only in companies that are publicly traded or are positioned to be
publicly traded immediately following the investment by the Company.
2.02 Transfer of Turkcell Shares. (a) Sonera agrees to cause Sonera
Holding B.V. to transfer to the Company as in kind capital, 10,326,837 (ten
million three hundred and twenty six thousand eight hundred and thirty seven)
registered shares it owns in Turkcell, each with a nominal value of TL 1,000,000
(one million) representing a 24.02% (twenty four point zero two percent)
shareholding in Turkcell, and Cukurova agrees to transfer to the Company as in
kind capital, 11,603,163 (eleven million six hundred and three thousand one
hundred and sixty three) registered shares it owns in Turkcell, each with a
nominal value of TL 1,000,000 (one million) representing a 26.98 % (twenty six
point ninetyeight percent) shareholding in Turkcell
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(collectively the "Turkcell Shares"). The Turkcell Shares shall be transferred
to the Company at value to be determined by the Turkish Commercial Court.
Notwithstanding the foregoing, the Parties shall be free to hold, acquire or
transfer other shares in Turkcell.
SECTION III
CAPITAL; SHARES AND SHARE TRANSFERS
3.01 Current Capital of the Company. The capital of the Company shall
be the TL value of the Turkcell Shares as determined pursuant to Section 2.02 as
may be increased by any amount in cash which may be required by the General
Directorate of Foreign Investment. The capital shall be represented as to 47.09
% by registered Class A Shares owned by Sonera and as to 52.91 % by registered
Class B Shares owned by Cukurova.
3.02 Share Transfers. (a) Shares may only be transferred in accordance
with the provisions of this Agreement and of the Articles of Association of the
Company, and any other attempted Transfer shall be void. It shall be a condition
to the sale of Shares to any Person under any provision of this Section 3.02
that such Person shall agree in writing to be bound by the provisions of this
Agreement, and any sale in respect of which such condition has not been
satisfied shall be void.
(b) Any Transfer of Shares between the Shareholders and/or their
Affiliates may be freely made without being subject to the provisions of
paragraph (c) below provided that the Affiliate becomes a Party to this
Agreement. However, if an affiliate so acquiring the shares will cease to be an
affiliate, such affiliate shall transfer the shares back to the transferor or an
affiliate of such transferor before it ceases to be an affiliate.
(c) Unless agreed otherwise by the Shareholders, any Shareholder
wishing to Transfer its Shares (the "Transferor") to any unaffiliated third
party (the "Transferee") shall send a written notice (a "Transfer Notice") to
the other Party (the "Offeree") and to the Board of Directors stating the number
of shares to be sold or transferred which may be all or part of such
Shareholders' shareholding in the Company (the "Offered Shares"), the identity
of the proposed Transferee, and the price per Share and other terms of the
proposed Transfer. The Transfer Notice must be accompanied by a second notice to
the Offeree (the "Come Along Notice") indicating that the proposed Transfer
grants the Offeree the right to transfer, at its discretion, all or part of its
Shares to the same Transferee at the same price and terms stated in the Transfer
Notice sent by the Transferor and to receive cash as consideration equal in
amount to the value of cash, securities or other property to be received by the
Transferor from the Transferee. The Transferor agrees that it shall not issue a
Transfer Notice in the absence of having secured the agreement of the Transferee
to honor the Offeree's right to also Transfer at the same purchase price all of
its Shares should the Offeree decide to exercise such right. Any Transfer Notice
issued by the Transferor and not accompanied by a Come Along Notice shall not be
considered a valid Transfer Notice.
(i) Within thirty (30) days of receipt of the Come Along Notice, the
Offeree shall inform the Transferor in writing whether it wishes to sell
all or part of
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its Shares to the Transferee. If the Offeree fails to respond to the
Transferor within the thirty day period or informs the Transferor that it
elects not to sell any Shares to the Transferee, then the following
paragraphs shall apply. If the Offeree informs the Transferor that it shall
sell all or part of its Shares to the Transferee, then the Offeree shall
also be deemed to have rejected to purchase the Offered Shares as per the
Transfer Notice and the Transferee shall be required to purchase the
Offered Shares and the Shares the Offeree wishes to sell to the Transferee
in accordance with the terms set forth in the Transfer Notice.
