Merger, Unlawful Exercise Of Dominance And Dismissal Based On Non-performance Of Capital Debt
Merger, Unlawful Exercise of Dominance and Dismissal from the Company on the Basis of Non-performance of Capital Debt
The TCC allows limited liability company shareholders who oppose the merger of their company with another company to be dismissed from the partnership due to their non-consent to the merger. In such a case, the shareholders may be dismissed from the partnership only if the company provides them with a separation fund equivalent to the real value of their shares.
However, contrary to the above-mentioned provision on mergers, the provisions of the TCC on spin-offs do not include a special provision on dismissal from the partnership as a result of a spin-off.
Within this framework, the doctrine states that the preamble of Article 161 of the TCC states that “the shareholders of the spin-off company may become shareholders in all or some of the transferee companies participating in the spin-off, or may increase their shares in the spin-off company. If there is an agreement, they may leave the spin-off company, but may not be dismissed”; and that the expression “leaving” shareholder in the said sentence refers to the shareholder who “leaves the company”; and that the provisions on dismissal from the company cannot be applied in case of spin-off. In the case of a change of type, the legislator has clearly stated in the justification of Article 183 of the TCC that “no shareholder may be dismissed from the partnership on the pretext of a change of type” and that the shareholders of limited liability companies shall not be dismissed from the partnership in the event of a change of type.
In addition to merger transactions, within the scope of the TCC’s regulations on the group of companies, in the event that the minority of the controlling companies prevents the operation of the company, the controlling companies are authorized to
Accordingly, the controlling shareholder is authorized to (i) directly or indirectly owns at least 90% of the shares and voting rights of a capital partnership; and (ii) the minority hinders the operation of the partnership and violates the rule of good faith or acts in a noticeable manner
If the minority causes distress and acts recklessly, it may remove the minority from the partnership without giving reasons and
Accordingly, it may purchase the shares of the minority. Underlying the granting of such power to the controlling company
The underlying reason, as stated in the preamble of the article, is that the minority is involved in the adoption and implementation of decisions that the company deems appropriate.
preventing behaviors that overwhelm and obstruct the company and other shareholders by opposing them for various reasons and thereby ensuring peace within the company.
Finally, under this heading, it should be noted that the Abrogated Turkish Commercial Code No. 6762
Pursuant to Article 529, “those who fail to fulfill their capital contribution obligation within the prescribed period of time
The limited liability company shareholder is obliged to pay the default interest and, if a penalty clause is included in the company agreement, to pay it as well.
is obliged. Twice through a notary public and for a period not less than fifteen days
“The shareholder who fails to pay the capital contribution obligation despite the warning may be dismissed from the company.
By stipulating that a shareholder who fails to fulfill his/her capital contribution obligation is deemed to be in default and is disqualified from the partnership.
could be removed. This article has not been re-regulated in the TCC
This leads to confusion in practice. One view is that the legislator
interpreted as a conscious intention to deviate from this practice, while the doctrine
According to the predominant opinion, the failure to fulfill the capital obligation can always be invoked in the dismissal of the partner from the partnership.
is a justifiable reason.
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