Corporate and M&A

Introduction

Shareholders may contribute capital to their companies in cash or in kind. Capital in cash can be subscribed and paid in Turkish Liras, whereas capital in kind can be formed from different items. Any appraisable and transferrable assets that are not subject to encumbrances, attachments or measures can be contributed as capital in kind.

Types of Capital in Kind

Article 127 of the Turkish Commercial CodeCash, receivables, negotiable instruments and shares belonging to commercial companiesIntellectual property rights,

1. Movables and any type of immovable,
2. Usufruct rights pertaining to movable and immovable properties,
3. Personal effort,
4. Commercial reputation,
5. Commercial enterprises,
6. Transferable and rightfully used assets, such as electronic media, domains, names and signs,
7. Mining licenses and other rights having such economic value,
8. Any kind of asset that is transferable and appraisable.

The TCC does not limit these rights numerus clausus. Any other rights that are transferable and appraisable may be subject to capital in kind. Notwithstanding the above, articles 342 and 581 bring restrictions with respect to joint stock and limited liability companies: service performances, personal effort, commercial reputation and undue receivables cannot be contributed as capital to such companies.

Intellectual Property Rights as Capital in Kind

Articles 342 and 581 of the TCC regulating capital in cash contribution in joint stock and limited liability companies specifically set forth that transferable and appraisable assets that are not subject to encumbrances, attachments or measures, including intellectual property rights and electronic media can be contributed as capital. This also creates the understanding that electronic assets are deemed as property rights[4].

The preamble of the TCC clarifies that the former scope of the law that was limited to patent rights only has been replaced by the term “intellectual property,” which is also preferred by TRIPS and WIPO, as it covers a wide range of rights, including rights related to intellectual and artistic works, trademarks, designs, utility models, plant types (i.e. plant breeders’ rights), etc. However, it is further stated that some intellectual property rights, especially related rights, such as record producers’ rights may not be proper as contributions in kind, or there might be problems in evaluation and valuation thereof. This is one of the reasons why experts appointed by the court are required to comment on the acceptability of the assets as capital in kind.

It is also important to note that in order for contribution of intellectual property rights to be considered as capital in kind, it is mandatory that they are already registered. Even if an intellectual property right is protected, e.g. in accordance with unfair competition regulations, it cannot be contributed as capital in kind if it is not registered[6]. The value determined by the expert must be exactly stated under the articles of association of the subject company.

In the expert’s valuation report, it must be stated that the applicable valuation method is the fairest and the most appropriate choice for everyone, and that the reality, validity and conformity with Article 342 of the TCC of the receivables to be contributed in cash have been determined. The report must further specify the collectability and the exact value of the subject assets, the amount of shares that should be allocated for each asset that is contributed in kind, and its equivalent in Turkish Liras. The report must be based on satisfactory grounds and conform to the principle of accountability. Founders and beneficiaries are entitled to object to the report.

Valuation of intellectual property rights is complex and unique in each case. Over the past few years, this has become an area of increasing interest to related experts. The European Commission formed an expert group on intellectual property valuation, who, in their final report, explained the reasons for complexity being the fact that no two intellectual property assets are the same[8] provides that upon a transfer or restriction of the assets and rights that have been contributed as capital in kind to or by third parties until their registration, despite their annotation with the relevant registry as capital in kind, the relevant registry shall inform the trade registry, and the trade registry shall reject the request for the registration of the capital, due to such transfer or restriction.

After the registration of the company and/or the capital, the relevant trade registry is ex officio required to inform the registry of the subject intellectual property right immediately to provide its registration in the name of the company. Therefore, the intellectual property right is acquired only after its registration in the name of the company by the relevant registry upon being informed. Registration is constitutive