(ii) Within thirty (30) days of receipt of the Transfer Notice, the
Offeree shall inform the Transferor in writing whether it wishes to
purchase (the "Purchase Notice") the Offered Shares.
(iii) In the event that the Offeree fails to respond to a Transfer
Notice within the 30 day period set forth above, it shall be deemed to have
rejected the offer of the Transferor. In the event that the offer in the
Transfer Notice is rejected or deemed to be rejected, the Transferor shall
within one hundred eighty (180) days after the date of the Transfer Notice,
Transfer all (but not less than all) of the Offered Shares to the
Transferee at any price not less than the price and on other terms not more
favorable than those specified in the Transfer Notice.
(iv) The Parties shall complete all Transfers pursuant to this
paragraph (c) within (180) days of the date of the Transfer Notice, this
period being subject to extension as may be necessary to obtain required
governmental approvals.
(d) No Party shall create, incur, assume or suffer to exist any Lien
upon or with respect to any of its Shares without the prior written consent of
the other Party.
SECTION IV
GOVERNANCE AND MANAGEMENT OF THE COMPANY
4.01 Shareholders Meetings. (a) Unless higher quorums and majorities
are mandatory under the Turkish Commercial Code or under this Agreement, the
quorum for any and all Shareholders Meetings shall consist of Shareholders
present or represented by proxy holding at least two-thirds of the Company's
capital, and decisions shall be taken by the affirmative vote of Shares
representing at least fifty one percent (51%) of the Company's capital. In the
event that the foregoing meeting quorum requirement can not be satisfied at any
Shareholders Meeting, a second Shareholders Meeting shall be convened on the
20th day following the initial meeting to discuss the same agenda and the
meeting quorum for such second Shareholders Meeting shall
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consist of Shareholders present or represented by proxy holding at least fifty
one percent (51%) of the Company's capital.
(b) Notwithstanding the foregoing provisions of paragraph (a), the
quorum for any Shareholders Meeting where the agenda includes an Important
Decision consist of Shareholders present or represented by proxy holding at
least two-thirds of the Company's capital and Important Decisions can only be
taken with the affirmative vote of Shares representing at least two-thirds of
the Company's capital.
4.02 Board of Directors. (a) The Company shall be governed by a Board
of Directors consisting of seven members. Three members of the Board Directors
shall be elected from among persons nominated by Shareholders holding Class A
Shares and four members of the Board of Directors shall be elected from among
persons nominated by Shareholders holding Class B Shares. The Chairman of the
Board of Directors shall be elected from among the members representing Class B
Shares and the Vice Chairman shall be elected from among the members
representing Class A Shares.
(b) The quorum for meetings of the Board of Directors shall be the
presence of at least five members of the Board of Directors and decisions of the
Board of Directors may be taken with the affirmative vote of at least four
members of the Board of Directors.
(c) Notwithstanding the foregoing, the affirmative vote of at least
five of the Board members shall be required to take any Important Decision.
4.03 Important Decisions of the Board of Directors: The following
matters and proposals relating to such matters constitute important decisions
(the "Important Decisions") for purposes of the Board of Directors with respect
to the business and management of the Company:
(i) approval of the annual budget and business plan and any amendments
thereto
(ii) establishment of or participation in new companies and the
establishment, acquisition, transfer or dissolution of subsidiaries and
branches of the Company; transfer of the principal business of the Company;
4.04 Important Decisions of the Shareholders Meetings: The following
matters and proposals relating to such matters constitute important decisions
(the "Important Decisions") for purposes of the Shareholders Meetings with
respect to the business and management of the Company:
(i) any amendments to the Articles of Association of the Company;
including amendments for increasing or decreasing the capital of the
Company;
(ii) the appointment, release from responsibility or dismissal,
remuneration of the members of the Board of Directors;
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(iii) approval of the distribution of dividends;
(iv) issue of bonds and securities by the Company; any decisions or
transactions related to any public offering of the Shares of the Company;
(v) liquidation, merger, consolidation, winding up or other
reorganization of the Company;
(vi) appointment or dismissal of external auditors;
4.05 Subsidiary Governance. The Parties shall form a joint policy with
regard to any and all issues related with subsidiary governance. The Board of
Directors of the Company shall nominate two nominees of Sonera and two nominees
of Cukurova as the board members to represent the Company on the Turkcell board
of directors. The Company's representation in other Subsidiaries' Boards shall
be decided case by case.
