(Convenient translation of the Turkish original)

Transcription

1 THIS DISCLOSURE LETTER IS ANNOUNCING THE CONTRIBUTION OF THE PARTNERSHIP SHARES OF THE S.S. MAKİNE VE İMALAT SANAYİCİLERİ TOPLU İŞYERİ YAPI KOOPERATİFİ ( COOPERATIVE ), ASSET OF ENKA İNŞAAT VE SANAYİ ANONİM ŞİRKETİ ( ENKA İNŞAAT ), TO ENKA ELEKTRİK ÜRETİM ANONİM ŞİRKETİ ( ENKA ELEKTRİK ) AS CAPITAL IN KIND THROUGH PARTIAL SPIN-OFF BY PARTICIPATION MODEL. AFORE-MENTIONED PARTIAL SPIN-OFF TRANSACTION IS PERFORMED WITHIN THE SCOPE OF THE COMMUNIQUE ON THE PROCEDURE AND PRINCIPLES OF JOINT-STOCK AND LIMITED COMPANIES PARTIAL SPIN-OFF TRANSACTIONS PUBLISHED IN THE OFFICIAL GAZETTE DATED AND NUMBERED 25231, ARTICLE 19 AND 20 OF THE CORPORATE TAX LAW NUMBERED 5520 AND OTHER RELATED PROVISION OF THE CAPITAL MARKETS LAW. CAPITAL MARKETS BOARD S APPROVAL FOR THIS PARTIAL SPIN-OFF TRANSACTION HAS BEEN GRANTED WITH THE DECISION DATED 06/07/2012 AND NUMBERED 23/813. HOWEVER, THIS APPROVAL CANNOT BE DEEMED AS AN OFFICIAL GUARANTEE OF THE SPIN-OFF THROUGH CONTRIBUTION OF CAPITAL IN KIND BY THE CAPITAL MARKET BOARD OR PUBLIC. IN TERMS OF THE PROVISIONS OF THE TURKISH COMMERCIAL CODE, SHAREHOLDERS ARE ENTITLED TO ATTEND TO AND VOTE IN THE GENERAL ASSEMBLY WHERE THE SPIN-OFF TRANSACTION WILL BE DISCUSSED. I. OPINION OF OTHER PUBLIC INSTITUTIONS RELATED TO THE SPIN-OFF TRANSACTION None. II. INFORMATION REGARDING THE COMPANIES 1. INTRODUCTORY INFORMATION REGARDING THE SPIN-OFF PARTIES a) Spun-off Company: 1-Trade Name ENKA İNŞAAT VE SANAYİ ANONİM ŞİRKETİ 2- Addresses of the Head Head Office Office and Branch Balmumcu Mahallesi, Bestekar Şevi bey Sokak, Enka 1. Binası, Balmumcu, Beşiktaş/İSTANBUL 3-Registration Date

2 4-Trade Registry Number 5- Trade Registry Office İstanbul 6-Term Nonexpiry 7-Field of the Activity Undertaking each kind of construction operations, providing engineering, consultation and control services, prepare projects, undertaking projects, building facilities in terms of the subject and marketing the production of these facilities in Turkey or abroad and establish mines in and manage/ them. b) Transferee Company taking over the Assets Subjected to Partial Spin-off 1-Trade Name ENKA ELEKTRİK ÜRETİM ANONİM ŞİRKETİ 2- Addresses of the Head Head Office Office and Branch Balmumcu Mahallesi, Bestekar Şevki Bey Caddesi, İsmail Hakkı Bey Sokak, No:2, Balmumcu, Beşiktaş/İSTANBUL 3-Registration Date Trade Registry Number 5- Trade Registry Office İstanbul 6-Term Nonexpiry 7- Field of Activity Generating electric energy, providing consultation service, improving projects, building electric energy plants and facilities and financing. 2. INFORMATION ON CURRENT SHARE CAPITAL AND SHARES a) Spun-off Company: i. Paid-in Capital: ,00 TL ii. Distribution of the paid-in capital among the shareholders as of the final situation with respect to the pre-spin off period:

