73 / 469
COMMERCIAL LAW
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the application of the notion of CCI. Pursuant to Article 466 of the New
TCC, in the event that the certificates including the right of exchange or
preemptive right are issued, these certificates should firstly be proposed to
current shareholders. Therefore, the current shareholders of the company
shall not be deprived of exercising their rights. Additionally, pursuant to
Article 467 of the New TCC, the creditors or employees who are entitled
to acquire the nominative shares may not be prevented from exercising
this right based on the claim that the transfer of these rights has been
restricted. On the other hand, this issue may be reserved in the AoA or
the offering circular.
Article 468 and the following articles of the New TCC regulate the
procedures concerning the exercise of the right of exchange and preemptive
right within the scope of the CCI. These rights shall be exercised through
a written statement addressed to the company, and a reference shall be
made to the relevant article of the AoA. The operation audit shall control
whether the issue of the new shares comply with the legislation and the
AoA. The BoD shall provide details with regards to the shares that have
been issued, and the AoA shall be updated in conformity with the current
situation. The relevant modification shall be registered before the trade
registry within three months at the latest from the end of the accounting
period. Upon the exercise of the right of exchange or preemptive right,
the relevant article of the AoA shall be removed from the AoA.
Conclusion
The provisions concerning capital increase have been subject to
important modifications with the New TCC. By the requirement to
register the resolution pertaining to the capital increase within a defined
time period, the delays with regards to the capital increase have been
prevented. It has been regulated that the capital increase falls within the
scope of the operations that shall be audited by the operation auditor. The
capital increase from internal sources has been included in the New TCC.
The notion of conditional capital increase which was not regulated under
the TCC has been introduced to Turkish law through the New TCC. All
these innovations will, without any doubt, provide that the amendments of
the AoA concerning capital increase shall be exercised more efficiently.