Anonim Ortaklık Pay Sahipleri Arasında Yapılan Önalım Hakkı İçeren SözleşmelerDirenç Akbay
Anonim ortaklıklarda değişik gerekçelerle pay sahipleri sözleşmeleri yapılmaktadır. Bu sözleşmelerde tarafların önalım hakkına da yer verilmektedir. Çalışma, anonim ortaklık pay sahipleri arasında yapılan sözleşmelerde yer verilen önalım haklarını konu almaktadır. Bir şekilde esas sözleşmede yer alan önalım haklarının akıbeti de çalışmada değerlendirilmiştir. Çalışmanın merkezinde önalım hakkına ilişkin olaylarda uygulanacak kuralların tespit edilmesi sorunu yer almaktadır. Bu nedenle özellikle Türk Borçlar Kanunu’nun taşınmazlara ilişkin olarak öngördüğü sözleşmesel önalım hakkı kuralları incelenmiştir. Bunların pay sahipleri sözleşmelerinde yer verilen önalım hakkına ilişkin kurallara hangi ölçüde uygulanabileceği değerlendirme konusu yapılmıştır. Uygulamada sıklıkla karşılaşılan önalım sözleşmelerinin öngörülme nedenleri ve şekli üzerinde durulmuştur. Söz konusu sözleşmenin hukuki niteliği ve bunun etkileri değerlendirme konusu yapılmıştır. Önalım sözleşmelerinin zorunlu içeriği tespit edilmiştir. Önalım hakkını kullanmanın ön koşulu, başka bir ifadeyle önalım olayı, incelenmiş ve bunun gerçekleştiğini bildirme yükümlülüğü üzerinde durulmuştur. Ayrıca hakkın kullanılma şekli ve bunu kullanmanın ortaya çıkaracağı sorunlar çalışmada ele alınmıştır. Hakkın etkisinin taraflar arasında olduğu sonucuna ulaşılmış ve hakkın kullanımının payın devri sonucunu doğurmayacağı ifade edilmiştir. Çalışma ayrıca önalım hakkının sona ermesini gerektirecek nedenleri ve bunun etkilerini de konu almaktadır.
Agreements between Shareholders of Joint Stock Companies, Which Include Right of PreemptionDirenç Akbay
Shareholders’ agreements are made in joint stock companies for various reasons. These contracts feature the right of preemption of parties. This article deals with the rights of preemption, which can be found in contracts that have been made by shareholders of joint stock companies. The consequences of preemption rights, which can be found in articles of companies, are also examined in the study. The study focuses particularly on the problem of which rules are applicable for cases that include the right of preemption. Turkish Code of Obligations and Turkish Commercial Code have no rules for preemptive rights on shares of joint stock companies. But Turkish Code of Obligations has rules for preemptive rights on real estates. It is also taken as a subject of evaluation, to what extent these rules are applicable to the shareholders’ agreements, which include right of preemption. The reasons and the form of preemption contracts, often encountered in practice, are emphasized. The juridical quality of this contract and its reasons are also evaluated. The mandatory content of the preemption contracts are determined. The event of preemption, as a precondition in order to benefit from one’s right is analyzed and the obligation of its notification is also examined. Moreover, the article also deals with the form of benefiting from one’s right and problems, which come up because of its use. Making use of the right of preemption typically has an effect between the parties of the shareholders’ agreements and it does not come up with such a result as a takeover of company shares. The article includes also the reasons, which involve end of preemption right and effects of it.