3 Shareholder s Name Surname/ Trade Name Shareholding Percentage (%) Capital Share (TL) TARA Holding A.Ş. 49, ,21 Vildan GÜLÇELİK 7, ,34 Sevda GÜLÇELİK 6, ,21 ENKA Spor Eğitim ve Sosyal Yardım Vakfı 5, ,40 Other 17, ,84 Public 12, ,00 TOTAL ,00 iii. Real persons and legal entities that hold shares indirectly -- Tara Holding A.Ş Shareholder s Name Surname/ Trade Name Shareholding Percentage (%) Capital Share (TL) Şarık TARA 66, ,00 Sinan TARA 33, ,00 Ceyda LALE TARA 0,00 213,00 Temiz ÜSTÜN 0,00 213,00 Vedat MİMAROĞLU 0,00 213,00 TOTAL ,00 iv. Status of the privileges on the share certificates representing the share capital and current privileges In accordance with the afore-mentioned table, issued capital of the Enka İnşaat is TL and said capital has been divided into registered shares, each of them amounting to 1 Kr at the nominal value. Shares representing the capital of the company are divided into two groups as Group A and Group B and due to Article 27 of the Articles of Association of the Company, shareholders (or representatives) that are present at the general assembly meetings have 10 voting rights per each share of Group A and 1 voting right per each share of Group B.

4 Total nominal value of the shares of Group A is TL 11,67 and there are shrares in the Group A, each of them are in the amount of 1 Kr at the nominal value. Partial spin-off transaction has no consequence relating to the privileged shares. v. Declaration regarding redeemed share certificates, bonds and similar debt instruments among the shares representing the share capital, if any. Pursuant to Article 7 of Enka İnşaat s Articles of Association; a) (Say: One Thousand) Nominal Promoter Dividend Right Certificates will be issued for to be distributed among the promoters or founders of the Company. Such Promoter Dividend Right Certificates will be distributed among the promoters or founders in proportion to their existing shares in the Company. Holding such a Dividend Right Certificate means for this holder that any and all provisions of the hereby Articles of Association as well as the resolutions of the General Assembly will be agreed and accepted as they are by the relevant holder of such Dividend Right Share Certificate. The same is also applicable to those who have acquired the said Dividend Right Certificates later on. b) (Say: One Thousand) freely transferrable Nominal Dividend Right Certificates have been issued and emitted in order to be distributed by the Board of Directors fully free of charge to all those who have contributed to the success of the holding company Enka Holding Yatırım A.Ş. which dividend Right Certificates however grant its holder only the right to participate in profit/dividend distribution. This provision is taken into the hereby Articles of Association because of merging of Enka İnşaat with the holding company Enka Holding Yatırım A.Ş. Within this scope, there are (a thousand) founding redeemed shares and (a thousand) Enka Holding redeemed shares, apart from the shares representing the capital of the Company. b) Transferee Company taking over the Partnership Shares Subjected to Partial Spinoff i. Paid-in Capital: ,00 TL ii. Distibution of the paid-in capital among the shareholders:

5 Shareholder s Name Surname/ Trade Name Shareholding Percentage (%) Capital Share (TL) ENKA İnşaat Ve Sanayi A.Ş. 99, ,00 ÇİMTAŞ Çelik İmalat Montaj Ve Tesisat A.Ş. 0,002 1,00 KASKTAŞ Kayar Kalıp-Altyapı Sondaj Kazık Ve Tecrit A.Ş. 0,002 1,00 ENKA Teknik Genel Müteahhitlik Bakım İşletme Sevk Ve İdare A.Ş. 0,002 1,00 TİTAŞ Toprak İnşaat Ve Taahhüt A.Ş. 0,002 1,00 TOTAL ,00 iii. Status of the privileges on the share certificates representing the share capital and current privileges No privilege has been granted for the share certificates representing the share capital yet those specified in Article 2 (a) (iv) are reserved. iv. Declaration regarding redeemed share certificates, bonds and similar debt instruments among the shares representing the share capital, if any. Neither bond nor similar debt instrument exists among the shares representing the share capital. III. INFORMATION ON PARTIAL SPIN-OFF 1. Reason of partial spin-0ff The partnership shares of S.S. Makine ve İmalat Sanayicileri Toplu İşyeri Yapı Kooperatifi which have been registered in the assets of Enka İnşaat for more than two years will be transferred to Enka Elektrik of which Enka İnşaat is 99,992% participant, as capital in-kind over their book value through partial spin-off and the shares to be issued after capital increase to be made by Enka Elektrik will be granted to Enka İnşaat. The business basis of the Cooperative is to meet the business place (office) needs of its shareholders and in order to achieve this goal it founded the organized industrial zone registered as Kocaeli-Gebze IV İstanbul Makine ve İmalat Sanayicileri Organize Sanayi Bölgesi

6 (MakineOSB) located within the boundaries of Kocaeli-Dilovası District, Köseler-Demirciler Village. MakineOSB, in the zoning plan, is approved and registered as organized industrial zone. Enka İnşaat has pre-request assignment for 3 parcels at MakineOSB. The Cooperative partnership shares are registered at the Participation Shares account with the book value TL ,81 in Enka İnşaat s balance sheet dated and kept in accordance with the Tax Procedural Law. On the other hand, valuation study has been made to determine the value of Cooperative partnership shares. In the valuator company s report dated , the value of the Cooperative partnership shares are determined as TL USD Within this scope, in the financial statements of Enka İnşaat dated and prepared due to IFRS provisions, the Cooperative partnership shares are registered as TL ,36 which is found by applying year-end USD buying rate. Therefore, the Cooperative partnership shares are registered as in the balance sheet dated : - TL ,81 in the balance sheet kept due to Tax Procedural Law, - TL ,36 in the balance sheet kept due to IFRS The partial spin-off -as mentioned above- will be performed over the book value of Cooperative partnership shares registered in the balance sheet kept in accordance with the Tax Procedural Law. Enka İnşaat Board of Directors has rendered decision on partial spin-off due to following reasons: Enka İnşaat is a publicly held company operating in construction sector, it is subject to regulations and supervision of the Capital Markets Board and its shares are traded in İstanbul Stock Exchange. Its main field of activity is to make and undertake constructions, provide engineering, controlling services, make projects, build facilities related to its activities and market these facilities in the country and abroad, open and manage mines. On the other hand, Enka İnşaat plans to make investment in energy sector. Since it is of the opinion that making this investment via a different company will be more successful for the operational purposes, it is planned to transfer the Cooperative partnership shares through partial spin-off to Enka Elektrik which has made energy license application to the Energy Market Regulatory Authority.

