Full Demerger

A demerger is the transfer by a capital company or a cooperative of part or all of its assets to one or more existing or newly established capital companies or cooperatives, in return for the grant of participation shares to itself or to its shareholders.

Full Demerger is a demerger in which a capital company or cooperative, by being dissolved without liquidation, transfers all of its assets, receivables and debts at their book values to two or more existing or newly established capital companies or cooperatives, and in return the shareholders of the transferring capital company or cooperative are given participation shares representing the capital of the acquiring capital company or cooperative.

Demerger;

If the shareholders of the transferring company are granted shares in all the companies participating in the demerger in proportion to their existing shares, it is a demerger in which proportions are preserved.
If the shareholders of the transferring company are granted shares in some or all of the companies participating in the demerger in proportions different from their existing shares, it is a demerger in which proportions are not preserved.

TRADE REGISTRY REGULATION ARTICLE 128 - DOCUMENTS TO BE SUBMITTED TO THE DIRECTORATE IN A FULL DEMERGER

A) By the fully demerging company:

Notarized copy of the general assembly resolution approving the demerger agreement or plan
(1 original – 2 photocopies)
Demerger agreement and/or plan (TCC 166-167)
(1 original; 2 photocopies)
Declaration stating that no assets remain outside the demerger, that the demerger is a full demerger, whether the ratios have been maintained in the demerger, and containing information on the titles of the other companies participating in the demerger and the directorates with which they are registered
A declaration containing the list of the demerging company's assets and rights subject to the demerger that are recorded in the land registry, ship registry, intellectual property registries and similar registries, the registries in which they are recorded, and information on the entries of those assets and rights in the relevant registries
Where permission or a favorable opinion from a Ministry or other official bodies is required, the letter of permission or favorable opinion
For companies subject to audit, the most recent balance sheet approved by the auditor; for other companies, the most recent balance sheet approved by the board of directors or, where necessary, an interim balance sheet
Demerger report prepared by the management bodies, separately or jointly (TTK Art. 169)
(1 original). However, where an SME Report prepared by a certified public accountant (YMM) or an independent certified public accountant (SMMM) is submitted, and in small and medium-sized companies where the preparation of a demerger report is waived, a document showing that this has been approved by all partners shall be submitted to the directorate.
Announcement calling shareholders to exercise their right of inspection
The trade registry gazette in which it was announced, two months before the general assembly resolution, that the company partners were informed of their right of inspection and where the documents to be inspected were deposited and where they are kept available for inspection (TTK Art. 171). However, where an SME Report prepared by a YMM or SMMM is submitted, and in small and medium-sized companies where the right of inspection is waived, a document showing that this has been approved by all partners shall be submitted to the directorate.
Call announcement to creditors
One copy each of the registry gazettes in which the announcements to creditors, made three times at seven-day intervals, were published (TCC 174 – 175)

B) By the other companies participating in the Full Demerger;

Notarized copy of the general assembly resolution approving the demerger agreement and/or plan
(1 original – 2 photocopies)
Demerger agreement and/or plan (TCC 166-167)
(1 original, 2 photocopies)
Incorporation documents in the case of a new establishment
Report by a YMM or SMMM on determining the values, by division, of the assets of the fully demerged company divided into sections, or, for companies subject to audit, the auditor's report on these determinations
A declaration containing the list of the demerging company's assets and rights subject to the demerger that are recorded in the land registry, ship registry, intellectual property registries and similar registries, the registries in which they are recorded, and information on the entries of those assets and rights in the relevant registries
Documents relating to a capital increase, if any
- Amendment Text containing the new form of the capital (1 original)
- Report by a YMM or SMMM on the acquiring company's capital having been paid in full, on whether it is unsecured, on the determination of the company's equity, and on the amount covered from internal resources actually existing within the company, together with the original activity certificate of the accountant, or, for companies subject to audit, the auditor's report on these determinations together with the auditor's certificate
Where permission or a favorable opinion from a Ministry or other official bodies is required, the letter of permission or favorable opinion
For companies subject to audit, the most recent balance sheet approved by the auditor; for other companies, the most recent balance sheet approved by the board of directors or, where necessary, an interim balance sheet
Demerger report prepared by the management bodies, separately or jointly (TTK Art. 169)
(1 original). However, where an SME Report prepared by a YMM or SMMM is submitted, and in small and medium-sized companies where the preparation of a demerger report is waived, a document showing that this has been approved by all partners shall be submitted to the directorate.
Announcement calling shareholders to exercise their right of inspection
The registry gazette in which it was announced, two months before the general assembly resolution, that the company partners were informed of their right of inspection and where the documents to be inspected were deposited and where they are kept available for inspection (TTK Art. 171). However, where an SME Report prepared by a YMM or SMMM is submitted, and in small and medium-sized companies where the right of inspection is waived, a document showing that this has been approved by all partners shall be submitted to the directorate.
Call announcement to creditors
One copy each of the registry gazettes in which the announcements to creditors, made three times at seven-day intervals, were published (TCC 174 – 175)

Registration

TRADE REGISTRY REGULATION ARTICLE 129-

(1) Registration cannot be made unless all companies participating in the demerger have applied to the relevant registry directorate or directorates for the registration of their demerger resolutions.

