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Rights Granted to the Holders of the Jouissance Shares for the
Founders
Article 503 of the TCC stipulates that holders of jouissance shares
cannot be provided with shareholding rights but they can be entitled to
a percentage of net profit, the capital surplus (if any) upon liquidation
of a company or to the right to purchase new shares to be issued by the
company. This article repeats art. 403 of the former TCC. Therefore,
the discussions for former TCC regarding the meaning of “net profit”
or “capital surplus upon liquidation of a company” are still in force.
Art. 348/3 of the TCC stipulates that, in case the company has dis-
tributable profits, the holders of jouissance shares may be entitled to
payments even the company did not adopt a resolution on payment of
dividends to the shareholders.
The Position of Holders of Jouissance Shares in Mergers
The doctrine accepts that the holders of jouissance shares are not
entitled to block the resolutions of the general assembly. The purpose
of this opinion is to protect the company interests from blocking inten-
tions of those who are not shareholders. However, it is also necessary
to protect the holders of jouissance shares who have financial rights in
the company. To that end, art. 140/5 regulates the position of holders
of jouissance shares in merger of the company with another.
Pursuant to said article, the transferor company must provide the
holders of jouissance shares of the transferee company with equal
rights or to purchase the jouissance shares over the price at the date of
the merger agreement. Accordingly, the current rights of the holders of
jouissance shares available in the transferee company shall be protect-
ed exactly in the same way in the transferor company. In this situation,
it is a legal obligation to provide jouissance shares to the current hold-
ers of jouissance shares in the transferee company.
Article 142 of the Turkish Commercial Code must be also taken
into consideration in the course of a merger. The said article states that,
for the protection of the shareholder’s rights, it is necessary to make
capital increase. Even though this article regulates the protection of the
shareholder’s rights, this article must be applicable for the protection
of the holders of jouissance shares rights by analogy and the capital
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NEWSLETTER 2012