7 It is planned for Enka Elektrik to make energy investment in the parcels located in Makine OSB to which the Cooperative partnership shares are assigned. Since the shares to be issued by Enka Elektrik will be granted to Enka İnşaat, in return of the cooperative partnership shares to be transferred after the partial spin-off, Enka İnşaat will not make any capital-decrease and therefore there will be no asset out-flow. As Enka İnşaat owns Enka Elektrik at the rate of 99,99%, no change/amendment will be made in the consolidated financial statements of Enka İnşaat issued in accordance with IFRS-. 2. Board of Director Decisions related to partial spin-off With the decision of Enka İnşaat s Board of Directors dated and numbered 2012/850, by considering Articles 19 and 20 of Corporate Tax Law, The Communiqué on Procedures and Principles of Joint Stock and Limited Companies Partail Spin-off Transactions and Capital Markets Law, it was held that: The partnership shares of S.S. Makine ve İmalat Sanayicileri Toplu İşyeri Yapı Kooperatifi owned by Enka İnşaat will be transferred to Enka Elektrik through partial spin-off over their book value and the shares of Enka Elektrik will be granted to Enka İnşaat and partial spin-off will be carried out by considering the financial statements dated With the decision of Enka Elektrik s Board of Directors dated and numbered 2012/2 it was decided to contribute the Cooperative partnership shares held by Enka İnşaat for more than two years as capital in kind and to initiate the studies for this transaction, to carry out the spin-off in line with the related legislation and submit the partial spin-off agreement to General Assembly in case Capital Markets Board approves the transaction and Enka Elektrik obtains the required license from Energy Market Regulatory Authority.. 3. Summary of the Expert Report: Upon the request of Enka İnşaat and Enka Elektrik, in the report prepared by the experts assignded by İstanbul 40th Commercial Court on with the case number E.2012/83, it is concluded that : The equity of Enka İnşaat due to its consolidated balance sheet dated and auditted by independent auditor is TL and its capital is reserved within its equity excessively. The partnership shares of S.S. Makine ve İmalat Sanayicileri Toplu İşyeri Yapı Kooperatifi were obtained by Enka İnşaat on , within this scope they are being registered in Company s assets for more than 2 years and its book value is TL ,81 and therefore can be subject to partial spin-off

8 After the partial spin-off, a capital increase amounting to TL ,81 will be made by Enka Elektrik and registered shares, each are TL 1 at nominal value, will be issued; yet a capital increase in the amount of 19 Kurus shall be made since Enka Elektrik s shares nominal value is 1 TL, and this amount will be paid by Enka İnşaat in cash. The registered share shares to be issued will be granted to Enka İnşaat and since Enka İnşaat will keep these shares in its assets and will not distribute to its shareholders, no capital decrease will be required and therefore the assets remained after the partial spin-off will be adequate to protect the creditor s rights wholly. Although there are privileged shareholders of Enka İnşaat, this transaction will not have any effect on privileged shares. After the partial spin-off, the capital of Enka Elektrik will be TL ,00; this new capital structure will be adequate to protect the Enka İnşaat shareholders rights. The procedures used for partial spin-off are adequate and the partial spin-off is in line with the relevant legislation and there is no legal obstacle in performing the partial spin-off 4. Expert Institution Report No Expert Institution Report has been prepared due to the facts that this spin-off transaction is performed through participation model in terms of amended Article 20/A of the Communiqué of the Capital Markets Board Serial: I, No:31, which is amended by the Communiqué Serial:I, No: 44 and spun-off company (Enka İnşaat) holds 99,9% of the shares of the transferee company ( Enka Elektrik). IV. FINANCIAL STATEMENTS a) Enka İnşaat s financial statements subject to indepent audit and dated based on the spin-off are presented in ANNEX-1 b) Enka İnşaat s financial tables dated are presented in ANNEX-2. c) Enka Elektrik s estimated opening balance sheet after the spin-off is presented in ANNEX- 3. d) Financial statements displaying the following 3 years goals are presented in ANNEX-4. Besides, balance sheet of Enka İnşaat prepared in accordance with IFRS provisions will remain same due to consolidation process.

9 V. INFORMATION ON THE MANAGEMENT OF THE COMPANIES 1. Information on the Board of Directors and Statutory Auditors of Spun-off Company a) Details on Enka İnşaat s Board of Directors are as follows: Name - Surname Mehmet Sinan Tara Haluk Gerçek Erdoğan Turgut Elmas Melih Araz Veli Ergin İmre Status Chairman of the Board Vice Chairman of the Board Passive member Independent Board Member Independent Board Member b) Details on Enka İnşaat s Statutory Auditors are as follows: NAME SURNAME Bahattin Güleryüz Melek Çeliker STATUS Auditor Auditor 2. Information on the Statutory Auditor and Board of Directors of the Company that will take over the Cooperative Partnership Shares subject to Partial Spin-off a) Details on Enka Elektrik s Board of Directors are as follows: Name Surname Haluk Gerçek Tahsin Kösem Sinan Soydan Mustafa Geçek Vedat Naşit Mimaroğlu Status Chairman Member Member Member Member b) Details on Statutory Auditors of Enka Elektrik are as follows: Name Surname Mert ERGİL Sinan Yavuz AKTÜRK Status Auditor Auditor

