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On the other hand, the issuance of jouissance shares for the
founders in the event of capital increase was accepted even it had not
been stipulated in the first articles of association. This opinion was
based on art. 392 of the former TCC regulating the capital increase.
This article states that capital increase by means of issuance of new
shares is subject to the provisions regarding incorporation.
Accordingly, the issuance of jouissance shares for the founders in
cases of capital increase was accepted both by the doctrine and the
High Court of Appeal.
As seen, TCC contains certain differences with relation to the for-
mer TCC. Therefore, the cases where jouissance shares for the
founders can be issued should be discussed with regards to TCC which
entered into force on 1 July 2012.
While the TCC accepts the issuance of jouissance shares in accor-
dance with the articles of association or by amending it, and removes
the obligation to stipulate the jouissance shares for the founders in the
first articles of association. Nevertheless, it is not possible to issue
jouissance shares for the founders with any kind of amendment in the
articles of association, because of the
raison d’être
of the jouissance
shares for the founders, since the purpose of the jouissance shares for
the founders is to reward the persons who contributed their efforts and
to encourage the founders for incorporation.
Jouissance shares for the founders cannot be issued in the event of
capital increase made in accordance with the TCC since art. 392 of the
former TCC, which stated that the capital increase is subject to incor-
poration transactions, is not present in TCC. In the TCC, contrary to
the former TCC, specific references are made to certain articles regard-
ing incorporation instead of a general reference to incorporation.
Within this scope, it is stated that the art. 353 (Lawsuit for
Termination), art. 354 (Registration and Announcement of the
Company), art. 355 (Incorporation), art. 342 and 343 (Subscription of
Capital in kind), art. 344 and 345 (Payment of the Fees), art.346 (The
Shares subject to Public Offering), art. 347(Shares with Premium)
regarding information will be applied to the capital increase transac-
tions by analogy. However, there is no article regarding the possibility
to issue jouissance shares for the founders during the capital increase.
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