4.06 Auditors and Records. (a) The Shareholders shall cause the Board
of Directors to appoint as external auditors of the Company an international
auditing firm. The Shareholders Meeting shall appoint for a one year term as the
Company's statutory auditors four persons two of whom shall be persons nominated
by Sonera and two shall be persons nominated by Cukurova. Auditors whose term of
office expires may be re-appointed.
(b) The Company shall keep complete and up-to-date books of account
and other records in accordance with Turkish law and regulations. For internal
and reporting purposes, the Company and each Subsidiary shall also keep books of
account and other records that conform to International Accounting Standards in
order to provide the non-Turkish Shareholders with relevant financial
information in a form which may be required by jurisdictions which govern their
activities.
SECTION V
CONDUCT OF BUSINESS
5.01 Non-Competition. Sonera and Cukurova acknowledge and agree that
for as long as they own any Shares, they shall not, except through the Company,
pursue any business which competes with or relates to the business of the
Company and Turkcell and they shall not co-operate with, establish, or
participate directly or indirectly in any other Person (except to any
Subsidiary) in the Republic of Turkey, nor render assistance or advice to any
such Person (except
7
to any Subsidiary) in connection with a business or matter which is in
competition with the business of the Company and Turkcell.
5.02 Turkcell Public Offering. The Parties hereby agree that they
shall, and shall cause the Company and Turkcell to, take any and all steps
necessary or desirable to effect a public offering of not less than 15% of the
shares in Turkcell and cause the shares of Turkcell to be listed and to trade on
the Istanbul Stock Exchange at the latest within one year of the date of this
Agreement. The Parties further agree that in connection with any such public
offering each Party shall be entitled to sell Turkcell shares pro rata to their
shareholding percentages in the Turkcell.
SECTION VI
MISCELLANEOUS
6.01 Entire Agreement. This Agreement and all documents delivered as
part of or incident to this Agreement or which are incorporated as part of this
Agreement by reference constitute and contain the entire Agreement between the
parties to this Agreement and replace in its entirety any and all prior
agreements, arrangements and understandings between the parties to this
Agreement relating to the subject matter of this Agreement.
6.02 Publicity and Confidentiality. (a) Except as ordered or required
by any applicable law or competent judicial, governmental or other authority or
in accordance with the requirements of any stock exchange, no Party shall issue
any press release or make any other public statement relating to this Agreement
or any of the transactions contemplated by this Agreement without obtaining the
prior written approval of the other Party as to the contents and the manner of
presentation and publication of such press release or public statement, or use
the other Party's name or trade name or any trademark or other intellectual
property right of the Party without obtaining the prior approval of the other
Party as to the manner of such use.
(b) Each Party agrees to keep in strictest confidence all information
relating to or acquired from the other Party in connection with the performance
of this Agreement or any agreement provided for herein, or through participation
in the ownership or management of the Company. Each Party agrees that it will
not publish, communicate, divulge, disclose or use any information described in
the preceding sentence without the prior written consent of the other Party,
except as expressly provided herein or in an agreement provided for herein. The
restrictions contained in this paragraph shall not apply with respect to: (i)
information which at the time of the disclosure is already rightfully in the
possession of the receiving Party, without any obligation having been placed
thereon regarding confidentiality by the disclosing Party; (ii) information
which at the time of disclosure was in the public domain, or which after
disclosure is published or becomes a part of the public domain, unless the same
occurs in consequence of the breach hereof by the receiving Party; (iii)
information which can be demonstrated to have been independently developed by
the receiving Party or acquired from a third party which did not itself acquire
such information with restrictions on further dissemination directly or
indirectly from the disclosing Party; (iv) information which the Parties have
agreed is no longer confidential; (v) information reasonably required to be
disclosed to any underwriter or auditor or other person involved in the process
of offering of the Shares of such Shareholder or of Turkcell to the public; and
(vi)
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information ordered or required to be disclosed by any applicable law or
competent judicial, governmental or other authority or in accordance with the
requirements of any stock exchange.