10 VI. MISCELLANOUS 1. Legal Regulations on Partial Spin-off a) Corporate Tax Law Article 19, paragraph 3, clause (b) of the Corporate Tax Law is as follows: Partial Spin-off: Transfer of immovables, participation shares held at least for two years or one-a few of the manufacturing or service enterprises registered in the balance sheet of a full liable equity company or of a foreign entity s (in the nature of equity company) business place or permanent representative in Turkey to an existing or a newly established full liable equity company over their book values as capital in kind are, for the purpses of this law, deemed as partial spin-off. However, in the transfer of manufacturing or service enterprises, it is obligatory for all of the asset and liability items required for the integrity of such enterprises to be included into the transfer. In partial spin-off, the transferee company shares acquired in consideration of the transferred assets in partial spin-off, can remain in the transferor company or can be given directly to the shareholders of this company. In the event of transfer of immovables and the participation shares, in case the shares of the transferee company are given to the shareholders of the transferor company, the debts pertaining to the transferred immovable and participation shares must also be transferred. Accordingly, within the scope of the partial spin-off transaction, 1) Immovables, 2) Participation shares which are being held at least for 2 years, 3) One or a few of the manufacturing or service enterprises booked in a full-liable equity company s balance sheet or balance sheet of a foreign corporation s (in the nature of equity company) work place or permanent representative in Turkey can be contributed as capital in kind to an existing company or a newly established company, at their nominal value. b) Turkish Commercial Code numbered 6762 There is no specific regulation under the Turkish Commercial Code numbered 6762 about spin-off. The Communiqué on regulating Procedure and Principles of Joint-stock and Limited Companies Partial Spin-off Transactions, prepared by the Ministry of Finance and Ministry of Industry and Trade, has been published in the official gazette dated and numbered It is stated that the communiqué is prepared in order to regulate procedures and principles of Joint-stock and Limited companies spin-off transactions based on Article 38 of the Corporate

11 Tax Law no.5422 and Article 274 of the Turkish Commercial Code no and Article 33 of the Code of Organisation and Duties of Ministry of Industry and Trade no c) Turkish Commercial Code numbered 6102 Turkish Commercial Code no.6102 was published in the Official Gazette dated and numbered and it is enacted on 1 July Regulations on spin-off are regulated between Articles 159 to 179 of Code no According to Article 159 of the Code; Spin Off Article 159- A company can make full or partial spin off. b) In partial spin-off, a part or more than one part of a company s assets are transferred to other companies. The shareholders of spun-off (transferor) company can acquire shares and rights of the transferee company or spun-off company can consitute a subsidiary company by acquiring shares and rights of the transferee company in exchange of its transferred assets. d) Capital Markets Regulations In accordance with Article 3, titled Definitions, of the Capital Markets Board Communiqué Serial: I, No:31, amended by the Communique Serial:I, No: 44; Partial spin-off set forth in this Communique refers to;... Partial Spin off: is the transfer of part/parts of a company s asset to another existing company or a company to be established; There are two ways: Partial spin-off by share transfer to the shareholders model and partial spin-off by participation model Partial Spin-off By Participation Model refers to a partial spin-off transaction where the spun-off company s asset that are subject to the spin-off are contributed to another company as capital in kind, only the transfer of the capital in kind is matter of fact, and participation shares are acquired by the spun-off company in return for the transfer. In accordance with Article 20/A titled Spin-off