To ensure a stable or firm composition of a shareholder group in a joint stock company, the Turkish Commercial Code includes rules on restricted transferability. The restriction possibility of transferability of shares in a joint stock company is limited. Because of this, shareholders of these companies make contracts, which are so called “shareholders’ agreements”. In these agreements the right of preemption of parties is a dominant feature. With a contractual right of preemption of parties, it is possible to protect the composition of a shareholder group. The contractual right of preemption is basically a problem of the law of obligations, but it has effects on the side of law of companies. It can be used as an alternative to statutory restriction of transferability of shares. The study focused especially on the issue of which rules are applicable for the cases that include the right of preemption. Thus, the rules of the Turkish Code of Obligations on preemptive rights, which are provided for immovables are investigated. Another area dealt with in this article is the extent to which these articles are applicable for the rules of shareholders’ agreements, which include the right of preemption. Contractual right of preemption, which occurs in a shareholders’ agreement, is generally not subject to any form. But there could be exemptions. The agreement must be considered as a whole, if a right of preemption is created depending on the death of one of the parties. In order to solve the problem about the form of this agreement, the legal quality of the shareholders’ agreement must be established. Some shareholders’ agreements are qualified as a partnership under the Turkish Code of Obligations. If the right of preemption is described as a qualified successorship clause (in the partnership under the Turkish Code of Obligations), this agreement must be in the form of a disposition mortis causa. If the right of preemption is described as a simple successorship clause (in the partnership under the Turkish Code of Obligations) or if the legal quality of the shareholders’ agreement isn’t a partnership under the Turkish Code of Obligations, there is no need to make this contract in the form of a disposition mortis causa. The right of preemption can be divided into two categories. One type is called the real right of preemption and basically this type of right is the theme of this article. Real right of preemption cannot be an article or a rule of a joint stock company’s statute. If a statute of a joint stock company contains the right of preemption for shareholders, who remain in the company and against the shareholder, who wants to sell his/her shares to a third party, it must be accepted as void from the beginning. This study shares the idea that rules of statutes which include the right of preemption cannot at the same time be handled as a contractual agreement under the law of obligations between shareholders. This can be accepted under very exemptional circumstances. The essential contents of the shareholders’ agreements which contain the right of preemption are the parties of the agreement and the subject of the contract. The price of the subject is not one of them because Art 241/III in the Turkish Code of Obligations is applicable for contracts which do not include a price rule. This means that if there is a lack of rule about the price of the share in a shareholders’ agreement, the price is determined according to the sales contract between the shareholder, who wants to sell his/her share and the third party, who wants to buy this share. If there is a price rule in the agreement, that creates the right of preemption, and this right of preemption is called a limited right of preemption; otherwise it is called an unlimited right of preemption. The condition which makes the use of the right of preemption possible is called a preemptional event. The preemptional event is generally a share sales contract between one party of the shareholders’ agreement and a third party. Art 240/I in the Turkish Code of Obligations about preemptional events is also applicable to the shareholders’ agreements, which create contractual right of preemption between shareholders. The seller party of the share sales agreement is also obliged to give this information to the parties of the shareholders’ agreements. In this study we maintain that Art 241 in the Turkish Code of Obligations is not fully applicable to the shareholders’ agreements that include the right of preemption. That is why we suggest that only the seller has the obligation to give information to the parties of the shareholders’ agreement, but not the buyer. Preventing the occurrence of preemptional event is also evaluated in the study, and in addition to the other legal probabilities, we suggest that the Art 175 in the Turkish Code of Obligations is also applicable for these situations. By making use of the right of preemption, the subject of the right cannot be divided, if the shareholders’ agreement has no other rules. Usually the subject of the right and the subject of the share sales agreement are the same. In the light of our study Art 242 in the Turkish Code of Obligations is partly applicable for the contractual right of preemption on shares. That means the owner of the right must make use of his/her right within three months at most. We think that a maximum duration of two years, which is also regulated in Art 242, is not applicable to the contractual right of preemption on shares. In our opinion it is a special duration for the right of preemption on immovables. Making use of the right of preemption typically has an effect between the parties of the shareholders’ agreements and it does not come up with such a result as a takeover of company shares. Because of this, an act of a party, which violates the shareholders agreement (also their right of preemption), may give a compensation right to the other parties for their damages. The right of preemption principally has no effect on the third parties, like the party of the share sales agreement. Some exemptional situations are also evaluated in the study.