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(ii) Covering of adverse balances by all shareholders or some of
the shareholders, and
(iii) Some creditors’ waiver of their receivables.
It should be stated that along with the option to increase the capi-
tal to an amount higher than the former capital, by complying with the
capital increase and decrease procedures, the general assembly may
also choose to replenish the capital of the company until registered
share capital is reached, provided that this increment does not exceed
the capital loss by two-thirds.
Due to Art. 480/1 of the TCC that prohibits the general assembly
resolution from forcing the shareholders to make additional payments,
such general assembly resolution regarding the method mentioned
above under subparagraph (ii), which covers adverse balances by
shareholders, must be unanimously taken. However, if unanimity is not
able to be provided, there are no restrictions inhibiting the sharehold-
ers to cover the adverse balances by submitting cash at their own dis-
cretions. This submission denotes neither a shareholder loan, nor an
advance payment for capital increase. This submission of cash solely
signifies the shareholders’ sacrifice in order to save their company
from the current situation without expecting something in return, or
claiming a right in return. The amount of shares that the shareholders
hold shall not change after the completion of this capital replenish-
ment.
Although loss of capital is detected principally from the annual
balance sheet, it may also be identified from the interim balance sheet
issued for any reason. For instance, if the interim balance sheet that has
been issued upon the suspicion of over-indebtedness and implies that
the company is not over-indebted, yet it has lost 1/2 or 2/3 of its capi-
tal, the precautions stipulated under Art. 376/1 and 376/2 of the TCC
should be taken
6
.
The debates regarding the implementation of Art. 376 of the Law
revolves around the detection and determination of loss of equity. Both
of the aforementioned paragraphs of the Article include the expression
COMMERCIAL LAW
13
6
Prof. Dr. KAYAR Ismail
, Yeni TTT’ya Gore Anonim Sirkette Sermaye Kaybi ve Borca Batıkli-
gin Tespiti ve Sonucları Tebligi.