12 If at least one of the parties carrying out the spin-off is a publicly held company, without considering the ratio of total of the assets, subject to spin-off, to company s final balance sheet s asset total, it is obligatory to take permission from the Board after Board of Director s decision on spin-off but before the General Assembly meeting held for approval of spin-off. In the publicly held companies full spin-off transactions and partial spin-off by transfer of shares to shareholders model; it is obligatory to register the share stocks of thecompany/s which take over the assets. On the other hand, in the partial spin-off by participation model, the share stocks of the company which take over the assets shall not be registered to Board. However, it becomes obligatory for the spun-off company to prepare its financial statements in line with the financial reporting standards to which the companies, whose stocks are traded in the stock exchange, are subject and announce these statements to public. The spin-off transactions of the publicly held companies should be carried out in a way by not preventing company from making production and providing service through disposing a production/manufacturing facility or entity partially. A disclosure letter must be announced to inform shareholders of the company and allow them to make a healthy decision before the General Assembly. The referred disclosure letter of which content will be prepared similar to the disclosure letter for mergers, should be announced at least 30 days before the General Assembly. The principles for announcement of disclosure letter for mergers shall be applied to the referred disclosure letter. In the event where the publicly held companies are the taking over parties: a) It is obligatory for the companies which will be spun off to constitute an economic integrity/unity. b) It is obligatory to submit a report related to the value determination of the asset subject to spin-off and prepared by the entities designated by the Board through using at least two valuationprocedures, to the Board. In the spin off transactions of publicly held joint stock companies, if they are the spun-off party, valuation of transferred assets and transferee shares which will be given to its shareholders will be made in the manner prescribed in subsection 5, paragraph b. In partial spin-off by participation model, in cases where transferee company is a newly established partnerhip and 99,9% of its capital is participated by a publicly held corporation, it will not be mandatory to prepare valuation report and special independent audit report arising from 7th subsection. However, if valuation report and special independent audit report is already prepared then it will be mandatory to submit the reports to Board in the process of application. In the event that Financial stataments of the spin-off parties prepared in accordance with the Board s regulations and based to the spin-off are inspected by an independent audit firm and the report does not include adverse opinion and although the report includes favorable opinion the examination of Board is required or there is conditional opinion in the report then the report should be amendend within the scope of the issues caused from such conditions.

13 In the applications to made with respect to the spin-off transactions, merger provisions stipulated under this Communiqué will be applied for the issues not regulated here in this article by analogy. 2. Informing the Shareholders Enka İnşaat s last 3 years balance sheets, independent audit reports and activity reports, independent audit reports on financial statements basis for spin-off, expert s report, board of director s decision on spin-off, board of director s report explaining spin-off s legal and financial reasons, disclosure letter, financial statements which present 3 year goals as of the spin off, opening balance sheet after spin-off will be available to be examined at least 45 days before general assembly meeting to be held for voting the spin-off on the website, headoffice and branches of Enka İnşaat, they will be announced on public disclosure platform. VII. PARTIAL SPIN-OFF AGREEMENT Partial Spin-Off Agreement is attached here in ANNEX-5. VIII. RELEVANT PERSONS THAT UNDERTAKE THE RESPONSIBILITY OF THE DISCLOSURE LETTER Within the scope of our authority and legal obligations, we hereby declare that the information and the data presented here in this disclosure letter are accurate and there are no missing items in the disclosure letter which might change the meanings of this information. ENKA İNŞAAT VE SANAYİ A.Ş. ENKA ELEKTRİK ÜRETİM A.Ş.

14 ANNEXES: 1. Financial statements of Enka İnşaat dated , based to the spin-off and inspected by independent audit firm. 2. Financial statements of Enka İnşaat dated Estimated opening balance sheet of Enka Elektrik following the partial spin-off. 4. Financial statements of Enka İnşaat displaying 3 year goals as of partial spin-off. 5. Partial Spin-off Agreement