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to the capital of the creditors due to certain securities and the
employees
1
. The principles regarding the conditional capital increase
system are regulated between articles 463 to 472 of the TCC. Art. 463
TCC defines the application principle.
“Article 463 - (1) The general assembly may decide on a
conditional capital increase by means of granting a right, in
the company articles of association, to the creditors of the
company or the group of companies, who became creditors by
owning newly issued bonds or similar debt instruments, or the
employees of the company or the group of companies, to own
new shares through conversion or preemption rights.
(2) The share capital shall automatically increase when and to
the extent the conversion or purchase right is exercised and
the obligation to pay the share capital is fulfilled by swap or
payment.”
As understood by the article, in a conditional capital increase, the
basic principles, which provide the grounds for the increase, are deter-
mined by the general assembly. The general assembly, in its decision,
does not make a definite decision to increase the capital but it enables
the capital increase by demonstrating the procedure for the capital
increase and determining the basic provisions of the process
2
. In a con-
ditional capital increase, the capital will be increased where conversion
or purchase rights holders exercise said rights. Therefore, the capital
increase shall take place over time through the decisions of the con-
version or purchase rights holders or the employees and the exercise of
such rights; it does not take place by action of the general assembly or
the board of directors. Consequently, the amount of capital shall vary
within the time in which the conversion and purchase rights are exer-
cised.
In order to realize a conditional capital increase, a reference provi-
sion regarding this type of capital increase must be present. Otherwise,
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NEWSLETTER 2014
1
KENDİGELEN Abuzer
, Yeni Türk Ticaret Kanunu Değişiklikler, Yenilikler ve İlk Tespitler,
XII Levha Yay., 2011, p. 320.
2
TEKİNALP Ünal
, Sermaye Ortaklıklarının Yeni Hukuku, Değiştirilmiş ve Düzenlemelerle
Güncelleştirilmiş 3. Bası, Vedat Kitapçılık 2013, p. 113.