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Conditions for Claiming Compensation or the Purchasing of
Shares
In accordance with TCC Art. 202/2, shareholders who have cast
negative votes against the general assembly resolution and recorded
such votes in the minutes of this resolution in connection with transac-
tions such as merger, division, conversion, termination, issuing securi-
ties and important amendments to articles of association which are ini-
tiated through application of control and without any clear reasonable
grounds concerning the dependent company, or who have objected in
writing to the board resolution on the same and similar subjects, may
request from the court that their damages be compensated by the dom-
inant enterprise, or at least that their shares be purchased at stock
exchange value, if possible. If there is no such value or if the stock
exchange value is not just, then at actual values or at a value to be
determined in accordance with a method that is generally accepted.
At this point, the first dispute concerns whether the request for
compensation and the purchasing of shares constitute independent law-
suits. Tekinalp states that the action on compensation and the action on
the purchase of the shares are separate cases, and that the plaintiff may
not file the two lawsuits together; they may only be alternatives to one
other
1
. However, there are those who contend that such a lawsuit may
be filed as a single lawsuit, claiming compensation for damages or that
the shareholders’ shares be purchased.
As seen in said provision, certain conditions must be fulfilled in
order to file this action. The conditions are that (i) the existence of a
general assembly or board of directors’ resolution, as set forth under
Art. 202/2 TCC, (ii) the resolution must lack clear reasonable grounds
with regards to the dependent company, (iii) the resolution is taken as
an act of control by the dominant company, (iv) the shareholder(s)
casts a negative vote in the general assembly resolution and records
this in the minutes or objects in writing to the board resolution and (v)
the resolution is damaging to the shareholder.
COMMERCIAL LAW
77
1
Ünal TEKİNALP
, Sermaye Ortaklıklarının Yeni Hukuku, İstanbul 2013, p. 589.