6.03 Assignment; Successors and Assigns. (a) No interest of any Party
to this Agreement may be assigned or otherwise transferred except with the
consent of each of the Parties and is further subject to required governmental
approvals.
(b) This Agreement shall be binding upon and inure to the benefit of
the Parties of their successors and permitted assignees.
6.04 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Republic of Turkey.
6.05 Arbitration. (a) Any and all disputes, controversies or claims
arising out of, relating to or in connection with this Agreement including any
questions regarding its existence, construction, interpretation, validity,
breach or termination, shall be finally settled by arbitration under the Rules
of the International Chamber of Commerce in Paris by three arbitrators.
(b) The place and seat of the arbitration shall be Vienna, Austria.
(c) The language to be used in the arbitral proceedings shall be the
English language.
(d) The arbitral award shall be in writing. The arbitral award shall
be final. To the extent permitted by law, the parties irrevocably waive the
right to submit any such award to appeal or review by any court.
6.06 Interpretation. (a) If at any time any material provision of this
Agreement is or becomes illegal, invalid, or unenforceable in any respect, the
legality, validity and enforceability of the remaining provisions contained
herein shall not in any way be effected or impaired, provided that promptly
thereafter the parties shall negotiate in good faith to replace such provision
with a valid and enforceable provision have substantially the same economic
effect upon the parties.
(b) The parties hereby acknowledge and agree that if there shall be at
any time a conflict, misinterpretation or discrepancy between this Agreement and
the Articles of Association of the Company, the provisions of this Agreement
shall prevail among the Shareholders.
(c) This Agreement has been negotiated and executed in the English
language. All certificates, reports, notices and other documents and
communications given or delivered pursuant to this Agreement shall be in the
English language or accompanied by an English translation thereof and the
English version thereof shall govern for purposes hereof in any conflict with
any non-English version.
(d) Any notice issued by Cukurova pursuant to this Agreement shall be
binding on and also constitute a notice issued by the Nominee Shareholders. Any
notice addressed to
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Cukurova pursuant to this Agreement shall be binding on and also constitute a
notice delivered on the Nominee Shareholders.
IN WITNESS WHEREOF, each of the Shareholders has itself or by its duly
authorized representative or representatives executed this Agreement as of the
date first above written.
Sonera Corporation
By /s/ X.X. Xxxxxxxx
--------------------------------------
Name: X.X. Xxxxxxxx
Title: CFO
Cukurova Holding A.S.
By /s/ Xxxxxx X. Karamehmet
--------------------------------------
Name: Xxxxxx X. Karamehmet
Title: Chm.
Yapi ve Kredi Bankasi A.S.
By /s/ Naci Sigin
--------------------------------------
Name: Naci Sigin
Title: CEO
Pamukbank T.A.S.
By /s/ Orhan Emirdag
--------------------------------------
Name: Orhan Emirdag
Title: President CEO
Turkiye Genel Sigorta A.S.
By /s/ Hulusi Taskiran
--------------------------------------
Name: Hulusi Taskiran
Title: G.M.
Pamuk Factoring A.S.
By /s/ Xxxxxx Alpergren
--------------------------------------
Name: Xxxxxx Alpergren
Title: C.E.O.
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Ackowledged and agreement
Intercon Danismanlik ve Egitim Hizmetleri A.S.
By /s/ Xxxxxxx Xxxxx Demirtas
------------------------------------
Name: Xxxxxxx Xxxxx Demirtas
Title: Chairman
By /s/ Xxxxxx Xxxxxxx Getinalp
Name: Xxxxxx Xxxxxxx Getinalp
Title: Vice Chairman
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