(2) Unless the demerging company has registered its demerger resolution, the other companies participating in the demerger cannot register the facts relating to the demerger.

(3) The following facts are registered with the directorate where the demerging company is registered:

The demerger resolution and its date.
Whether the demerger is full or partial.
In the case of a full demerger, that the company has been dissolved without liquidation (infisah).
The MERSİS number, trade name, head office and registering directorate of the other companies participating in the demerger.
Where required, the capital reduction carried out in connection with a partial demerger.

(4) The registry directorate where the company being demerged is registered shall immediately notify the directorate where the other companies participating in the demerger are registered of the registration of the demerger resolution.

(5) The following facts are registered with the directorate where the companies taking over the assets of the demerging company are registered:

The demerger resolution and its date.
The capital increase made in connection with the demerger.
All information required for registering the establishment of the company to be newly established as a result of the demerger.
Whether the shares issued in the capital increase made as a result of a partial demerger are allocated to the demerging company or to its shareholders.
The MERSİS number, trade name, business name (if any) and head office of the company dissolved without liquidation as a result of a full demerger.

(6) The companies taking over the assets of the demerging company shall register the capital increase to be made due to the demerger and the demerger resolution simultaneously. Where the assets of the demerging company are taken over by a newly established company, the demerger resolution is registered simultaneously with the establishment. In the case of a full demerger, the directorate carrying out the registration shall immediately notify the directorate where the demerging company is registered. Upon this notification, the title of the company dissolved due to the full demerger is deleted ex officio.

(7) In order to ensure that the assets and rights taken over by the company registered with them, which are included in the assets of the demerging company and recorded in land, ship and intellectual property registries and similar registries, are registered in the company's name without delay, the directorates where the other participating companies are registered shall immediately notify the relevant registries of the new right holders, simultaneously with the registration of the demerger resolutions.

WARNINGS

a) If a new company is established through the demerger, the articles of association of the newly established company shall be attached to the demerger plan. (TTK Art. 169/3)
b) The companies participating in the demerger are obliged to secure the receivables of creditors who so request within three months from the date of publication of the required announcements.
c) The demerger plan or demerger agreement cannot be submitted to the general assembly for approval before the required security has been provided.
d) The obligation to provide security lapses if it is proven that the creditors' receivables are not endangered by the demerger.
e) Since a call to creditors is made due to the DEMERGER, the provisions on the call-to-creditors announcement otherwise required for capital reduction are not applied.
f) The capital of the acquiring company is increased at a rate that protects the rights of the shareholders of the transferring company.
g) In capital increases and new establishments resulting from a demerger, the provisions of the law on contributions in kind are not applied.
ğ) Even if the acquiring company has adopted the registered capital system and its ceiling is not sufficient, the capital may be increased without changing the ceiling.
h) If a new company or cooperative is established through the demerger, the provisions of the Turkish Commercial Code and the Cooperatives Law relating to establishment are applied.
ı) Each of the companies participating in the demerger shall make the following available for examination by its shareholders two months before the general assembly resolution, at its head office and, in the case of publicly held joint-stock companies, also at the places deemed appropriate by the CMB:
- - The demerger agreement or demerger plan
- - The demerger report
- - The financial statements and annual reports of the last three years and, if any, interim balance sheets
It submits these to its shareholders for examination.
i) In "small and medium-sized" companies, if the right of examination is waived, a document showing that this has been approved by all shareholders must be submitted to the directorate.
j) In "small and medium-sized" companies, if the preparation of the demerger report is waived, a document showing that this has been approved by all shareholders must be submitted to the directorate.
k) Unless the demerging company has registered its demerger resolution, the other companies participating in the demerger cannot register the facts relating to the demerger.
l) The companies taking over the assets of the company demerged by way of demerger shall register the capital increase to be made due to the demerger and the demerger resolution simultaneously.
m) Where the assets of the demerging company are taken over by a newly established company, the demerger resolution is registered simultaneously with the establishment. In the case of a full demerger, the directorate carrying out the registration shall immediately notify the directorate where the demerging company is registered. Upon this notification, the title of the company dissolved due to the full demerger is deleted ex officio.

NOTE:

You must submit an electronic application at https://mersis.gtb.gov.tr/.

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