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COMMERCIAL LAW
101
Shareholder Agreements
*
Att. Ezgi Babur
Based on their wide usage, shareholders’ agreements (“SHAs”) are of
great importance in the sphere of corporate law practice. Their popularity
is based on the elasticity they grant to shareholders in order to regulate
their relations among each other and with a company. Considering this
importance, we shall first analyze the legal relationship formed under
SHAs and their effects at the corporate level. Finally, we shall look at the
consequences of breaching SHAs.
In General
SHAs are agreements executed by the shareholders of a company, or
those aiming to hold shares in a company, whose purpose is to regulate their
relationship with each other, the company, and especially the structural
and procedural order to be applied within the company. In terms of their
usage in legal practice, SHAs provide a level of elasticity that cannot be
obtained via the articles of association, and assure confidentiality among
shareholders.
SHAs are binding and subject to the freedom of contract under the
law of obligations. They impose on shareholders an obligation to exercise
their rights arising out of shareholding status in conformity with the
realization of the objectives set forth under the SHA
1
.
The Legal Relationship Formed under SHAs between the Parties
As is known, one of the principal elements in partnerships is the
affectio societatis
element
2
. This element implies working in solidarity
while associating over an equal foundation in order to reach a common
purpose. It is stated that
affectio societatis
is stronger and more visible in
real person partnerships (“
kişi ortaklıkları
”) and is weakened in equity
*
Article of November 2013
1
Gül Okutan Nilsson
, Anonim Ortaklıklarda Paysahipleri Sözleşmeleri, İstanbul 2004, p. 4.
2
Reha Poroy/Ünal Tekinalp/Ersin Çamoğlu
, Ortaklıklar ve Kooperatif Hukuku,
Güncelleştirilmiş 9. Basıdan 10. Tıpkı Basım, İstanbul 2005, p. 26-27.