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2- Statements regarding the Capital Increase and the Audit
As per article 457 of the NTCC, for the capital increase procedures
in a joint stock company, the board of directors shall sign a statement and
in this statement, one of the issues that should be verified is legality,
validity, existence and disposability of the funds, if such capital increase
is made by addition the internal funds. Accordingly, for a capital increase
from internal sources, the company board of directors shall declare and
guarantee that the funds are the type of funds that are permitted to be
added to the share capital as per the law. Otherwise, if there is a capital
increase from funds that are not permitted, the statement of the board
will be false and thus, the liability of board may arise and civil and penal
sanctions will become applicable against the board of directors.
Article 398 of the NTCC sets forth that the audit of the company
financial statements and annual board of directors’ report also covers
the audit on whether those are kept in compliance with the Turkish
Accounting Principles, the law and the articles of association of the
company. As per article 403, the auditor should provide an opinion let-
ter and indicate any matter with respect to the financial statements
causing any liability in this opinion. Non-compliance to these audit
provisions and not-indicating the reservations and problems in the
audit report may lead the liability of the auditor and may cause civil
and penal sanctions.
3- Claims Against the Registered and Announced Capital
Increase
As per article 456 of the NTCC, the incorporation provisions under
article 353 are also applicable for capital increases by analogy. If this
article is interpreted solely with its wording, same as incorporation, the
capital increase resolution cannot be declared as null and/or void. As
per the analogical interpretation, it would be possible to claim the ter-
mination of the capital increase which endangers or breaches the inter-
ests of the creditors, shareholders of the public with a legal action ini-
tiated by the creditors, board members, shareholders or the Ministry of
Customs and Trade before the competent court. This legal action shall
be filed within three months upon the registration and announce of the
capital increase as per article 353/4.
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NEWSLETTER 2012